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PROPERTY
[No. 3088. February 6, 1907.]
EL BANCO ESPAÑOL-FILIPINO, plaintiff and appellant, vs. JAMES PETERSON, sheriff of the city of
Manila, ET AL., defendants and appellees.
1.
JUDGMENT; FINDINGS OF FACT; EVIDENCE.—When the findings of fact set forth in a judgment
appealed from are plainly and manifestly against the weight of evidence, taken at the trial, such judgment
is contrary to law and should be reversed.
2.
CONTRACT OF PLEDGE.—A contract of pledge which unites the requisites required by articles 1857 and
1865 of the Civil Code is perfectly valid and efficacious, when in addition the creditor or a third person
appointed by common consent of the contracting parties has taken possession of the goods pledged. (Art.
1863, Civil Code.)
3.
POSSESSION. SYMBOLICAL DELIVERY OF.—The symbolical transfer by means of the delivery of the
keys of the premises in which are stored the goods pledged is sufficient to consider the creditor, or the
depositary appointed by common consent of the partieA. in legal possession of the same.
4.
CONTRACT; FRAUD.—Where in a suit for the nullification of a contract it has not been alleged nor proved
that in the stipulations entered into there has been any fraud to the prejudice of third persons, a finding
of the court that such contract was entered into in fraud of third persons is erroneous.
APPEAL from a judgment of the Court of First Instance of Manila.
The facts are stated in the opinion of the court
Del-Pan, Ortigas & Fisher, for appellant.
Hartigan, Marple, Rohde, & Gutierrez, for appellees.
TORRES, J.:
On the 24th of October, 1905, the Spanish-Filipino Bank, a corporation, through its attorneys, Del-Pan,
Ortigas & Fisher, filed a complaint against the sheriff of the city of Manila and the other defendant, Juan
Garcia, praying that judgment be rendered against the said sheriff, declaring that the execution levied
upon the property referred to in the complaint, to wit, wines, liquors, canned goods, and other similar
merchandise, was illegal, and directing the defendants to return the said goods to the plaintiff corporation,
and in case that he had disposed of the same, to pay the value thereof, amounting to P30,000, Philippine
currency, and further that it be declared that the said plaintiff corporation, under the contract of pledge
referred to in the complaint had the right to apply the proceeds of the sale of the said goods to the payment
of the debt of ?40,000, Philippine currency, for the security of which the said merchandise was pledged,
with preference over the claim of the other defendant, Juan Garcia, and that both defendants be held
jointly liable to the plaintiff for the sum of P500, Philippine currency, as damages, and the said defendants
to pay the costs of the proceedings, and for such other and further relief as the plaintiff might be entitled
to under the law. Plaintiff alleges in its complaint that under the contract entered into on the 4th of March,
1905, by and between the Spanish-Filipino Bank and Francisco Reyes, the former loaned to the latter the
sum of P141,702, Philippine currency; that on the same date Francisco Reyes was already indebted to the
bank in the sum of P84,415.38, Philippine currency, which, added to the amount of the loan, made a total
of P226,117.38, Philippine currency, received by the said Reyes as a loan from the plaintiff bank, the entire
sum at an annual interest of 8 per cent; that to secure the payment of these two sums and the interest
thereon, the debtor, Francisco Reyes, by a public instrument executed before a notary on the aforesaid date
mortgaged in favor of the plaintiff bank several pieces of property belonging to him, and pledged to the
said bank part of his personal property, specifying the proportion in which the said real and personal
property thus mortgaged and pledged in favor of the plaintiff corporation would be respectively liable for
the payment of the debt; that the property pledged by the debtor to the bank included a stock of
merchandise, consisting of wines, liquors, canned goods, and other similar articles valued at P90,591.75,
Philippine currency, then stored in the warehouses of the debtor, Reyes, No. 12 Plaza Moraga, in the city
of Manila, which said goods and merchandise were liable for the payment of the said sum of P90,591.75,
Philippine currency; that in the aforesaid deed of pledge it was agreed by and between the bank and the
debtor, Reyes, that the goods should be delivered to Ramon Garcia y Planas for safe-keeping, the debtor
having actually turned over to the said Garcia y Planas the goods in question by delivering to him the keys
of the warehouse in which they were kept; that in a subsequent contract entered into by and between the
debtor, Reyes, and the plaintiff bank on the 29th of September, 1905, the said contract executed on the 4th
of March was modified so as to provide that the goods then (September 29) in possession of the depositary
should only be liable for the sum of ?40,000, Philippine currency, the said contract of the 4th of March
remaining in all other respects in full force and effect, Luis M.a Sierra having been subsequently appointed
by agreement between the bank and the debtor as depositary of the goods thus pledged in substitution for
the said Ramon Garcia y Planas.
On the 19th of October, 1905, in an action brought in the Court of First Instance of the city of Manila by
Juan Garcia y Planas against Francisco Reyes and Ramon Agtarat, judgment was rendered against the
last-mentioned two for the sum of P15,000, Philippine currency, to be paid by them severally or jointly,
upon which judgment execution was issued against the property of the defendants, Reyes and Agtarap. On
the aforesaid 19th day of October, for the purpose of levying upon the property of the defendants, the sheriff
at the request of Garcia, the plaintiff in that case, entered the warehouse where the goods pledged to the
plaintiff bank were stored under the custody of the depositary, Sierra, and levied upon them as per list
attached to the complaint marked "Exhibit A." The sheriff seized the goods which had been pledged to the
bank, depriving the latter of the possession of the same, to which said possession the bank was entitled
under and by virtue of the contract executed on the 4th of March, 1905. Without the authority of the bank,
Reyes could not dispose of the said goods. The value of the goods seized by the sheriff was P30,000,
Philippine currency, the said sheriff having refused, and still refusing, to return the same to the bank,
notwithstanding repeated demands made upon him to this effect, and it being alleged 111 the complaint
that unless prohibited by the court the sheriff would proceed to sell the said goods at public auction and
apply the proceeds to the satisfaction of the judgment rendered in favor of Juan Garcia y Planas, while the
debtor Reyes had not. paid to the bank the P40,000, Philippine currency, to secure the payment of which
the goods mentioned in Exhibit A had been pledged to the bank, that is, to secure the payment of a sum in
excess of the actual value of the goods in the hands of the sheriff.

The defendant sheriff, James J. Peterson, and Juan Garcia, his codefendants, through their attorneys,
Hartigan, Marple, Rohde & Gutierrez, answering the complaint, stated that they admitted the allegations
contained in paragraphs 1, 2, 3, 4, 5, 12, and 17 of the complaint, but denied the allegations contained in
paragraphs 6, 7, 8, 9, 10, 11, 14, 16, and 18. They further denied the allegations contained in paragraph
12, with the exception that the defendant sheriff levied upon the goods mentioned in Exhibit A attached
to the complaint for the purpose of satisfying the judgment referred to therein; and also the allegations
contained in paragraph 13 of the complaint, with the exception that the sheriff seiml the property
mentioned in Exhibit A under the execution referred to therein; and finally defendants denied the
allegations contained in paragraph 15 of the complaint, with the exception of the allegation that the value
of the property seized is P30,000. They accordingly asked that the action be dismissed and that it be
adjudged that the plaintiff had no interest whatever in the property described in the complaint, and that
the plaintiff be taxed with the costs of these proceedings.
The testimony introduced by the parties having been received, and the exhibits having been attached to
the record, the court below entered judgment on the 4th of January, 1906, dismissing plaintiff's action and
directing that the defendant recover from the Spanish-Filipino Bank the costs of this action, for which
execution was duly issued. To this judgment counsel for plaintiff excepted and announced his intention of
prosecuting a bill of exceptions, and further made a motion for a new trial on the ground that the judgment
of the court below was contrary to law and that the findings of fact were plainly and manifestly contrary
to the weight of the evidence.
The decision of this case depends mainly upon the question as to whether the contract of pledge entered
into by and between the Spanish-Filipino Bank and Francisco Reyes to secure a loan made by the former
to the latter was valid, all the requisites prescribed by the Civil Code having been complied with.
If so, the bank's claim had preference over the claim of a third person not secured, as was the bank's, by a
pledge, with reference to the property pledged to the extent of its vahu% and therefore such property could
not have been legally levied upon by the sheriff at the request of the defendant, Juan Garcia. (Arts. 1921,
1922, Civil Code.)
The contract in question complies with all the requisites provided in article 1857 of the Civil Code, such as
that the property was pledged to secure a debt, the date of the execution, the torms of the pledge, and the
property pledged, all of which appears in a public document, and the property pknlgcMl was placed in the
hands of a third person by common consent of the debtor and creditor, under the supervision of an agent
of the bank. (Arts. 1863, 1865, 1866, 181)9, 1871, Civil Code.) The defect alleged to exist in the said contract
is that the debtor, Reyes, continued in possession of the property pledged; that he never parted with the
said property, and that neither the creditor nor the depositary appointed by common consent of the parties
were ever in possession of the property pledged, and for this reason, and upon the further ground that the
contract was fraudulent, the court below dismissed the complaint with the costs against the plaintiff.
In the motion for a new trial it was alleged by the plaintiff that the judgment of the court below was
contrary to law, and that the findings of fact contained therein were plainly and manifestly against the
weight of the evidence. If plaintiff's contention is correct, then the judgment of the court below should be
reversed.
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PROPERTY
From the evidence introduced at the trial, both oral and documentary, it appears that a third person,
appointed by the common consent of the debtor and creditor, was in possession of the goods pledged in
favor of the bank under the direct supervision of an agent of the bank expressly appointed for this purpose,
and it has not been shown that the said Reyes continued in the possession of the goods after they had been
pledged to the plaintiff bank.
Exhibit C and the testimony of Francisco Reyes, Luis M.a Sierra, and Mariano Rodriguez corroborate the
existence and authenticity of the contract of pledge recorded in a public instrument and conclusively and
satisfactorily show that the debtor, after the pledge of the property, parted with the possession of the same,
and that it was delivered to a third person designated by common consent of the parties. For the purpose
of giving this possession greater effect, the pledgee appointed a person to examine daily the property in
the warehouse where the same was kept.
The witness Matias Garcia also testified as to the status of these goods, and informed Juan Garcia of such
status before the same were levied upon.
The sheriff's testimony supports the allegation that the depositary, Sierra, was present at the place where
the goods were kept, as well as the representative of the bank, Rodriguez, when he, the sheriff, went there
for the purpose of levying upon the said property. He further testified that Rodriguez, the representative
of the bank, then protested and notified him that the property in question was pledged to the Spanish-
Filipino Bank.
The contract in question was, therefore, a perfect contract of pledge under articles 1857 and 1863 of the
Civil Code, it having been conclusively shown that the pledgee took charge and possession of the goods
pledged through a depositary and a special agent appointed by it, each of whom had a duplicate key to the
warehouse wherein the said goods were stored, and that the pledgee, itself, received and collected the
proceeds of the goods as they were sold.
The fact that the said goods continued in the warehouse which was formerly rented by the pledgor, Reyes,
does not affect the validity and legality of the pledge, it having been demonstrated that after the pledge
had been agreed upon, and after the depositary appointed with the common consent of the parties had
taken possession of the said property, the owner, the pledgor, could no longer dispose of the same, the
pledgee being the only one authorized to do so through the depositary and special agent who represented
it, the symbolical transfer of the goods by means of the delivery of the keys to the warehouse where the
goods were stored being sufficient to show that the depositary appointed by the common consent of the
parties was legally placed in possession of the goods. (Articles 438, 1463, Civil Code.)
The fact that the debtor, Reyes, procured purchasers and made arrangements for the sale of the goods
pledged and that the bills for the goods thus sold were signed by him does not affect the validity of the
contract, for the pledgor, Reyes, continued to be the owner of the goods, (art. 1869, Civil Code), be being
the one principally interested in the sale of the property on the best possible terms.
As to the reservation stipulated in paragraph 13 of the contract executed on the 4th of March, 1905, it
could not affect the contract in question for the reason that that reservation referred to the rent from the
property mortgaged to the bank and the dividends from the shares of stock also pledged to the bank, and
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not to the merchandise so pledged, and such reservation could not have rendered the contract of pledge
null.

If the case is to be decided in accordance with the facts alleged and established, the defendant not having
introduced any evidence to show that the said contract of pledge was fraudulent as to other creditors, there
was no legal ground upon which the court below could have held that the contract evidenced by the
instrument in question was entered into to defraud other creditors of the pledgor.

For the reasons hereinbefore set out, and the judgment of the court below being contrary to the evidence,
the said judgment is hereby reversed, and it is hereby adjudged that the plaintiff corporation, under and
by virtue of the contract of pledge in question, had a preferential right over that of the defendant, Juan
Garcia, to the goods pledged or the value thereof, the value to be applied to the payment of the debt of
P40,000, Philippine currency, for the security of which the said property was pledged, and the defendants
are accordingly hereby ordered to return to the plaintiff corporation the property improperly levied upon,
or to pay its value, amounting to P30,000, Philippine currency, without special provision as to costs. After
the expiration of twenty days let judgment be entered in accordance herewith, and ten days thereafter the
case be remanded to the court below for execution. So ordered.

Arellano, C. J., Mapa, Carson, and Willard, JJ., concur.

Judgment reversed.

[No. 9989. March 13, 1918.]
EDUARDO CUAYCONG ET AL., plaintiffs and appellees, vs. RAMONA BENEDICTO ET AL., defendants
and appellants.
1.
ROADS AND STREETS; EASEMENTS; REGISTRATION OF LAND; TORRENS TITLE.—Unless it is
made to appear upon the certificate of title that the boundaries of any given highway, way, or private way
upon the land have been determined, the right to such highway, way, or private way is unaffected by the
registration of the title.
2.
REALTY; ENCUMBRANCES; PRESUMPTIONS.—Real property is presumed to be free from. liens and
encumbrances.
3.
ROADS AND STREETS; UPKEEP BY GOVERNMENT; PRESUMPTION.—Where it appears that a road
has been kept in repair by private enterprise and that the Government has not contributed to the cost of
its construction or maintenance, such road will be presumed to be private.
4.
ID.; PRESUMPTION; USER; TOLERANCE; PUBLIC USE.—The mere fact that a tract of land has been
used for a long time as a road will not alone warrant the presumption that it has been dedicated to the
public.
5.
REALTY; PRESCRIPTION; POSSESSION; TOLERANCE—Possession, to constitute the foundation of a
prescriptive right, must be possession under claim of title. Acts of a possessory character perf formed by
one who holds by the mere tolerance of the owner cannot be made the basis of the prescriptive acquisition
of rights.
6.
IMMEMORIAL POSSESSION; EVIDENCE.—Under the Spanish law the proof of immemorial possession
required something more than the memory of living witnesses.
7.
EASEMENTS OF WAY; USER; TOLERANCE; PRESCRIPTION.—The permissive use by an adjacent
proprietor of a road or path over the land of another no matter how long continued, will not create an
easement of way by prescription.
APPEAL from a judgment of the Court of First Instance of Occidental Negros. Campbell, J.
The facts are stated in the opinion of the court.
Ruperto Montinola and Aurelio Montinola for appellants.
No appearance for appellees.
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PROPERTY
FlSHER, J.:
The issues in this case relate to the right of plaintiffs to make use of two roads existing on the Hacienda
Toreno, a tract of land in the municipality of Victorias, Negros Occidental, the property of the defendants,
Blasa Benedicto and Ramona Benedicto. One of these roads is referred to in the proceedings as the Nanca-
Victorias road and the other as the Dacuman-Toreno road. The Court of First Instance held that those of
the plaintiffs who claimed to be entitled to make use of the Dacuman-Toreno road had failed to establish
the asserted right, and dismissed the action as to them. From this decision they appealed to this court but,
their brief not having been filed within the time prescribed by the rules, their appeal was dismissed, on
motion of defendants, by resolution dated February 14, 1916. Consequently, the issues presented on this
appeal are limited to those which relate to the rights of the parties with respect to the Nanca-Victorias
road, and the determination of the correctness of the decision of the court concerning that part of the
controversy submitted to its decision.
The allegations in the complaint with respect to the NancaVictorias road are that the appellees, Eduardo
Cuaycong, Lino Cuaycong, and Eulalio Dolor, are the owners of a group of haciendas situated between the
southern boundary of the Hacienda Toreno and the barrio of Nanca, of the municipality of Saravia, and
that the appellees Silverio Ginoo, Gervasio Ascalon, and Juan Ledesma, are the lessees of part of said
haciendas; that for more than twenty years the appellees and their predecessors in interest have made use
of the Nanca-Victorias road, which crosses the Hacienda Toreno, openly, publicly, and continuously, with
the knowledge of the owners of the said hacienda, for the purpose of conveying the products of their
haciendas to the town of Victorias and to the landing place there situated, and for the purpose of
transporting supplies from those points to their haciendas, making use of the said road by means of carts,
carabaos, and other usual means of transportation; that there is no outlet to a public road from the
hacienda occupied by these plaintiffs, the only road and way by which the products of the plaintiffs'
property can be taken to the town of Victorias and to the landing place there being across the Hacienda
Toreno by the road marked on the plan" attached to the complaint; that on the fifteenth day of November,
1912, the defendants closed the road in question at the point at which it crosses the Hacienda Toreno, and
refused to permit plaintiffs to continue using it; that plaintiffs were about to commence to grind their crop
of sugar cane, and that, if prevented from transporting their sugar across the Hacienda Toreno to their
point of embarcation, would suff fer damages difficult to estimate. Upon these averments of fact the
plaintiffs prayed for a judgment that they are entitled to use the road in question as they have been using
it in the past, and that a perpetual injunction be issued against plaintiffs restraining them from impeding
such use. Upon the filing of the complaint, plaintiffs moved the court to issue a preliminary injunction
restraining defendants from interfering with the use of the road during the pendency of the suit, which
motion was granted by the court.
Defendants in their answer put in issue all the special averments of the complaint, as above set forth, and
by way of counterclaim and special defense, averred that the road crossing the Hacienda Toreno, over
which plaintiffs claim the right of passage, is the private property of defendants; and, further, that they
have not refused plaintiffs permission to pass over this road but have required them to pay toll for the
privilege of doing so. Defendants also claimed damages f or the use of the road by plaintiffs during the
pendency of the suit, alleging that the preliminary injunction had been improvidently issued upon f false
statements contained in the verified complaint filed by plaintiffs.

The case was tried in July, 1913. The court on December 8, 1913, rendered judgment, dismissing the
complaint with respect to the plaintiffs Felix Suarez, Probo Jereza, Enrique Azcona, and Melecio Pido,
these being the plaintiffs who claimed the right to use the Dacuman-Toreno road. With respect to the
Nanca-Victorias road, the court held that it was a public highway over which the public had acquired a
right of use by immemorial prescription, and ordered the issuance of a perpetual injunction against
plaintiffs, restraining them from interfering in any manner with the use of the said road.
The conclusion of the court with respect to the facts affecting the Nanca-Victorias road are as follows:
"Turning to a consideration of the evidence relative to the Nanca-Victorias road we find
incontestable proof that it has been in existence for at least forty years. That the hacenderos
located in the southwestern section of Victorias and the public generally passed over it freely and
that it was used for all purposes of transportation of farm produce, animals, etc. and by
pedestrians as well as carromatas and other conveyances without break or interruption until two
or three years ago when the defendants announced that the road was private and that those who
wished to pass over it with sugar carts would be obliged to pay a toll of ten centavos—all other
vehicles, it appears, were permitted to pass free of charge. This arrangement seems to have
existed during the years of 1911 and 1912 and part of 1913, the money being collected apparently
from some hacenderos and not from others. There is some reason to believe from the evidence
presented by defendants themselves that the practice of making these payments to hacienda
Toreno' originated in an attempt to raise a fund for the repair of the road. There is no evidence
that any other hacenderos between Nanca and Victorias or any other person made any attempt
to close the road or to collect toll. On the contrary the road appears to have been repaired by the
hacenderos when it needed repairing and everyone used it on equal terms until the defendants
in 1910 or 1911 interposed the objection that the road in dispute was private. This we think is a
fair deduction from the evidence and although it is asserted that toll was collected at an earlier
date by the late Leon Montinola, brother of the defendant Ruperto Montinola, there is no tangible
evidence that this was so and all the circumstances are strongly indicative of the fact that toll
has been paid only during the years of 1911, 1912, and part of 1913."
The question presented by the assignment of error are in effect:
(a)
Is the Nanca-Victorias road at the point at which it traverses the Hacienda Toreno a public
highway or not?
(b)
If it be held that the road in question is not a public highway, have plaintiffs proven their
acquisition of an easement of way over the Hacienda Toreno at the point traversed by the road in
question?
The trial judge, in holding that the road in question is public, bases his conclusion upon the fact, which he
deems to have been proven, that the road has been in existence "from time immemorial," and had been
"continuously used as a public road * * * and open to public as such for thirty or forty years * * * until * *
* the defendants undertook to claim it as private and to collect toll for the passage of carts." (Bill of
Exceptions, p. 56.) There is no doubt that for the past thirty or forty years a road has existed between the
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PROPERTY
f former site of the town of Victorias and the barrio of Nanca, of the municipality of Saravia, and that this
road crosses defendants' hacienda. It is also true that during- this period the plaintiffs and their
predecessors in the ownership of the hacienda now held by them have made use of this road for the purpose
of going and coming from their haciendas to the town of Victorias; but the question is whether this use was
limited to the plaintiffs, and their tenants and employees, or whether it was, as held by the lower court, a
use enjoyed by the public in general. Plaintiffs produced only two witnesses, Segundo de Leon (stet. notes,
pp. 21-22) and Eduardo Cuaycong, (stet. notes, pp. 27-33) to testify as regards the use of the Nanca-
Victorias road. Several other witnesses testified on behalf of plaintiffs, but their testimony relates to the
Dacuman-Toreno road, which is not involved in this appeal. We have carefully read the testimony of the
witnesses Leon and Cuaycong, given upon their direct and cross examination, but we have been unable to
find that either of them has testified that the road in question was ever used by the public in general.
These witnesses testified with regard to the use of the road by the present and former owners and
occupants of the estates of Bacayan, Esperanza, Alacaigan, Pusot, and Dolores for the transportation of
the products of these estates to the town of Victorias, and of supplies and agricultural implements from
Victorias to the haciendas, but neither of them testified expressly that any other use had been made of
said road. Nevertheless, it may be reasonably inferred from the testimony of these witnesses that all
persons having occasion to travel between Victorias and the haciendas of Bacayan, Esperanza, Alacaigan,
Pusot, and Dolores, whether or not they were owners, tenants, or employees of said estates, made use of
the road now in dispute, crossing the Hacienda Toreno, and to this limited extent it may be said that the
public made use of the road, but there is nothing in the evidence to indicate that the so-called public use
extended beyond this.
Apart from the fact that there is no direct evidence to support the finding of the court concerning the
general public use of the road in dispute, the record contains data strongly tending to show that when the
complaint was filed plaintiffs did not contend that the road was a public highway, but merely contended
that they had acquired by prescription an easement of way across the Hacienda Toreno. For example, the
action is entitled an "action concerning a right of way." (Bill of Exceptions, pp. 64 and 65.) It is not averred
in the complaint that the road in question was used by the public. On the contrary, it is averred that it was
used by the plaintiffs and their predecessors. The averment in paragraph 8 of the complaint that the
plaintiffs- have no other "outlet to a public road" than that which they have been accustomed to use by
going across the defendants' hacienda for the purpose of going to the town of Victorias also shows that
when they commenced this action they had in mind the provisions of articles 564, et seq. of the Civil Code,
which relate to the method of establishing the compulsory easement of way. The owners of an existing
easement, as well as those whose properties are adjacent with a public road, have no occasion to invoke
these provisions of the Code, which relate to the creation of new rights, and not the enforcement of rights
already in existence.
It is true that in the opening statement made to the court, counsel for plaintiffs, who was not the same
attorney by whom the complaint was signed, stated that plaintiffs contend that the road in question is
public, but as no evidence was introduced tending to establish this contention concerning the Nanca-
Victorias road, counsel for defendants had no occasion to object upon the ground that such testimony was
not relevant to the averments of the complaint. No evidence was taken to indicate that at any time since
the road in question has been in existence any part of the expense of its upkeep has been defrayed by the
general government, the province, or the municipality. The trial judge said upon this subject:

