G.R. No. L-23050 September 18, 1975 FEDERICO QUERUBIN, petitioner, vs.

VICTORIO ALCONCEL, PLACIDA QUICIO, MAURICIA ALCONCEL, BRIGIDO ALCONCEL, ANACLETO ALCONCEL, GERVACIO ALCONCEL, MANUEL QUIANI, TIBURCIO QUIANI and GUADALUPE QUIANI,respondents. Vicente Llanes for petitioners. Tagayuma, Arce and Rabaino for respondents.

CASTRO, J.: The petitioner Federico Querubin instituted on March 1, 1945a reinvindicatory action, docketed as civil case J-200 in the Court of First Instance of Ilocos Sur, involving approximately 11 hectares of land situated in Caoayan, Ilocos Sur, against the respondents Victorio Alconcel, Placida Quicio, Mauricia Alconcel, Brigido Alconcel, Anacleto Alconcel, Gervacio Alconcel, Manuel Quiani, Tiburcio Quiani and Guadalupe Quiani. After a protracted hearing that lasted for over 16 years, the trial court, on April 3, 1961, rendered judgment in favor of Querubin, ordering the eviction of the respondents Alconcel, et al. The respondents lodged a timely appeal with the Court of Appeals, docketed as C.A.-G.R. 30611-R. On February 27, 1964 the appellate court rendered judgment, reversing the decision of the trial court and upholding the claims of Alconcel, et al. The petitioner Querubin has come to this Court by certiorari. The informacion posesoria held by Querubin, the authenticity of which is not disputed, describes his property as follows: La 9. a parcela radica en el referido Pantay Daya, compuesta de 1001 brazas de circumbalacion, lindate por el Norte con Pedregales, por el Este con Juan Navarro, Emeterio Lianes, y Esteban Alconcel, por el Sur, y Oeste con Eulalio Llanes y el Rio, Valor de Diez Pesos. This informacion posesoria was recorded in the Registry of Property of Vigan, Ilocos Sur on April 26, 1895. Querubin's father, Fulgencio Querubin, had used the property described in the informacion for pasture until the year 1905 when it was inundated by the Immornos river that ran beside it. Gradually, thru a shifting of the river bed westward, the land emerged anew. It was then stony and sandy and unfit for cultivation. For about a period of thirty years, including the time that the land was submerged, the property remained uncultivated. Subsequently, however, several persons, including the respondents Alconcel, et al., entered the land, cleared it of stones and sand and made it fit for agricultural enterprise. In 1945 Querubin sought to recover possession of the property occupied by Alconcel, et al. and have his title over the same judicially affirmed.

At the trial, the respondents Alconcel, et al. offered evidence to show open and continuous possession of their respective landholdings in the concept of owners since time immemorial. They traced their ownership through various predecessors and presented in court assorted tax declarations that supposedly embrace the disputed areas. The trial court, in its learned decision, gave credence to the evidence of Querubin and rejected the various claims of the respondents Alconcel, et al. With respect to the specific claims of Victorio Alconcel and the late Eulalio Alconcel (substituted in this proceeding by his heirs, Placida Quicio and Mauricia Alconcel), the trial court found that their evidence did not relate to the properties had by them and contested by Querubin but to some other land. As regards the particular claims of Brigido Alconcel, Anacleto Alconcel, Gervacio Alconcel, Manuel Quiani, Tiburcio Quiani and Guadalupe Quiani, the trial court found that their documentary evidence which consisted of various tax declarations attests to their possession only as far back as the year 1939, whereas the petitioner Querubin has in his favor tax declarations on the property described in his informacion posesoria that date back to the year 1934. Explaining the apparent increase in the present area of the land covered by the informacion, the trial court held that accretion and abandonment by the river of its former bed had, in law, enlarged the area of the property of Querubin. The Court of Appeals, in reversing the decision of the trial court, held that Querubin had failed to discharge the burden imposed by law upon the plaintiff in a reinvindicatory action, pointing out that in order that an action for recovery of title may prosper, it is indispensable that the plaintiff fully prove not only his ownership of the land subject of the suit but also the identity thereof. 1 Said the Court of Appeals ... now on this, it will be seen that while his Tax Declaration, Exhibit E, in 1935, covered 6 hectares, he increased this by 5 hectares in 1949, Exhibit J, and still increased it by 8-1/2 hectares in 1952, Exhibit F, these two last, during the pendency of the litigation, for remember that the case was filed in 1945 and tried in 1957; but if these increases in an area to be compared with the area as shown in his possessory information registered in 1895, Exhibit C, wherein it is there stated that it had: "1001 brazas de circumbalacion (sic)" and as a braza is six feet, that would mean that the perimeter of his land was originally a little more than 6,000 feet, which would carry with it an area of about some 2,140 square meters; considering the jump from this area of about 1/5 hectares to more than 6 hectares in 1935, to 14 hectares in 1949 and to more than 20 hectares in 1952, something has to be explained by plaintiff, but his explanation as seen in his testimony is only that in 1905 there was a big flood that covered his land and rendered it stony and unproductive, tsn. 24, Acence, but there is no clear proof of alluvion, or even change of course ... With this as basic premise, the Court of Appeals ruled that since Querubin's informacion posesoria could not have possibly covered the 20 hectares of land he claims, the presumption of ownership in favor of the respondents Alconcel, et al. arising from their actual possession of their respective portions since 1938, 1939 and 1942 naturally prevails. We reverse the judgment to the Court of Appeals for the reasons hereunder stated. 1. The informacion posesoria held by Querubin states the area of his property to be "1001 brazas de circumbalacion." Translating this into current standards of measurement, the Court of Appeals found the area to be only about 2,140 square meters of land or about 1/5 of a hectare. The Court of

Appeals did not elaborate the formula it used in arriving at these figures, but there is no doubt in our minds that it has committed gross error in its computation. The word "circumbalacion" used in the informacion of Querubin, while wanting in correct spelling and geometric precision, conveys sufficient meaning as a basis for computing the area of the property it describes. "Circunvalacion" is the act of surrounding a place. It is a term that is derived from the word "circuir," which means to surround, to encompass, to encircle. 2 The phrase "1001 brazas de circumbalacion" can mean no other than the perimeter or circumference of the property has a total length of 1,001 brazas. The petitioner Querubin submitted a computation prepared by private land surveyor Pedro Pacis converting the old Spanish standards of measurement to those currently in use. Pacis' certification reads: This is to certify that the following are the processes in the solution for the determination of the area of that parcel of land with a given perimeter or circumference of 1,001 brazas, with irregular geometric shape or figure, which is the subject of litigation in Civil Case CA-GR No. 30611-A, FEDERICO QUERUBIN, Plaintiff-Appellee, versus SERVILLANO QUERUBIN, et al., Defendants, and VICTORIO ALCONCEL, et al., Defendants-Appellants, situated in Pantay-Daya or Pantay-Tamurong, Caoayan, Ilocos Sur: First We reduced brazas to varas. According to IV-V, Enciclopedia Juridica Espaola, page 464, one (1) braza is equivalent to two (2) varas. Hence, 1,001 brazas, the given perimeter or circumference of the land is equal to 2 x 1,001 = 2,002 varas. Second We then reduce varas to meters. On page 173 of Aritmetica Practica by Wentworth, one (1) vara = 3 feet = 36 inches = 0.836 meter. CONCLUSION: In order to arrive very closely to the actual area of the said parcel of land in question, we take the average of the three respective areas found in (1) (2) and (3) as follows: Area in (1) which is 175,142 square meters plus area in (2) which is 171,720 square meters plus area in (3) which is also 222,990 square meters = 569,852 square meters. Therefore, the average area is, 569,852 divided by 3 = 189,950 square meters or 18 hectars, 99 ares and 50 centars. It could therefore, be concluded that, as per the above mathematical computations, the area of the said parcel of land in question which is very close to its actual area due to the irregularity of its geometric shape, is 189,950 square meters or 18 hectars, 99 ares and 50 centares. In their brief, the respondents Alconcel, et al. impliedly admit the indefensibility of the conclusion of the Court of Appeals that the land covered by the informacion contained an area of only 2,140 square meters or 1/5 of a hectare. Alconcel, et al. offer no mathematical method or process for

