RIZAL CEMENT CO., INC., petitioner, vs. CONSUELO C. VILLAREAL, ISABEL C. VILLAREAL, FLAVIANO C. VILLAREAL, ALFREDO V.

GOMEZ, AURORA V. GOMEZ and the COURT OF APPEALS, respondents. Amanda V. Viray for petitioner. Luis Ma. Guerrero for respondents. CUEVAS, J: Petition for Review on certiorari of the decision of the defunct Court of Appeals in CA- G.R. No. 36700 which REVERSED the decision of the then Court of First Instance of Rizal in Land Registration Case No. 1204, LRC Rec. No. N-10480. Sometime in December 1955, private respondents filed with the then Court of First Instance of Rizal in Pasig, an Application for Registration, alleging, inter alia: 1. That the said land consists of two agricultural lots bounded and described as shown on plan Psd-147662 as Lots Nos. 1 and 2 and technical description attached hereto and made integral part hereof; 2. That Lots Nos. 1 and 2 of plan Psd-147662 at the last assessment for taxation were assessed at a total amount of ONE THOUSAND FIVE HUNDRED (P1, 500.00) PESOS per Tax Declaration Nos. 11994 and 11995 in the values of ONE THOUSAND ONE HUNDRED NINETY (P1,190.00) PESOS and THREE HUNDRED TEN (P 310.00) PESOS, respectively, in the Land Records of Rizal Province; 3. That to the best of their knowledge and belief, there is no mortgage or encumbrance of any kind whatsoever affecting said parcels of land nor is there any person having any estate or interest thereon, legal or equitable in possession, remainder, reversion or expectancy; 4. That the applicants have acquired said lands by purchase from the spouses VICTORIANO CERVO and IGNACIA GUILLERMO as evidenced by a Deed of Sale executed by the latter in favor of the former, before Notary Public for the City of Manila, Mr. Manuel M. Parades on the 3rd day of November, 1955, per Doc. No. 352, Page No. 42, Book No. II, Series of 1955; 5. That the said parcels of land are not occupied by anybody; xxx xxx xxx xxx xxx xxx 8. That the said lots included in this application adjoins the National Road and the applicants do not claim any part of the said National Road; xxx xxx xxx Petitioner then prayed that the aforesaid parcels be brought under the operation of the Land Registration Act, and to have the title thereto confirmed and registered in their names. Petitioner filed an OPPOSITION to said application alleging That the Rizal Cement Co., Inc. is the owner of unregistered three (3) parcels of land known as Lots Nos. 1, 2 and 4, located in Darangan, Binangonan Rizal, the full technical description and bearing distance of which can be found in Plan Psu-2260 approved by the Director of lands in 1912; That the land which is the subject of this petition for registration, full technical description of which are found in Psu-147662 approved by the Director of Lands in October, 1955, covers portions of Lots 1 and 4 of Psu-2260; That Lot No. 1 under Psu-2260 contains an area of 122,982 square meters a portion of which is designated as Lot No. 2 of Psu-147662 Containing an area of 6,133 square meters; That Lot No. 4 of Psu-2260 contains an area of 27,530 square meters, a portion of which is designated as Lot No. I of Psu-147662 containing an area of 19,916 square meters; and That the oppositor Rizal Cement Co., Inc. is in possession of said land and has been religiously paying the real estate tax in the Municipality of Binangonan, Rizal from the time it had acquired said property from the previous owner (Old Tax Declaration No. 30662) now 10570. Petitioner then prayed that the said petition be dismissed. Private respondents, in REPLY to said OPPOSITION, countered that the whole three (3) parcels of land known as Lots Nos. 1, 2 and 4 of Plan Psu-2260 do not belong to the petitioner; that a portion of Lot No. 1 consisting of 6,133 square meters and portion of Lot No. 4 consisting of 19,916 square meters belong to them; that they and their predecessors-in-interest have been in continuous, adverse and open possession of said portion since time immemorial; and that they have been religiously paying the real estate taxes thereon. After trial, judgment was rendered by the Court of First Instance on April 28, 1965 which was amended on May 21, 1965, denying the application for registration and ordering the issuance of a decree of registration after finality of said decision in the name of Rizal Cement Company. Respondents appealed to the then Court of Appeals which reversed and set aside the lower court's decision. Petitioner moved for reconsideration but the appellate court denied the motion in its Resolution of February 11, 1969. Hence, the present petition alleging that the Court of Appeals, in reversing the decision of the trial court, has arrived at grossly mistaken, absurd and impossible conclusions of law and has decided the appeal in a manner totally at war with and entirely contrary to law and the applicable decisions of this Court. In fine, petitioner submits the following errors allegedly committed by the appellate court for Our review and consideration:

a) Reliance on the Deed of Sale purporting to have been executed by Maria Certeza in 1924 in favor of Apolonia Francisco, the due execution of which have been duly established, and made capital of this deed of sale as having ejected the transfer of rights over the lots in question, successively from the original vendor down to herein private respondents; b) Giving much weight to private respondents evidence to the effect that former Justice Mariano de Joya and one Gonzalo Certeza were former owners of the property in question, and that they are the predecessors-in-interest of the applicants-respondents. However, the Court of Appeals failed to consider the fact that these persons who were then available and were the best witnesses to substantiate applicants' claim, were not presented as witnesses thereby giving rise to the legal presumption that their testimonies would have been adverse had they testified in this case; c) Failure of the Court of Appeals to consider the fact that the two (2) lots sought to be registered by private respondents were not listed in the inventory of Maria Certeza's properties submitted to the court; d) Failure of the Court of Appeals to rule that private respondents were not able to prove that the properties covered by Exhibit "H" were the same properties covered in Exhibit "I". The Court of Appeals has acted contrary to the doctrine laid down in land registration cases to the effect that an applicant must prove not only the genuineness of his title but also the Identity of the land applied for; e) Stressing that the evidence of petitioner (then oppositor) was weak to substantiate its claim but failed to apply the doctrine that the burden is upon the applicant for registration of land to prove satisfactorily that he is the owner and it is not enough to prove that the property does not belong to the opponent. The evidence must be absolute and not merely preponderant; and f) In stating that applicants by themselves and their predecessors-in-interest have an unbroken adverse possession under claim of ownership for over thirty years thus failing to consider that petitioner has also been in possession of the properties since 1911, while several portions thereof were only under lease to several persons. Based on respondents-applicants' testimonial and documentary evidence, it appears that the property applied for, designated as Lots Nos. 1 and 2 of Plan Psu-147662, have a total area of 26,015 square meters; that these lots originally belonged to one Maria Certeza; that upon her death, the property was involved in a litigation between her grandchildren and Gonzalo Certeza and that the lots were given by the latter to former Justice de Joya as the latter's attorney's fees; that the lots were then sold by de Joya to Filomeno Sta. Ana who, in turn sold the same to spouses Victoriano Cervo and Ignacia Guillermo in 1939; that sometime in November 1955, the said 1 spouses sold the said lots to the herein applicants as shown by a duly notarized deed of sale; that the spouses Cervo declared the property for taxation purposes in the name of the wife, Ignacia Guillermo, and paid for the realty taxes due thereon; that prior to the sale, the spouses Cervo had the two parcels surveyed first in 1950 and then in 1955. Upon the other hand, oppositor, (now petitioner) Rizal Cement Company, claims to be the owner of the subject lots, having bought the same from Maria Certeza, and to have been in continuous and adverse possession of the property since 1911, To substantiate its claim, petitioner submitted documentary evidence, the most important of which are the following (a) Plan Psu-2260 which covers the survey of a big tract of land for the company designated as Lots 1, 2 and 4 of the Plan with a total area of 210,644 square meters. The survey was made in 1911 and the plan was approved in 1912; (b) A sketch plan of the geographical position of the real pro- parties of Madrigal and Company; (c) Tax Declaration No. 1066 secured in 1949 from the Rizal Provincial Assessor which is a consolidation of all lands of the Rizal Cement Company located in Darangan with a total area of 2,496,712 square meters and which includes the land in litigation; (d) Tax Declaration No. 10570 which cancels Tax Declaration No. 1066; and (e) Real estate tax receipts issued for Madrigal and Company, covering among others the land applied for. As to who had been in actual possession of the land in question, the Court of Appeals gave credence to the testimony of the witnesses for respondents applicants, namely: (a) Santiago Picadizo one of the tenants of the land from the time it was owned by Maria Certeza up to the present. He stated that he knew for a fact that the lots in question were given to Justice Mariano de Joya as attorney's fees, who in turn sold the same to Ignacia Guillermo; that from the tune he started working as tenant, he successively gave the share of the harvests to Maria Certeza; and that during all the time that the parcels of land were possessed by the previous owners, no