"It is also true that whatever repairs were made on the road were made irregularly. The
municipality of Victorias had no funds to devote to the construction and repair of roads, and the
upkeep of the road depending entirely therefore on the initiative of the persons who used it, was
attended to only at such times as repairs were absolutely necessary." (Bill of Exceptions, p. 49.)
The court also held that it appears from the government grant issued in 1885 to the original owner of the
hacienda adjacent to the Hacienda Toreno on its western boundary, that the Nanca-Victorias road at that
time separated that estate from the Jalbuena Hacienda, and that these facts constitute "circumstantial
evidence that the road was in existence in 1885." We have examined the document to which the court
refers, and we agree that the road in question existed in 1885; but we do not believe that the document in
question proves that the said road was a public highway.
Another circumstance established by the evidence, and which is of some importance in the determination
of this issue, is that although the defendants closed the Nanca-"Victorias road in the month of February,
1911, and since that time have collected toll from persons passing over it with carts loaded with sugar,
including those belonging to several of the plaintiffs, nothing was done by them to prevent the continuation
of this restriction until December, 1912, when this action was commenced. It is natural to assume that if
plaintiffs had considered that the road in question was public, they would have protested immediately
against the action of the defendants, and would have either commenced a civil action, as they subsequently
did, or would have brought about a prosecution under section 16 of Act No. 1511.
Upon the evidence taken and admissions contained in the pleadings and those made during the course of
the trial we consider that the following findings are warranted:
1.
The town of Victorias has always been the shipping point of the products of the Hacienda Toreno,
and of the haciendas of appellees, as well as the place from which supplies were brought to those
properties.
2.
For thirty or forty years before the commencement of the suit a wagon road, herein called the
Nanca-Victorias road, has been in existence, connecting the haciendas of appellees with the town
of Victorias, and this road traverses the property of defendants. Since the removal of the town of
Victorias to a new site the Nanca-Victorias road has been used by appellees in travelling between
their properties and the provincial road which crosses the Hacienda Toreno from east to west.
3.
No public funds have at any time been expended on the construction or upkeep of the Nanca-
Victorias road, but f from time to time work has been done on it by the laborers employed by the
present and former owners of the Hacienda Toreno and the haciendas owned by the appellees and
their predecessors in title.
4.
The Nanca-Victorias wagon road, including that part of it which crosses the Hacienda Toreno,
has for thirty-five or f forty years been used by the appellees and their predecessors in title for
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the transportation, by the usual means, of the products of their estates to their shipping points
in or near the town of Victorias, and the transportation to their estates of all supplies required
by them, and has been used by all persons having occasion to travel to and from all or any of the
estates now owned by the appellees.
5.
The use of the Nanca-Victorias road in the manner and by the persons above mentioned was
permitted without objection by the owners of the Hacienda Toreno until the year 1911, when they
closed it, and began charging a toll of 5 centavos for each cart which passed over the road,
including carts belonging to the appellants, until restrained from continuing to do so by the
preliminary injunction granted in this case.
6.
The Nanca-Victorias road constitutes the only outlet from the estates of appellants to the nearest
public road which is the provincial, road which crosses the Hacienda Toreno f from east to west.
Upon these facts the questions of law to be decided are.
(a)
Is the Nanca-Victorias road a public highway?
(b)
If the Nanca-Victorias road, or that part of it which crosses the Hacienda Toreno, is not a public
highway, is it subject to a private easement of way in favor of the appellees?
The defendants are the owners of the Hacienda Toreno under a Torrens title issued in accordance with the
Land Registration Act, conferring to them its absolute ownership, subject only to the limitations of
paragraph four of section 39 of said Act, It is admitted that there is no annotation on the certificate of title
regarding the road here in question, either as a "public road" or as a "private way established by law," and,
therefore, the questions presented by this appeal are to be determined precisely as they would be had the
Hacienda Toreno not been brought under the operation of the Land Registration Act. The plaintiffs being
the owners of the property in question, the presumption of law is that it is free from any lien or
encumbrance whatever, and the burden therefore rests upon plaintiffs to establish the contrary. As this
court said in the case of Fabie vs. Lichauco and the children of Francisco L. Roxas (11 Phil. Rep., 14):
"It is a settled doctrine of law that a property is assumed to be free from all encumbrance unless
the contrary is proved."
There is admittedly no evidence to show that the land occupied by the road here in question was at any
time conveyed to the general government or any of its political subdivisions by the present or any of the
former owners of the Hacienda Toreno. There is no evidence, even remotely, tending to show that the road
existed prior to the time when the property now known as the Hacienda Toreno passed from the State into
private ownership, The record fails to disclose any evidence whatever tending to show that the Government
has at any time asserted any right or title in or to the land occupied by the road, or that it has incurred any
expense whatever in its upkeep or construction. The Civil Code defines as public roads those which are

constructed by the State (art. 339), and as provincial and town roads those "the expense of which is borne
by such towns or provinces." (Civil Code, art. 344.) While it is not contended that this definition is exclusive,
it does show that during the Spanish regime, under normal conditions, roads which were public were
maintained at the public expense, and that the f act that at no time was any expense incurred by the
Government with respect to the road here in question tends strongly to support the contention of the
defendants that it is private way.
During the Spanish regime the law required each able bodied citizen not within one of the exempted classes
to work a certain number of days in each year, his labor to be devoted to "services of general utility" to the
municipality of his residence. (Royal Decree of July 11, 1883, art. 5.) Under this Decree and the Regulations
for its enforcement (Berriz, vol. 11, 258) the greater part of the work on the public roads of the Islands was
accomplished. Had the road here in question been a public way, it is reasonable to assume that the polistas
of the town of Victorias would have been employed in maintaining it. It is most significant that no mention
is made in the testimony of the plaintiffs' witnesses of any work of this character having been done on the
road at any time, particularly in view of the fact that their attention was drawn to this point. (Stet. notes,
pp. 8, 10, 11, 12, 13 and 14.)
The evidence shows that the repairs were made by the owners of the estates benefited by the road, and by
their laborers, as a purely voluntary act for their own convenience and interest. There being no evidence
of a direct grant to the government of .the land occupied by the road in question or that any Government
funds or labor were expended upon it, the question presents itself whether the use to which the road has
been put was such as to justify the conclusion of the lower court that it has become public property. There
being no evidence that the original use of the road by plaintiffs' predecessors was based upon any express
grant of the f fee to the road or of an easement of way, or that it began under the assertion of a right on
their part, the presumption must be that the origin of the use was the mere tolerance or license of the
owners of the estates affected.
This being so, has that merely permissive use been converted into a title vested in the public at large, or
in the plaintiffs by reason of their ownership of the land beneficially affected by the use?
Had it been shown that the road had been maintained at the public expense, with the acquiescence of the
owners of the estates crossed by it, this would indicate such adverse possession by the government as in
course of time would ripen into title or warrant the presumption of a grant or of a dedication. But in this
case there is no such evidence, and the claims of plaintiffs, whether regarded as members of the public
asserting a right to use the road as such,, or as persons claiming a private easement of way over the land
of another must be regarded as resting upon the mere fact of user.
If the owner of a tract of land, to accommodate his neighbors or the public in general, permits them to cross
his property, it is reasonable to suppose that it is not his intention, in so doing, to divest himself of the
ownership of the land so used, or to establish an easement upon it, and that the persons to whom such
permission, tacit or express, is granted, do not regard their privilege of use as being based upon anything
more than the mere tolerance of the owner. Clearly, such permissive use is in its inception based upon an
essentially revocable license. If the use continues for a long period of time, no change being made in the
relations of the parties by any express or implied agreement, does the owner of the property affected lose
7
PROPERTY
his right of revocation ? Or, putting the same question in another form, does the mere permissive use ripen
into title by prescription?
It is a fundamental principle of the law in this jurisdiction concerning the possession of real property that
such possession is not affected by acts of a possessory character which are "merely tolerated" by the
possessor, or which are due to his license (Civil Code, arts. 444 and 1942). This principle is applicable not
only with respect to the prescription of the dominium as a whole, but to the prescription of right in rem. In
the case of Cortes vs. Palanca Yu-Tibo (2 Phil. Rep., 24, 38), the Court said:
"The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated
produce no effect with respect to .possession is applicable as much to the prescription of real rights
as to the prescription of the fee, it being a glaring and self-evident error to affirm the contrary, as
does the appellant in his motion papers. Possession is the fundamental basis of the prescription.
Without it no kind of prescription is possible, not even the extraordinary. Consequently, if acts of
mere tolerance produce no effect with respect to possession, as that article provides, in conformity
with article 444 of the same Code, it is evident that they can produce no effect with respect to
prescription, whether ordinary or extraordinary. This is true whether the prescriptive acquisition
be of a fee or of real rights, for the same reason holds in one and the other case; that is, that there
has been no true possession in the legal sense of the word." (See also Ayala de Roxas vs. Maglonso,
8 Phil. Rep., 745; Municipality of Nueva Caceres vs. Director of Lands and Roman Catholic Bishop
of Nueva Caceres, 24 Phil. Rep., 485.)
Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be possession
under claim of title (en concepto de dueño), or to use the common law equivalent of the term, it must be
adverse. Acts of a possessory character performed by one who holds by mere tolerance of the owner are
clearly not en concepto de dueño, and such possessory acts, no matter how long so continued, do not start
the running of the period of prescription.
A similar question was presented in the case of the Roman Catholic Archbishop of Manila vs. Roxas (22
Phil Rep., 450), in which case it appeared that Roxas, the owner of the Hacienda de San Pedro Macati,
claimed a right of way across the property of the church to Calle Tejeron, a public Street of the town of San
Pedro Macati. The proof showed that the road in question had been used by the tenants of the Hacienda
de San Pedro Macati for the passage of carts in coming and leaving the hacienda "from time immemorial,”
and further that the road had been used for time out of mind, not only by the tenants of the hacienda but
by many other people in going and coming from a church half-way between the boundary line of the
hacienda and Calle Tejeron. The court held that the facts did not give rise to a prescriptive right of
easement in favor of the owner of the hacienda, upon the ground that such use "is to be regarded as
permissive and under an implied license, and not adverse. Such a use is not inconsistent with the only use
which the proprietor thought fit to make of the land, and until the appellee thinks proper to inclose it, such
use is not adverse and will not preclude it from enclosing the .land when other views of its interest render
it proper to do so. And though an adjacent proprietor may make such use of the open land more frequently
than another, yet the same rule will apply unless there be some decisive act indicating a separate and
exclusive use under a claim of right. A different doctrine would have a tendency to destroy all neighborhood
accommodations in the way of travel; for if it were once understood that a man, by allowing his neighbor
to pass through his farm without objection over the pass-way which he used himself, would thereby, after

the lapse of time, confer a right on such neighbor to require the pass-way to be kept open for his benefit
and enjoyment, a prohibition against all such travel would immediately ensue."
The decisions of the supreme court of Louisiana, a State whose jurisdiction is based, as is our own, upon
the Roman Law, and whose Civil Code is taken, as is our own, very largely from the Code of Napoleon, are
particularly persuasive in matters of this character. In the case of Torres vs. Fargoust (37 La. Ann., 497),
cited by appellants in their brief, in which the issues were very similar to those of the present case, the
court held that—
"The mere fact that for thirty or forty years the public was permitted to pass over this ground
would not of itself constitute the place a locus publicus * * * dedication must be shown by evidence
so conclusive as to exclude all idea of private ownership; * * * such dedication cannot be inferred
from mere user alone; * * * no one is presumed to give away his property. The burden is on him
who avers a divestiture of ownership to prove it clearly."
We are, therefore, of the opinion, and so hold, that upon the facts established by the evidence it does not
appear that the road in question is a public road or way. We are also of the opinion that plaintiffs have
failed to show that they have acquired by prescription a private right of passage over the lands of
defendants. The supreme court of Spain has decided that under the law in f force bef ore the enactment of
the Civil Code, the easement of way was discontinuous, and that while such an easement might be acquired
by prescription, it must be used in good faith, in the belief of the existence of the right, and such user must
have been continuous from time immemorial. (Judgment of December 15, 1882.) In the appealed decision
the court below says that the plaintiffs and their predecessors made use of the road in question "from time
immemorial," but there is no evidence whatever in the record to support this finding, although it is true
that the evidence shows the existence of the road and its use by the plaintiffs and their predecessors for
thirty-five or forty years. Speaking of the evidence required under the present Code of Civil Procedure to
show immemorial use of an easement, this court said in the case of Ayala de Roxas vs. Case (8 Phil. Rep.,
197, 198) :
8
PROPERTY
Procedure relating to prescription, and that since its enactment discontinuous easement may be acquired
by prescription, it is clear that this would not avail plaintiffs. The Code of Civil Procedure went into effect
on October 1, 1901. The term of prescription for the acquisition of rights in real estate is fixed by the Code
(sec. 41) at ten years. The evidence shows that in February, 1911, before the expiration of the term of ten
years since the time the Code of Civil Procedure took effect, the defendants interrupted the use of the road
by plaintiffs by constructing and maintaining a toll gate on it and collecting toll from persons making use
of it with carts and continued to do so until they were enjoined by the granting of the preliminary injunction
by the trial court in December, 1912, Our conclusion is, therefore, that plaintiffs have not acquired by
prescription a right to an easement of way over the defendants' property; that their use of the Nanca-
Victorias road across the Hacienda Toreno was due merely to the tacit license and tolerance of the
defendants and their predecessors in title; that the license was essentially revokable; and that, therefore,
the defendants were within their rights when they closed the road in 1911.
While in the allegations from plaintiffs' complaint it might be inferred that it was their purpose to seek to
impose upon defendants the easement to which arts. 564 et seq. of the Civil Code relate, that purpose was
evidently abandoned, and the case was tried upon a wholly different theory. Proof was offered to show that
the right of passage across defendants' land is necessary to enable plaintiffs to get their products to market,
but there was no offer on their part to pay defendants the indemnity required by section 564.
For the reasons stated the judgment of the court below is reversed, the injunction issued against
defendants is dissolved, and the action is dismissed. No costs will be allowed on this appeal. So ordered.
Arellano, C. J., Torres, Araullo, Street, Malcolm, and Avanceña, JJ., concur.
JOHNSON, J., dissents.
Judgment reversed; injunction dissolved, and action dismissed.

"The third Partida in title 31, law 15 * * * says that discontinuous servitudes * * * must be proved by usage
or a term so long that men can not remember its commencement. * * * In many judgments the supreme
court of Spain has refused to accept proof of any definite number of years as a satisfaction of this
requirement of the law. * * * We are of the opinion that in order to establish a right of prescription [title of
prescription based upon use from time immemorial] something more is required than the memory of living
witnesses. Whether this something should be the declaration of persons long dead, repeated by those who
testify, as exacted by the Spanish law, or should be the common reputation of ownership recognized by the
Code of Procedure, it is unnecessary for us to decide. On either theory the appellant has failed in his proof
* * *."

The same thing may be said in this case. Witnesses have testified that they have known the road f or a
certain period of years, beginning at a time prior to the enactment of the Civil Code, but no evidence has
been made to prove immemorial use by either of the means of proof mentioned in this decision cited, nor
is immemorial user averred in the complaint as the basis of the right. It is evident, therefore, that no vested
right by user f from time immemorial had been acquired by plaintiffs at the time the Civil Code took effect.
Under that Code (art. 539) no discontinuous easement could be acquired by prescription in any event.
Assuming, without deciding, that this rule has been changed by the provisions of the present Code of Civil

No.L-28066. September 22, 1976.*
PEREGRINA ASTUDILLO, petitioner-appellant, vs. THE BOARD OF DIRECTORS OF PEOPLE’S
HOMESITE AND HOUSING CORPORATION, RAMON P. MITRA, SALUD O. MITRA, and REGISTER OF
DEEDS, QUEZON CITY, respondents-appellees.
Action; People’s Homesite & Housing Corporation; One who has no possessory rights over a PHHC lot has no
cause of action to impugn award thereof to another.—We hold that she has so cause of action to impugn the
award to Mitra and to require that she be allowed to purchase the lot. As a squatter, she has no possessory
rights over Lot 16. In the eyes of the law, the award to Mitra did not prejudice her since she was bereft of
any rights over the said lot which could have been impaired by that award.
Same; Same; Contracts; One who is not principally or subsidiarily bound in a contract of sale is not entitled to
ask for its annulment.—In the familiar language of procedure, she was not entitled to sue Mitra and the
PHHC for the enforcement or protection of a right, or the prevention of a wrong. Those respondents did
not commit any delict or wrong in violation of her rights because, in the first place, she has no right to the
lot. Not being principally or subsidiarily bound in the contract of sale between Mitra and the PHHC, she
is not entitled to ask for its annulment.
Same; Same; Provision of PHHC Charter for award of residential lots to those who cannot afford them does not
justify squatting on government lands.—Those provisions do not sustain her action in this case. They do not
justify her act of squatting on a government-owned lot and then demanding that the lot be sold to her
because she does not yet own a residential lot and house. She is not a bona fide occupant of Lot 16.
Same; Same; While committed to protect the destitute, the State has enunciated it militant policy against
squatters.—The State is committed to promote social justice and to maintain adequate social services in
the field of housing (Secs. 6 and 7, Art. II, New Constitution). But the State’s solicitude for the destitute
and the havenots does not mean that it should tolerate usurpations of property, public or private. x x x
Indeed, the government has enunciated a militant policy against squatters. Thus, Letter of Instruction No.
19 dated October 2, 1972 orders city and district engineers “to remove all illegal constructions, including
buildings x x x and those built without permits on public or private property” and provides for relocation
of squatters.
Same; Same; Certiorari; Remedy of certiorari cannot be used against exercise of corporate function by PHHC
board as said board does not exercise judicial functions.—Respondent PHHC board is not the board
contemplated in section 1 of Rule 65. It does not exercise judicial functions. The award being questioned
was a routinary corporate act that was within the board’s competence. No jurisdictional issue was involved
in that award. Certiorari lies only for the correction of jurisdictional errors.
Same; Same; Mandamus; Mandamus cannot be used to compel PHHC to execute a contract of sale of PHHC
lot where PHHC has no ministerial duty to award said lot to petitioned.—Nor is the relief sought, by Peregrina
Astudillo, which is to compel the PHHC board to cancel the award of Lot 16 to Mitra and to resell it to her,
a right that can be enforced by mandamus. What she wants is to force the PHHC to execute a contract of
sale in her favor. That is not within the purview of the writ of mandamus. x x x It is not a ministerial duty
of the PHHC board to award Lot 16 to Peregrina. Anyway, it has already been shown that as a squatter
she is not clothed with any right to Lot 16 that may be enforced in a court of justice.
9
PROPERTY
Same; Same; Anti-Graft & Corrupt Practices Law; One who has no cause of action to assail award of lot by
PHHC cannot assail that award by invoking the provisions of the Anti-Graft and Corrupt Practices Law.—Having
shown that Peregrina has no cause of action to assail the award of Lot 16 to Mitra, it follows that in this
particular case she cannot assail that award by invoking the provisions of the Anti-Graft and Corrupt
Practices Law and the Constitution. This is not the proper forum for the ventilation of that question.
APPEAL from the order of dismissal of the Court of First Instance of Rizal, Quezon City Branch.
Masakayan, J.
The facts are stated in the opinion of the Court.
Jose Villa Agustin for petitioner-appellant.
SanJuan, Africa, Gonzales & San Agustin for appellees Mitras.
Manuel L. Lazaro & Leonarda A. Reyes, Gov’t. Corp. Counsel’s Office for appellee Board of Director of
the PHHC.
AQUINO, J.:
Peregrina Astudillo appealed from the “resolution” dated April 18, 1967 of the Court of First Instance of
Rizal, Quezon City Branch V, granting the motion for summary judgment filed by Ramon P. Mitra and
dismissing her petition for certiorari and mandamus (Civil Case No. Q-8741).
According to the pleadings of respondents Mitra and the People’s Homesite and Housing Corporation
(PHHC)*, Mitra on December 28, 1957 applied, in behalf of his minor son, Ramon Mitra Ocampo, for the
purchase of Lot 16, Block E-155 of the East Avenue Subdivision of the PHHC in Piñahan, Quezon City.
His application was approved on January 3, 1958. He made a downpayment of P840, an amount equivalent
to ten percent of the price of the lot. On September 9, 1961 the PHHC and Mitra executed a contract of
conditional sale. After Mitra had paid in full the price, which totalled more than nine thousand pesos, a
final deed of sale was executed in his favor on February 18, 1965. Transfer Certificate of Title No. 89875
was issued to him on March 1, 1965.
The lot in question is acqually in the possession of Peregrina Astudillo. She constructed thereon a
residential house (a shanty, according to Mitra). She admits that she has been squatting on the said lot
“uninterruptedly since 1957 up to the present” (p. 52, Record). She filed with the administrative
investigating committee of the PHHC a request dated February 24, 1963, praying for the cancellation of
the award of Lot 16 to Congressman Mitra and asking the committee to recommend that it be re-awarded
to her. No action was taken on that request.
On May 3, 1965 Peregrina filed in the lower court her aforementioned petition against the PHHC board of
directors, the register of deeds of Quezon City and the spouses Ramon P. Mitra and Salud O. Mitra. She
questioned the legality of the award of Lot 16 to Mitra. She asked that Lot 16 be sold to her.
After the respondents had filed their answers, the Mitra spouses filed a verified motion for summary
judgment. They assumed that there was no genuine issue as to any material fact. Peregrina Astudillo
opposed the motion. The parties submitted memoranda.