arriving at the correct computation of the area of the land in question. On the other hand, the solution advanced by Pacis is logical and sound, and amply convinces us that the informacion held by Querubin indeed originally embraced close to 19 hectares of land. There is thus no fantastic increase in the present claim of Querubin of about 20 hectares as to warrant the total disregard thereof by the Court of Appeals. 2. The Court of Appeals in its decision, concedes that the description in the informacion posesoria of Querubin insofar as the boundaries of the property are concerned, coincides with the description entered by him in his tax declaration filed in 1935. It is only the matter of area that bothered the Court of Appeals, but, as has been shown above, its doubts are without basis. The trial court, in its decision, identified the boundaries of the land covered by the informacion, 3 and no question has been raised as to the accuracy of such identification. Whatever accretion to the land or increase in its area occasioned by the action of the river there might have been, would, strictly speaking, not affect the identity of the land, for the informacion simply cites the river as its boundary on the west. The inconsequential discrepancy between 19 hectares, the area covered by the informacion, and 20 hectares, the area claimed by Querubin, does not vitiate an award of ownership in his favor, it appearing that the land is so definitively described by boundaries as to put its identification beyond doubt. 4 3. This Court has invariably held that a possessory information inscribed in the property registry demonstratesprima facie that the possessor of the land to which it refers is the owner thereof. 5 Further, under the provisions of sections 39, 40, and 41 of the Code of Civil Procedure, the lapse of a period ten years was sufficient for the possessor of realty inscribed in the registry to be regarded thereafter as the legitimate owner of said realty, when his possession had been inscribed in the registry for over ten years. 6 In the case at bar, the trial court found that Fulgencio Querubin, the father of the petitioner, had inscribed his possessory information in the Registry of Property of Vigan, Ilocos Sur, as early as April 26, 1895, and had been in continuous possession of the land therein described for more than 10 years, excluding the time that the property was submerged. Thus, the petitioner Querubin must be deemed to have conclusively proved his ownership of the property in dispute, or, in the very least, shown a prima facie title of ownership thereto. In the latter situation, the respondents Alconcel et al. may dislodge Querubin from his claim only by a superior title. Considering, however, that Alconcel, et al. have no more than mere tax declarations covering their respective claims the earliest of which dates back only to 1939 (contrasted with Querubin's tax declaration dated 1934), it follows that Querubin's claim must prevail over that of Alconcel, et al. 4. On the issue of whether the possession of the defendants of the respective areas allegedly occupied by them has ripened into ownership by acquisitive prescription, we approvingly quote the following illuminating excerpts from the trial court's decision: From the consideration of the evidence, the Court finds the claim of title over the said properties by the defendants, untenable. Defendants Victorio and the heirs of Eulalio Alconcel predicate their claim on the land presently occupied by them, lying on the southeastern portion of the sketch (Exhibit M-1) on the deed of sale executed by Eulalia Fabre, widow of Ruperto Quarte on January 1, 1937 and on the alleged prior possession thereof by Ruperto Quarte as owner since time immemorial. This alleged conveyance of January 1, 1937, from Eulalia Fabre, contained in a mere private document (Exhibits 1 and 1-A) could not serve as a basis for defendants' title. It will be remembered that in the original answer of Victorio Alconcel to the complaint, on December 9, 1936, he specifically alleged that he purchased the property in 1937 from Ruperto Quarte. Since an admission made in the pleadings cannot be controverted by the party making such admission, the subsequent claim of the same defendant that he bought the property from Eulalia Fabre and not from Ruperto

Quarte which is inconsistent with such admission, casts a shadow of doubt up the veracity of such a transaction, specially when the said deed of sale was only produced after it was shown, that it was physically impossible to Ruperto Quarte to have sold the land in 1937 since he had died ten years earlier on June 16, 1926. (Exh. K-7). But assuming arguendo that Eulalia Fabre had in fact sold a land described under Tax Declaration No. 292-A to Victorio Alconcel, it is evident that land subject of that conveyance is not the same land which is now occupied by defendants and which is the property in dispute. Firstly, because the boundaries of the land of Ruperto Quarte, as contained in Tax Declaration No. 292-A are completely different from the boundaries of the land in controversy, and no explanations had been given by the defendants for such a patent and glaring discrepancy. This is especially true when we consider the fact that according to the defendants, the northern boundary of the property in dispute since time immemorial (cf. Answer of Tranquilino Quiani, September 20, 1952) had been Tranquillo Quiani, and yet the northern boundary of the property sold by Eulalio Fabre was Jacinto Alconcel. (Exh. 2). Secondly because Victorio Alconcel, in his testimony claimed that this land in controversy, was bounded on the north and west by the property which he purchased from Venancio Llanes, and yet this testimony is contradicted by his own Tax Declaration No. 4696-A (Exh. K-9) of August 25, 1934, wherein he stated under oath that the property which he bought from Vicente Llanes was bounded on the west by the property of Fulgencio Querubin, thereby indicating that the land in question was owned by Fulgencio Querubin. (Exh. S). Since Exhibit K-9 was jointly executed under oath by Victorio and Eulalio Alconcel, they should be bound by it and consequently the declaration of said Victorio inconsistent with such admission cannot prevail. Defendants Brigido Alconcel, heirs of Tranquilino Quiani, and Pedro Fabre, Anacleto Mendoza, Artemio Alconcel and Anastacio Llanes, base their claim of title over the portions of the property occupied by them upon the prior possession since time immemorial of their predecessors in interest. All of the documentary evidence presented by said parties, however, do not support such pretension. Thus it appears from their own documentary evidence, that it was only in 1939, when Tranquilino Quiani, declared for the first time for tax purposes the land occupied by him (Exh. 4), and no evidence had been presented of the existence of an earlier tax declaration. The same is true with the Tax Declaration of Anacleto Alconcel of 1952 (Exh. 8) which was based on Tax Declaration 2292-B of 1949 (Exhibit 5) made by Brigido Alconcel for the first time only 1959. Tax dec. No. 2186-C in 1952 of Brigido Alconcel (Exh. 6) is based on Tax Dec. 2290-B, of 1949 (Exh. 9) which declaration in turn is based on Exhibit 5, made as aforesaid for the first time in 1939. Tax Dec. No. 2187-C of Gervacio Alconcel (Exh. 7) is based on Tax Dec. No. 2291-B made in 1949. (Exh. 11) and there is no evidence that the same is based on any tax declaration executed prior to 1939. All of these circumstances indicate that said defendants never declared the said properties for tax purposes prior to 1939 much less did they pay any taxes thereon prior to that date. Since it is their theory that they and their predecessors have been in possession of those lands since time immemorial, it is quite strange and unusual that they could not present any tax declaration covering those properties prior to 1939, for certainty such acts are the eloquent indicia of a person's intent to possess a land under claim of title. This is specially true when we consider the fact that in 1934 plaintiff had already declared the land for taxation purposes in his name, and paid the taxes thereon. In the light of such facts, the naked assertions of defendants' witnesses, which are in

themselves replete with self-contradictions, could not be considered sufficient to sustain defendants' claim of title. ACCORDINGLY, the judgment of the Court of Appeals dated February 27, 1964, is set aside. The decision of the Court of First Instance of Ilocos Sur in Civil Case J-200 is hereby affirmed. No pronouncement as to costs. Tee

G.R. No. L-29727 December 14, 1988 PEDRO OLIVERAS, TEODORA GASPAR, MELECIO OLIVERAS and ANICETA MINOR, plaintiffsappellees, vs. CANDIDO LOPEZ, SEVERO LOPEZ, HIPOLITO LOPEZ, EUGENIA LOPEZ, PRIMITIVO GASPAR, CORAZON LOPEZ, ALEJANDRO CACAYURIN, FAUSTINA BOTUYAN, MODESTO SALAZAR, ADORACION BOTUYAN, CLAUDIO GANOTICE and ENONG BOTUYAN, defendantsappellants. Venancio B. Fernando for defendants-appellants.

FERNAN, C.J.: This case exemplifies the Filipino custom of keeping inherited property in a prolonged juridical condition of co-owner ship. Lorenzo Lopez owned Lot 4685 of the Cadastral survey of Villasis, Pangasinan with an area of 69,687 square meters as evidenced by Original Certificate of Title No. 15262. 1 In December, 1931, Lorenzo Lopez died, 2leaving said property to his wife, Tomasa Ramos and six (6) children. From that time on, the heirs of Lorenzo Lopez did not initiate any moves to legally partition the property. More than twenty-one years later, or on February 11, 1953, Tomasa Ramos and her eldest son, Candido Lopez, executed a deed of absolute sale of the "eastern undivided four thousand two hundred and fifty seven-square meters (4,257) more or less, of the undivided portion of (their) interests, rights and participation" over Lot 4685, in favor of the spouses Melecio Oliveras and Aniceta Minor, in consideration of the amount of one thousand pesos (P1,000). 3 On the same day, Tomasa and Candido executed another deed of absolute sale of the "undivided" four thousand two hundred and fifty-seven (4,257) square meters of the "eastern part" of Lot 4685 in favor of the spouses Pedro Oliveras and Teodora Gaspar, also in consideration of P1,000. 4 Each of the said documents bear the thumbmark of Tomasa and the signature of Candido. In his affidavit also executed on February 11, 1953, Candido stated that a month prior to the execution of the deed of sale in favor of Melecio Oliveras, he offered his: "undivided portion" of Lot 4685 to his "adjacent owners" but none of them was "in a position to purchase" said property. 5 Since the execution of the two deeds of absolute sale, the vendees, brothers Melecio and Pedro, had been paying the real property taxes for their respectively purchased properties. 6 They also had been in possession of their purchased properties which, being planted to palay and peanuts, were segregated from the rest of Lot 4685 by dikes. 7 More than thirteen years later or on November 21, 1966, the counsel of the Oliveras brothers wrote the heirs of Lorenzo Lopez reminding them of the Oliverases' demands to partition the property so that they could acquire their respective titles thereto without resorting to court action, and that, should they fail to respond, he would be forced to file a case in court. 8 Apparently, the Lopezes did not answer said letter since on December 15, 1966, the Oliveras brothers and their wives filed a complaint for partition and damages 9 in the Court of First Instance of Pangasinan. 10