other persons ever claimed ownership of the property. (b) Isaac Reyes who started working on one-half of the 2 parcels of land since 1934 up to the present, and declared that there was no other person other than Ignacia Guillermo who claimed ownership of the parcels in litigation; and (c) Mr. Valentin Marqueza rebuttal witness who averred that he began to live in Darangan, Binangonan, Rizal since 1910; that he bought a portion of his land from Maria Certeza when he was working with Rizal Cement Company in 1924; that the sale was evidenced by an absolute Deed of Sale; that he occupied the portion sold to him up to 1931; that ever since he possessed the property there were no other adverse claimants thereto; that he saw a small house on a portion of the land of Maria Certeza built by Rizal Cement Company who intended to make a location where it could built a factory; that after 4 to 5 months, the small house was removed, after which, this witness purchased that portion from Maria Certeza; that during his stay in Darangan, the company did not take

possession of the land; that Maria Certeza had the possession of the land until her death and that the tenants gave the harvest of the land to Maria Certeza. On this score the Court of Appeals in its assailed decision held and rightly so Being an attribute of ownership, appellants' possession of the land in question goes far to tip the scale in their favor. The right to possess flows from ownership. No person wig suffer adverse possession by another of what belongs to him. Were the oppositor- appellee rightful owner of the land in question, it would not have allowed the tenants to cultivate the land and give the owner's share to appellants and/or their predecessors. It would have opposed the survey for applicants' vendors on May 21 and 28, 1950 and July 31, 1955, but did not as shown in the surveyor's certificate, Exhibit E. If oppositor really bought Lot 2 from Maria Certeza in 1909 as claimed, it has not been explained how she could sell a portion thereof to Apolonia Francisco, married to Valentin Marquez for P100.00 on April 15, 1924 by deed, Exhibit R,-an ancient document -as confirmed by the husband in his deposition who as employee of oppositor would have known of its acquisition. On the other hand, applicants' vendors in mortgaging the two lots to Pedro Picones in 1952, Exhibits 0 and 01, for P11, 000.00, exercised a dominical act; and Aniano Bautista's testimony that the Cervos were not owners of the land challenges belief since Bautista was a witness to Exhibits 0 and 0-1, being uncle of Picones. Very significantly petitioner did not present any witness in actual possession of the land in question. As aptly found by the appellate court, respondents possess the property in the concept of an owner. Possession is acquired by the material occupation of a thing or the exercise of a right or by the fact it is subject to 2 the action of our will, or by the proper acts and legal formalities established for acquiring such right. Petitioner's evidence, consisting of tax receipts, tax declaration and survey plan are not conclusive and indisputable basis of one's ownership of the property in question. Assessment alone is of little value as proof of title. Mere tax declaration does not vest 3 ownership of the property upon the declarant. Settled is the rule that neither tax receipts nor declaration of ownership for taxation purposes alone constitutes sufficient evidence of ownership or of the right to possess realty. They must be supported by other 4 effective proofs. Neither can the survey plan or technical descriptions prepared at the instance of the party concerned be considered 5 in his favor, the same being self-serving. Apropos thereto is the appellate court's finding that Against the chains of tax declarations presented by the applicants-appellants which originated beyond 1920 from Maria Certeza, undisputably the original owner of Lots 1 and 2, the oppositor-appellee presented no tax declaration which could refer specifically to the two lots in question. Tax Declaration No. 10570 (Exhibit 35-1949) for the oppositor-appellee admittedly does not indicate any of the two lots in question. Indeed, the senior deputy assessor of Rizal, as witness for the oppositor-appellee, categorically declared that his office refused to issue tax declaration for the land covered by its Plan Psu-2260, for the reason that the same had been in possession of various persons in Darangan. Anent the allegation of petitioner to the effect that tile subject lands, full technical description of which are found in Psu-147662 approved in October 1955, covers portion of Lots 1 and 4 of Psu-2260, the Court of Appeals correctly observed The only documentary evidence which the oppositor-appellee may capitalize for its claim of ownership is the notation in applicants' plan Exhibit D that the lots in question are portions of a previous survey made in 1911 for oppositor, Plan Psu-2260. The survey plan however has no original record in the Bureau