The lower court treated the motion for summary judgment as a motion to dismiss. It dismissed Peregrina’s
petition on the grounds that she is a mala fide squatter and that the sale of Lot 16 to Mitra cannot be
assailed by means of certiorari and mandamus. Peregrina appealed to this Court.
Her four assignments of error raise questions of law. She contends that the lower court erred in holding
that certiorari andmandamus do not lie in this case and that she has no right to question the award to Mitra,
and in not holding that the award of Lot 16 to him was in contravention of the Anti-Graft and Corrupt
Practice Law and of the constitutional provision that a Senator or Representative should not directly or
indirectly be financially interested in any contract with the government of any subdivision or
instrumentality thereof during his term of office.
In the ultimate analysis the issue is whether Peregrina Astudillo has a cause of action to annul the sale of
Lot 16 to Mitra and to compel the PHHC board to award that lot to her.
We hold that she has no cause of action to impugn the award to Mitra and to require that she be allowed
to purchase the lot. As a squatter, she has no possessory rights over Lot 16. In the eyes of the law, the
award to Mitra did not prejudice her since she was bereft of any rights over the said lot which could have
been impaired by that award (Bañez vs. Court of Appeals, L-30351, September 11, 1974, 59 SCRA 15, 22).
The record does not show, and Peregrina does not claim, that she is a member of the Piñahan Homeowners
Association some of whose members are “deserving squatters” (Kempis vs. Gonzales, L-31701, October 31,
1974, 60 SCRA 439).
In the familiar language of procedure, she was not entitled to sue Mitra and the PHHC for the enforcement
or protection of a right, or the prevention of a wrong. Those respondents did not commit any delict or wrong
in violation of her rights because, in the first place, she has no right to the lot. Not being principally or
subsidiarily bound in the contract of sale between Mitra and the PHHC, she is not entitled to ask for its
annulment (Art. 1397, Civil Code).
Peregrina invokes the PHHC charter (erroneously referred to as section 11 of Commonwealth Act No. 648)
which provides that the PHHC should acquire buildings so as to provide “decent housing for those who
may be unable otherwise to provide themselves therewith” and that it should acquire large estates for their
resale to bona fide occupants.
Those provisions do not sustain her action in this case. They do not justify her act of squatting on a
government-owned lot and then demanding that the lot be sold to her because she does not yet own a
residential lot and house. She is not a bona fide occupant of Lot 16.
The State is committed to promote social justice and to maintain adequate social services in the field of
housing (Secs. 6 and 7, Art. II, New Constitution). But the State’s solicitude for the destitute and the have-
nots does not mean that it should tolerate usurpations of property, public or private.
“In carrying out its social readjustment policies, the government could not simply lay aside moral
standards, and aim to favor usurpers, squatters, and intruders, unmindful of the lawful and unlawful
origin and character of their occupancy. Such a policy would perpetuate conflicts instead of attaining their
just solution” (Bernardo vs. Bernardo, 96 Phil. 202, 206).
10
PROPERTY
Indeed, the government has enunciated a militant policy against squatters. Thus, Letter of Instruction No.
19 dated October 2, 1972 orders city and district engineers “to remove all illegal constructions, including
buildings x x x and those built without permits on public or private property” and provides for the
relocation of squatters (68 O.G. 7962. See Letter of Instruction No. 19-A). As noted by Justice Sanchez,
“since the last global war, squatting on another’s property in this country has become a widespread vice”
(City of Manila vs. Garcia, L-26053, February 21, 1967, 19 SCRA 413, 418).
The lower court did not err in holding that Peregrina Astudillo cannot use the special civil actions of
certiorari and mandamus to secure a judicial review of the award of Lot 16 to Mitra. Rule 65 of the Rules of
Court provides:
“SECTION 1. Petition for certiorari.—When any tribunal, board, or officer exercising judicial
functions, has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the proceedings, as the
law requires, of such tribunal, board or officer.
“The petition shall be accompanied by a certified true copy of the judgment or order subject
thereof, together with copies of all pleadings and documents relevant and pertinent thereto.”
“SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper
court alleging the facts with certainty and praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do the act required to be done to protect
the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the defendant.”
Respondent PHHC board is not the board contemplated in section 1 of Rule 65. It does not exercise judicial
functions. The award being questioned was a routinary corporate act that was within the board’s
competence. No jurisdictional issue was involved in that award. Certiorari lies only for the correction of
jurisdictional errors (Gov’t. of the P.I. vs. Judge of 1st Instance of Iloilo, 34 Phil. 157, 159).
Nor is the relief sought by Peregrina Astudillo, which is to compel the PHHC board to cancel the award of
Lot 16 to Mitra and to resell it to her, a right that can be enforced by mandamus. What she wants is to
force the PHHC to execute a contract of sale in her favor. That is not within the purview of the writ of
mandamus.
Thus, it was held that “the writ of mandamus is not an appropriate or even admissible remedy to enforce
the performance of a private contract which has not been fully performed by either party” (Quiogue vs.
Romualdez, 46 Phil. 337). In Jacinto vs. Director of Lands, 49 Phil. 853, a petition for a writ of mandamus
to compel the Director of Lands to execute adeed of conveyance for certain lots in favor of the petitioner
 11
PROPERTY
was denied. Generally, title to property cannot be litigated in a mandamus proceeding (City of Manila vs. Proposal shall bind the successful bidder to execute the contracts”. (Central Bank of the Philippines vs. Court
Posadas, 48 Phil. 309, 337). of Appeals, 63 SCRA 431).

It is not a ministerial duty of the PHHC board to award Lot 16 to Peregrina. Anyway, it has already been
shown that as a squatter she is not clothed with any right to Lot 16 that may be enforced in a court of
justice.

The PHHC board completely ignored the alleged demands of Peregrina for the purchase of Lot 16. It did
not render any decision against her. Its inaction cannot be assailed by certiorarior mandamus.

Peregrina’s other assignment of error is that the award of Lot 16 to Congressman Mitra was a violation of
section 3(h) of the Anti-Graft and Corrupt Practices Law and of section 17, Article VI of the 1935
Constitution, now section 11, Article VIII of the new Constitution.

On the other hand, Mitra contends that the PHHC performs proprietary functions. He observed that the
following high-ranking officials were awarded PHHC lots: Felixberto Serrano, Dominador Aytona, Manuel
Lim, Fernando Lopez, Pacita M. Gonzales, Genaro Magsaysay, Daniel Romualdez, Felipe A. Abrigo,
Bartolome Cabangbang, Juan Duran, Manuel Enverga, Angel Fernandez, Jose Nuguid, Antonio de Pio,
Lorenzo Teves, Faustino Tobia, Pedro Trono, Marcelino Veloso and Valeriano Yancha.

We are of the opinion that that assignment of error need not be resolved in this case. Having shown that
Peregrina has no cause of action to assail the award of Lot 16 to Mitra, it follows that in this particular
case she cannot assail that award by invoking the provisions of the Anti-Graft and Corrupt Practices Law
and the Constitution. This is not the proper forum for the ventilation of that question. (See Commonwealth
Act No. 626; Hernandez vs. Albano, 112 Phil. 506; Solidum and Concepcion, Jr. vs. Hernandez, 117 Phil.
335).
WHEREFORE, the lower court’s order of dismissal is affirmed. No costs.
SO ORDERED.
Barredo, Antonio and Concepcion, Jr., JJ., concur.
Fernando (Chairman), J., in the result.
Order affirmed.

Notes.—A person who is not a party obliged principally or subsidiarily in a contract may exercise an action
for nullity of the contract if he is prejudiced in his rights with respect to one of the contracting parties, and
can show the detriment which would positively result to him from the contract in which he had no
intervention. (Teves vs. People’s Homesite and Housing Corporation, 23 SCRA 1141).

A brother of the deceased vendor of a parcel of land has no personality to attack the sale of said land to
certain minors as fraudulent or inexistent. He is not a compulsory heir of the vendor, he is not obliged
principally or subsidiarily under the contract of sale. (Armentia vs. Patriarca, 13 SCRA 1253; De Santos vs.
City of Manila, 45 SCRA 409).

The Central Bank’s acceptance of the bid to construct a building effects an actionable agreement between
it and the contractor notwithstanding the provision in the instruction to bidders that “acceptance of a

No. L-57259. October 13, 1983.*
ANGEL P. PERAN, petitioner, vs. THE HONORABLE PRESIDING JUDGE, BRANCH II, COURT OF FIRST
INSTANCE OF SORSOGON, 10th JUDICIAL DISTRICT, RAMON ESPERA and ENCARNACION EVASCO,
as private-respondents, respondents.
Remedial Law; Special Proceedings; Forcible entry aid detainer; Failure co prove title to land; Validity of
“Repartition Ex-trajudicial” adjudicating lot to the son of the original owner, never challenged; Ownership by son
of lot, valid.—Private respondents admit that the land in question was originally owned by Jose Evasco.
The tax declarations covering their house clearly state “house built on land owned by Jose Evasco under
Tax No. 1599”. Since the land had been partitioned to Alejandro Evasco by his father, Jose Evasco,
respondent Encarnacion can lay no claim to the property even as a grand-daughter of Jose Evasco.
Respondents may have been in possession of the portion they occupy prior to petitioner but they have not
proved their title thereto, nor their right to possess the same. As the 2nd Municipal Circuit Court of
Bulusan-Barcelona found, no concrete evidence was introduced by respondents on this point. Moreover, it
is noteworthy that the validity of the ‘Reparticion Ex-trajudicial” whereby said lot was adjudicated to
Alejandro Evasco by his father Jose Evasco, predecessors-in-interest of petitioner, had never been
challenged.
Same; Same; Possession by tolerance; Tolerance of lawful owner’s predecessors-in-interest cannot vest a right
to said lot which the possessor by tolerance can assert; Possessor by tolerance bound by implied promise to
vacate upon demand: Formal agreement or contract of lease or prior physical possession of property not
necessary before an unlawful detainer suit is filed against the possessor by tolerance.—If at all private
respondents’ possession of their portion of the property was by mere tolerance of petitioner’s predecessors-
in-interest, which, however, does not vest in them a right which they can assert against petitioner.
Possession by tolerance is lawful, but this becomes illegal when, upon demand to vacate by the owner, the
possessor refuses to comply with such demand. A possessor by tolerance is necessarily bound by an implied
promise to vacate upon demand, failing which a summary action for ejectment is the proper remedy against
him. It is not necessary that there be a formal agreement or contract of lease before an unlawful detainer
suit may be filed against a possessor by tolerance. Neither is prior physical possession of the property by
petitioner an indispensable requisite. The ruling of respondent Court, therefore, that “since the only issue
in forcible entry and illegal detainer action is the physical possession of real property—possession de facto
and not possession de jure—whoever has prior possession, no matter in what character, is protected by
law,” is erroneous under the factual milieu herein.
Same; Same; Same; When one-year period to file forcible entry and unlawful detainer commences; Demand to
vacate.—A Forcible Entry and Unlawful Detainer action must be brought within one year from the
unlawful deprivation or withholding of possession. The one-year period of limitation commences from the
time of demand to vacate, and when several demands are made, the same is counted from the last letter
of demand. Demand may either be personal or in writing. The demand to vacate having been made by
petitioner in January 1979, and the ejectment suit having been instituted on February 8, 1979, the 2nd
Municipal Circuit Court of Bulusan-Barcelona acted well within its jurisdiction in taking cognizance of the
case.
PETITION for review on certiorari from the decision of the Court of First Instance of Sorsogon, Br. II.
The facts are stated in the opinion of the Court.
12
PROPERTY
Irene P. Escandor for petitioner.
Esteban Escalante, Jr. for private respondents.
MELENCIO-HERRERA, J.:
The decision of the then Court of First Instance of Sorsogon, Branch II, Gubat, Sorsogon, rendered in the
exercise of its appellate jurisdiction, dismissing Civil Case No. 1277, entitled “Angel P. Peran vs.
Encarnacion Evasco, et al.”, for Forcible Entry and Illegal Detainer, is being assailed in this Petition for
Review on Certiorari on a question of law. Said Decision reversed the judgment of the 2nd Municipal
Circuit Court of Bulusan-Barcelona, Sorsogon, for Forcible Entry & Illegal Detainer.
The antecedent facts follow:
The property in question, an unregistered residential land, with an area of 1,225 square meters more or
less, situated at Tagdon, Barcelona, Sorsogon, was originally owned by Jose Evasco. On December 29,
1950, Jose Evasco executed a ‘Reparticion Ex-trajudicial’ whereby he partitioned his properties among his
five heirs.1 Subject property was one of those alloted to his son, Alejandro Evasco, who had it surveyed in
1956 (Exhibits “I” and “I-1”), and who had it declared in his name under Tax Declaration No. 1900. The
other heirs received their own shares, one of them, the deceased Anacleto Evasco, one of whose children
was listed as Encarnacion, possibly, the principal private respondent herein.
Alejandro Evasco sold his property to Jose E. Torella on December 31, 1972,2 who declared it for taxation
purposes under Tax Declaration No. 5157.3 On July 10, 1977, Jose E. Torella, in turn, sold the land to Jose
Enriquez Sabater,4 and the latter also declared the property in his name under Tax Declaration No. 7127.5
Petitioner Angel P. Peran acquired the land by purchase from Jose Enriquez Sabater on December 27,
1978,6 and subsequently declared it, too, in his name under Tax Declaration No. 7310.7 The sale was duly
recorded in the Register of Deeds’ Office of the province of Sorsogon on January 3, 1979 in accordance with
the provisions of Sec. 194 of the Revised Administrative Code as amended by Act No. 3344.
Sometime in January 1979, petitioner personally asked private respondents, Encarnacion Evasco and her
common-law husband Ramon Espera, whose house is erected on a 440 square meter portion (44 sq. ms.
according to petitioner) of the lot in question, to remove the same and vacate the premises. Respondents
refused, and consequently, a confrontation between the parties was had before the Municipal Mayor of
Barcelona and later before the Municipal Judge of Bulusan-Barcelona to settle the dispute, but to no avail.
On February 8, 1979, petitioner filed a complaint for Forcible Entry and Illegal Detainer against private
respondents before the 2nd Municipal Circuit Court of Bulusan-Barcelona, seeking the ejectment of the
latter from the portion in question contending that respondents are mere squatters thereon; that they had
prevented plaintiff from entering the property and deprived him of possession; and that they were
tolerating persons in getting soil and bringing about a gradual erosion of the land to his extreme prejudice.
Private respondents answered denying the material allegations of the Complaint, and alleging that they
are the lawful possessors for more than twenty (20) years of the said portion, which formerly belonged to
Jose Evasco, grandfather of Encarnacion Evasco; and that petitioner has no right to eject them therefrom.
On September 1, 1979, the 2nd Municipal Circuit Court of Bulusan-Barcelona rendered its Decision
ordering private respondents to vacate the lot in question, return its possession to petitioner, reimburse

him attorney’s fees of P300.00 and litigation expenses, and to pay the costs. Reconsideration of the said
decision filed by private respondents was denied by said Court on November 12, 1979. Private respondents
appealed to respondent Court of First Instance of Sorsogon, Branch II.
Respondent Court reversed the Municipal Circuit Court and dismissed the case on March 28, 1980, ruling
that said Court had no jurisdiction over the case as the same was filed only on February 4, (8), 1979, which
was well beyond the one-year-period of limitation, the cause of action having accrued from the sale of the
property by Alejandro Evasco to Jose E. Torella on December 31, 1972; and that since the only issue in an
illegal detainer case is physical possession, “whoever has prior possession, no matter in what character, is
protected by law.”
Reconsideration of the said Decision sought by petitioner was denied by respondent Court.
Petitioner appealed said judgment directly to this Tribunal on a question of law, raising as the lone issue:
x x x “whether the respondent court was in error when for purposes of determining the jurisdiction of the
2nd Municipal Circuit Court of Bulusan-Barcelona, to try Civil Case No. 1227, for Illegal Detainer:
(a)
it reckoned the counting of one-year period within which to file the action from the sale of the
property in question by Alejandro Evasco to Jose Torella on December 31, 1972 and not from the
date of demand made by the petitioner upon the respondents; and
(b)
by assuming that ‘prior possession in whatever character is protected by law’.”
We rule for petitioner.
Private respondents admit that the land in question was originally owned by Jose Evasco. The tax
declarations covering their house clearly state “house built on land owned by Jose Evasco under Tax No.
1599”.8 Since the land had been partitioned to Alejandro Evasco by his father, Jose Evasco, respondent
Encarnacion can lay no claim to the property even as a grand-daughter of Jose Evasco. Respondents may
have been in possession of the portion they occupy prior to petitioner but they have not proved their title
thereto, nor their right to possess the same. As the 2nd Municipal Circuit Court of Bulusan-Barcelona
found, no concrete evidence was introduced by respondents on this point. Moreover, it is noteworthy that
the validity of the ‘Repartition Ex-trajudicial” whereby said lot was adjudicated to Alejandro Evasco by his
father Jose Evasco, predecessors-in-interest of petitioner, had never been challenged.
If at all, private respondents’ possession of their portion of the property was by mere tolerance of
petitioner’s predecessors-in-interest, which, however, does not vest in them a right which they can assert
against petitioner. Possession by tolerance is lawful, but this becomes illegal when, upon demand to vacate
by the owner, the possessor refuses to comply with such demand.9 A possessor by tolerance is necessarily
bound by an implied promise to vacate upon demand, failing which a summary action for ejectment is the
proper remedy against him.10 It is not necessary that there be a formal agreement or contract of lease
before an unlawful detainer suit may be filed against a possessor by tolerance.11 Neither is prior physical
possession of the property by petitioner an indispensable requisite.12 The ruling of respondent Court,
13
PROPERTY
therefore, that “since the only issue in forcible entry and illegal detainer action is the physical possession
of real property—possession de facto and not possession de jure—whoever has prior possession, no matter
in what character, is protected by law,” is erroneous under the factual milieu herein.
A Forcible Entry and Unlawful Detainer action must be brought within one year from the unlawful
deprivation or withholding of possession.13 The one-year-period of limitation commences from the time of
demand to vacate, and when several demands are made, the same is counted from the last letter of
demand.14 Demand may either be personal or in writing.15 The demand to vacate having been made by
petitioner in January 1979, and the ejectment suit having been instituted on February 8, 1979, the 2nd
Municipal Circuit Court of Bulusan-Barcelona acted well within its jurisdiction in taking cognizance of the
case.
WHEREFORE, the assailed Decision of respondent Court of First Instance of Sorsogon, Branch II, in Civil
Case No. 1227, is SET ASIDE, and the Decision of the 2nd Municipal Circuit Court of Bulusan-Barcelona
is hereby reinstated.
Costs against private respondents.
SO ORDERED.
Abad Santos, ** Plana, Escolin** and Relova, JJ., concur.
Decision set aside.
Notes.—There is reason to believe that the filing of the criminal information for alleged illegal
construction was a mere scheme to oust the lessee from the leased premises. (Enriquez vs. Zari, 120 SCRA
255.)
Agreement that payment of rental on leased premises is monthly makes the lease on a month-to-
month basis and is a lease with a definite period. (Cruz vs. Puno, Jr., 120 SCRA 497.)
Amount recoverable from a defendant in ejectment proceedings regardless of its denomination as
rental or reasonable compensation or damages flows from detainer or illegal occupation of property and
whatever amount is recoverable does not affect the court’s jurisdiction. (Guanzon vs. Montesclaros, 123
SCRA 185.)
No inference that a judgment on a petition for preliminary injunction settled the issue of the
dominical rights of the parties, should be made where none is indicated or mentioned therein about it.
(Vda. de Legaspi vs. Avendaño, 79 SCRA 135.)
The sheriff cannot effect removal of the improvements constructed by the defeated party in an ejectment
case without a special order issued by the court after notice and hearing. (Albetz Investments, Inc. vs. Court
of Appeals, 75 SCRA 310.)

No. L-35833. June 29, 1984.*
SUSANA DE LA CERNA LAINGO, TEODORO DACUYAN, ELENA DACUYAN and SAMSON DACUYAN,
petitioners, vs. DAMIAN CAMILO and/or JUAN MAGALLANES, respondents.
Remedial Law; Civil Procedure; Judgment; Execution; Rule that execution must conform to the judgment.—We
stated in Phil-American Accident Insurance Co., Inc. (97 SCRA 811)—Fundamental is the rule that execution
must conform to that ordained or decreed in the dispositive part of the decision. Likewise, a court can not,
except for clerical errors or omissions, amend a judgment that has become final. (Jabon, et al. v. Alo, et al.,
91 Phil. 750 [1952]; Robles v. Timario, et al., 107 Phil. 809 [1960]; Collector of Internal Revenue v.
Gutierrez, et al., 108 Phil. 215 [1960]; Ablaza v. Sycip, et al., 110 Phil. 4 [1960].)
Same; Same; Same; Same; Same; Co-possession by respondents with petitioners over 7 hectares which
actually belongs to the former, inequitous even as actual co-possession over 22 hectares does not conform to
the final judgment.—For us to now rule that the respondents will enjoy co-possession with the petitioners
over seven (7) hectares which belongs to the former would be inequitous even as actual co-possession over
twenty two (22) hectares would not conform to the final judgment. There is the other consideration that
segregation of the definite seven (7) hectares must await the partition among the heirs, a procedure outside
the control of the respondents.
Same; Same; Same; Same; Same; Interpretation; “Copossession” in the questioned judgment refers to the
rights of respondents to exclusively possess and enjoy the 7 hectares actually held by them until a partition is
effected, but will have no share of the fruits of the other 15 hectares of the 22-hectare disputed property; Case
at bar.—We, therefore, rule that the co-possession mentioned in the Court of Appeals judgment refers to
the right of the respondents, already certain and vested but not yet specific, over any seven (7) hectares of
the property, in effect ranging but not specific over the entire property. However, in the meantime that the
partition is not effected and the boundaries of the seven (7) hectares not spelled out, the respondents shall
continue to possess the seven (7) hectares they have held since the litigated sale and enjoy all its fruits.
They will have no share of the fruits of the other fifteen (15) hectares nor its enjoyment but neither shall
the petitioners have any share in the fruits or enjoyment of the seven (7) hectares held by the respondents.
It would be in the interests of all concerned if the partition of the property among the heirs is effected
immediately and the respondents are finally given their definite seven (7) hectares as provided in the
appellate judgment.
PETITION to review the order of the Court of Appeals.
The facts are stated in the opinion of the Court.
Isidro M. Ampig for petitioners.
Gonzalo G. Latorilla, Kimpo & Kimpo for respondents.
GUTIERREZ, JR., J.:
The issue raised in this petition is whether or not the execution ordered by the respondent court conforms
to the final judgment embodied in the decision of the Court of Appeals in CA-G.R. No. 43920-R.
The petitioners filed a complaint as plaintiffs in Civil Case No. 5438 of the Court of First Instance of Davao
to recover a seven hectare portion of a twenty-two hectare parcel of land in Malita, Davao.
14
PROPERTY
The disputed property is part of a homestead applied for by Gaudencio Dacuyan married to Susana de la
Cerna and awarded in 1934 to the “heirs of Gaudencio Dacuyan” because the applicant had died in the
meantime. The title was registered in October, 1934. In 1942, the widow Susana de la Cerna describing
herself as “half owner of the conjugal property” sold seven (7) hectares of the land to Damian Camilo,
respondent in this case. Camilo, in turn, sold the land in 1966 to the other respondent, Juan Magallanes.
The dispositive portion of the decision in the reivindicacion case states:
“WHEREFORE, judgment is hereby rendered:
“1.
Dismissing the complaint;
“2.
Divesting the plaintiffs of ownership over seven hectares of the southern side of the land
covered by Original Certificate of Title No. 1175 of the Register of Deeds of Davao, more
particularly, the portion described in the deed of sale executed by Susana Cerna de
Laingo on November 20, 1972, in the presence of Jorge Agonias and Juan Magallanes
and acknowledged before Atty. Ramon M. Kimpo, and the accompanying sketch marked
as Exhibits 1 and 1-A, respectively and vesting the same in Juan A. Magallanes,
Filipino, married to Fedilina Neri, Filipino, and residing at Malita, Davao;
“3.
Directing the plaintiffs to allow Juan Magallanes to have the aforesaid land surveyed;
and,
“4.
Sentencing the plaintiffs jointly and severally to pay the defendants P3,000.00 as
attorney’s fees, with costs.”
Upon appeal by the petitioners, however, the Court of Appeals modified the lower court’s decision. The
dispositive portion of the appellate decision reads:
“IN VIEW WHEREOF, this Court is constrained to modify as it now modifies the judgment
appealed from: the sale to appellees is held to be valid only as to an undivided seven (7) hectares
not of the specific portion now litigated; appellants are entitled to co-possession thereof with
appellees until the undivided seven (7) hectares to which appellees are entitled are definitely
segregated thru partition; the adjudication of attorney’s fee is set aside; no more pronouncement
as to cost.”
After the judgment of the Court of Appeals had become final and executory, the petitioners filed the
necessary motion with the Court of First Instance of Davao to issue a writ of execution placing them in co-
possession with the private respondents of the seven (7) hectares being litigated.
The private respondents filed a counter motion for the issuance of a writ of execution praying that the
petitioners be ordered to execute a project of partition among the heirs and while doing so, segregate the