The Oliverases stated in their complaint that possession of the disputed properties was delivered to them with the knowledge and consent of the defendants; that they had been paying the real estate taxes thereon; that prior to the sale, said properties were offered to the other co-owners for sale but they refused to buy them; that on February 18, 1953, the transactions were duly annotated and entered in the Memorandum of encumbrances of OCT No. 15262 as adverse claims; and that their desire to segregate the portions of Lot 4685 sold to them was frustrated by defendants' adamant refusal to lend them the owner's duplicate of OCT No. 15262 and to execute a deed of partition of the whole lot. In claiming moral damages in the amount of P2,000.00 plaintiffs alleged that defendants also refused to allow them to survey and segregate the portions bought by them. Plaintiffs prayed that the court order the defendants to partition Lot 4685 and to allow them to survey and segregate the portions they had purchased. They also demanded payment of P800.00 as attorney's fees and cost of the suit. In their answer, the defendants alleged that no sale ever transpired as the alleged vendors could not have sold specific portions of the property; that plaintiffs' possession and occupation of specific portions of the properties being illegal, they could not ripen into ownership; and that they were not under any obligation to lend their copy of the certificate of title or to accede to plaintiffs' request for the partition or settlement of the property. As special and affirmative defenses, the defendants contended that the deeds of sale were null and void and hence, unenforceable against them; that the complaint did not state a cause of action and that the cause or causes of action if any, had prescribed. Defendants averred in their counterclaim that despite repeated demands, plaintiffs refused and failed to vacate the premises; that the properties occupied by the plaintiffs yielded an average net produce in palay and peanuts in the amount of P1,600.00 annually, and that the complaint was filed to harass them. They prayed for the dismissal of the complaint and the payment of P1,600.00 per year from 1953 until plaintiffs shall have vacated the premises and P1,000.00 for attorney's fees. Plaintiffs filed an answer to defendants' counterclaim, denying all the allegations therein and stating that defendants never demanded that plaintiffs vacate the portions of Lot 4685 they had bought. The lower court explored the possibility of an amicable settlement between the parties without success. Hence, it set the case for trial and thereafter, it rendered a decision 11 declaring valid the deeds of absolute sale 12 and ordering the defendants to allow the segregation of the sold portions of Lot 4685 by a licensed surveyor in order that the plaintiffs could obtain their respective certificates of title over their portions of said lot. In resolving the case, the lower court passed upon the issue of whether the two deeds of absolute sale were what they purported to be or merely mortgage documents. It considered as indicia of plaintiffs' absolute dominion over the portions sold to them their actual possession thereof without any opposition from the defendants until the filing of the complaint, their payment of taxes thereon and their having benefited from the produce of the land. The court ruled that the defendants' testimonial evidence that the deeds in question were merely mortgage documents cannot overcome the evidentiary value of the public instruments presented by the plaintiffs. On the issue of whether the two deeds of absolute sale were null and void considering that the land subject thereof had not yet been partitioned, the court observed that the total area of 8,514 square meters sold to plaintiffs by Candido was less than his share should Lot 4685 with an area of 69,687 square meters be divided among the six children of Lorenzo Lopez and their mother. In this connection, the lower court also found that during his lifetime, and before Candido got married,

Lorenzo Lopez had divided Lot 4685 among his children who then took possession of their respective shares. * The defendants appealed said decision to this Court contending that the lower court erred in declaring the two deeds of absolute sale as valid, in ordering the segregation of the sold portions of Lot 4685 to enable the plaintiffs to obtain their respective certificates of title, and in not considering their defense of prescription. The extrinsic validity of the two deeds of absolute sale is not in issue in this case in view of the finding of the trial court that the defendants admittedly do not question their due execution. 13 What should pre-occupy the Court is the intrinsic validity of said deeds insofar as they pertain to sales of designated portions of an undivided, co-owned property. In a long line of decisions, this Court has held that before the partition of a land or thing held in common, no individual co-owner can claim title to any definite portion thereof. All that the co-owner has is an Ideal or abstract quota or proportionate share in the entire land or thing. 14 However, the duration of the juridical condition of co-ownership is not limitless. Under Article 494 and 1083 of the Civil Code, co-ownership of an estate should not exceed the period of twenty (20) years. And, under the former article, any agreement to keep a thing or property undivided should be for a ten-year period only. Where the parties stipulate a definite period of in division which exceeds the maximum allowed by law, said stipulation shall be void only as to the period beyond such maximum. 15 Although the Civil Code is silent as to the effect of the in division of a property for more than twenty years, it would be contrary to public policy to sanction co-ownership beyond the period set by the law. Otherwise, the 20-year limitation expressly mandated by the Civil Code would be rendered meaningless. In the instant case, the heirs of Lorenzo Lopez maintained the co-ownership for more than twenty years. We hold that when Candido and his mother (who died before the filing of the complaint for partition) sold definite portions of Lot 4685, they validly exercised dominion over them because, by operation of law, the co-ownership had ceased. The filing of the complaint for partition by the Oliverases who, as vendees, are legally considered as subrogated to the rights of Candido over portions of Lot 4685 in their possession, 16 merely served to put a stamp of formality on Candido's otherwise accomplished act of terminating the co-ownership. The action for partition has not prescribed. Although the complaint was filed thirteen years from the execution of the deeds of sale and hence, as contended by the defendants-appellants, prescription might have barred its filing under the general provision of Article 1144 (a) of the Civil Code, Article 494 specifically mandates that each co-owner may demand at any time the partition of the thing owned in common insofar as his share is concerned. Hence, considering the validity of the conveyances of portions of Lot 4685 in their favor and as subrogees of Candido Lopez, the Oliverases' action for partition was timely and properly filed. 17 We cannot write finis to this decision without commenting on the compliance with the resolution of September 1, 1986 of counsel for defendants-appellants. In said resolution, the court required the parties to move in the premises "considering the length of time that this case has remained pending in this Court and to determine whether or not there might be supervening events which may render the case moot and academic. 18 In his manifestation and motion dated August 12, 1987, said counsel informed the Court that he had contacted the defendants-appellants whom he advised "to move in

the premises which is the land in question and to maintain the status quo with respect to their actual possession thereon" and that he had left a copy of said resolution with the defendants-appellants" for their guidance in the compliance of their obligations (sic) as specified in said resolution." 19 Obviously, said counsel interpreted literally the Court's directive "to move in the premises." For the enlightenment of said counsel and all others of similar perception, a "move in the premises" resolution is not a license to occupy or enter the premises subject of litigation especially in cases involving real property. A "move in the premises" resolution simply means what is stated therein: the parties are obliged to inform the Court of developments pertinent to the case which may be of help to the Court in its immediate disposition. WHEREFORE, the decision of the lower court insofar as it declares the validity of the two deeds of sale and directs the partition of Lot 4685, is AFFIRMED. The lower court is hereby ordered to facilitate with dispatch the preparation of a project of partition which it should thereafter approve. This decision is immediately executory. No costs. SO ORDERED.

G.R. No. L-32674 February 22, 1973 NORTHERN MOTORS, INC., petitioner, vs. HON. AMEURFINA MELENCIO HERRERA, Judge of the Court of First Instance of Manila, Br. XVII, and RALPH R. TAGUBA, respondents. Sycip, Salazar, Luna, Manalo and Feliciano for petitioner. Manuel L. Querubin for respondents.

ANTONIO, J.: Original action for certiorari and mandamus to annul the Orders dated July 1, 1970 and July 28, 1970 of the Court of First Instance of Manila, Branch XVII, in its Civil Case No. 80179, and to command respondent Judge to issue a writ of replevin. On June 25, 1970, petitioner filed a complaint against respondent Ralph Taguba and another person designated as "John Doe," alleging inter alia that on February 13, 1970 Taguba executed in favor of plaintiff a promissory note, a copy of which was attached to the complaint as "Annex A", binding himself to pay plaintiff the sum of P18,623.75 in monthly installments as follows: P528.75 on March 15, 1969 and P517.00 every 15th day of the month for 35 months beginning April 15, 1969 until February 15, 1972, with 12% interest per annum on the unpaid installments; that as security for the payment of the promissory note, defendant Taguba on the same date executed in favor of plaintiff a chattel mortgage over a 1966 Impala sedan, which deed of mortgage under which it appears in effect that the said car was purchased by defendant Taguba from plaintiff on installment basis was duly registered in the chattel mortgage registry of Laguna, a copy of which deed was also attached thereto as "Annex B"; that under the terms of the mortgage, upon default in the payment of any installment or interest due, the total principal sum remaining unpaid, with accrued interest, shall at once become due and payable and the mortgaged car shall, on demand, be delivered by the mortgagor to the mortgagee, otherwise the mortgagee is authorized to take possession of the car wherever it may be found and have it brought to Manila at the expense of the mortgagor, and the mortgagee shall have the option of (a) selling the mortgaged property, (b) cancelling the contract of sale with the mortgagor, (c) extrajudicially foreclosing the mortgage, (d) judicially foreclosing the mortgage, or (e) exacting fulfillment of the mortgage obligation by ordinary civil action, the mortgagee be entitled to attorney's fees equivalent to 25% of the sum due in case attorney's services are availed of, it being agreed upon that any legal action arising from the promissory note may be instituted in the courts of Manila; that defendant Taguba paid only the sum of P964.26 representing the installment due March 15, 1969, and another sum of P35.74 as interest up to June 18, 1969, but failed and refused, in spite of repeated demands, to pay P81.49 of the installment due April 15, 1969, and the 13 installments due May 15, 1969 to May 15, 1970, thereby making the entire unpaid balance of the promissory note in the sum of P17,659.49 due and demandable, with interest thereon from June 19, 1969; that plaintiff has elected to avail itself of the option of extrajudicially foreclosing the mortgage; that the mortgaged vehicle is in the province of Rizal in the possession of defendant Taguba, who has no legal right to the possession thereof, plaintiff having demanded the delivery to it of said vehicle, pursuant to the terms of the chattel mortgage, but defendant Taguba failed and refused to make such delivery; that the value of the car is P18,000.00, and said car has not been taken for a tax assessment or fine pursuant to law, or seized under an execution or an attachment against plaintiff's property; and plaintiff is ready to give a bond executed in defendants' favor in double the value of the car, for the return thereof to defendants if it be so

adjudged, and for payment to them of such sums as they may recover from plaintiff in the action. Plaintiff prayed that upon approval of the bond a writ of replevin be issued for the seizure of the car wherever it may be found and for its delivery to plaintiff, and after hearing, plaintiff be adjudged as having the rightful possession and ownership thereof and that in default of delivery, defendants be sentenced to pay plaintiff the sum of P17,659.49 with interest thereon at the rate of 12% per annum from June 19, 1969, until said principal sum is fully paid, and a sum equivalent to 25% of the amount due as and for attorney's fees and costs of collection, and the costs of suit. Attached to the complaint is a bond for P36,000.00 and an "Affidavit of Replevin" executed by an officer of plaintiff corporation. On July 1, 1970, an Order was issued by respondent judge denying petitioner's prayer for a writ of replevin because the rules "require that an affidavit be submitted alleging that the plaintiff is the owner of the property claimed, or that he is entitled to its possession"; and therefore the affidavit attached to the complaint is insufficient, for it is clear therefrom that plaintiff "is not the owner of the motor vehicle mortgaged to it; and it is not entitled to its possession merely because the mortgagor has failed to pay the account guaranteed by the mortgage." A motion for reconsideration was filed by petitioner on July 10, 1970, but the same was, in an Order dated July 28, 1970, likewise denied by respondent judge. It is Her Honor's view that after the mortgagor has breached the chattel mortgage and refused to deliver the mortgaged chattel to a public officer for foreclosure sale, a replevin suit should be instituted by the mortgagee, "but only for the purpose of delivering the chattel to the public officer for foreclosure sale". Respondent judge further stated that there being no allegation that plaintiff mortgagee has asked or directed a public officer to foreclose the mortgage and that the mortgagor had refused to surrender the mortgaged chattel to said public officer, it cannot be held that either the public officer or the mortgagee is entitled to replevin; that the present complaint seeks "that plaintiff be adjudged to have rightful possession" over the chattel without qualification whatsoever which, in the practical sense, can revest ownership in it of the repossessed chattel in contravention of Article 2088 of the Civil Code, and that even if the mortgagee has a right of possession, that right is not unqualified but is subject to the obligation of delivering the possession of the mortgaged chattel to the public officer for foreclosure. We reverse the challenged orders. 1. There can be no question that persons having a special right of property in the goods the recovery of which is sought, such as a chattel mortgagee, may maintain an action for replevin therefor. Where the mortgage authorizes the mortgagee to take possession of the property on default, he may maintain an action to recover possession of the mortgaged chattels from the mortgagor or from any person in whose hands he may find them. This is irrespective of whether the mortgage contemplates a summary sale of the property or foreclosure by court action (Podrat v. Oberndorff 207 Cal. 457; 63 A.L.R. 1308). As early as the case of Bachrach Motor Co. v. Summers (42 Phil. 6) We explained that when the debtor defaults, and the creditor desires to foreclose the mortgaged chattel, he must necessarily take the mortgaged property in his hands, but when the debtor refuses to yield the possession of the property, the creditor must institute an action, either to effect a judicial foreclosure directly, or to secure possession as a preliminary to the sale contemplated under Section 14 of Act No. 1508. The right of the mortgagee to have possession of the mortgaged chattel after the condition of the mortgage is breached must be therefore deemed to be well settled. The Rules do not require that in an action for replevin, the plaintiff should allege that the "mortgagee has asked or directed a public officer to foreclose the mortgage and that the mortgagor has refused to surrender the mortgaged chattel to such public officer."

All what is required by Section 2 of Rule 60 is that upon, applying for an order for replevin, the plaintiff must show that he is "the owner of the property claimed, particularly describing it, or is entitled to the possession thereof"; that the property is wrongfully detained by the defendant with, an allegation on the cause of detention; that the same has not been taken for any tax assessment or fine levied pursuant to law nor seized under any execution, or an attachment against the property of such plaintiff or if so seized that it is exempt from seizure. The affidavit must also state the actual value of the property. The affidavit of S.M. Laureola, Assistant to the General Manager of Northern Motors, Inc. attached to the complaint, substantially complies with the aforecited requirements. In determining the sufficiency of the application for writ of replevin, the allegations thereof and the recitals of the documents appended thereto and made part thereof should be considered. Thus it is alleged in the complaint that "it is also expressly agreed between the parties that in case of default on the part of defendant, as mortgagor therein, the mortgaged motor vehicle shall be delivered, on demand, to plaintiff, as mortgagee therein, free of all charges, and should the mortgagor not deliver the same as aforesaid, the mortgagee is authorized to take possession of said property wherever it may be found ..." (par. 4); that defendant Taguba "failed and refused, as he fails and refuses, in spite of repeated demands, to pay the plaintiff P81.49 of the said installment due 15 April 1969 and the thirteen (13) installments due 15 May 1969 thru 15 May 1970, thereby making the balance of said note, the sum of P17,659.49, and interest from 19 June 1969, to become immediately due, payable and defaulted" (par. 6); and that "the mortgaged motor vehicle is now in Rizal in the possession of defendants who have no legal right to the possession thereof plaintiff having made demand for the delivery of the said motor vehicle pursuant to the terms of the chattel mortgage notwithstanding which demand defendants have failed and refused to do so" (par. 7). These allegations of the complaint were by reference made part of J. M. Laureola's affidavit. We find nothing from the provisions of Section 14 of the Chattel Mortgage Law (Act 1508) that would justify the trial court's insistence, that after default by the mortgagor and before the mortgagee can file an action to recover possession of the mortgaged chattel, the mortgagee must first ask the sheriff to foreclose the mortgage and it is only when the mortgagor refuses to surrender the chattel to the sheriff that the action of replevin can be instituted. We clearly explained in Bachrach Motor Co. v. Summers, supra, that, while Section 14 of Act 1508 places upon "a public officer" the responsibility of conducting the sale of the mortgaged chattel, there is nothing in said statute which would authorize the officer to seize the mortgaged property; and that for the recovery of possession of said property, where the right is disputed, "the creditor must proceed along the channels by action in court." The basic reason why the creditor should initiate such action is because of the circumstances that the creditor's right of possession of the subject-matter of the chattel mortgage, as a preliminary to an extra-judicial foreclosure proceeding, is conditioned upon the fact of actual default on the part of the principal obligor, and the existence of this fact may naturally be the subject of controversy. In case of such default and the mortgagee refuses upon demand, to surrender possession of the mortgaged chattel so that it may be sold at public auction pursuant to Section 14 of Act 1508, it would certainly be an exercise in futility for the mortgagee to first request or direct the sheriff to "foreclose the mortgage" or take possession of the property, before filing an action in court to recover its possession. Such a procedure is completely unnecessary not only because the sheriff has no duty or authority in the first instance to seize the mortgaged property, but also because whenever the sheriff proceeds under section 14 of the Chattel Mortgage Law, he becomes pro hac vice the mere agent of the creditor. In any event it is only upon receiving the order of the Court requiring the sheriff to take forthwith such property into his custody, that the duty of said officer to take possession of the mortgaged chattel arises (Section 4, Rule 60, Revised Rules of Court). It was therefore error for the court a quo to hold that petitioner has not sufficiently averred its right to the possession of the property sought to be recovered. 2. There is also no support for the assertion that the petitioner seeks to appropriate the property given by way of mortgage or dispose of it in a manner violative of Article 2088 of the new Civil Code.