seven (7) hectares purchased and possessed by them from the date of the document of sale. The petitioners,
however, opposed the counter motion emphasizing that the execution of judgment referred to an action for
recovery of possession of a specific seven (7) hectares of land and not to an action for partition of property.
The respondents countered with a rejoinder which admitted that the judgment, while ambiguous,
confirmed their rights over seven (7) hectares of land sold to them. Since they have been in possession of a
specific seven (7) hectares of land on which they planted coconuts already bearing fruits, the most equitable
execution according to them was for those seven (7) hectares to be the seven hectares adjudged in the
decision.
The Court of First Instance decided the matter by issuing a writ of execution allowing the respondents to
enjoy possession over the entire twenty-two (22) hectares with the petitioners. The questioned order, the
second paragraph of which is assailed in this petition reads:
“On motion of the plaintiffs, through Atty. Ampig, and without objection of Atty. Latorilla, counsel
for the defendant, let a writ of possession issue with respect to the seven (7) hectares, subject
matter of the suit, by allowing the plaintiffs to enjoy with the defendants possession of the same.
“On oral motion of Atty. Latorilla, let a writ of possession issue with respect to the remainder of
the twenty-two (22) hectares by allowing the defendants to enjoy with the plaintiffs possession of
the rest of the twenty-two (22) hectares.
SO ORDERED.”
Two motions for reconsideration having been denied, the petitioners raised the case to us directly on a pure
legal issue which they state as follows:
THE COURT A QUO OR THE RESPONDENT JUDGE ERRED IN ORDERING THE ISSUANCE
OF A WRIT OF POSSESSION WITH RESPECT TO THE REMAINDER OF THE TWENTY TWO
(22) HECTARES BY ALLOWING THE DEFENDANTS TO ENJOY WITH THE PLAINTIFFS
POSSESSION OF THE REST OF THE TWENTY TWO (22) HECTARES AND IN DENYING
THE TWO (2) MOTIONS FOR RECONSIDERATION OF THE SAID ORDER.
The reasons given by the Court of Appeals for not granting undisputed ownership of the seven (7) hectares
already possessed by the respondents are:
xxx xxx xxx
“3. CONSIDERING: Now, as to this that while it is true that the Land Tax Declaration in the
name of the heirs of Gaudencio Dacuyan Exh. 3 was afterwards cancelled and reduced from its
area of 22 hectares to 15 hectares under Exh. 3-A the remaining seven (7) hectares coming to be
declared in the name of the buyer Camilo Damian under Exh. 5-A, 5-B, 5-C and 5-D, yet a scrutiny
of these documents would not show any participation of the other children of Gaudencio and
Susana namely Teodoro, Elena and Samson the co-plaintiffs in this case not even any proof that
they were informed of the sale; neither is there any evidence present in the record positive in
character that they had ever consented to a physical segregation of the seven (7) hectare portion
15
PROPERTY
sold by Susana unto Camilo so that the point of laches is without any basis; it is true that Camilo
and afterwards in 1966 his successor-in-interest Juan Magallanes had been in possession
apparently exclusive since the sale to Camilo in 1942 under Exh. 1 but the trouble is that
exclusive possession by a co-owner cannot give rise to prescription; the law has always been to
the effect that between co-owners prescription cannot run, Cortez v. Oliva, 33 Phil. 480 and in
order for prescription to run between themselves the repudiation of co-ownership must be clearly
manifested which is not at all the case here bearing in mind the undisputed fact that Camilo
Damian did not even attempt to register Exh. 1 nor notify said other children of Gaudencio
Dacuyan and tell them he was claiming the seven (7) hectare portion as solely his own; and
neither should it be overlooked that the title being a Torrens title it cannot be the subject matter
of prescription; this will mean that notwithstanding the possession apparently exclusive of
Camilo Damian for more than twenty (20) years over the seven (7) hectare portion, he cannot
under the law be permitted to claim absolute ownership therein; and as a corollary neither can
his successor-in-interest Juan Magallanes but since Susana was entitled to at least 11 hectares;
therefore her sale of seven (7) hectares if undivided would have been valid, but a sale by her of
this specific portion litigated could not bind her co-plaintiffs; and this being the final result the
adjudication of attorney’s fees must have to be discarded;
“x x x xxx xxx
The judgment of the Court of Appeals, with the foregoing reasons for a seemingly ambiguous
judgment calling for a future segregation of seven (7) hectares out of the twenty-two (22) hectares,
has long become final and executory.
We agree with the petitioners that the execution ordered by the court of first instance did not conform to
the final judgment being executed.
We stated in Phil-American Accident Insurance Co., Inc. (97 SCRA 811)—
“The questioned Order cannot be sustained. The judgment which was sought to be executed
ordered the payment of simple ‘legal interest’ only. It said nothing about the payment of
compound interest. Accordingly, when the respondent judge ordered the payment of compound
interest he went beyond the confines of his own judgment which had been affirmed by the Court
of Appeals and which had become final. Fundamental is the rule that execution must conform to that
ordained or decreed in the dispositive part of the decision. Likewise, a court can not, except for
clerical errors or omissions, amend a judgment that has become final. (Jaob, et al. v. Alo, et al.,
91 Phil. 750 [1952]; Robles v. Timario, et al., 107 Phil. 809 [1960]; Collector of Internal Revenue
v. Gutierrez, et al., 108 Phil. 215 [1960]; Ablaza v. Sycip, et al., 110 Phil. 4 [1960].) (italics
supplied)
At the same time, the mode of execution desired by the petitioners would be unfair to the respondents and
not in keeping with the disposition really ordained by the Court of Appeals. As stated in Macabuhay v.
Manuel (101 SCRA 835) where we cited Padua v. Robles (66 SCRA 485):
 16
PROPERTY
“x x x that the meaning, operation and consequences of a judgment must be ascertained like any
other written instrument and that a judgment rests on the intention of the Court as gathered What is controlling in a decision is its dispositive portion. (Fabular vs. Court of Appeals, 119 SCRA 329.)
from every part thereof including the situation to which it applies and the attendant
circumstances.’’

A reading of the decision and its background facts shows that the controversy litigated and passed upon
by the Court of Appeals was confined to the ownership of seven (7) hectares of land which forms part of
the twenty two (22) hectares parcel of land covered by a torrens title in the name of the petitioners.

The Court of Appeals ruled that the respondents are entitled to seven (7) hectares of the property but not
necessarily the seven (7) hectares possessed by them. They are entitled to co-possession with appellees
until the undivided seven (7) hectares are definitely segregated through partition.

For us to now rule that the respondents will enjoy co-possession with the petitioners over seven (7) hectares
which belongs to the former would be inequitous even as actual co-possesion over twenty two (22) hectares
would not conform to the final judgment. There is the other consideration that segregation of the definite
seven (7) hectares must await the partition among the heirs, a procedure outside the control of the
respondents.

We, therefore, rule that the co-possession mentioned in the Court of Appeals judgment refers to the right
of the respondents, already certain and vested but not yet specific, over any seven (7) hectares of the
property, in effect ranging but not specific over the entire property. However, in the meantime that the
partition is not effected and the boundaries of the seven (7) hectares not spelled out, the respondents shall
continue to possess the seven (7) hectares they have held since the litigated sale and enjoy all its fruits.
They will have no share of the fruits of the other fifteen (15) hectares nor its enjoyment but neither shall
the petitioners have any share in the fruits or enjoyment of the seven (7) hectares held by the respondents.
It would be in the interests of all concerned if the partition of the property among the heirs is effected
immediately and the respondents are finally given their definite seven (7) hectares as provided in the
appellate judgment.

WHEREFORE, the petition is hereby GRANTED. The second paragraph of the questioned order is
DELETED. The respondents shall continue to exclusively possess and enjoy the seven (7) hectares actually
held by them in accordance with the terms of this decision until a partition is effected and their share is
definitely segregated.
SO ORDERED.
Teehankee (Chairman), Plana, Relova and De la Fuente, JJ., concur.
Melencio-Herrera, J., on official leave.
Petition granted.

Notes.—A judgment must be read in its entirety to determine the meaning thereof. (Macabuhay vs.
Manuel, 101 SCRA 834.)

Execution is the remedy provided by law for the enforcement and the only portion of a decision that
becomes the subject of execution is that ordained or decreed in the dispositive part. (Pelejo vs. Court of
Appeals, 116 SCRA 406.)

No. L-77976. November 24, 1988.*
MAXIMO GABRITO, ROGER LIBUT, CARMELITA UY, LIZA DE VERA, thru her Attorney-in-Fact, JESUS
DE LOS SANTOS, petitioners, vs. THE HON. NINTH DIVISION, COURT OF APPEALS, THE HON. NICIAS
O. MENDOZA, Presiding Judge Branch 74, Regional Trial Court, Olongapo City, et al., respondents.
Ejectment; Possession; Admission by petitioners unquestionably recognized private respondents' prior right of
possession over the questioned property.—In a preliminary conference held pursuant to Section 6 of the
Rule on Summary Procedure, defendants admitted that they entered the premises as lessees and had been
paying rentals for the use of the land to Gloria Carillo, private respondents' predecessor-in-interest (Order
dated May 15, 1985 in Civil Case No. 2511, MTC, Olongapo City, Branch V; Rollo, pp. 72-73). When
requested to vacate the premises, petitioners asked for an extension of time which request was granted.
However, petitioners failed to vacate the premises and also stopped paying rentals. In view of said
admissions, petitioners had unquestionably recognized private respondents' prior right of possession over
the questioned property.
Same; Same; Builders in good faith; Petitioners not considered builders in good faith.—Petitioners' allegation
in their answer that they are builders in good faith over the land as provided for in Article 448 of the Civil
Code is untenable. As ruled by this Court, Article 448 of the Civil Code, applies only where one builds on
land in the belief that he is the owner of the land, but does not apply where one's interest in the land is
that of a lessee under a rental contract (Balucanag v. Francisco, 122 SCRA 498,1983).
Same; Same; Same; Rule is well-settled that lessees are not possessors in good faith.—"The rule is well-
settled that lessees, like petitioner, are not possessors in good faith, because he knew that their occupancy
of the premises continues only during the life of the lease, and they cannot as a matter of right, recover the
value of their improvements from the lessor, much less retain the premises until they are reimbursed.
Their rights are governed by Article 1678 of the Civil Code which allows reimbursement of lessees up to
one-half of the value of their improvements if the lessor so elects."
Same; Same; Jurisdiction; Mere claim by defendant to be the exclusive owner of the property from which plaintiff
seeks to eject him not sufficient to divest the Municipal Trial Court of jurisdiction.—More than that, it has been
settled that the mere fact that, in his answer, defendant claims to be the exclusive owner of the property
from which plaintiff seeks to eject him is not sufficient to divest the Municipal Trial Court of jurisdiction.
Same; Same; Same; Pending final adjudication of ownership by the Bureau of Lands, the Court has jurisdiction
to determine in the meantime the right of possession over the land.—And even more recently in the case of
Guerrero v. Amores, et al., G.R. No. L-34492 promulgated on March 28,1988, the Court clearly stated that
"pending final adjudication of ownership by the Bureau of Lands, the Court has jurisdiction to determine
in the meantime the right of possession over the land." Corollary thereto, the power to order the sheriff to
remove improvements and turn over the possession of the land to the party adjudged entitled thereto,
belongs only to the courts of justice and not to the Bureau of Lands.
Same; Same; Same; Same; Exhaustion of administrative remedies; The principle of exhaustion of administrative
remedies has no application to possessory action involving public lands.—"On the other hand, the application
of the principle of exhaustion of administrative remedies as a condition precedent to the filing of a juridical
action is confined to controversies arising out of the disposition of public lands (Geukoko vs. Araneta, 102
Phil. 706 (1957); Marukot vs. Jacinto, 98 Phil. 128 (1957), alienation of public lands (Rallos vs. Ruiz, Jr.,
17
PROPERTY
supra) or to the determination of the respective rights of rival claimants to public lands (Pitarque vs.
Sorilla, supra) and not to possessory actions involving public lands which are limited to the determination
of who has the actual, physical possession or occupation of the land in question.
Same; Same; Same; Jurisdiction of courts to decide question of physical possession admitted by the Bureau of
Lands.—In fact, the Bureau of Lands in its decision of June 7,1987, admitted the jurisdiction of the courts
to decide the case on the question of physical possession, although not on the question of ownership.
PETITION for certiorari with preliminary injunction to review the order of the Court of Appeals. Campos,
Jr., J.
The facts are stated in the opinion of the Court.
Cornelio C. Cardenas and Valeriano S. Peralta for petitioners.
Estanislao L. Cesa, Jr. for respondents.
BIDIN, J.:
This is a petition for review on certiorari with preliminary injunction and restraining order of the decision
of the Court of Appeals** dated March 4, 1987 in CA-G.R. No. SP No. 08710, "Maximo Gabrito et al. vs.
Hon. Nicias O. Mendoza and Roberto Tan et al.," affirming the April 2,1986 decision of the Regional Trial
Court of Olongapo City*** which also affirmed the decision of MTCC, Branch V, Olongapo City, and the
Resolution of respondent court dated March 30, 1987 denying herein petitioners' motion for
reconsideration.
The appeal originated as an unlawful detainer complaint filed by herein private respondents with the
Municipal Trial Court, Branch V, Olongapo City.
The antecedent facts as summarized by the Court of Appeals are as follows:
"The spouses Roberto Tan and Benita Ching-Tan filed a complaint in the Municipal Trial Court
against defendants Maximo Gabrito, et al., alleging that they are the possessors and legal owners
of the property situated at No. 107 Gordon Ave., New Kalalake, Olongapo City as evidenced by
Tax Declaration No. 4-2046. The defendants are leasing portions of this parcel of land, each
paying the corresponding monthly rentals due thereon.
"On the leased portion, the defendants constructed buildings and have allowed other persons to
sublease the same for commercial purposes.
"As the spouses Tan have no other property where they could construct their residential house,
the spouses Tan notified the defendants (in January 1984) that they intend to personally use the
land to build their house thereon and gave defendants three (3) months to vacate the premises
and remove the structures and improvements which defendants had constructed thereon.

"In April 1984, defendants requested for an extension of time within which to vacate, which was
granted by the spouses Tan. However, from that time on, defendants also stopped paying monthly
rentals due on the land they leased.
"In view of this, in July 1984, defendants were told to leave the premises and to pay rentals in
arrears. As defendants refused to comply with both demands, the matter was brought to the
Barangay Council for settlement. As no agreement was reached, a certification to file action was
issued to the spouses Tan. Hence, the Tans filed an action for unlawful detainer with damages
against Gabrito, et al.
"In answer to the complaint, defendants Gabrito, et al. denied the material allegations of the
complaint and alleged that: they are builders in good faith over the land as provided in Article
448 of the Civil Code; the land where the houses of defendants were built is a public land, not yet
awarded nor titled to anybody; plaintiffs's alleged predecessor-in-interest not being the owner
thereof could not have passed nor transferred ownership thereof to them (plaintiffs) considering
that Gloria Carillo's Miscellaneous Sales Application No. (X-44320) has not yet been acted upon
by the Bureau of Lands; plaintiffs and their predessors-in-interest are absentee applicants over
the land, hence, are disqualified to own the same; plaintiffs have never been in possession of the
land while the defendants are in actual physical possession thereof; the sale of plaintiffs' alleged
predecessor-in-interest in favor of plaintiffs is null and void for being in violation of P.D. No. 1517
as defendants being lessees of the land have the right of first refusal thereof.
"Defendants brought a counterclaim for damages against the plaintiffs." (Rollo, Annex 'C', pp. 39-
40).
Respondent Municipal Trial Judge applied the rule on summary procedure in this case, rendered its
decision dated November 22,1985, the dispositive portion of which reads:
"WHEREFORE, judgment is hereby rendered for all the defendants to vacate the parcel of land
described in par. 3 of the complaint, removing therefrom the buildings and any other
improvements respectively owned by them; and to pay plaintiffs the following as reasonable
compensation for the use of the premises:
Maximo Gabrito—at P250.00 per month from April 1984 until
he vacates the premises;
Roger Libut—at P1 50.00 per month from May 1984 until he
vacates the premises;
Liza de Vera—at P1 50.00 per month from April 1984, until she
vacates the premises;
Carmelita Uy—at P1 70.00 per month from April 1984, until she
vacates the premises.
for all defendants to pay, in equal shares, damages by way of attorney's fees in the amount of
ONE THOUSAND PESOS (P1,000.00) as well as costs.
SO ORDERED." (Rollo, p. 35).
18
PROPERTY
On appeal to the Regional Trial Court (Civil Case No. 450-0-85), the decision of the Municipal Trial Court
was affirmed in its decision dated April 2, 1986, the dispositive portion of which reads:
"WHEREFORE, premised on all the foregoing consideration and finding no prejudicial and
reversible error was ever committed by the lower Court, the Court affirms in toto the decision
being appealed, with costs against the defendants-appellants.
SO ORDERED." (Rollo, Annex 'B' p. 38).
On review, herein respondent Court of Appeals sustained the decision rendered by the Regional Trial Court
Branch LXXIV, and ruled;
"WHEREFORE, the Petition for Review herein is DISMISSED for lack of merit." (Rollo, Annex
'C', p. 44).
On March 16, 1987, the petitioner filed their "Motion for Reconsideration and Opposition to the Motion for
Immediate Execution Pending Further Proceedings" which was denied by the Ninth Division of respondent
Court of Appeals in its Resolution dated March 30,1987 and granted the Motion for Immediate Issuance
of a Writ of Execution filed by private respondents (Annex "F", Rollo, pp. 57-58).
Hence, this petition for review on certiorari filed on April 13, 1987.
On April 21, 1987, Acting Chief Justice Andres Narvasa, authorized the grant of Temporary Restraining
Order in this case which was confirmed by the Second Division of this Court in its Resolution dated April
27,1987 (Rollo, pp. 86,87, 88).
In a Resolution dated June 8, 1987, petitioners were required to comment on the motion dated April
26,1987 (Rollo, p. 94) of counsel for respondents, praying to set aside the temporary restraining order
issued on April 21,1987 and to issue a writ of execution pending appeal or to allow the Court of Appeals to
proceed with the execution of the decision pending appeal (Rollo, p. 115), which was complied with by
petitioners on July 22,1987 (Rollo, p. 143).
In the resolution of October 5, 1987 (Rollo, p. 187) the petition was given due course and the parties were
required to submit their respective memoranda within twenty (20) days from notice. Petitioners'
memorandum was submitted on December 3, 1987 (Rollo, p. 196). Respondents submitted their
memorandum on April 12,1988 (Rollo, p. 235).
Petitioners raised the following issues:
"1.
That a Municipal Trial Court has no jurisdiction to take cognizance of, a case for Unlawful Detainer

under Sec. 1, of Rule 70 of the Rules of Court, where the plaintiffs are merely the legal possessors and
recent transferees of a public land, and the defendants are the absolute owners of the building existing
on the same land, for a number of years already.
2.
That the respondent Regional Trial Court, Branch LXXIV, Olongapo City, ought to have dismissed
the action for Unlawful Detainer and as the same was also heard on appeal by the said Court on this
jurisdictional challenge.
3.
The market value of the residential houses or buildings of the defendants on the said land is
approximately P170,000.00, and it was with plaintiffs' predecessor-in-interest, one Gloria Carillo-
Potente that defendants caused said structures to be erected in said land plaintiffs having only
acquired from said predecessor, by means of a Deed of Sale of such rights sometime on January 5,
1984.
4.
Upon this frame of facts which are admitted in the Decision of both Courts, only a Court of General
jurisdiction, a Regional Trial Court, can have the competence to try and decide the same: the Court of
Special Limited Jurisdiction, cannot take cognizance of such facts as an action for Unlawful Detainer.
5.
Arguendo, that the Court of Origin has jurisdiction to take cognizance of the cause of action for
Unlawful Detainer, it should have not heard the case in accordance with the Rules of Summary
Proceedings, and based its Decision on an Affidavit hearing, as the question of ownership was being
contested between plaintiffs and defendants, with respect to whom was the preferred grantee to the
same land, and which falls under the complete administration and control of the Bureau of Lands.
6.
In fact, the Court of Origin, Branch V, Municipal Trial Court in Cities, Olongapo, should have
suspended the proceedings, as there was an Administrative Protest being heard by the District Land
Office of Olongapo City.
7.
On the question of suspension of proceedings denied by the Court of Origin, Municipal Trial Court in
Cities, Branch V, Olongapo City, an action for Certiorari was filed before Branch LXXIII, of Regional
Trial Court, Olongapo City, Civil Case No. 399-0-85, and although a Restraining Order against
Municipal Trial Court in Cities, Branch V, City of Olongapo, was issued, the same was already
academic as by that time said Municipal Trial Court, Branch V, Olongapo City, has already rendered
its Decision in favor of private respondent hereat, plaintiff therein.
8.
Branch LXXIV, Regional Trial Court, Olongapo, in its Decision rendered on appeal, did not pass upon
such matters, specified supra, so as to reverse the Decision of the Court of Origin: the subject
Decisions, have not considered the due process rights of petitioners toward their residences and
19
PROPERTY
structures, the same are facing the risk of condemnation and destruction without fair hearing, and
such improvements have an aggregate value of P170,000.00, more or less.
9.
Respondent Honorable Judge Mendoza of Branch LXXIV, Regional Trial Court, Olongapo, may have
been misled by the citation of authority, case of vda. de Bocaling vs. Laguna, et al., 54 SCRA, 243,
relied upon by appellees, said case being totally inapplicable to the facts of this case.
10.
Respondent Deputy Sheriff, Rogelio Lumanlan, without regard to the fifteen (15) days period finality
of the Order and/or Writ of Demolition, harrassed herein petitioners, notwithstanding the pendency
of matters involved to their extreme discomfort and anxiety.
11.
The Decision of the Honorable Court of Appeals, Annex 'C', sustained the Decision of the Regional
Trial Court and ignored the vital issues posed for resolution: A Motion For Reconsideration, copy is
hereto attached as Annex 'D', was presented, precisely to stress the same but, a pointed or precise
ruling upon such issues was avoided in the Resolution dated 30th of March, 1987, true copy attached
herein as Annex 'E'.
12.
On the other (sic) upon Motion of private respondents, the Tans, despite Opposition thereto, Writ of
Execution pending appeal was issued and respondent Deputy Sheriff Lumanlan enforced the same,
copy of which is hereto attached as Annex T': true copy of Notice to Vacate served by said respondent
Deputy Sheriff to petitioners is attached as Annex 'G' herein.
13.
Per Annex 'D' Motion For Reconsideration a constitutional point, was reared-forth, on first impression,
per proviso of Sec. 10, Art. XIII—new, 1986 Constitution, relevant to demolition and resettlement,
and, Resolution, dated 30th March, 1987, Annex 'E', of the Honorable Appellate Authority, avoided
said constitutional question, without passing-upon the same."
14.
Of Jurisdictional matters: Decision dated March 4, 1987, of the Honorable Court of Appeals was,
received on March 6, 1987, Motion For Reconsideration was filed on March 16, 1987, and Resolution
dated 30th of March, 1987, denying Motion for Reconsideration was received on April 1, 1987: thus,
this Petition is filed within the 15 day period." (Rollo, pp. 4-8).
All of which boil down to the main issue of whether or not an action for unlawful detainer is the proper
action to oust petitioners from their occupation of the land in dispute.
There is no question as to the ownership of the land in litigation as both petitioners and private
respondents admit that the same is a public land and owned by the government. The bone of contention
is, who has a better right to possess the land which definitely falls under the jurisdiction of the Municipal
Trial Court and the rule of summary procedure may properly be applied.