The essence of pacto commissorio, which is prohibited by Article 2088 of the Civil Code, is that ownership of the security will pass to the creditor by the mere default of the debtor (Guerrero v. Yigo, et al., 96 Phil. 37, 41-42; Puig v. Sellner, et al., 45 Phil. 286, 287-88). In the present case, the petitioner, exercising one of the options open to it under the terms of the chattel mortgage, elected to extrajudicially foreclose the mortgage, and as a step preliminary to such foreclosure, sought for the possession of the mortgaged car and in the alternative, prayed for the payment by the private respondent of the principal sum of P17,659.49 due to it, plus interest thereon at 12% per annum from June 19, 1969 until fully paid and attorney's fees. No automatic revesting of title on the creditor was ever contemplated, for the exercise of the remedies granted to the creditor by the deed of chattel mortgage of foreclosing the chattel mortgage or exacting the fulfillment of the obligation thru court action is by its very nature anathema to the concept of pacto commissorio. WHEREFORE, the writs prayed for are granted. The orders complained of are accordingly set aside, and the court a quo is hereby ordered to issue the writ of replevin prayed for by petitioner. Costs against private respondent.

G.R. No. L-12449

November 13, 1918

EULOGIO MASALLO, plaintiff-appellee, vs. MARIA CESAR, defendant-appellant. Eufrosino M. Alba for appellant. Manuel Terencio for appellee.

FISHER, J.: Plaintiff in this action, averring that he is the owner of the tract of land in question, brought an action ofdesahucio [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 he 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 defendants 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.
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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 not 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 vs. 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 part. 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 not 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 acquired 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."

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 vs. Felix and Tioco, 38 Phil. Reo., 404.) The decision of the trial court is reversed, and the action dismissed, plaintiff to pay the costs of both instances. So ordered.

G.R. No. L-53788 October 17, 1980

PHARMA INDUSTRIES, INC., petitioner, vs. HONORABLE MELITON PAJARILLAGA OF THE CITY COURT OF CABANATUAN CITY, NUEVA ECIJA, BRANCH II, SERGIA A. DEL ROSARIO AND "JOHN DOE/S", respondents.

ABAD SANTOS, J.: Certiorari to review the actuations of the respondent judge in Civil Case No. 8126 of the City Court of Cabanatuan which the plaintiff, the petitioner herein, initiated for the purpose of ejecting the private respondents from a piece of land. In a "Decision" dated January 7, 1980, the respondent judge dismissed the case for lack of jurisdiction. A motion to reconsider the dismissal was denied, hence the present petition. The facts and the law as understood by the respondent judge are set forth in his "Decision" which is hereby reproduced in full: This is a complaint for Ejectment filed by the plaintiff against the defendant. The plaintiff in its complaint alleges that on November 12, 1977, the defendant Sergia A. del Rosario executed in favor of the plaintiff a Deed of Sale with Right to repurchase over a piece of land duly registered and situated at Cabanatuan City, together with all improvements and which land is covered with TCT No. 12481, now TCT No. 35940, that the defendant Sergia del Rosario executed to exercise her right of redemption in accordance with the Provision of Annex A, Deed of Sale with Right to Repurchase, which expired November 12, 1978, and despite notice to her, the plaintiff was constrained to file a petition for consolidation of ownership, Annex B; that on April 3, 1979, the Honorable Virgilio D. Pobre-Yigo, promulgated a decision in favor of the plaintiff and against the defendant, declaring the plaintiff to be the full owner of the property and ordering the Register of Deeds of Cabanatuan City, to cancel the old title; and issue a new title, TCT No. L-35940 in the name of the plaintiff; that on June 8, 1979, the plaintiff sent a letter to the defendant and all person claiming ownership, to vacate the premises in question; that despite receipt of Annex E, by the defendant on June 13, 1979, she failed and refused and still fails to vacate the premises without justification. The defendant filed her answer, admitting the allegations on Par. 1, 2, & 3, and denied the allegation in Par. 4, alleging that the defendant thru her representative Alfredo del Rosario verbally agreed to the counsel of the plaintiff, that after recomputation of the amount demanded being enormous and unconscionable, the latter should pay her obligation but contrary to the agreement to plaintiff thru counsel, did not honor the same and still continued the prosecution in this case, until the decision was rendered by this Court, to the damage and prejudice of the defendant, who is ready and able to pay her obligation; that defendant admitted the allegation in Par. 5 of the answer of the complaint, as far as the decision rendered for consolidation, but denies the rest of the allegations, because of the agreement which was dishonored by the plaintiff; that defendant also admitted the allegations in Par. 6, 7 & 8, but denies the allegation in Par. 9. On November 28, 1979, the plaintiff filed a motion for judgment on the pleading, on the ground that the defendant admitted all the material averments of the complaint and does not tender at all an issue. The defendant filed an opposition to the motion of judgment on the pleading, and a motion to dismiss, on the ground that this Court has no jurisdiction, and that it is the Court of First Instance, which has jurisdiction over the action, (Roman Catholic Bishop of Cebu versus Mangaron, 6 Philippines 286, 291). The complaint filed by the plaintiff is for ejectment. There are three kinds of action in ejecting a person from the land. It is clear in the complaint that the plaintiff is intending to

eject the defendant from the land under the kind of ejectment, forcible entry or detainer, but it must be alleged in the complaint prior possession of the land by the plaintiff. But in the complaint it is alleged that the defendant is in possession of the land and not the plaintiff, and therefore the complaint should be for recovery of the right to possess the land, and the action should be filed in the Court of First Instance and not in this Court. The three kinds of action are the following: (1) The summary action for forcible entry or detainer by denominated action interdictal, under the former law of procedure (Ley de Enjuiciamiento Civil) which seeks the recovery of only physical possession, and is brought within one year in the Justice of the Peace Court; (2) The accion publiciana which is intended for the recovery of the right to possess and is a plenary action in an ordinary civil proceeding, before the Court of First Instance and (3) Action de revindication which seeks the recovery of ownership which of course included the Jus utendi and jus fruendi also brought in the Court of First Instance. Of these three kinds of action should be brought under No. 2 which is accion publiciana intended to recovery of the right to possess possession from the defendant, because it is the defendant who is in possession of the premises. The Court in its opinion, held that the complaint must be filed with the Court of First Instance of Nueva Ecija, because it is for a recovery of possession which is under the law, belong to the jurisdiction of the Court of First Instance of Nueva Ecija. WHEREFORE, judgement is hereby rendered, dismissing this case. We have to grant the petition. The proper remedy is ejectment under Rule 70 of the Rules of Court and not accion publiciana. Sec. 1 of said Rule provides: SECTION 1. Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a landlord, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld, after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such landlord, vendor, vendee, or other persons, 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, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. The complaint must be verified. It should be noted that the summary action provided above is one to obtain possession only, filed in a municipal court within one year after the unlawful deprivation or withholding of possession complained of has taken place. It should also be noted that the remedy provides for two distinct causes of action: (1) forcible entry in which the defendant's possession of the property is illegal ab initio, and (2) unlawful detainer wherein the defendant's possession was originally lawful but ceased to be so by the expiration of his right to possess. The present case which is to obtain possession only is one for unlawful detainer because Sergia A. del Rosario, the vendor a retro, failed to repurchase the property and after the consolidation of title in favor of the vendee a retro had been confirmed, she refused to vacate the property upon demand and after her right to possess it had ceased to be lawful. That a demand to vacate was made on Sergia A. del Rosario on June 13, 1979, and the action to eject was filed on October 22, 1979, well within the one-year period, are borne by the record. The mistake of the respondent judge in his belief that the cause of action is forcible entry wherein it is necessary to alleged prior possession and forcible deprivation thereof. But as stated above, the

cause of action in this case is for unlawful detainer and it is sufficient to allege, as was done, that the defendant was unlawfully withholding possession from the plaintiff. (See 3 Moran, Comments on the Rules of Court, 302 [1970].) Where the cause of action is unlawful detainer, prior possession is not always a condition sine qua non. This is especially so where a vendee seeks to obtain possession of the thing sold to him from the vendor. But if prior possession be insisted upon, Pharma Industries, Inc. had it before the suit for unlawful detainer was filed. Art. 531 of the Civil Code provides: "Possession is acquired by the material occupation of a thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities established for acquiring such right. (438a)" And according to Tolentino, "proper acts and formalities" refer "to judicial acts, or the acquisition of possession by sufficient title, Inter vivos or mortis causa, onerous, or lucrative. These are acts to which the law gives the force of acts of possession. Examples of these are donations, succession, whether intestate or intestate, contracts, such a sale with right of repurchase, judicial possession, execution of judgments, such as when a sheriff, pursuant to a decision or order of the court, places certain parties in possession of property, execution and registration of public instruments, and the inscription of possessory information titles." (II Civil Code of the Philippines, 246-247 [1972],) Pharma Industries, Inc. acquired possession when Sergia A. del Rosario executed in its favor on November 12, 1977, the deed of sale with right to repurchase over the land in question and the vendee's title was confirmed upon failure of the vendor to repurchase the property. (Annexes A-1, A2, and A-3, Petition.) Private respondent states that subsequently on August 25, 1980, Civil Case No. 7326 was filed in the Court of First Instance of Nueva Ecija to declare the deed of sale with the right to repurchase executed by Sergia A. del Rosario in favor of Pharma Industries, Inc. as an equitable mortgage. Such a suit, however, is not a bar to the ejectment suit. WHEREFORE, finding the petition to be meritorious, it is hereby granted and, as prayed for, the respondent judge is hereby ordered to take cognizance of Civil Case No. 8126 in his court and to resolve the petitioner's Motion for Judgment on the Pleadings. No special pronouncement as to costs. SO ORDERED

G.R. No. L-28087 July 13, 1973

BORMAHECO, INC., plaintiff-appellant, vs. ELEUTERIO V. ABANES, SILVESTRE ANSELMO, JUAN P. ESTRELLA, ESTER JAVINIAS, PETRA LAYSON, BASILIO MAGTOTO, ENRIQUE MERCADO, CONRADO NICOLAS, VICTOR OCAMPO, ALBERTO REGOSO and CARMEN RUZGAL, defendant-appellees. Villareal, Navarra and Associates for plaintiff-appellant. Albert, Vergara, Benares, Perlas and Dominguez for defendants-appellees.

FERNANDO, J.: The dispute in this case had its origin when appellant Bormaheco, Inc. acquired, on June 26, 1964, from the then National Shipyard and Steel Corporation, hereinafter to be referred to as Nassco, a parcel of land in Santa Ana, Manila, and found that the defendants 1 were occupying portions thereof. On April 10, 1965, it filed a complaint for ejectment alleging that it informed the defendants of its purchase and notified them to vacate the premises, but they failed to do so. The answer admitted that such a demand was made, but it was not heeded as defendants, as far back as 1949, had been in possession, occupying their respective areas wherein their houses were constructed under valid contracts with the Alien Property Administration, the predecessor-in-interest of Nassco. It is their submission then that not only was their occupancy valid and legal in all respects but that also under Republic Act No. 477, 2 they were entitled to preferential rights in the sale thereof. While plaintiff prevailed in the municipal court, it was unsuccessful in the Court of First Instance. In its decision, now subject of this appeal, 3 it held that the former had no jurisdiction as there was no prior physical possession and that the extent that the question raised would require the determination as to rights of ownership, it likewise decline do so, "because the same is squarely raised before another branch of this Court in a separate proceeding." 4 While, strictly speaking, there might have been a slight inaccuracy in the statement that the question is really one of title, still, in view of the explicit provision of Republic Act No. 477 as to the preferential right given bona fide occupants that yields some plausibility to the defense set up by defendants, and with such an issue having been squarely raised in a case pending before another branch, it is easily understandable why the object to the exercise of the original jurisdiction of the Court of First Instance in an appealed ejectment case beyond the competence of the municipal court is tenable. It could happen that even had there been no other such suit in existence where the legal question could be ventilated with both parties accorded all the opportunity to set up their respective claims, an action for ejectment hardly lends itself as the appropriate mode for the enforcement of legislation enacted pursuant to the social justice principle. There is thus no valid reason for a reversal. In the decision now on appeal, Judge Agustin P. Montesa, now retired, set forth the facts in this ejectment suit thus: "Plaintiff acquired a portion of a parcel of land situated at Punta, Sta. Ana, Manila, which was sold by the Nassco at the public bidding on June 26, 1964. The defendants had been occupying the different portions of this property before and after the execution of the deed of sale in favor of the plaintiff. They claim, however, in their answer, that they have the option to buy this property, under Section 3 of Republic Act 477, ... . Since the plaintiff contends that the law relied upon does not apply to the property in question, and the defendants claim otherwise, the latter have raised an issue of title to the said property, which is squarely being raised in a separate civil action filed before this Court, as Civil Case No. 62097 on August 5, 1965. It is admitted by the parties that the plaintiff herein has never taken possession of the property and filed this action for ejectment before the City Court mainly on the strength of its title to the property by virtue of the sale to it by public auction. It is, however, a well-established principle of law on jurisdiction that "a mere assertion

of title to the property in question by a defendant in a forcible entry or unlawful detainer in his answer or at the hearing, is not, of itself, sufficient to oust jurisdiction of a justice of the peace or municipal court; but if, at the hearing he makes a sufficient showing to evidence good faith and merit in his claim, so that it appears that adjudication or determination of title is essential to determining right to possession, the inferior court lacks jurisdiction to proceed further and should dismiss this action." 5 For the lower court then, "the issue is not one of possession." 6 Then the appealed decision continued: "The plaintiff had never been in possession of the property in question and there is no allegation in the complaint that the same was filed by reason of unlawful detainer or forcible entry by the defendants upon the property. This is not a case of unlawful detainer, because the plaintiff and the defendants never had a contract by which the defendants were allowed to take possession of the property. Neither is there forcible entry in detainer, because the defendants herein had been lawfully occupying the property prior to the sale of the same at the public auction to the plaintiff. Their claim that they have No. 1 and No. 2 preference under Sec. 3 of Republic Act 477 is not an empty gesture, for they had been bona fide occupants of the property on or before December 12, 1946 and at least one of them is a veteran of the last war. The issue that they raised, therefore, is made in good faith based on a bona fide claim of preference. Whether that claim is true or not is a matter of evidence, but in the stipulation of facts submitted to the City Court and adopted in this Court, it is admitted by the parties, in Paragraph 7, that all the defendants were already occupants of the portions of the property in question each presently occupies prior to the acquisition of the same by plaintiff. There is, therefore, ample showing supporting their claim to preference." 7 Why the complaint for ejectment had to be dismissed and the municipal court reversed was succincctly set forth in the last paragraph thereof before its dispositive portion: "In view thereof, the City Court had no jurisdiction to try this case on that issue involving title, for the same falls within the exclusive jurisdiction of the Court of First Instance. As a consequence, all the proceedings had before the City are null and void, since its jurisdiction was only limited to the act of dismissing the said complaint. Neither can this Court now pass upon the question of title, because the same is squarely raised before another branch of this Court in a separate proceeding." 8 The above decision speaks for itself. The care and circumspection taken by respondent Judge Agustin P. Montesa, who arrived at a conclusion with full support in the law on the undisputed facts, is quite evident. It is well-settled that without prior possession being shown, a suit for ejectment would not prosper. Nor could there be any valid objection to a dismissal, as there was no justification for the lower court exercising its original jurisdiction not only because of the absence of the consent of the parties to such a procedure, but also because the situation analogous to a defendant's claiming title under a statute with social justice overtones did not fit into the traditional mold of such summary proceedings. If it were otherwise, there would be the possibility of frustrating a statutory objective to aid the actual bona fide occupants. Nor could appellant nurse any genuine dissatisfaction as it is undoubted that there was in existence another action between the parties, the proper one at that, where the judicial power to determine their respective rights over the property in question could come into play. Hence, as noted at the outset, we affirm. 1. Appellant in its brief failed to blunt the force of the categorical declaration of the lower court that it has "never taken possession of the property and filed this action for ejectment before the City Court mainly on the strength of its title [to it] by virtue of [its acquisition at a sale] by public auction." 9 All that it did say was that such a finding "was not borne by the records." 10 This is to invite us to go into a factual matter, hardly appropriate when the direct appeal to us, at the time the Judiciary Act allowed it, could raise only questions of law. On that point, the relevance of the holding in Raymundo v. Santos 11 is quite clear. An action for ejectment requires as an indispensable requisite prior possession. Necessarily then, the Court of First Instance could not exercise appellate jurisdiction as the City Court had no competence to entertain this complaint for unlawful detainer. That was the law at the time the decision was rendered by Judge Montesa on February 23, 1967. Nor could appellant, even if he were minded, derive support from the 1972 decision of this Court in Pangilinan v.