In a preliminary conference held pursuant to Section 6 of the Rule on Summary Procedure, defendants
admitted that they entered the premises as lessees and had been paying rentals for the use of the land to
Gloria Carillo, private respondents' predecessor-in-interest (Order dated May 15, 1985 in Civil Case No.
2511, MTC, Olongapo City, Branch V; Rollo, pp. 72-73). When requested to vacate the premises, petitioners
asked for an extension of time which request was granted. However, petitioners failed to vacate the
premises and also stopped paying rentals. In view of said admissions, petitioners had unquestionably
recognized private respondents' prior right of possession over the questioned property.
Petitioners' allegation in their answer that they are builders in good faith over the land as provided for in
Article 448 of the Civil Code is untenable. As ruled by this Court, Article 448 of the Civil Code, applies only
where one builds on land in the belief that he is the owner of the land, but does not apply where one's
interest in the land is that of a lessee under a rental contract (Balucanag v. Francisco, 122 SCRA 498
[1983]). More than that, it has been settled that the mere fact that, in his answer, defendant claims to be
the exclusive owner of the property from which plaintiff seeks to eject him is not sufficient to divest the
Municipal Trial Court of jurisdiction (Vivar v. Vivar, 8 SCRA 847, 849 [1963]; De Santa vs. Court of
Appeals, 140 SCRA 52 [1985]).
In addition, this Court held in Bocaling v. Laguna, et al (54 SCRA 243, 250 [1973]) that:
"The rule is well-settled that lessees, like petitioner, are not possessors in good faith, because he
knew that their occupancy of the premises continues only during the life of the lease, and they
cannot as a matter of right, recover the value of their improvements from the lessor, much less
retain the premises until they are reimbursed. Their rights are governed by Article 1678 of the
Civil Code which allows reimbursement of lessees up to one-half of the value of their
improvements if the lessor so elects."
Petitioners contend that the above cited case is "completely inapplicable to the case at bar, because the
genesis case of Ejectment therein was subjected to a compromise Agreement" (Rollo, p. 18). Such contention
is, however, untenable. One of the issues raised in the above-cited case was whether or not lessees are
builders and/or possessors in good faith entitled to reimbursement for the value of their improvements.
The Court categorically resolved the issue in the negative without qualification nor even a reference to the
compromise agreement alluded to by the petitioner.
In a later development, petitioners filed a supplemental memorandum submitting the decision of the
Bureau of Lands dated June 7,1987, the dispositive portion of which reads:
"IN VIEW OF ALL THE FOREGOING, the Miscellaneous Sales Application No. 4320 of Benita
Ching Tan should be, as hereby as it is rejected forfeiting to the government whatever amount
had been paid on account thereof. The miscellaneous sales application of Maximo Gabrito,
Carmelita Uy, Roger Libut and Liza de Vera shall continue to be given due course after a
subdivision survey of the portion occupied by them shall have been made at their pro-rata
expense.
SO ORDERED."
20
PROPERTY
In view thereof, petitioners maintain that they are the lawful owners of the buildings and the legal
possessors of subject land and that the records of the court proceedings show the pendency of the
administrative protest before the Bureau of Lands between the same litigating parties (Rollo, pp. 166-167).
Respondents countered that the decision of the Bureau of Lands granting preferential right to the
petitioners to apply for the subject parcel of land is still on appeal before the Department of Natural
Resources.1 Hence, said decision which is not yet final, cannot affect the outcome of this case because the
authority given to the land department over the disposition of public land does not exclude the courts from
their jurisdiction over possessory actions, the character of the land notwithstanding (Rollo, pp. 246-247).
The contention of private respondents is well taken. This issue has long been laid to rest by this Court. As
early as the case of Pitarque v. Sorilla (92 Phil. 55 [1952]), this Court ruled that:
"The vesting of the Lands Department with authority to administer, dispose of, and alienate
public lands must not be understood as depriving the other branches of the Government of the
exercise of their respective functions of powers thereon, such as the authority to stop disorders
and quell breaches of peace by the police and the authority on the part of the courts to take
jurisdiction over possessory actions arising therefrom not involving, directly or indirectly,
alienation and disposition."
Said ruling was reiterated in Bahayang v. Maceren, 96 Phil 390 [1955]; in Molina v. De Bacud, 19 SCRA
956 [1967] and in Rallon v. Ruiz, Jr., 28 SCRA 331 [1969]. In the latter case, the Court specifically ruled
on the jurisdictional question, as follows:
"Courts have jurisdiction over possessory actions involving public lands to determine the issue of
physical possession (in forcible entry cases before the inferior court) on the better right of
possession (in accion publiciana cases before court of first instance). And this is because the issue
of physical possession raised before the courts is independent of the question of disposition and
alienation of public lands which should be threshed out in the Bureau of Lands."
The above ruling was further reiterated in Francisco v. Secretary of Agriculture and Natural Resources
(121 SCRA 380 [1983]) and in a recent case of National Development Co., et al. v. Hervilla, G.R. No. 65718,
June 30, 1987 (151 SCRA 520), where it was held that:
"It is now well settled that the administration and disposition of public lands are committed by
law to the Director of Lands primarily, and ultimately to the Secretary of Agriculture and Natural
Resources. The jurisdiction of the Bureau of Lands is confined to the determination of the
respective rights of rival claimants of public lands or to cases which involve disposition and
alienation of public lands. The jurisdiction of courts is limited to the determination of who has
the actual, physical possession or occupation of the land in question (in forcible entry cases, before
municipal courts) or, the better right of possession (in accion publiciana, in cases before the Court
of First Instance, now Regional Trial Court)."
And even more recently in the case of Guerrero v. Amores, et al., G.R. No. L-34492 promulgated on March
28, 1988, the Court clearly stated that "pending final adjudication of ownership by the Bureau of Lands,
the Court has jurisdiction to determine in the meantime the right of possession over the land." Corollary
 21
PROPERTY
thereto, the power to order the sheriff to remove improvements and turn over the possession of the land to
the party adjudged entitled thereto, belongs only to the courts of justice and not to the Bureau of Lands.
In the same case, the application of the principle of exhaustion of administrative remedies with reference
to public lands, was further clarified by this Court as follows:

"On the other hand, the application of the principle of exhaustion of administrative remedies as
a condition precedent to the filing of a juridical action is confined to controversies arising out of
the disposition of public lands (Geukoko vs. Araneta, 102 Phil. 706 (1957); Marukot vs. Jacinto,
98 Phil. 128 (1957), alienation of public lands (Rallos vs. Ruiz, Jr., supra) or to the determination
of the respective rights of rival claimants to public lands (Pitarque vs. Sorilla, supra) and not to
possessory actions involving public lands which are limited to the determination of who has the
actual, physical possession or occupation of the land in question (Rallos vs. Ruiz, Jr., supra)."

In fact, the Bureau of Lands in its decision of June 7,1987, admitted the jurisdiction of the courts to decide
the case on the question of physical possession, although not on the question of ownership (Rollo, p. 179).
Under the circumstances, a careful study of the records failed to show any cogent reason to disturb the
findings of the Municipal Trial Court in Cities; of the Regional Trial Court, both of Olongapo City and
finally of the Court of Appeals.
WHEREFORE, the decision of respondent Court of Appeals is Affirmed and the temporary
restraining order is lifted. Costs against petitioners.
SO ORDERED.
Fernan, (C.J.), Gutierrez, Jr., Feliciano and Cortés, JJ., concur.
Decision affirmed.

Note.—Concept of possessor or builder in good or bad faith presupposes ownership in another. (Pershing
Tan Queto vs. Court of Appeals, 148 SCRA 54.)

G.R. No. 86774. August 21,1991 *
ENEDINA PRESLEY, petitioner, vs. BEL-AIR VILLAGE ASSOCIATION, INC., and THE HON. COURT OF
APPEALS, respondents.
Constitutional Law; Police Power; Zoning; Jupiter Street had been reclassified into a high density commercial
zone by the Metro Manila Commission.—The Court in the Sangalang case, however, held: “x x x In the
Sangalang case, we absolve the Ayala Corporation primarily owing to our finding that it is not liable for
the opening of Jupiter Street to the general public. Insofar as these petitions are concerned, we likewise
exculpate the private respondents, not only because of the fact that Jupiter Street is not covered by the
restrictive easements based on the ‘deed restrictions’ but chiefly because the National Government itself,
through the Metro Manila Commission (MMC), had reclassified Jupiter Street into a ‘high density commercial
(C-3) zone,’ (See rollo, G.R. No. 71169, id., 117) pursuant to its Ordinance No. 81–01. Hence, the petitioners
have no cause of action on the strength alone of the said ‘deed restrictions.'"
Same; Same; Same; Private respondent failed to present any proofs or convincing arguments to substantiate
its claim that Jupiter Street is still classified as a residential zone.—If indeed private respondent’s observations
were accurate, the Court will certainly not hesitate to correct the situation and the case at bar would be
the proper occasion to do so. We have carefully examined the pleadings but have found no reason to
reconsider the Sangalang doctrine. In assailing the Court’s decision, the private respondent has come out
with mere assertions and allegations. It failed to present any proofs or convincing arguments to
substantiate its claim that Jupiter Street is still classified as a residential zone, (See Filinvest vs. Court of
Appeals, 182 SCRA 664 [1990]) No new zoning reclassification, ordinance, certification to the effect or
jurisprudence for that matter was brought to the attention of this Court which would necessarily compel
us to take a second look at the Sangalang Case. The Court can not reverse a precedent and rule favorably
for the private respondent on the strength of mere inferences.
Same; Same; Same; Contractual stipulations on the use of the land even if said conditions are annotated on
the torrens title can be impaired if necessary to reconcile with the legitimate exercise of police power.—The
respondent court in the case at bar was not at all entirely wrong in upholding the Deed of Restrictions
annotated in the title of the petitioners. It held that the provisions of the Deed of Restrictions are in the
nature of contractual obligations freely entered into by the parties. Undoubtedly, they are valid and can
be enforced against the petitioner. However, these contractual stipulations on the use of the land even if
said conditions are annotated on the torrens title can be impaired if necessary to reconcile with the
legitimate exercise of police power.
Same: Same; Same: Like all contracts, restrictive easements are subject to the overriding demands, needs and
interests of the greater number as the State may determine in the legitimate exercise of police power.—"It is
not that we are saying that restrictive easements, especially the easements herein in question, are invalid
or ineffective. As far as the Bel-Air subdivision itself is concerned, certainly, they are valid and enforceable.
But they are like all contracts, subject to the overriding demands, needs,and interests of the greater
number as the State may determine in the legitimate exercise of police power. Our jurisdiction guarantees
sanctity of contract and is said to be the law between the contracting parties,’ (Civil Code, supra, art. 1159)
but while it is so, it cannot contravene ‘law/morals, good customs, public order, or public policy/ (supra, art.
1306) Above all, it cannot be raised as a deterrent to police power, designed precisely to promote health,
safety, peace, and enhance the common good, at the expense of contractual rights, whenever necessary.
22
PROPERTY
Same; Same; Same; In accordance with the ruling in the Sangalang case, respondent court’s decision has to
be reversed.—Jupiter Street has been highly commercialized since the passage of Ordinance No. 81–01.
The records indicate that commercial buildings, offices, restaurants, and stores have already sprouted in
this area. We, therefore, see no reason why the petitioner should be singled out and prohibited from putting
up her hot pan de sal store. Thus, in accordance with the ruling in the Sangalang case, the respondent
court’s decision has to be reversed.
PETITION for review of the decision of the Court of Appeals.
The facts are stated in the opinion of the. Court.
Alejandro dela Rosa for petitioner.
J. Vicente G. Sison for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review of the decision of the Court of Appeals promulgated on November 28,1988
affirming the decision of the Regional Trial Court in toto. The dispositive portion of the decision reads:
‘WHEREFORE, the defendants are enjoined permanently from using the property in question as
a pan de sal store or from using it for any other commercial purposes; the defendants are ordered
to pay, jointly and severally, the plaintiff the sum of P3,803.55 with legal interest from February
9,1981 until the said sum is fully paid and the defendants are further ordered to pay, jointly and
severally, the sum of P4,500.00 as and for attorney’s fees.” (Rollo, p. 30)
The facts as stated by the Court of Appeals are as follows:
“A complaint for specific performance and damages with preliminary injunction was filed by
plaintiff-appellee, Bel-Air Village Association, Inc. (BAVA, for short) against Teofilo Almendras
and Rosario Almendras (now both deceased and substituted by defendant-appellant Enedina
Presley, for violation of the Deed Restrictions of Bel-Air Subdivision that the subject house and
lot shall be used only for residential and not for commercial purposes and for non-payment of
association dues to plaintiff BAVA amounting to P3,803.55.
The Almendrases were at the time of the filing of the action the registered owners of a house and
lot located at 102 Jupiter Street, BelAir Village, Makati, Metro Manila. As such registered
owners, they were members of plaintiff BAVA pursuant to the Deed Restrictions annotated in
their title (TCT Nc. 73616) over the property in question and defendant Presley, as lessee of the
property, is the owner and operator of a ‘Hot Pan de Sal Store’ located in the same address.
At the time the Almendrases bought their property in question from Makati Development
Corporation, the Deed Restrictions (Exh. “C") was already annotated in their title (Exh. “B")
providing (among others) ‘that the lot must be used only for residential purpose’ (Exh. “B-1" and
“B-2").
When BAVA came to know of the existence of the ‘Pan de sal’ store, it sent a letter to the
defendants asking them to desist from operating the store (Exh. “D").

Under the existing Deed Restrictions aforesaid, the entire Bel-Air Subdivision is classified as a
purely residential area, particularly Jupiter Road which is owned by and registered in the name
of BAVA.
It has likewise been established that the Almendrases had not paid the BAVA membership dues
and assessments which amounted to P3,802.55 as of November 3, 1980. Teofilo Almendras
contended that there was no written contract between him and appellee BAVA. Only a consensual
contract existed between the parties whereby Almendras regularly pays his dues and
assessments to BAVA for such services as security, garbage collection and maintenance and
repair of Jupiter Street. However, when the services were withdrawn by appellee BAVA, there
was no more reason for the latter to demand payment of such dues and assessments.” (Rollo, pp.
30–31)
After due hearing on the merits, the trial court rendered the decision in favor of BAVA which was affirmed
by the respondent Court of Appeals.
On January 20,1989, the Court of Appeals denied the Motion for Reconsideration.
Consequently, the petitioner filed the instant petition with this Court raising the following issues, to wit:
A 76394; 78182 and 82281 who converted their residential homes to commercial establishments; hence,
THE RULING OF RESPONDENT COURT OF APPEALS IS NOT IN ACCORDANCE WITH THE
RECENT CONSOLIDATED DECISION EN BANC OF THIS HONORABLE SUPREME COURT
PROMULGATED DECEMBER 22,1988 IN RE SANGALANG, BEL-AIR VILLAGE ASS. INC. v.
INTERMEDIATE APPELLATE COURT AND AYALA CORPORATION—G.R. NO. 71169; BEL-AIR
VILLAGE ASSO. INC. v. TENORIO, ET AL.—G.R. NO. 74376; BEL-AIR VILLAGE ASSOCIATION, INC.
v. COURT OF APPEALS AND ROMUALDEZ, ET AL.—G.R. NO. 76394; BEL-AIR VILLAGE ASS. INC.
v. COURT OF APPEALS AND FILLEY, ET AL.—G.R. NO. 78182; BEL-AIR VILLAGE ASSOCIATION,
INC. v. COURT OF APPEALS AND MONCAL, ET AL.—G.R. NO. 82281, WHICH CONSOLIDATED
DECISION APPLIES ON ALL FOURS IN THE CASE AT BAR IN FAVOR OF PETITIONER.
B chiefly because the National Government itself, through the Metro Manila Commission (MMC), had
THE RULING OF RESPONDENT COURT OF APPEALS ADJUDGING PETITIONER SOLIDARILY
LIABLE TOGETHER WITH THE ALMENDRASES TO PAY THE ALLEGED UNPAID ASSOCIATION
DUES IS PATENTLY CONTRARY TO THE EVIDENCE AND FACTS.
C different contending parties, the Court was misled and unfortunately erred in concluding that Jupiter
23
PROPERTY
THE RULING OF RESPONDENT COURT OF APPEALS ADJUDGING PETITIONER SOLIDARILY
LIABLE TO PAY ATTORNEY’S FEES IS WITHOUT ANY LEGAL OR FACTUAL, BASIS. (Rollo, p. 11–
12)
During the pendency of the case with this Court, petitioner Enedina Fox Presley died on January 4,1991.
She was substituted by her two daughters as heirs, namely Olivia V. Pizzaro and Consuelo V. Lacson.
The issues raised in the instant petition have already been dealt with in the consolidated cases decided by
this Court promulgated on December 22, 1988 entitled Sangalang, et al. vs. Intermediate Appellate Court
and Ayala Corporation,. G.R. No. 71169; Bel-Air Village Association, Inc. v. Intermediate Appellate Court and
Rosario de Jesus Tenorio and Cecilia Gonzalvez, G.R. No. 74376; Bel-Air v. Court of Appeals and Eduardo
and Buena Romualdez, G.R. No. 76394; BAVA v. Court of Appeals, Dolors Filley and J. Romero Associates,
G.R. No. 78182; and BAVA v. Court of Appeals, Violeta Moncal and Majal Development Corp., G.R. No. 82281.
(168 SCRA 634 [1988])
Apparently, when the respondent court promulgated the questioned decision on November 28,1988 the
Sangalang case had not yet been decided by this Court. It was however, aware of the pending case as it
made mention of the several cases brought to court by BAVA against the aforesaid commercial
establishments.
The petitioner in the instant case is similarly situated as the private respondents in G.R. Nos. 74376;
BAVA filed suits against them to enforce the Deeds of Restrictions annotated in their titles which provide
among others, “that the lot must be used only for residential purposes.”
The Court in the Sangalang case, however, held:
xxx xxx xxx
“x x x In the Sangalang case, we absolve the Ayala Corporation primarily owing to our finding
that is not liable for the opening of Jupiter Street to the general public. Insofar as these petitions
are concerned, we likewise exculpate the private respondents, not only because of the fact that
Jupiter Street is not covered by the restrictive easements based on the ‘deed restrictions’ but
reclassified Jupiter Street into a ‘high density commercial (C-3) zone,’ (See rollo, G.R. No. 71169, id.,
117) pursuant to its Ordinance No. 81–01. Hence, the petitioners have no cause of action OR the
strength alone of the said ‘deed restrictions/ " (p. 667; Emphasis supplied)
In the instant petition, BAVA assails the Court’s decision in the Sangalang case, more specifically the
Court’s interpretation of Ordinance No. 81–01 passed by the Metro Manila Commission (MMC) on March
14, 1981. It avers that due to the multitude of issues raised and the numerous pleadings filed by the
Street was reclassified as a “high density commercial (C-3) zone” when in fact, it is still considered as a
"(R-1) residential zone.”
 24
PROPERTY
If indeed private respondent’s observations were accurate, the Court will certainly not hesitate to correct Fernan (C.J., Chairman), Bidin and Davide, Jr., JJ., concur.
the situation and the case at bar would be the proper occasion to do so. We have carefully examined the Feliciano, J., No part. I am a BAVA member.
pleadings but have found no reason to reconsider the Sangalang doctrine, In assailing the Court’s decision, Petition granted. Decision reversed and set aside.
the private respondent has come out with mere assertions and allegations. It failed to present any proofs
or convincing arguments to substantiate its claim that Jupiter Street is still classified as a residential zone. Note.—Police power is the state authority to enact legislation that may interfere with personal liberty or
(See Filinvest v. Court of Appeals, 182 SCRA 664 [1990]) No new zoning reclassification, ordinance, property in order to promote the general welfare. (Pita vs. Court of Appeals, 178 SCRA 362.)
certification to the effect or jurisprudence for that matter was brought to the attention of this Court which
would necessarily compel us to take a second look at the Sangalang Case. The Court can not reverse a
precedent and rule favorably for the private respondent on the strength of mere inferences. The respondent
court in the case at bar was not at all entirely wrong in upholding the Deed of Restrictions annotated in
the title of the petitioners. It held that the provisions of the Deed of Restrictions are in the nature of
contractual obligations freely entered into by the parties. Undoubtedly, they are valid and can be enforced
against the petitioner. However, these contractual stipulations 011 the use of the land even if said
conditions are annotated on the torrens title can be impaired if necessary to reconcile with the legitimate
exercise of police power. (Ortigas & Co. Limited Partnership v. Feati Bank and Trust Co., 94 SCRA 533
[1979]).

We reiterate the Court’s pronouncements in the Sangalang case which are quite clear:

“It is not that we are saying that restrictive easements, especially the easements herein in
question, are invalid or ineffective. As far as the Bel-Air subdivision itself is concerned, certainly,
they are valid and enforceable. But they are, like all contracts, subject to the overriding demands,
needs, and interests of the greater number as the State may determine in the legitimate exercise
of police power. Our jurisdiction guarantees sanctity of contract and is said to be the ‘law between
the contracting parties/ (Civil Code, supra, art. 1159) but while it is so, it cannot contravene ‘law,
morals, good customs, public order, or public policy.’ (supra, art. 1306). Above all, it cannot be
raised as a deterrent to police power, designed precisely to promote health, safety, peace/and
enhance the common good, at the expense of contractual rights, whenever necessary. x x x” (p.
667)

Jupiter Street has been highly commercialized since the passage of Ordinance No. 81–01. The records
indicate that commercial buildings, offices, restaurants, and stores have already sprouted in this area. We,
therefore, see no reason why the petitioner should be singled out and prohibited from putting up her hot
pan de sal store. Thus, in accordance with the ruling in the Sangalang case, the respondent court’s decision
has to be reversed.

With respect to the demand for payment of association dues in the sum of P3,803.55, the records reveal
that this issue is now moot and academic after petitioner Presley purchased the property subject of lease
from the Almendrases and settled all association dues.

Likewise, the demand for payment of attorney’s fees is now without legal or factual basis.
WHEREFORE, the petition is hereby GRANTED. The decision of the respondent court dated
November 28, 1988 is REVERSED and SET ASIDE. The complaint of the private respondent is
DISMISSED.
SO ORDERED.