Aguilar 12 where reliance on title could, under circumstances, be justifiable to show prior physical possession. For as therein made clear by Justice Makasiar, who wrote the opinion for the Court: "Prior physical possession in the plaintiff is not an indispensable requirement in an unlawful detainer case brought by a vendee or other person against whom the possession of any land is unlawfully withheld after the expiration or termination of a right to hold possession and therefore the allegation of the same in the complaint, is not necessary. As heretofore stated, possession of a possessor by tolerance becomes unlawful the moment the owner demands that he vacate the land." 13 In a case like the present, therefore, where defendants-appellees were in possession not by mere tolerance but precisely with occupancy that could ripen into title under a legislative act, 14 the above doctrine penned by Justice Makasiar does not call for application. What other conclusion can there be then than that what was done by the lower court certainly is in accordance with law. 2. Appellant could not have been unaware of the weakness of a case for ejectment. It is thus understandable why appellant, invoking certain decisions of this Court 15 would in vain seek to remedy what was a fatal infirmity by alleging that there was no objection on the part of the parties, however, to the exercise of the lower court of its original jurisdiction. The reliance on the above doctrine is misplaced. There is no such consent on the part of the parties. If it were otherwise, the lower court would have said so in its decision. As a matter of fact, the brief for appellees did place matters in their true light: "To start with, the pertinent portion of the Stipulation of Facts (p. 21, Record on Appeal) they submitted to the City Court states: "10. That it is understood that the defendant (appellees herein) not waiving their special and affirmative defenses stated in their answer dated May 17, 1965 and by reason of which the defendants shall be allowed to adduce evidence thereon and on all other points not covered by these stipulations" (pp. 21-22, Record on Appeal). And one of appellee's special defenses is that "18. The Honorable Court (City Court of Manila) has no jurisdiction over the nature of this action inasmuch as it necessarily involves questions other than that of mere physical possession over real property" (par. 18, Answer, p. 17, Record on Appeal). Obviously, the above special defense needs must be viewed in conjunction with appellee's special defense that served as its basis that they have a preferential right to acquire the portions of the subject property they have been respectively occupying, pursuant to Republic Act No. 477, as amended." 16 From which, appellees could correctly conclude: "Thus viewed, it is quite clear that from the very start appellees questioned the jurisdiction of the City Court of Manila to try the instant case. And since the aforesaid Stipulation of Facts was indubitably resubmitted to the Court of First Instance of Manila (CFI Decision, p. 33, Record on Appeal), the necessary implication is that appellees continued to question pari passu said jurisdiction of the City Court, and in turn, the jurisdiction of the Court of First Instance of Manila to try the instant ejectment case sitting as an appellate court. Indeed, the very statement of the pivotal issue in this case as it appeared in appellees' memorandum, submitted to the Court of First Instance of Manila, belies the claim of appellant that appellees practically abandoned its special defense of want of jurisdiction on the part of both courts." 17 Appellant could have refuted the above if there were any inaccuracy. It failed to do so. Witness the resolution of this Court of August 20, 1968: "The appellant having failed to file a reply brief within the period which expired on June 30, 1968, case L-28087 (Bormaheco, Inc. vs. Eleuterio V. Abames, et al.) is hereby considered submitted for decision [without appellant's reply brief]." 18 It is thus manifest that there is no merit to the main error assigned to the effect that the lower court ought to have exercised its original jurisdiction, the parties having agreed that it should do so. 3. There is this further support to the decision reached by the lower court. It could very well be that strictly viewed, the question is not really one of title. If it were thus, the authoritative pronouncements of this Tribunal would demonstrate even more persuasively the rightness of the decision reached by the lower court. 19 While not controlling however, they are not without relevance because appellees, as occupants, as noted in the decision certainly could be expected to resist this ejectment suit because of what they believed is the statutory preference in their favor to acquire the lots in question under Republic Act No. 477. That, at any rate, is a plausible claim. This is not to say that they are

justified. Nor are we called upon to do so in disposing of this appeal. It merely emphasizes that the lower court rightly did not close its eyes to such an aspect of the litigation before it. It ought not to have done so as the matter involved is one that falls clearly within the social justice provision of the Constitution. 20 A summary proceeding such as an action for ejectment is hardly the proper litigation for a thorough inquiry into how the beneficent aims of welfare legislation could best be achieved. The lower court is thus to be commended in refusing to act precipitately on a question that was better left for resolution in a pending suit between the same parties. 4. There is thus, it would appear, an element of obduracy and stubbornness on the part of appellant. Its rights over the property in question, assuming that they in fact exist, could have been adjudicated in a suit already pending between the parties. Why this insitence on having the matter decided by an inferior court, usually overburdened with trifling suits and thus naturally predisposed to act, if not with haste, at least with much less opportunity for deep reflection, at times then without full consideration of the serious legal questions may be involved? Moreover, such a court could, with deceptive plausibility, assert that a complaint in ejectment must be speedily disposed of. Appellant certainly could not hope to succeed by conjuring errors out of thin air, when a more careful appraisal of the matter ought to have convinced its counsel on appeal that on the face thereof, the complaint as filed in the city court by the original counsel Almacen, Navarra and Amores was hardly impressed with merit. To repeat, the outcome could not be in doubt. The lower court merely applied the law on the undisputed facts. WHEREFORE, the appealed decision of February 23, 1967 is affirmed.

G.R. No. L-32626 January 28, 1971

POLICARPIA TIU, assisted by her husband CHOA THIAN, petitioner, vs. THE HONORABLE COURT OF APPEALS (SPECIAL SECOND ) and CHOA KIM, respondents. Nicolas V. Benedicto, Jr. for petitioner. Aruego, Mamaril and Associates for private respondent.

VILLAMOR, J.: Policarpia Tiu came to this Court on certiorari to annul a resolution, Annex "G," of the Court of Appeals denying petitioner's motion to dismiss the appeal in CA-G.R. No. 45091-R, entitled "Policarpia Tiu, assisted by her husband Choa Thian, plaintiff-appellee, vs. Choa Kim, defendantappellant." The basic facts are set forth in the petition and admitted by private respondent, from which we gather the following: Petitioner instituted an action for ejectment against private respondent Choa Kim before the City Court of Manila (Branch VI), which was docketed as Civil Case No. 175141. After due trial, said Court rendered judgment ordering the defendant therein and all persons claiming under him to vacate the premises described in the Complaint and to surrender the possession thereof to plaintiff therein; ordering defendant further to pay plaintiff the sum of P9,000.00 as rentals in arrears up to and including December 31, 1968, plus the sum of P1,500.00 as monthly rental beginning January 1, 1969, and likewise to pay the plaintiff in concept of attorney's fees the sum of P2,000.00 and costs. From this judgment, defendant therein, now private respondent, appealed to the Court of First Instance of Manila, where the case was docketed as Civil Case No. 75975, and where after due hearing, the Court rendered a decision: (1) Ordering defendant to vacate and turn over to plaintiff the peaceful possession of that parcel of land located at, and known as, Nos. 671-673 T. Alonzo Street, Sta. Cruz, Manila; (2) Sentencing defendant to pay to plaintiff the monthly rental of the rate of P1,500.00 from July, 1968, until defendant actually vacate the land of plaintiff; and (3) Sentencing defendant to pay plaintiff the sum of P3,000.00, as and for attorney's fees. Private respondent's motion for reconsideration having been denied, he seasonably appealed to the Court of Appeals, which was docketed as CA-G.R. No. 45091-R, and on time filed his printed Record on Appeal (Annex "A"). Petitioner, on February 3, 1970, filed with the Court of Appeals, a motion to dismiss appeal on the grounds: (1) That the said appeal is frivolous and, therefore, without merit; (2) That said appeal is prosecuted manifestly for delay; and (3) That the question raised is unsubstantial to require consideration (Annex "B"), to which private respondent filed an opposition (Annex "C").