G.R. No. 90596. April 8, 1991.*
SOLID MANILA CORPORATION, petitioner, vs. BIO HONG TRADING CO., INC. and COURT OF APPEALS,
respondents.
Property; Easements; Servitudes are merely accessories to the tenements of which they form part, and even if
they are possessed of a separate juridical existence, they cannot be alienated from the tenement or mortgaged
separately.—It is true that the sale did include the alley. On this score, the Court rejects the petitioner’s
contention that the deed of sale “excluded” it, because as a mere right-of-way, it can not be separated from
the tenement and maintain an independent existence. Thus: Art. 617. Easements are inseparable from the
estate to which they actively or passively belong. Servitudes are merely accessories to the tenements of
which they form part. Although they are possessed of a separate juridical existence, as mere accessories,
they can not, however, be alienated from the tenement, or mortgaged separately.
Same; Same; The vendee of real property in which a servitude or easement exists, did not acquire the right to
close that servitude or put up obstructions thereon, to prevent the public from using it.—As the petitioner indeed
hastens to point out, the deed itself stipulated that “a portion thereof [of the tenement] measuring NINE
HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted into a private alley for the
benefit of the neighboring estates . . .” and precisely, the former owner, in conveying the property, gave the
private owner a discount on account of the easement, thus: WHEREAS, to compensate for the foregoing,
the parties hereto agreed to adjust the purchase price from THREE MILLION SEVEN HUNDRED
NINETY THOUSAND FOUR HUNDRED FORTY PESOS (P3,790,440.) to THREE MILLION FIVE
HUNDRED THREE THOUSAND TWO HUNDRED FORTY PESOS (P3,503,240.00) Hence, and so we
reiterate, albeit the private respondent did acquire ownership over the property—including the disputed
alley—as a result of the conveyance, it did not acquire the right to close that alley or otherwise put up
obstructions thereon and thus prevent the public from using it, because as a servitude, the alley is supposed
to be open to the public.
Civil Procedure; Summary Judgments; Where the defense interposed by the defendant is a sham or is not a
valid defense, the court may render a summary judgment.—Summary judgments under Rule 34 of the Rules
of Court are proper where there is no genuine issue as to the existence of a material fact, and the facts
appear undisputed based on the pleadings, depositions, admissions, and affidavits of record. In one case,
this Court upheld a decision of the trial court rendered by summary judgment on a claim for money to
which the defendant interposed the defense of payment but which failed to produce receipts. We held that
under the circumstances, the defense was not genuine but rather, sham, and which justified a summary
judgment. In another case, we rejected the claim of acquisitive prescription over registered property and
found it likewise to be sham, and sustained consequently, a summary judgment rendered because the title
challenged was covered by a Torrens Certificate and under the law, Torrens titles are imprescriptible. We
also denied reconveyance in one case and approved a summary judgment rendered thereon, on the ground
that from the records, the plaintiffs were clearly guilty of laches having failed to act until after twenty-
seven years. We likewise allowed summary judgment and rejected contentions of economic hardship as an
excuse for avoiding payment under a contract for the reason that the contract imposed liability under any
and all conditions. In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham
one, because as we said, merger is not possible, and secondly, the sale unequivocally preserved the existing
easement. In other words, the answer does not, in reality, tender any genuine issue on a material fact and
can not militate against the petitioner’s clear cause of action. As this Court has held, summary judgments
25
PROPERTY
are meant to rid a proceeding of the ritual of a trial where, from existing records, the facts have been
established, and trial would be futile.
PETITION for certiorari to review the decision of the Court of Appeals. Herrera, J.
The facts are stated in the opinion of the Court.
Balgos & Perez for petitioner.
Alfredo G. de Guzman for private respondent.
SARMIENTO, J.:
This is an appeal filed by way of a petition for review on certiorari under Rule 45 of the Rules of Court.
The petitioner raises two questions: (1) whether or not the Court of Appeals1 erred in reversing the trial
court which had rendered summary judgment; and (2) whether or not it erred in holding that an easement
had been extinguished by merger.
We rule for the petitioner on both counts.
It appears that the petitioner is the owner of a parcel of land located in Ermita, Manila, covered by Transfer
Certificate of Title No. 157750 of the Register of Deeds of Manila. The same lies in the vicinity of another
parcel, registered in the name of the private respondent corporation under Transfer Certificate of Title No.
128784.
The private respondent’s title came from a prior owner, and in their deed of sale, the parties thereto
reserved as an easement of way:
x x x a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or
less, had been converted into a private alley for the benefit of neighboring estates, this being duly
annotated at the back of the covering Transfer Certificate of Title per regulations of the Office of
the City Engineer of Manila and that the three meterwide portion of said parcel along the Pasig
River, with an area of ONE HUNDRED SEVENTY NINE (179) SQUARE METERS, more or less,
had actually been expropriated by the City Government, and developed pursuant to the
beautification drive of the Metro Manila Governor. (p. 3, Record).2
As a consequence, an annotation was entered in the private respondent’s title, as follows:
Entry No. 7712/T-5000—CONSTRUCTION OF PRIVATE ALLEY—It is hereby made of record
that a construction of private alley has been undertaken on the lot covered by this title from
Concepcion Street to the interior of the aforesaid property with the plan and specification duly
approved by the City Engineer subject to the following conditions to wit: (1) That the private alley
shall be at least three (3) meters in width; (2) That the alley shall not be closed so long as there’s
a building exists thereon (sic); (3) That the alley shall be open to the sky; (4) That the owner of
the lot on which this private alley has been constituted shall construct the said alley and provide
same with concrete canals as per specification of the City Engineer; (5) That the maintenance

and upkeep of the alley shall be at the expense of the registered owner; (6) That the alley shall
remain open at all times, and no obstructions whatsoever shall be placed thereon; (7) That the
owner of the lot on which the alley has been constructed shall allow the public to use the same,
and allow the City to lay pipes for sewer and drainage purposes, and shall not act (sic) for any
indemnity for the use thereof; and (8) That he shall impose upon the vendee or new owner of the
property the conditions abovementioned; other conditions set forth in Doc. No. 4236, Page No. 11,
Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila.3
The petitioner claims that ever since, it had (as well as other residents of neighboring estates) made use
of the above private alley and maintained and contributed to its upkeep, until sometime in 1983, when,
and over its protests, the private respondent constructed steel gates that precluded unhampered use.
On December 6, 1984, the petitioner commenced suit for injunction against the private respondent, to have
the gates removed and to allow full access to the easement.
The court a quo shortly issued ex parte an order directing the private respondent to open the gates.
Subsequently, the latter moved to have the order lifted, on the grounds that: (1) the easement referred to
has been extinguished by merger in the same person of the dominant and servient estates upon the
purchase of the property from its former owner; (2) the petitioner has another adequate outlet; (3) the
petitioner has not paid any indemnity therefor; and (4) the petitioner has not shown that the right-of-way
lies at the point least prejudicial to the servient estate.
The private respondent’s opposition notwithstanding, the trial court issued a “temporary writ of
preliminary injunction to continue up to the final termination of the case upon its merits upon the posting
of a P5,000.00 bond by the plaintiff”4 (the petitioner herein).
Thereafter, the respondent corporation answered and reiterated its above defenses.
On April 15, 1986, the petitioner moved for summary judgment and the court a quo ruled on the same as
follows:
In view of the foregoing, this Court finds it unnecessary to try this case on the merit (sic) and
hereby resolve (sic) to grant the plaintiff’s motion for summary judgment. (pp. 15-107, Record).5
On January 19, 1987, the trial court rendered judgment against the private respondent, the dispositive
portion of which states:
WHEREFORE, judgment is hereby rendered making permanent the temporary mandatory
injunction, that had been issued against the defendant, and for the defendant to pay the plaintiff
the costs of this suit.
The defendant’s counterclaim against the plaintiff is hereby dismissed, for lack of merit.
(Summary Judgment, p. 6).6
26
PROPERTY
The private respondent appealed to the respondent Court of Appeals.
Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for the cancellation
of the annotation in question. The court granted cancellation, for which the petitioner instituted CA-G.R.
SP No. 13421 of the respondent Court of Appeals which ordered the restoration of the annotation “without
prejudice [to] the final outcome of”7 the private respondent’s own appeal (subject of this petition).
In reversing the trial court which had, as earlier mentioned, rendered summary judgment, the respondent
Court of Appeals held that the summary judgment was improper and that the lower court erroneously
ignored the defense set up by the private respondent that the easement in question had been extinguished.
According to the Appellate Court, an easement is a mere limitation on ownership and that it does not
impair the private respondent’s title, and that since the private respondent had acquired title to the
property, “merger” brought about an extinguishment of the easement.
The petitioner submits that the respondent Court of Appeals erred, because the very deed of sale executed
between the private respondent and the previous owner of the property “excluded” the alley in question,
and that in any event, the intent of the parties was to retain the “alley” as an easement notwithstanding
the sale.
As already stated at the outset, the Court finds merit in the petition.
There is no question that an easement, as described in the deed of sale executed between the private
respondent and the seller, had been constituted on the private respondent’s property, and has been in fact
annotated at the back of Transfer Certificate of Title No. 128784. Specifically, the same charged the private
respondent as follows: “(6) That the alley shall remain open at all times, and no obstructions whatsoever
shall be placed thereon; (7) That the owner of the lot on which the alley has been constructed shall allow
the public to use the same, and allow the City to lay pipes for sewer and drainage purposes, and shall not
[ask] for any indemnity for the use thereof . . .”8 Its act, therefore, of erecting steel gates across the alley
was in defiance of these conditions and a violation of the deed of sale, and, of course, the servitude of way.
The Court then is of the opinion that injunction was and is proper and in denying injunctive relief on
appeal, the respondent Appellate Court committed an error of judgment and law.
It is hardly the point, as the Court of Appeals held, that the private respondent is the owner of the portion
on which the right-of-way had been established and that an easement can not impair ownership. The
petitioner is not claiming the easement or any part of the property as its own, but rather, it is seeking to
have the private respondent respect the easement already existing thereon. The petitioner is moreover
agreed that the private respondent has ownership, but that nonetheless, it has failed to observe the
limitation or encumbrance imposed on the same.
There is therefore no question as to ownership. The question is whether or not an easement exists on the
property, and as we indicated, we are convinced that an easement exists.
It is true that the sale did include the alley. On this score, the Court rejects the petitioner’s contention that
the deed of sale “excluded” it, because as a mere right-of-way, it can not be separated from the tenement
and maintain an independent existence. Thus:

Art. 617. Easements are inseparable from the estate to which they actively or passively belong.9
Servitudes are merely accessories to the tenements of which they form part.10 Although they are possessed
of a separate juridical existence, as mere accessories, they can not, however, be alienated11 from the
tenement, or mortgaged separately.12
The fact, however, that the alley in question, as an easement, is inseparable from the main lot is no
argument to defeat the petitioner’s claims, because as an easement precisely, it operates as a limitation on
the title of the owner of the servient estate, specifically, his right to use (jus utendi).
As the petitioner indeed hastens to point out, the deed itself stipulated that “a portion thereof [of the
tenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been
converted into a private alley for the benefit of the neighboring estates . . .”13 and precisely, the former
owner, in conveying the property, gave the private owner a discount on account of the easement, thus:
WHEREAS, to compensate for the foregoing, the parties hereto agreed to adjust the purchase
price from THREE MILLION SEVEN HUNDRED NINETY THOUSAND FOUR HUNDRED
FORTY PESOS (P3,790,440.) to THREE MILLION FIVE HUNDRED THREE THOUSAND TWO
HUNDRED FORTY PESOS (P3,503,240.00)14
Hence, and so we reiterate, albeit the private respondent did acquire ownership over the property—
including the disputed alley—as a result of the conveyance, it did not acquire the right to close that alley
or otherwise put up obstructions thereon and thus prevent the public from using it, because as a servitude,
the alley is supposed to be open to the public.
The Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no genuine merger
took place as a consequence of the sale in favor of the private respondent corporation. According to the
Civil Code, a merger exists when ownership of the dominant and servient estates is consolidated in the
same person.15 Merger then, as can be seen, requires full ownership of both estates.
One thing ought to be noted here, however. The servitude in question is a personal servitude, that is to
say, one constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit of
the general public.
Personal servitudes are referred to in the following article of the Civil Code:
Art. 614. Servitudes may also be established for the benefit of a community, or of one or more
persons to whom the encumbered estate does not belong.16
In a personal servitude, there is therefore no “owner of a dominant tenement” to speak of, and the easement
pertains to persons without a dominant estate,17 in this case, the public at large.
Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship, and the
termination of that relation leaves the easement of no use. Unless the owner conveys the property in favor
27
PROPERTY
of the public—if that is possible—no genuine merger can take place that would terminate a personal
easement.
For this reason, the trial court was not in error in rendering summary judgment, and insofar as the
respondent Court of Appeals held that it (the trial court) was in error, the Court of Appeals is in error.
Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue as to
the existence of a material fact, and the facts appear undisputed based on the pleadings, depositions,
admissions, and affidavits of record.18 In one case, this Court upheld a decision of the trial court rendered
by summary judgment on a claim for money to which the defendant interposed the defense of payment but
which failed to produce receipts.19 We held that under the circumstances, the defense was not genuine but
rather, sham, and which justified a summary judgment. In another case, we rejected the claim of
acquisitive prescription over registered property and found it likewise to be sham, and sustained
consequently, a summary judgment rendered because the title challenged was covered by a Torrens
Certificate and under the law, Torrens titles are imprescriptible.20
We also denied reconveyance in one case and approved a summary judgment rendered thereon, on the
ground that from the records, the plaintiffs were clearly guilty of laches having failed to act until after
twenty-seven years.21 We likewise allowed summary judgment and rejected contentions of economic
hardship as an excuse for avoiding payment under a contract for the reason that the contract imposed
liability under any and all conditions.22
In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham one, because as we
said, merger is not possible, and secondly, the sale unequivocally preserved the existing easement. In other
words, the answer does not, in reality, tender any genuine issue on a material fact and can not militate
against the petitioner’s clear cause of action.
As this Court has held, summary judgments are meant to rid a proceeding of the ritual of a trial where,
from existing records,23 the facts have been established, and trial would be futile.
What indeed, argues against the posturing of the private respondent—and consequently, the challenged
holding of the respondent Court of Appeals as well—is the fact that the Court of Appeals itself had rendered
judgment, in its CA-G.R. No. 13421, entitled Solid Manila Corporation v. Ysrael, in which it nullified the
cancellation of the easement annotated at the back of the private respondent’s certificate of title ordered
by Judge Ysrael in LRC Case No. 273. As the petitioner now in fact insists, the Court of Appeals’ judgment,
which was affirmed by this Court in its Resolution dated December 14, 1988, in G.R. No. 83540, is at least,
the law of the case between the parties, as “law of the case” is known in law, e.g.:
xxx xxx xxx
“Law of the case” has been defined as the opinion delivered on a former appeal. More specifically,
it means that whatever is once irrevocably established as the controlling legal rule of decision
between the same parties in the same case continues to be the law of the case, whether correct
on general principles or not, so long as the facts on which such decision was predicated continue
to be the facts of the case before the court. (21 C.J.S. 330) (Italics supplied).

It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal
is substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues
adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered
or readjudicated therein. (5 C.J.S. 1267) (Italics supplied.)
In accordance with the general rule stated in Section 1821, where, after a definite determination, the court
has remanded the cause for further action below, it will refuse to examine question other than those arising
subsequently to such determination and remand, or other than the propriety of the compliance with its
mandate; and if the court below has proceeded in substantial conformity to the directions of the appellate
court, its action will not be questioned on a second appeal.
As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether
that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a
rehearing.” (5 C.J.S. 1276-77). (Italics supplied.)
Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case
on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as
the presumption is that all the facts in the case bearing on the point decided have received due
consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87). (Italics
supplied.)24
CA-G.R. No. 13421 is the law of the case because clearly, it was brought to determine the rights of the
parties regarding the easement, subject of the controversy in this case, although as a petition for
“cancellation of annotation” it may have, at a glance, suggested a different cause of action.
And for reasons of fair play, the private respondent can not validly reject CA-G.R. No. 13421 as the law of
the case, after all, it was the one that initiated the cancellation proceedings with the Regional Trial Court
in LRC No. 273 that precipitated that appeal. In the second place, the proceedings for cancellation of
annotation was in fact meant to preempt the injunction decreed by the lower court in this case. Plainly
and simply, the private respondent is guilty of forum-shopping, as we have described the term:
xxx xxx xxx
There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks
a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only
with respect to suits filed in the courts but also in connection with litigations commenced in the
courts while an administrative proceeding is pending, as in this case, in order to defeat
administrative processes and in anticipation of an unfavorable administrative ruling and a
favorable court ruling. This is specially so, as in this case, where the court in which the second
suit was brought, has no jurisdiction.25
to which contempt is a penalty.26
28
PROPERTY
As it happened, in its effort to shop for a friendly forum, the private respondent found an unfriendly court
and it can not be made to profit from its act of malpractice by permitting it to downgrade its finality and
deny its applicability as the law of the case.
As a personal servitude, the right-of-way in question was established by the will of the owner.
In the interesting case of North Negros Sugar Co., Inc. v. Hidalgo,27 this Court, speaking through Justice
Claro Recto, declared that a personal servitude (also a right of way in that case) is established by the mere
“act”28 of the landowner, and is not “contractual in the nature,”29 and a third party (as the petitioner herein
is a third party) has the personality to claim its benefits. In his separate opinion, however, Justice Jose
Laurel maintained that a personal or voluntary servitude does require a contract and that “[t]he act of the
plaintiff in opening the private way here involved did not constitute an offer...”30 and “[t]here being no
offer, there could be no acceptance; hence no contract.”31
The Court sees no need to relive the animated exchanges between two legal titans (they would contend
even more spiritedly in the “larger’ world of politics) to whom present scholars perhaps owe their erudition
and who, because of the paths they have taken, have shaped history itself; after all, and coming back to
the case at bar, it is not disputed that an easement has been constituted, whereas it was disputed in North
Negros’ case. Rather, the question is whether it is still existing or whether it has been extinguished. As we
held, our findings is that it is in existence and as a consequence, the private respondent can not bar the
public, by erecting an obstruction on the alley, from its use.”
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is SET ASIDE and
the decision of the Regional Trial Court is hereby REINSTATED. The petitioner and its counsel are hereby
required to SHOW CAUSE why they should not be punished for contempt of court, and also
administratively dealt with in the case of counsel, for forum shopping.
IT IS SO ORDERED.
Melencio-Herrera (Chairman), Paras, Padilla and Regalado, JJ., concur.
Petition granted. Decision set aside.
Note.—Where a private property has no access to a public road, it has the right of easements over adjacent
servient estates as a matter of law. The partition agreement at bar merely confirmed that existing right of
way. (Jairol vs. Court of Appeals, 117 SCRA 913.)

G.R. No. 77425. June 19, 1991.*
THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, THE ROMAN CATHOLIC BISHOP OF IMUS, and the
SPOUSES FLORENCIO IGNAO and SOLEDAD C. IGNAO, petitioners, vs. HON. COURT OF APPEALS,
THE ESTATE OF DECEASED SPOUSES EUSEBIO DE CASTRO and MARTINA RIETA, represented by
MARINA RIETA GRANADOS and THERESA RIETA TOLENTINO, respondents.
G.R. No. 77450. June 19, 1991.*
THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, THE ROMAN CATHOLIC BISHOP OF IMUS, and the
SPOUSES FLORENCIO IGNAO and SOLEDAD C. IGNAO, petitioners, vs. HON. COURT OF APPEALS,
THE ESTATE OF DECEASED SPOUSES EUSEBIO DE CASTRO and MARTINA RIETA, represented by
MARINA RIETA GRANADOS and THERESA RIETA TOLENTINO, respondents.
Civil Law; Donation; Rescission; Article 764 of the Civil Code not applicable in the case at bar; The deed of
donation expressly provides for automatic reversion of the property donated in case of violation of the condition
therein, hence a judicial declaration revoking the same is not necessary.––Although it is true that under
Article 764 of the Civil Code an action for the revocation of a donation must be brought within four (4)
years from the non-compliance of the conditions of the donation, the same is not applicable in the case at
bar. The deed of donation involved herein expressly provides for automatic reversion of the property
donated in case of violation of the condition therein, hence a judicial declaration revoking the same is not
necessary.
Same; Same; Same; Same; There is nothing in the law that prohibits the parties from entering into an agreement
that a violation of the terms of the contract would cause its cancellation even without court intervention.––In
support of its aforesaid position, respondent court relied on the rule that a judicial action for rescission of
a contract is not necessary where the contract provides that it may be revoked and cancelled for violation
of any of its terms and conditions. It called attention to the holding that there is nothing in the law that
prohibits the parties from entering into an agreement that a violation of the terms of the contract would
cause its cancellation even without court intervention, and that it is not always necessary for the injured
party to resort to court for rescission of the contract. It reiterated the doctrine that a judicial action is
proper only when there is absence of a special provision granting the power of cancellation.
Same; Same; Same; Same; Validity of a stipulation in the deed of donation providing for the automatic reversion
of the donated property to the donor upon non-compliance of the condition was upheld in the recent case of De
Luna et. al, vs Abrigo, et. al.––The validity of such a stipulation in the deed of donation providing for the
automatic reversion of the donated property to the donor upon non-compliance of the condition was upheld
in the recent case of De Luna, et al. vs. Abrigo, et al. It was held therein that said stipulation is in the nature
of an agreement granting a party the right to rescind a contract unilaterally in case of breach, without
need of going to court, and that, upon the happening of the resolutory condition or non-compliance with
the conditions of the contract, the donation is automatically revoked without need of a judicial declaration
to that effect.
Same; Same; Same; Same; In contracts providing for automatic revocation, judicial intervention is necessary in
order to determine whether or not the rescission was proper.––The rationale for the foregoing is that in
contracts providing for automatic revocation, judical intervention is necessary not for purposes of obtaining
a judicial declaration rescinding a contract already deemed rescinded by virtue of an agreement providing
29
PROPERTY
for rescission even without judicial intervention, but in order to determine whether or not the rescission
was proper.
Same; Same; Same; When the deed of donation expressly provides for automatic revocation and reversion of
the property donated, the rules on contract and the general rules on prescription should apply and not Article
764 of the Civil Code.––When a deed of donation, as in this case, expressly provides for automatic revocation
and reversion of the property donated, the rules on contract and the general rules on prescription should
apply, and not Article 764 of the Civil Code.
Same; Same; Same; Stipulation of the parties providing for automatic revocation of the deed of donation without
prior judicial action for that purpose is valid subject to the determination of the propriety of the rescission
sought.––Since Article 1306 of said Code authorizes the parties to a contract to establish such stipulations,
clauses, terms and conditions not contrary to law, morals, good customs, public order or public policy, we
are of the opinion that, at the very least, that stipulation of the parties providing for automatic revocation
of the deed of donation, without prior judicial action for that purpose, is valid subject to the determination
of the propriety of the rescission sought. Where such propriety is sustained, the decision of the court will
be merely declaratory of the revocation, but it is not in itself the revocatory act.
Same; Same; Prescription; Court of Appeals committed no error in holding that the cause of action of private
respondents has not yet prescribed since an action to enforce a written contract prescribed in ten (10) years.–
–On the foregoing ratiocinations, the Court of Appeals committed no error in holding that the cause of
action of herein private respondents has not yet prescribed since an action to enforce a written contract
prescribes in ten (10) years. It is our view that Article 764 was intended to provide a judicial remedy in
case of non-fulfillment or contravention of conditions specified in the deed of donation if and when the
parties have not agreed on the automatic revocation of such donation upon the occurrence of the
contingency contemplated therein. That is not the situation in the case at bar.
Same; Same; The condition imposed in the deed of donation in this case constitutes a patently unreasonable
and undue restriction on the right of the donee to dispose of the property donated.––Donation, as a mode of
acquiring ownership, results in an effective transfer of title over the property from the donor to the donee.
Once a donation is accepted, the donee becomes the absolute owner of the property donated. Although the
donor may impose certain conditions in the deed of donation, the same must not be contrary to law, morals,
good customs, public order and public policy. The condition imposed in the deed of donation in the case
before us constitutes a patently unreasonable and undue restriction on the right of the donee to dispose of
the property donated, which right is an indispensable attribute of ownership. Such a prohibition against
alienation, in order to be valid, must not be perpetual or for an unreasonable period of time.
Same; Same; Same; The prohibition in the deed of donation against the alienation of the property for an entire
century should be declared as an illegal or impossible condition within the contemplation of Article 727 of the
Civil Code.––In the case at bar, we hold that the prohibition in the deed of donation against the alienation
of the property for an entire century, being an unreasonable emasculation and denial of an integral
attribute of ownership, should be declared as an illegal or impossible condition within the contemplation
of Article 727 of the Civil Code. Consequently, as specifically stated in said statutory provision, such
condition shall be considered as not imposed. No reliance may accordingly be placed on said prohibitory
paragraph in the deed of donation.

Remedial Law; Appeal; Court is clothed with ample authority to review matters even if they are not assigned as
errors on appeal if it finds that their consideration is necessary in arriving at a just decision of the case.––This
Court is clothed with ample authority to review matters, even if they are not assigned as errors on appeal,
if it finds that their consideration is necessary in arriving at a just decision of the case: Thus, we have held
that an unassigned error closely related to an error properly assigned, or upon which the determination of
the question properly assigned is dependent, will be considered by the appellate court notwithstanding the
failure to assign it as error.
Same; Same; Same; Remand of the case to the lower court for further reception of evidence not necessary
where the court is in a position to resolve the dispute based on the records before it.––Additionally, we have
laid down the rule that the remand of the case to the lower court for further reception of evidence is not
necessary where the Court is in a position to resolve the dispute based on the records before it. On many
occasions, the Court, in the public interest and for the expeditious administration of justice, has resolved
actions on the merits instead of remanding them to the trial court for further proceedings, such as where
the ends of justice, would not be subserved by the remand of the case.
PETITIONS for review on certiorari to overturn the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Severino C. Dominguez for petitioner Roman Catholic Bishop of Imus, Cavite.
Dolorfino and Dominguez Law Offices for Sps. Ignao.
Joselito R. Enriquez for private respondents.
REGALADO, J.:
These two petitions for review on certiorari1 seek to overturn the decision of the Court of Appeals in CA-
G.R. CV No. 05456 2 which reversed and set aside the order of the Regional Trial Court of Imus, Cavite
dismissing Civil Case No. 095-84, as well as the order of said respondent court denying petitioner’s motions
for the reconsideration of its aforesaid decision.
On November 29, 1984, private respondents as plaintiffs, filed a complaint for nullification of deed of
donation, rescission of contract and reconveyance of real property with damages against petitioners
Florencio and Soledad C. Ignao and the Roman Catholic Bishop of Imus, Cavite, together with the Roman
Catholic Archbishop of Manila, before the Regional Trial Court, Branch XX, Imus, Cavite and which was
docketed as Civil Case No. 095-84 therein.3
In their complaint, private respondents alleged that on August 23, 1930, the spouses Eusebio de Castro
and Martina Rieta, now both deceased, executed a deed of donation in favor of therein defendant Roman
Catholic Archbishop of Manila covering a parcel of land (Lot No. 626, Cadastral Survey of Kawit), located
at Kawit, Cavite, containing an area of 964 square meters, more or less. The deed of donation allegedly
provides that the donee shall not dispose or sell the property within a period of one hundred (100) years
from the execution of the deed of donation, otherwise a violation of such condition would render ipso facto
null and void the deed of donation and the property would revert to the estate of the donors.
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PROPERTY
It is further alleged that on or about June 30, 1980, and while still within the prohibitive period to dispose
of the property, petitioner Roman Catholic Bishop of Imus, in whose administration all properties within
the province of Cavite owned by the Archdiocese of Manila was allegedly transferred on April 26, 1962,
executed a deed of absolute sale of the property subject of the donation in favor of petitioners Florencio and
Soledad C. Ignao in consideration of the sum of P114,000.00. As a consequence of the sale, Transfer
Certificate of Title No. 115990 was issued by the Register of Deeds of Cavite on November 15, 1980 in the
name of said petitioner spouses.
What transpired thereafter is narrated by respondent court in its assailed decision.4 On December 17,
1984, petitioners Florencio Ignao and Soledad C. Ignao filed a motion to dismiss based on the grounds that
(1) herein private respondents, as plaintiffs therein, have no legal capacity to sue; and (2) the complaint
states no cause of action.
On December 19, 1984, petitioner Roman Catholic Bishop of Imus also filed a motion to dismiss on three
(3) grounds, the first two (2) grounds of which were identical to that of the motion to dismiss filed by the
Ignao spouses, and the third ground being that the cause of action has prescribed.
On January 9, 1985, the Roman Catholic Archbishop of Manila likewise filed a motion to dismiss on the
ground that he is not a real party in interest and, therefore, the complaint does not state a cause of action
against him.
After private respondents had filed their oppositions to the said motions to dismiss and the petitioners had
countered with their respective replies, with rejoinders thereto by private respondents, the trial court
issued an order dated January 31, 1985, dismissing the complaint on the ground that the cause of action
has prescribed.5
Private respondents thereafter appealed to the Court of Appeals raising the issues on (a) whether or not
the action for rescission of contracts (deed of donation and deed of sale) has prescribed; and (b) whether or
not the dismissal of the action for rescission of contracts (deed of donation and deed of sale) on the ground
of prescription carries with it the dismissal of the main action for reconveyance of real property.6
On December 23, 1986, respondent Court of Appeals, holding that the action has not yet prescibed,
rendered a decision in favor of private respondents, with the following dispositive portion:
“WHEREFORE, the Order of January 31, 1985 dismissing appellants’ complaint is SET ASIDE
and Civil Case No. 095-84 is hereby ordered REINSTATED and REMANDED to the lower court
for further proceedings. No costs.”7
Petitioners Ignao and the Roman Catholic Bishop of Imus then filed their separate motions for
reconsideration which were denied by respondent Court of Appeals in its resolution dated February 6,
1987,8 hence, the filing of these appeals by certiorari.
It is the contention of petitioners that the cause of action of herein private respondents has already
prescribed, invoking Article 764 of the Civil Code which provides that “(t)he donation shall be revoked at
the instance of the donor, when the donee fails to comply with any of the conditions which the former
imposed upon the latter,” and that “(t)his action shall prescribe after four years from the non-compliance

with the condition, may be transmitted to the heirs of the donor, and may be exercised against the donee’s
heirs.”
We do not agree.
Although it is true that under Article 764 of the Civil Code an action for the revocation of a donation must
be brought within four (4) years from the non-compliance of the conditions of the donation, the same is not
applicable in the case at bar. The deed of donation involved herein expressly provides for automatic
reversion of the property donated in case of violation of the condition therein, hence a judicial declaration
revoking the same is not necessary. As aptly stated by the Court of Appeals:
“By the very express provision in the deed of donation itself that the violation of the condition
thereof would render ipso facto null and void the deed of donation, WE are of the opinion that there
would be no legal necessity anymore to have the donation judicially declared null and void for the
reason that the very deed of donation itself declares it so. For where (sic) it otherwise and that
the donors and the donee contemplated a court action during the execution of the deed of donation
to have the donation judicially rescinded or declared null and void should the condition be
violated, then the phrase reading ‘would render ipso facto null and void’ would not appear in the
deed of donation.”9
In support of its aforesaid position, respondent court relied on the rule that a judicial action for rescission
of a contract is not necessary where the contract provides that it may be revoked and cancelled for violation
of any of its terms and conditions.10 It called attention to the holding that there is nothing in the law that
prohibits the parties from entering into an agreement that a violation of the terms of the contract would
cause its cancellation even without court intervention, and that it is not always necessary for the injured
party to resort to court for rescission of the contract.11 It reiterated the doctrine that a judicial action is
proper only when there is absence of a special provision granting the power of cancellation.12
It is true that the aforesaid rules were applied to the contracts involved therein, but we see no reason why
the same should not apply to the donation in the present case. Article 732 of the Civil Code provides that
donations inter vivos shall be governed by the general provisions on contracts and obligations in all that is
not determined in Title III, Book III on donations. Now, said Title III does not have an explicit provision
on the matter of a donation with a resolutory condition and which is subject to an express provision that
the same shall be considered ipso facto revoked upon the breach of said resolutory condition imposed in
the deed therefor, as is the case of the deed presently in question. The suppletory application of the
foregoing doctrinal rul-ings to the present controversy is consequently justified.
The validity of such a stipulation in the deed of donation providing for the automatic reversion of the
donated property to the donor upon non-compliance of the condition was upheld in the recent case of De
Luna, et al. vs. Abrigo, et al.13 It was held therein that said stipulation is in the nature of an agreement
granting a party the right to rescind a contract unilaterally in case of breach, without need of going to
court, and that, upon the happening of the resolutory condition or non-compliance with the conditions of
the contract, the donation is automatically revoked without need of a judicial declaration to that effect.
While what was the subject of that case was an onerous donation which, under Article 733 of the Civil
Code is governed by the rules on contracts, since the donation in the case at bar is also subject to the same
31
PROPERTY
rules because of its provision on automatic revocation upon the violation of a resolutory condition, from
parity of reasons said pronouncements in De Luna pertinently apply.
The rationale for the foregoing is that in contracts providing for automatic revocation, judical intervention
is necessary not for purposes of obtaining a judicial declaration rescinding a contract already deemed
rescinded by virtue of an agreement providing for rescission even without judicial intervention, but in
order to determine whether or not the rescission was proper.14
When a deed of donation, as in this case, expressly provides for automatic revocation and reversion of the
property donated, the rules on contract and the general rules on prescription should apply, and not Article
764 of the Civil Code. Since Article 1306 of said Code authorizes the parties to a contract to establish such
stipulations, clauses, terms and conditions not contrary to law, morals, good customs, public order or public
policy, we are of the opinion that, at the very least, that stipulation of the parties providing for automatic
revocation of the deed of donation, without prior judicial action for that purpose, is valid subject to the
determination of the propriety of the rescission sought. Where such propriety is sustained, the decision of
the court will be merely declaratory of the revocation, but it is not in itself the revocatory act.
On the foregoing ratiocinations, the Court of Appeals committed no error in holding that the cause of action
of herein private respondents has not yet prescribed since an action to enforce a written contract prescribes
in ten (10) years.15 It is our view that Article 764 was intended to provide a judicial remedy in case of non-
fulfillment or contravention of conditions specified in the deed of donation if and when the parties have
not agreed on the automatic revocation of such donation upon the occurrence of the contingency
contemplated therein. That is not the situation in the case at bar.
Nonetheless, we find that although the action filed by private respondents may not be dismissed by reason
of prescription, the same should be dismissed on the ground that private respondents have no cause of
action against petitioners.
The cause of action of private respondents is based on the alleged breach by petitioners of the resolutory
condition in the deed of donation that the property donated should not be sold within a period of one
hundred (100) years from the date of execution of the deed of donation. Said condition, in our opinion,
constitutes an undue restriction on the rights arising from ownership of petitioners and is, therefore,
contrary to public policy.
Donation, as a mode of acquiring ownership, results in an effective transfer of title over the property from
the donor to the donee. Once a donation is accepted, the donee becomes the absolute owner of the property
donated. Although the donor may impose certain conditions in the deed of donation, the same must not be
contrary to law, morals, good customs, public order and public policy. The condition imposed in the deed of
donation in the case before us constitutes a patently unreasonable and undue restriction on the right of
the donee to dispose of the property donated, which right is an indispensable attribute of ownerhsip. Such
a prohibition against alienation, in order to be valid, must not be perpetual or for an unreasonable period
of time.
Certain provisions of the Civil Code illustrative of the aforesaid policy may be considered applicable by
analogy. Under the third paragraph of Article 494, a donor or testator may prohibit partition for a period
 32
PROPERTY
which shall not exceed twenty (20) years. Article 870, on its part, declares that the dispositions of the WHEREFORE, the judgment of respondent court is SET ASIDE and another judgment is hereby rendered
testator declaring all or part of the estate inalienable for more than twenty (20) years are void. DISMISSING Civil Case No. 095-84 of the Regional Trial Court, Branch XX, Imus, Cavite.
SO ORDERED.
It is significant that the provisions therein regarding a testator also necessarily involve, in the main, the Melencio-Herrera (Chairman) and Paras, JJ., concur.
devolution of property by gratuitous title hence, as is generally the case of donations, being an act of Padilla, J., No part, former counsel of RCAM and RCBI.
liberality, the imposition of an unreasonable period of prohibition to alienate the property should be Sarmiento, J., On leave.
deemed anathema to the basic and actual intent of either the donor or testator. For that reason, the Judgment set aside.
regulatory arm of the law is or must be interposed to prevent an unreasonable departure from the
normative policy expressed in the aforesaid Articles 494 and 870 of the Code. Note.––The power to rescind contracts is not absolute, it is always subject to scrutiny and review by the
proper court. (Delta Motor Corporation vs. Genuino, 170 SCRA 29.)
In the case at bar, we hold that the prohibition in the deed of donation against the alienation of the property
for an entire century, being an unreasonable emasculation and denial of an integral attribute of ownership,
should be declared as an illegal or impossible condition within the contemplation of Article 727 of the Civil
Code. Consequently, as specifically stated in said statutory provision, such condition shall be considered
as not imposed. No reliance may accordingly be placed on said prohibitory paragraph in the deed of
donation. The net result is that, absent said proscription, the deed of sale supposedly constitutive of the
cause of action for the nullification of the deed of donation is not in truth violative of the latter hence, for
lack of cause of action, the case for private respondents must fail.

It may be argued that the validity of such prohibitory provision in the deed of donation was not specifically
put in issue in the pleadings of the parties. That may be true, but such oversight or inaction does not
prevent this Court from passing upon and resolving the same.

It will readily be noted that the provision in the deed of donation against alienation of the land for one
hundred (100) years was the very basis for the action to nullify the deed of donation. At the same time, it
was likewise the controverted fundament of the motion to dismiss the case a quo, which motion was
sustained by the trial court and set aside by respondent court, both on the issue of prescription. That ruling
of respondent court interpreting said provision was assigned as an error in the present petition. While the
issue of the validity of the same provision was not squarely raised, it is ineluctably related to petitioner’s
aforesaid assignment of error since both issues are grounded on and refer to the very same provision.
This Court is clothed with ample authority to review matters, even if they are not assigned as errors on
appeal, if it finds that their consideration is necessary in arriving at a just decision of the case:16 Thus, we
have held that an unassigned error closely related to an error properly assigned,17 or upon which the
determination of the question properly assigned is dependent, will be considered by the appellate court
notwithstanding the failure to assign it as error.18

Additionally, we have laid down the rule that the remand of the case to the lower court for further reception
of evidence is not necessary where the Court is in a position to resolve the dispute based on the records
before it. On many occasions, the Court, in the public interest and for the expeditious administration of
justice, has resolved actions on the merits instead of remanding them to the trial court for further
proceedings, such as where the ends of justice, would not be subserved by the remand of the case.19 The
aforestated considerations obtain in and apply to the present case with respect to the matter of the validity
of the resolutory condition in question.

No. L-69970. November 28, 1988.*
FELIX DANGUILAN, petitioner, vs. INTERMEDIATE APPELLATE COURT, APOLONIA MELAD, assisted
by her husband, JOSE TAGACAY, respondents.
Civil Law; Donations; The conveyances in the case at bar being onerous donations are not covered by the rule
in Article 749 of the Civil Code requiring donations of real properties to be effected through a public instrument.—
It is our view, considering the language of the two instruments, that Domingo Melad did intend to donate
the properties to the petitioner, as the private respondent contends. We do not think, however, that the
donee was moved by pure liberality. While truly donations, the conveyances were onerous donations as the
properties were given to the petitioner in exchange for his obligation to take care of the donee for the rest
of his life and provide for his burial. Hence, it was not covered by the rule in Article 749 of the Civil Code
requiring donations of real properties to be effected through a public instrument.
Same; Same; Same; Contrary to the arguments of private respondent, there was a fair exchange between the
donor and the donee that made the transaction an onerous donation.—The private respondent argues that as
there was no equivalence between the value of the lands donated and the services for which they were
being exchanged, the two transactions should be considered pure or gratuitous donations of real rights,
hence, they should have been effected through a public instrument and not mere private writings.
However, no evidence has been adduced to support her contention that the values exchanged were
disproportionate or unequal. On the other hand, both the trial court and the respondent court have
affirmed the factual allegation that the petitioner did take care of Domingo Melad and later arranged for
his burial in accordance with the condition imposed by the donor. It is alleged and not denied that he died
when he was almost one hundred years old, which would mean that the petitioner farmed the land
practically by himself and so provided for the donee (and his wife) during the latter part of Domingo Melad’s
life. We may assume that there was a fair exchange between the donor and the donee that made the
transaction an onerous donation.
Same; Sale; Presumption of due execution of a public instrument is disputable and will yield to contrary
evidence.—The deed of sale was allegedly executed when the respondent was only three years old and the
consideration was supposedly paid by her mother, Maria Yedan, from her earnings as a wage worker in a
factory. This was itself a suspicious circumstance one may well wonder why the transfer was not made to
the mother herself, who was after all the one paying for the lands. The sale was made out in favor of
Apolonia Melad although she had been using the surname Yedan, her mother’s surname, before that
instrument was signed and in fact even after she got married. The averment was also made that the
contract was simulated and prepared after Domingo Melad’s death in 1945. It was also alleged that even
after the supposed execution of the said contract, the respondent considered Domingo Melad the owner of
the properties and that she had never occupied the same. Considering these serious challenges, the
appellate court could have devoted a little more time to examining Exhibit “E” and the circumstances
surrounding its execution before pronouncing its validity in the manner described above. While it is true
that the due execution of a public instrument is presumed, the presumption is disputable and will yield to
contradictory evidence, which in this case was not refuted.
Same; Same; Delivery; Private respondent failed to show that she consummated the contract of sale by actual
delivery of the properties to her.—At any rate, even assuming the validity of the deed of sale, the record
shows that the private respondent did not take possession of the disputed properties and indeed waited
until 1962 to file this action for recovery of the lands from the petitioner. If she did have possession, she
33
PROPERTY
transferred the same to the petitioner in 1946, by her own sworn admission, and moved out to another lot
belonging to her step-brother. Her claim that the petitioner was her tenant (later changed to
administrator) was disbelieved by the trial court, and properly so, for its inconsistency. In short, she failed
to show that she consummated the contract of sale by actual delivery of the properties to her and her actual
possession thereof in concept of purchaser-owner.
Same; Same; Same; Same; It is a fundamental and elementary principle that ownership does not pass by mere
stipulation but only by delivery.—“Since in this jurisdiction it is a fundamental and elementary principle
that ownership does not pass by mere stipulation but only by delivery (Civil Code, Art. 1095; Fidelity and
Surety Co. v. Wilson, 8 Phil. 51), and the execution of a public document does not constitute sufficient
delivery where the property involved is in the actual and adverse possession of third persons (Addison vs.
Felix, 38 Phil. 404; Masallo vs. Cesar, 39 Phil. 134), it becomes incontestable that even if included in the
contract, the ownership of the property in dispute did not pass thereby to Mariano Garchitorena. Not
having become the owner for lack of delivery, Mariano Garchitorena cannot presume to recover the
property from its present possessors. His action, therefore, is not one of revindicacion, but one against his
vendor for specific performance of the sale to him.”
Same; Same; Same; Same; Same; In order that symbolic delivery may produce the effect of tradition, it is
necessary that the vendor shall have control over the thing sold that, at the moment of the sale, its material
delivery could have been made.—As for the argument that symbolic delivery was affected through the deed
of sale, which was a public instrument, the Court has held: “The Code imposes upon the vendor the
obligation to deliver the thing sold. The thing is considered to be delivered when it is placed ‘in the hands
and possession of the vendee.’ (Civil Code, art. 1462). It is true that the same article declares that the
execution of a public instrument is equivalent to the delivery of the thing which is the object of the contract,
but, in order that this symbolic delivery may produce the effect of tradition, it is necessary that the vendor
shall have had such control over the thing sold that, at the moment of the sale, its material delivery could
have been made. It is not enough to confer upon the purchaser the ownership and the right of possession.
The thing sold must be placed in his control. When there is no impediment whatever to prevent the thing
sold passing into the tenancy of the purchaser by the sole will of the vendor, symbolic delivery through the
execution of a public instrument is sufficient. But if, notwithstanding the execution of the instrument, the
purchaser cannot have the enjoyment and material tenancy of the thing and make use of it himself or
through another in his name, because such tenancy and enjoyment are opposed by the interposition of
another will, then fiction yields to reality—the delivery has not been effected.”
Same; Possession; Rule where respective claims of the parties were both to be discarded as being inherently
weak.—There is no dispute that it is the petitioner and not the private respondent who is in actual
possession of the litigated properties. Even if the respective claims of the parties were both to be discarded
as being inherently weak, the decision should still incline in favor of the petitioner pursuant to the doctrine
announced in Santos & Espinosa v. Estejada, where the Court announced: “If the claim of both the plaintiff
and the defendant are weak, judgment must be for the defendant, for the latter being in possession is
presumed to be the owner, and cannot be obliged to show or prove a better right.”
PETITION to review the decision of the then Intermediate Appellate Court.
The facts are stated in the opinion of the Court.
Pedro R. Perez, Jr. for petitioner.

Teodoro B. Mallonga for private respondent.
CRUZ, J.:
The subject of this dispute is the two lots owned by Domingo Melad which is claimed by both the petitioner
and the respondent. The trial court believed the petitioner but the respondent court, on appeal, upheld the
respondent. The case is now before us for a resolution of the issues once and for all.
On January 29, 1962, the respondent filed a complaint against the petitioner in the then Court of First
Instance of Cagayan for recovery of a farm lot and a residential lot which she claimed she had purchased
from Domingo Melad in 1943 and were now being unlawfully withheld by the defendant.1 In his answer,
the petitioner denied the allegation and averred that he was the owner of the said lots of which he had
been in open, continuous and adverse possession, having acquired them from Domingo Melad in 1941 and
1943.2 The case was dismissed for failure to prosecute but was refiled in 1967.3
At the trial, the plaintiff presented a deed of sale dated December 4, 1943, purportedly signed by Domingo
Melad and duly notarized, which conveyed the said properties to her for the sum of P80.00.4 She said the
amount was earned by her mother as a worker at the Tabacalera factory. She claimed to be the illegitimate
daughter of Domingo Melad, with whom she and her mother were living when he died in 1945. She moved
out of the farm only when in 1946 Felix Danguilan approached her and asked permission to cultivate the
land and to stay therein. She had agreed on condition that he would deliver part of the harvest from the
farm to her, which he did from that year to 1958. The deliveries having stopped, she then consulted the
municipal judge who advised her to file the complaint against Danguilan. The plaintiff’s mother, her only
other witness, corroborated this testimony.5
For his part, the defendant testified that he was the husband of Isidra Melad, Domingo’s niece, whom he
and his wife Juana Malupang had taken into their home as their ward as they had no children of their
own. He and his wife lived with the couple in their house on the residential lot and helped Domingo with
the cultivation of the farm. Domingo Melad signed in 1941 a private instrument in which he gave the
defendant the farm and in 1943 another private instrument in which he also gave him the residential lot,
on the understanding that the latter would take care of the grantor and would bury him upon his death.6
Danguilan presented three other witnesses7 to corroborate his statements and to prove that he had been
living in the land since his marriage to Isidra and had remained in possession thereof after Domingo
Melad’s death in 1945. Two of said witnesses declared that neither the plaintiff nor her mother lived in the
land with Domingo Melad.8
The decision of the trial court was based mainly on the issue of possession. Weighing the evidence
presented by the parties, the judge9 held that the defendant was more believable and that the plaintiff’s
evidence was “unpersuasive and unconvincing.” It was held that the plaintiff’s own declaration that she
moved out of the property in 1946 and left it in the possession of the defendant was contradictory to her
claim of ownership. She was also inconsistent when she testified first that the defendant was her tenant
and later in rebuttal that he was her administrator. The decision concluded that where there was doubt
as to the ownership of the property, the presumption was in favor of the one actually occupying the same,
which in this case was the defendant.10
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PROPERTY
The review by the respondent court11 of this decision was manifestly less than thorough. For the most part
it merely affirmed the factual findings of the trial court except for an irrelevant modification, and it was
only toward the end that it went to and resolved what it considered the lone decisive issue. The respondent
court held that Exhibits 2-b and 3-a, by virtue of which Domingo Melad had conveyed the two parcels of
land to the petitioner, were null and void. The reason was that they were donations of real property and
as such should have been effected through a public instrument. It then set aside the appealed decision and
declared the respondents the true and lawful owners of the disputed property.
The said exhibits read as follows:
“EXHIBIT 2-b is quoted as follows:12
I, DOMINGO MELAD, of legal age, married, do hereby declare in this receipt the truth
of my giving to Felix Danguilan, my agricultural land located at Barrio Fugu-Macusi,
Penablanca, Province of Cagayan, Philippine Islands; that this land is registered under
my name; that I hereby declare and bind myself that there is no one to whom I will
deliver this land except to him as he will be the one responsible for me in the event that
I will die and also for all other things needed and necessary for me, he will be responsible
because of this land I am giving to him; that it is true that I have nieces and nephews
but they are not living with us and there is no one to whom I will give my land except to
Felix Danguilan for he lives with me and this is the length—175 m. and the width is 150
m.
‘IN WITNESS WHEREOF, I hereby sign my name below and also those present in the
execution of this receipt this 14th day of September 1941.
‘Penablanca, Cagayan, September 14, 1941.
(SGD.) DOMINGO MELAD
‘WITNESSES:
1. (T.M.) ISIDRO MELAD
2. (SGD.) FELIX DANGUILAN
3. (T.M.) ILLEGIBLE’ ”
EXHIBIT 3-a is quoted as follows:13
‘I, DOMINGO MELAD, a resident of Centro, Penablanca, Province of Cagayan, do
hereby swear and declare the truth that I have delivered my residential lot at Centro,
Penablanca, Cagayan, to Felix Danguilan, my son-in-law because I have no child; that I
have thought of giving him my land because he will be the one to take care of
SHELTERING me or bury me when I die and this is why I have thought of executing
this document; that the boundaries of this lot is—on the east, Cresencio Danguilan; on
the north, Arellano Street; on the south by Pastor Lagundi and on the west, Pablo
Pelagio and the area of this lot is 35 meters going south; width and length beginning
west to east is 40 meters.