Petitioner on February 18, 1970, filed a supplemental motion to dismiss appeal, anchored on the ground that the Court of First Instance of Manila having affirmed in full the judgment of the City Court of Manila, the only legal remedy left to the defendant-appellant (herein private respondent) is to elevate the matter to the Court of Appeals on a Petition for Review, pursuant to Republic Act No. 5433 which was approved on September 9, 1968 (Annex "D"). To this, private respondent filed his opposition (Annex "E"), and later petitioner filed her reply thereto (Annex "F"). The Second Division of the Court of Appeals having failed to reach a unanimous decision on the motion to dismiss, a Special Second Division of five members was created, composed of the regular members, namely Messrs. Justices Juan P. Enriquez, Jesus Y. Perez and Andres Reyes, and Messrs. Justices Nicasio A. Yatco and Ruperto G. Martin as additional members. On August 19, 1970, the Special Second Division issued an extended resolution denying petitioner's motion to dismiss appeal, by a vote of three to two, with Mr. Justice Enriquez writing a dissenting opinion, in which Mr. Justice Yatco concurred (Annex "G"). Respondents having answered the petition filed herein, and Petitioner having replied thereto, this case was set for hearing. However, petitioner elected to submit the case on the pleadings already filed whereas private respondent asked for and was given an opportunity to file a rejoinder to petitioner's reply. The latter pleading having been filed this case is now deemed submitted for decision. Basically the main issue to be resolved in this proceeding is whether private respondent's appeal should be allowed to run its course, considering that private respondent's right over the property in question is based on a lease contract which had admittedly expired. Indeed, private respondent's only claim to justify continued occupancy of the premises in question, refers to the right of petitioner to own the leased premises, claiming petitioner is not a Filipino citizen. We find petitioner's contention meritorious. Private respondent would persist in remaining on the premises by virtue of the unproved allegation that petitioner-lessor is not the owner thereof. Yet it is clear that not claiming ownership in himself, he cannot in an ejectment proceedings raise that very question. This Court had time and again held that the fact of lease and the expiration of its terms are the only elements of this kind of action. Plaintiff need not prove his ownership and defendant cannot deny it, and if defendant denies plaintiff's ownership he raises a question unessential to this action. (Sevilla vs. Tolentino, 51 Phil., 333, 337; Centeno vs. Gallardo, 93 Phil., 63, 67.) Evidence of ownership in ejectment cases can be admitted only for the purpose of determining the character and extent of possession and damages for detention. (Section 4, Rule 70, Revised Rules of Court.) The fact of lease having been admitted by private respondent as well as the expiration of the term thereof, there can be no question that the issue of ownership is foreign to the action. Indeed, it matters not that private respondent was already an occupant of the leased premises when he executed and signed the contract of lease, because the basis of the ejectment suit is the very contract of lease. Private respondent cannot now be heard to impugn what he had previously admitted, which includes the fact that petitioner is the owner of the premises. Neither can he confuse the issue by raising the question of title to defeat the right of petitioner to the possession of the premises and to eject him therefrom. Under Sec. 3, Rule 131 of the Revised Rules of Court, the tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. As the case now stands, private respondent's only justification to remain on the premises in question is based on a defense which is unavailable to him. His appeal may therefore be considered frivolous and made solely for delay. (Vda. de Palanca vs. Chua, 27 SCRA 357, 366, which noted that tenants' appeals in ejectment cases, the immediate disposal of which public policy demands, are notoriously dilatory.) Under these circumstances, we are justified in ordering its dismissal. (Cruz vs. Blanco, 73

Phil. 596; Ferinion vs. Sta. Romana, 16 SCRA 373, 375; Ins. Co. of America vs. F.F. Sharp & Co., 18 SCRA 462, 466; Dasalia vs. Caluag, 8 SCRA 644, 647; G.S.I.S. vs. Cloribel, 14 SCRA 371, 375376.)In view of the foregoing findings, we find it unnecessary to pass upon the other issues raised by petitioner. WHEREFORE, the herein petition for certiorari is granted; the resolution of the Court of Appeals of August 19, 1970, Annex "G", is hereby set aside, and defendant's appeal in CA-G.R. No. 45091-R is ordered dismissed. Costs against private respondents.

G.R. No. L-14341

January 29, 1960

MARCIANO SONGAHID, petitioner-appellee, vs. BENITO CINCO, respondent. ROMAN CATHOLIC BISHOP OF THE DIOCESE OF ZAMBOANGA, oppositor-appellant. Wilfredo G. Cainglet for appellee. Climaco and Climaco for appellant. BAUTISTA ANGELO, J.: On April 11, 1957, the Roman Catholic Bishop of Zamboanga filed a complaint unlawful detainer against Marciano Songahid before the Justice of the Peace of Court of Margosatubig, Zamboanga del Sur, praying that the latter be ordered to vacate the property in question and to pay the former the corresponding rentals for the period mentioned in the complaint. Defendant in his answer, stated that he had been in open and actual possession of the property since 1950 in the concept of owner for, as a matter of fact, he had introduced therein many permanent improvements by virtue of his claim of ownership. As special defense, he claims that the justice of the peace court has no jurisdiction to try the case because the issue involved is one of ownership and not merely of possession. The justice of the peace court, overruling this defense, rendered judgment for the plaintiff ordering defendant to vacate the property in question and to pay the sum of P251.11 as rental in arrears, to pay the sum of P50.00 a month from October, 1956, and to pay the costs. Thereupon, on August 18, 1958, defendant filed a petition for certiorari against the justice of the peace in the court of first instance praying that the decision of the said justice of the peace be declared null and void on the ground that he acted in excess of his jurisdiction, which petition was later amended by including as party respondent the Roman Catholic Bishop of Zamboanga. Respondent bishop opposed the petition on the ground that the same contains conclusions of law that are not deducible from the pleadings and at any rate, the pleadings show that the justice of the peace has jurisdiction to act on the matter. He prayed that the petition be dismissed. Acting on the pleadings and on the oral arguments adduced by the parties, the trial court found the petition to be well-founded and, accordingly, rendered decision annulling the decision of the Justice of the Peace Court of Margosatubig on the ground that it acted on the case without jurisdiction. Respondent bishop interposed the present appeal. It is now contended that the trial court erred in holding that the Justice of the Peace Court of Margosatubig acted on the case without jurisdiction because the same issue involved therein is one holding likewise that as the land in question is part of the public domain, it is the Director of Lands who, under the Public Land Act, must determine who between appellant and appellee is entitled to its possession. With respect to the first issue, the trial court made the following comment: "In the case at bar the issue in the Justice of the Peace Court was not one involving relationship of tenant and landlord, for the defendant there (here petitioner) did not admit that he was a tenant of the plaintiff there. On the contrary, he assessed an adverse claim in himself against the assertion of the Bishop. This assertion of adverse claim (or of ownership or priority) is taken cognizance of by the Bishop in his complaint, for according to the said complaint, the said defendant (Songahid) denied the Bishop's claim, "repudiating the lawful possession of the plaintiff and going about and declaring that he is in possession of said property allegedly by virtue that he is in possession of said property allegedly by

virtue of his payment of the land taxes thereby" and asserting (Songahid) that 'you have and still are asserting a claim or right to the portion of the above-property against my client.' These allegation considered with the allegation of Songahid that he has been in possession of the land in question in the concept of owner and he has filed a homestead application over it, squarely present the issue of ownership or priority right over the contested land, which is beyond the jurisdiction of the Justice of the Peace Court." We have gone over the pleadings of record and have found the above findings to be correct. Indeed, while the Bishop claimed that he leased the property to Songahid on condition that he pay him a share in the produce in the concept of rental, he at the same time alleged that Songahid repudiated such arrangement asserting an adverse and of the owner by virtue of his long possession thereof and of the homestead application he has submitted concerning the same property to the Bureau of Lands. Clearly, as the allegations stand in the pleadings, they show that the issue of possession is directly interwoven with the claim of ownership which places the case beyond the jurisdiction of the justice of the peace. On the other hand, the pleading also show that the land in question is covered by a lease application submitted by the Bishop of Zamboanga to the Bureau of Lands on the strength of which he bases his right to its possession, while at the same portion of the land is claimed by Songahid as belonging to him by virtue of a homestead application he has filed with the same Bureau, which is still pending action. Such being the case, we find correct, following comment of the trial court: It may be pertinent to state that the parties herein have their recourse in the Bureau of Lands which, under Commonwealth Act No. 141, otherwise known as the Public Land Act, (Director of Lands) is charged with executive control and supervision over the survey, subdivision, alienation and disposition of alienable and disposable portions of the public domain to qualified applicants. The miscellaneous lease application of the Roman Catholic Bishop and the Homestead Applications of Songahid are actually pending before the Said Bureau; and it behooves the Court to respect the exercise of jurisdiction of a coordinate branch of the Government over a matter subject-matter within its competency. This is the administrative remedy established by law in cases affecting the alienation of public lands and it must be exhausted before the powers of the Court may be invoked. Wherefore, the decision appealed from is hereby affirmed, without pronouncement as to costs.