‘IN WITNESS HEREOF, I hereby sign this receipt this 18th day of December 1943.
(SGD.) DOMINGO MELAD
‘WITNESSES:
(SGD.) ILLEGIBLE
(SGD.) DANIEL ARAO’ ”
It is our view, considering the language of the two instruments, that Domingo Melad did intend to donate
the properties to the petitioner, as the private respondent contends. We do not think, however, that the
donee was moved by pure liberality. While truly donations, the conveyances were onerous donations as the
properties were given to the petitioner in exchange for his obligation to take care of the donee for the rest
of his life and provide for his burial. Hence, it was not covered by the rule in Article 749 of the Civil Code
requiring donations of real properties to be effected through a public instrument. The case at bar comes
squarely under the doctrine laid down in Manalo v. De Mesa,14 where the Court held:
“There can be no doubt that the donation in question was made for a valuable consideration, since
the donors made it conditional upon the donees’ bearing the expenses that might be occasioned
by the death and burial of the donor Placida Manalo, a condition and obligation which the donee
Gregorio de Mesa carried out in his own behalf and for his wife Leoncia Manalo; therefore, in
order to determine whether or not said donation is valid and effective it should be sufficient to
demonstrate that, as a contract, it embraces the conditions the law requires and is valid and
effective, although not recorded in a public instrument.”
The private respondent argues that as there was no equivalence between the value of the lands donated
and the services for which they were being exchanged, the two transactions should be considered pure or
gratuitous donations of real rights, hence, they should have been effected through a public instrument and
not mere private writings. However, no evidence has been adduced to support her contention that the
values exchanged were disproportionate or unequal.
On the other hand, both the trial court and the respondent court have affirmed the factual allegation that
the petitioner did take care of Domingo Melad and later arranged for his burial in accordance with the
condition imposed by the donor. It is alleged and not denied that he died when he was almost one hundred
years old,15 which would mean that the petitioner farmed the land practically by himself and so provided
for the donee (and his wife) during the latter part of Domingo Melad’s life. We may assume that there was
a fair exchange between the donor and the donee that made the transaction an onerous donation.
Regarding the private respondent’s claim that she had purchased the properties by virtue of a deed of sale,
the respondent court had only the following to say: “Exhibit ‘E’ taken together with the documentary and
oral evidence shows that the preponderance of evidence is in favor of the appellants.” This was, we think,
a rather superficial way of resolving such a basic and important issue.
The deed of sale was allegedly executed when the respondent was only three years old and the
consideration was supposedly paid by her mother, Maria Yedan, from her earnings as a wage worker in a
35
PROPERTY
factory.16 This was itself a suspicious circumstance, one may well wonder why the transfer was not made
to the mother herself, who was after all the one paying for the lands. The sale was made out in favor of
Apolonia Melad although she had been using the surname Yedan, her mother’s surname, before that
instrument was signed and in fact even after she got married.17 The averment was also made that the
contract was simulated and prepared after Domingo Melad’s death in 1945.18 It was also alleged that even
after the supposed execution of the said contract, the respondent considered Domingo Melad the owner of
the properties and that she had never occupied the same.19
Considering these serious challenges, the appellate court could have devoted a little more time to
examining Exhibit “E” and the circumstances surrounding its execution before pronouncing its validity in
the manner described above. While it is true that the due execution of a public instrument is presumed,
the presumption is disputable and will yield to contradictory evidence, which in this case was not refuted.
At any rate, even assuming the validity of the deed of sale, the record shows that the private respondent
did not take possession of the disputed properties and indeed waited until 1962 to file this action for
recovery of the lands from the petitioner. If she did have possession, she transferred the same to the
petitioner in 1946, by her own sworn admission, and moved out to another lot belonging to her step-
brother.20 Her claim that the petitioner was her tenant (later changed to administrator) was disbelieved
by the trial court, and properly so, for its inconsistency. In short, she failed to show that she consummated
the contract of sale by actual delivery of the properties to her and her actual possession thereof in concept
of purchaser-owner.
As was held in Garchitorena v. Almeda:21
“Since in this jurisdiction it is a fundamental and elementary principle that ownership does not
pass by mere stipulation but only by delivery (Civil Code, Art. 1095; Fidelity and Surety Co. v.
Wilson, 8 Phil. 51), and the execution of a public document does not constitute sufficient delivery
where the property involved is in the actual and adverse possession of third persons (Addison vs.
Felix, 38 Phil. 404; Masallo vs. Cesar, 39 Phil. 134), it becomes incontestable that even if included
in the contract, the ownership of the property in dispute did not pass thereby to Mariano
Garchitorena. Not having become the owner for lack of delivery, Mariano Garchitorena cannot
presume to recover the property from its present possessors. His action, therefore, is not one of
revindicacion, but one against his vendor for specific performance of the sale to him.”
In the aforecited case of Fidelity and Deposit Co. v. Wilson,22 Justice Mapa declared for the Court:
“Therefore, in our Civil Code it is a fundamental principle in all matters of contracts and a well-
known doctrine of law that ‘non mudis pactis, sed traditione dominia rerum transferuntur’. In
conformity with said doctrine as established in paragraph 2 of article 609 of said code, that ‘the
ownership and other property rights are acquired and transmitted by law, by gift, by testate or
intestate succession, and, in consequence of certain contracts, by tradition’. And as the logical
application of this disposition article 1095 prescribes the following: ‘A creditor has the rights to
the fruits of a thing from the time the obligation to deliver it arises. However, he shall not acquire
a real right’ (and the ownership is surely such) ‘until the property has been delivered to him.’
 36
PROPERTY
“In accordance with such disposition and provisions the delivery of a thing constitutes a necessary
and indispensable requisite for the purpose of acquiring the ownership of the same by virtue of a
contract. As Manresa states in his Commentaries on the Civil Code, volume 10, pages 339 and
340: ‘Our law does not admit the doctrine of the transfer of property by mere consent but limits
the effect of the agreement to the due execution of the contract. x x x . The ownership, the property
right, is only derived from the delivery of a thing x x x.”

As for the argument that symbolic delivery was effected through the deed of sale, which was a public
instrument, the Court has held:

“The Code imposes upon the vendor the obligation to deliver the thing sold. The thing is considered
to be delivered when it is placed ‘in the hands and possession of the vendee.’ (Civil Code, art.
1462). It is true that the same article declares that the execution of a public instrument is
equivalent to the delivery of the thing which is the object of the contract, but, in order that this
symbolic delivery may produce the effect of tradition, it is necessary that the vendor shall have
had such control over the thing sold that, at the moment of the sale, its material delivery could
have been made. It is not enough to confer upon the purchaser the ownership and the right of
possession. The thing sold must be placed in his control. When there is no impediment whatever
to prevent the thing sold passing into the tenancy of the purchaser by the sole will of the vendor,
symbolic delivery through the execution of a public instrument is sufficient. But if,
notwithstanding the execution of the instrument, the purchaser cannot have the enjoyment and
material tenancy of the thing and make use of it himself or through another in his name, because
such tenancy and enjoyment are opposed by the interposition of another will, then fiction yields
to reality—the delivery has not been effected.”23

There is no dispute that it is the petitioner and not the private respondent who is in actual possession of
the litigated properties. Even if the respective claims of the parties were both to be discarded as being
inherently weak, the decision should still incline in favor of the petitioner pursuant to the doctrine
announced in Santos & Espinosa v. Estejada,24 where the Court announced:

“If the claim of both the plaintiff and the defendant are weak, judgment must be for the defendant,
for the latter being in possession is presumed to be the owner, and cannot be obliged to show or
prove a better right.”

WHEREFORE, the decision of the respondent court is SET ASIDE and that of the trial court
REINSTATED, with costs against the private respondent. It is so ordered.
Narvasa, (Chairman), Gancayco, Griño-Aquino and Medialdea, JJ., concur.
Decision set aside.

Note.—A thing sold is understood as delivered when it is placed in the control and possession of the vendee.
Delivery produces its natural effects in law one of which being the conveyance of ownership. (Municipality
of Victorias vs. Court of Appeals, 149 SCRA 32).

G.R. No. 112127. July 17, 1995.*
CENTRAL PHILIPPINE UNIVERSITY, petitioner, vs. COURT OF APPEALS, REMEDIOS FRANCO,
FRANCISCO N. LOPEZ, CECILIA P. VDA. DE LOPEZ, REDAN LOPEZ AND REMARENE LOPEZ,
respondents.
Donations; Onerous Donations; Words and Phrases; An onerous donation is one executed for a valuable
consideration which is considered the equivalent of the donation itself.—We find it difficult to sustain the
petition. A clear perusal of the conditions set forth in the deed of donation executed by Don Ramon Lopez,
Sr., gives us no alternative but to conclude that his donation was onerous, one executed for a valuable
consideration which is considered the equivalent of the donation itself, e.g., when a donation imposes a
burden equivalent to the value of the donation. A gift of land to the City of Manila requiring the latter to
erect schools, construct a children’s playground and open streets on the land was considered an onerous
donation. Similarly, where Don Ramon Lopez donated the subject parcel of land to petitioner but imposed
an obligation upon the latter to establish a medical college thereon, the donation must be for an onerous
consideration.
Same; Same; Obligations; Conditional Obligations; When a person donates land to another on the condition
that the latter would build upon the land a school, the condition imposed is not a condition precedent or a
suspensive condition but a resolutory one.—Under Art. 1181 of the Civil Code, on conditional obligations,
the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon
the happening of the event which constitutes the condition. Thus, when a person donates land to another
on the condition that the latter would build upon the land a school, the condition imposed was not a
condition precedent or a suspensive condition but a resolutory one.
Same; Same; Same; Same; If there is no fulfillment or compliance with the resolutory condition, the donation
may now be revoked and all rights which the donee may have acquired under it shall be deemed lost and
extinguished.—It is not correct to say that the schoolhouse had to be constructed before the donation
became effective, that is, before the donee could become the owner of the land, otherwise, it would be
invading the property rights of the donor. The donation had to be valid before the fulfillment of the
condition. If there was no fulfillment or compliance with the condition, such as what obtains in the instant
case, the donation may now be revoked and all rights which the donee may have acquired under it shall
be deemed lost and extinguished.
Same; Same; Same; Same; Statute of Limitations; Prescription; Where the time within which the condition
should be fulfilled depends upon the exclusive will of the donee, its absolute acceptance and the
acknowledgment of its obligation provided in the deed of donation are sufficient to prevent the statute of
limitations from barring the action for annulment of donation.—The claim of petitioner that prescription bars
the instant action of private respondents is unavailing. The condition imposed by the donor, i.e., the
building of a medical school upon the land donated, depended upon the exclusive will of the donee as to
when this condition shall be fulfilled. When petitioner accepted the donation, it bound itself to comply with
the condition thereof. Since the time within which the condition should be fulfilled depended upon the
exclusive will of the petitioner, it has been held that its absolute acceptance and the acknowledgment of
its obligation provided in the deed of donation were sufficient to prevent the statute of limitations from
barring the action of private respondents upon the original contract which was the deed of donation.
Same; Same; Same; Same; Same; Same; Actions; A cause of action arises when that which should have been
done is not done, or that which should not have been done is done, and in cases where there is no special
37
PROPERTY
provision for such computation, recourse must be had to the rule that the period must be counted from the day
on which the corresponding action could have been instituted.—Moreover, the time from which the cause of
action accrued for the revocation of the donation and recovery of the property donated cannot be specifically
determined in the instant case. A cause of action arises when that which should have been done is not
done, or that which should not have been done is done. In cases where there is no special provision for such
computation, recourse must be had to the rule that the period must be counted from the day on which the
corresponding action could have been instituted. It is the legal possibility of bringing the action which
determines the starting point for the computation of the period. In this case, the starting point begins with
the expiration of a reasonable period and opportunity for petitioner to fulfill what has been charged upon
it by the donor.
Same; Same; Same; Same; Same; Same; Same; When the obligation does not fix a period but from its nature
and circumstances it can be inferred that a period was intended, the courts may fix the duration thereof.—Thus,
when the obligation does not fix a period but from its nature and circumstances it can be inferred that a
period was intended, the general rule provided in Art. 1197 of the Civil Code applies, which provides that
the courts may fix the duration thereof because the fulfillment of the obligation itself cannot be demanded
until after the court has fixed the period for compliance therewith and such period has arrived.
Same; Same; Same; Same; Same; Same; Same; There is no more need to fix the duration of a term of the
obligation when more than a reasonable period of fifty (50) years has already been allowed the donee to avail
of the opportunity to comply with the condition in the donation.—This general rule however cannot be applied
considering the different set of circumstances existing in the instant case. More than a reasonable period
of fifty (50) years has already been allowed petitioner to avail of the opportunity to comply with the
condition even if it be burdensome, to make the donation in its favor forever valid. But, unfortunately, it
failed to do so. Hence, there is no more need to fix the duration of a term of the obligation when such
procedure would be a mere technicality and formality and would serve no purpose than to delay or lead to
an unnecessary and expensive multiplication of suits.
Same; Same; Same; Same; Same; Same; Same; Rescission; When obligor cannot comply with what is
incumbent upon him, the obligee may seek rescission, and in the absence of any just cause for the court to
determine the period of the compliance, there is no more obstacle for the court to decree the rescission
claimed.—Moreover, under Art. 1191 of the Civil Code, when one of the obligors cannot comply with what
is incumbent upon him, the obligee may seek rescission and the court shall decree the same unless there
is just cause authorizing the fixing of a period. In the absence of any just cause for the court to determine
the period of the compliance, there is no more obstacle for the court to decree the rescission claimed.
Same; Same; Same; Same; Contracts; Doubts referring to incidental circumstances of a gratuitous contract
should be resolved in favor of the least transmission of rights and interests.—Finally, since the questioned
deed of donation herein is basically a gratuitous one, doubts referring to incidental circumstances of a
gratuitous contract should be resolved in favor of the least transmission of rights and interests.
DAVIDE, JR., J., Dissenting Opinion:

Donations; Obligations; “Conditions” as used in donations and as used in the law of obligations, compared.—
There is no conditional obligation to speak of in this case. It seems that the “conditions” imposed by the
donor and as the word is used in the law of donations is confused with “conditions” as used in the law of
obligations. In his annotation of Article 764 of the Civil Code on Donations, Arturo M. Tolentino, citing the
well-known civilists such as Castan, Perez Gonzalez and Alguer, and Colin & Capitant, states clearly the
context within which the term “conditions” is used in the law of donations, to wit: The word “conditions” in
this article does not refer to uncertain events on which the birth or extinguishment of a juridical relation
depends, but is used in the vulgar sense of obligations or charges imposed by the donor on the donee . It is
used, not in its technical or strict legal sense, but in its broadest sense.
Same; Same; Words and Phrases; “Modal Donation,” Explained.—Clearly then, when the law and the deed
of donation speaks of “conditions” of a donation, what are referred to are actually the obligations, charges
or burdens imposed by the donor upon the donee and which would characterize the donation as onerous.
In the present case, the donation is, quite obviously, onerous, but it is more properly called a “modal
donation.” A modal donation is one in which the donor imposes a prestation upon the donee. The
establishment of the medical college as the condition of the donation in the present case is one such
prestation.
Same; Same; Statute of Limitations; Prescription; The mere fact that there is no time fixed as to when the
conditions of the donation are to be fulfilled does not ipso facto mean that the statute of limitations will not apply
anymore and the action to revoke the donation becomes imprescriptible.—Although it is admitted that the
fulfillment of the conditions/obligations of the present donation may be dependent on the will of the donee
as to when it will comply therewith, this did not arise out of a condition which the donee itself imposed. It
is believed that the donee was not meant to and does not have absolute control over the time within which
it will perform its obligations. It must still do so within a reasonable time. What that reasonable time is,
under the circumstances, for the courts to determine. Thus, the mere fact that there is no time fixed as to
when the conditions of the donation are to be fulfilled does not ipso facto mean that the statute of
limitations will not apply anymore and the action to revoke the donation becomes imprescriptible.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Juanito M. Acanto for petitioner.
Santos B. Aguadera for private respondents.
BELLOSILLO, J.:
CENTRAL PHILIPPINE UNIVERSITY filed this petition for review on certiorari of the decision of the
Court of Appeals which reversed that of the Regional Trial Court of Iloilo City directing petitioner to
reconvey to private respondents the property donated to it by their predecessor-in-interest.
Sometime in 1939, the late Don Ramon Lopez, Sr., who was then a member of the Board of Trustees of the
Central Philippine College (now Central Philippine University [CPU]), executed a deed of donation in favor
of the latter of a parcel of land identified as Lot No. 3174-B-1 of the subdivision plan Psd-1144, then a
portion of Lot No. 3174-B, for which Transfer Certificate of Title No. T-3910-A was issued in the name of
the donee CPU with the following annotations copied from the deed of donation—
38
PROPERTY
1.
The land described shall be utilized by the CPU exclusively for the establishment and use of a medical
college with all its buildings as part of the curriculum;
2.
The said college shall not sell, transfer or convey to any third party nor in any way encumber said land;
3.
The said land shall be called “RAMON LOPEZ CAMPUS,” and the said college shall be under obligation
to erect a cornerstone bearing that name. Any net income from the land or any of its parks shall be put
in a fund to be known as the “RAMON LOPEZ CAMPUS FUND” to be used for improvements of said
campus and erection of a building thereon.”1
On 31 May 1989, private respondents, who are the heirs of Don Ramon Lopez, Sr., filed an action for
annulment of donation, reconveyance and damages against CPU alleging that since 1939 up to the time
the action was filed the latter had not complied with the conditions of the donation. Private respondents
also argued that petitioner had in fact negotiated with the National Housing Authority (NHA) to exchange
the donated property with another land owned by the latter.
In its answer petitioner alleged that the right of private respondents to file the action had prescribed; that
it did not violate any of the conditions in the deed of donation because it never used the donated property
for any other purpose than that for which it was intended; and, that it did not sell, transfer or convey it to
any third party.
On 31 May 1991, the trial court held that petitioner failed to comply with the conditions of the donation
and declared it null and void. The court a quo further directed petitioner to execute a deed of reconveyance
of the property in favor of the heirs of the donor, namely, private respondents herein.
Petitioner appealed to the Court of Appeals which on 18 June 1993 ruled that the annotations at the back
of petitioner’s certificate of title were resolutory conditions breach of which should terminate the rights of
the donee thus making the donation revocable.
The appellate court also found that while the first condition mandated petitioner to utilize the donated
property for the establishment of a medical school, the donor did not fix a period within which the condition
must be fulfilled, hence, until a period was fixed for the fulfillment of the condition, petitioner could not be
considered as having failed to comply with its part of the bargain. Thus, the appellate court rendered its
decision reversing the appealed decision and remanding the case to the court of origin for the determination
of the time within which petitioner should comply with the first condition annotated in the certificate of
title.
Petitioner now alleges that the Court of Appeals erred: (a) in holding that the quoted annotations in the
certificate of title of petitioner are onerous obligations and resolutory conditions of the donation which
must be fulfilled non-compliance of which would render the donation revocable; (b) in holding that the

issue of prescription does not deserve “disquisition;” and, (c) in remanding the case to the trial court for
the fixing of the period within which petitioner would establish a medical college.2
We find it difficult to sustain the petition. A clear perusal of the conditions set forth in the deed of donation
executed by Don Ramon Lopez, Sr., gives us no alternative but to conclude that his donation was onerous,
one executed for a valuable consideration which is considered the equivalent of the donation itself, e.g.,
when a donation imposes a burden equivalent to the value of the donation. A gift of land to the City of
Manila requiring the latter to erect schools, construct a children’s playground and open streets on the land
was considered an onerous donation.3 Similarly, where Don Ramon Lopez donated the subject parcel of
land to petitioner but imposed an obligation upon the latter to establish a medical college thereon, the
donation must be for an onerous consideration.
Under Art. 1181 of the Civil Code, on conditional obligations, the acquisition of rights, as well as the
extinguishment or loss of those already acquired, shall depend upon the happening of the event which
constitutes the condition. Thus, when a person donates land to another on the condition that the latter
would build upon the land a school, the condition imposed was not a condition precedent or a suspensive
condition but a resolutory one.4 It is not correct to say that the schoolhouse had to be constructed before
the donation became effective, that is, before the donee could become the owner of the land, otherwise, it
would be invading the property rights of the donor. The donation had to be valid before the fulfillment of
the condition.5 If there was no fulfillment or compliance with the condition, such as what obtains in the
instant case, the donation may now be revoked and all rights which the donee may have acquired under it
shall be deemed lost and extinguished.
The claim of petitioner that prescription bars the instant action of private respondents is unavailing. The
condition imposed by the donor, i.e., the building of a medical school upon the land donated, depended upon
the exclusive will of the donee as to when this condition shall be fulfilled. When petitioner accepted the
donation, it bound itself to comply with the condition thereof. Since the time within which the condition
should be fulfilled depended upon the exclusive will of the petitioner, it has been held that its absolute
acceptance and the acknowledgment of its obligation provided in the deed of donation were sufficient to
prevent the statute of limitations from barring the action of private respondents upon the original contract
which was the deed of donation.6
Moreover, the time from which the cause of action accrued for the revocation of the donation and recovery
of the property donated cannot be specifically determined in the instant case. A cause of action arises when
that which should have been done is not done, or that which should not have been done is done.7 In cases
where there is no special provision for such computation, recourse must be had to the rule that the period
must be counted from the day on which the corresponding action could have been instituted. It is the legal
possibility of bringing the action which determines the starting point for the computation of the period. In
this case, the starting point begins with the expiration of a reasonable period and opportunity for petitioner
to fulfill what has been charged upon it by the donor.
The period of time for the establishment of a medical college and the necessary buildings and
improvements on the property cannot be quantified in a specific number of years because of the presence
of several factors and circumstances involved in the erection of an educational institution, such as
39
PROPERTY
government laws and regulations pertaining to education, building requirements and property restrictions
which are beyond the control of the donee.
Thus, when the obligation does not fix a period but from its nature and circumstances it can be inferred
that a period was intended, the general rule provided in Art. 1197 of the Civil Code applies, which provides
that the courts may fix the duration thereof because the fulfillment of the obligation itself cannot be
demanded until after the court has fixed the period for compliance therewith and such period has arrived.8
This general rule however cannot be applied considering the different set of circumstances existing in the
instant case. More than a reasonable period of fifty (50) years has already been allowed petitioner to avail
of the opportunity to comply with the condition even if it be burdensome, to make the donation in its favor
forever valid. But, unfortunately, it failed to do so. Hence, there is no more need to fix the duration of a
term of the obligation when such procedure would be a mere technicality and formality and would serve
no purpose than to delay or lead to an unnecessary and expensive multiplication of suits.9 Moreover, under
Art. 1191 of the Civil Code, when one of the obligors cannot comply with what is incumbent upon him, the
obligee may seek rescission and the court shall decree the same unless there is just cause authorizing the
fixing of a period. In the absence of any just cause for the court to determine the period of the compliance,
there is no more obstacle for the court to decree the rescission claimed.
Finally, since the questioned deed of donation herein is basically a gratuitous one, doubts referring to
incidental circumstances of a gratuitous contract should be resolved in favor of the least transmission of
rights and interests.10 Records are clear and facts are undisputed that since the execution of the deed of
donation up to the time of filing of the instant action, petitioner has failed to comply with its obligation as
donee. Petitioner has slept on its obligation for an unreasonable length of time. Hence, it is only just and
equitable now to declare the subject donation already ineffective and, for all purposes, revoked so that
petitioner as donee should now return the donated property to the heirs of the donor, private respondents
herein, by means of reconveyance.
WHEREFORE, the decision of the Regional Trial Court of Iloilo, Br. 34, of 31 May 1991 is REINSTATED
and AFFIRMED, and the decision of the Court of Appeals of 18 June 1993 is accordingly MODIFIED.
Consequently, petitioner is directed to reconvey to private respondents Lot No. 3174-B-1 of the subdivision
plan Psd-1144 covered by Transfer Certificate of Title No. T-3910-A within thirty (30) days from the finality
of this judgment.
Costs against petitioner.
SO ORDERED.
Quiason and Kapunan, JJ., concur.
Padilla (Chairman), J., I join Mr. Justice Davide in his dissenting opinion.
Davide, Jr., J., See dissenting opinion.