of Lands. Be that as it may, survey plans merely delimit areas sought to be registered. Besides, the annotation relied upon by the lower court in its judgment in favor of the oppositor is nothing more than what it imports - a previous survey. Neither the plan nor its approval carried with it any adjudication of ownership. The, Director of Lands through approval merely certifies that the survey has been made in accordance with approved methods and regulations in force. (Philippine Executive Commission vs. Antonio, CA-G.R. No. 8456, February 12, 1943) A painstaking review of the evidence on record failed to disclose any evidence or circumstance of note sufficient enough to overrule said findings and conclusions. The jurisdiction of this Court in cases brought to Us from the Court of Appeals (now Intermediate 6 Appellate Court) is limited to the review of errors of law, said appellate court's findings of fact being conclusive upon us except (1) when the conclusion is a finding grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly absurd, mistaken or impossible; (3) when there is grave abuse abuse of discretion in the appreciation of facts; (4) when the judgment is premised on a misapprehension of facts; (5) when the findings of fact are conflicting; and (6) when the Court of Appeals, in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee, none of which obtain in the case at bar. The appellate court did what is required of it under the law and it cannot be faulted after reaching a conclusion adverse to herein petitioner. The decision on the merits of the case hinges on the determination of the pertinent facts, and the findings of the Court of Appeals when supported by substantial evidence are beyond our power of review. WHEREFORE, the petition is hereby DISMISSED and the decision dated January 6, 1969 of the Court of Appeals (now Intermediate Appellate Court) is hereby AFFIRMED. Costs against petitioner. SO ORDERED. Aquino, Concepcion Jr., Abad Santos and Escolin, JJ., concur. Makasiar, J., took no part.

IGNACIO WONG, petitioner, vs. HON. LUCAS D. CARPIO, as Presiding Judge, Court of First Instance of Davao del Sur, Branch V and MANUEL MERCADO, respondents. Rodolfo B. Quiachon for petitioner. Jose M. Ilagan for private respondent. BIDIN, J.:p This is a petition for review on certiorari, certified to this Court by the Court of Appeals as it involves purely question of law, seeking the annulment of the September 29, 1978 decision of the then Court of First Instance **of Davao del Sur, Branch V, in Civil Case No. 1258 which reversed the February 20, 1978 decision of the Municipal Court of Sta. Maria, *** Davao del Sur in an action for Forcible Entry (Civil Case No. 13) ordering the dismissal of the complaint as well as the counterclaim. The undisputed facts of this case, as found by both the trial court and the then Court of First Instance of Davao del Sur, are as follows: On the basis of the admission of parties in their respective pleadings, the oral testimonies of all witnesses for both plaintiff and defendants and the documentary evidence offered and admitted this Court finds that plaintiff Manuel Mercado acquired his rights to possess the land in litigation, particularly lot 3 (LRC) Pcs-295, (situated at Colonga, Sta. Maria, Davao del Sur) and which is particularly described and embraced in Transfer Certificate of title No. (T4244) T-972 from William Giger by virtue of a deed of sale with right to repurchase which was executed in 1972 for a consideration of P3,500.00 (testimony of plaintiff, T.S.N., p. 3, hearing of January 7, 1977). Then, in 1973, William Giger again asked an additional amount of P2,500.00 from plaintiff and so he required William Giger to sign a new deed of Pacto de Retro Sale (Exhibit "A") on November 5,1973 at Davao City before Notary Public Gregorio C. Batiller (T.S.N., p. 5, hearing of January 7, 1977). In 1972, plaintiff began harvesting only the coconut fruits and he paid the taxes on the land (Exhibits B to E) for Mr. Giger. He went periodically to the land to make copra but he never placed any person on the land in litigation to watch it. Neither did he reside on the land as he is a businessman and storekeeper by occupation and resides at Lower Sta. Maria, Davao del Sur while the land in litigation is at Colongan, Sta. Maria. Neither did he put any sign or hut to show that he is in actual possession (p. 8, T.S.N., p. 7, hearing of January 14, 1978). He knew defendants' laborers were in the land in suit as early as August, 1976 and that they have a hut there but he did not do anything to stop them. Instead plaintiff was happy that there were people and a hut on the land in suit (p. 14, T.S.N., hearing of January 14, 1978). Before July, 1976, defendant Ignacio Wong went to the land in litigation to find out if there were other people residing there or claiming it besides the owner and he found none. So, in July, 1976, defendant Ignacio Wong bought the parcel of land in litigation from William Giger and his wife Cecilia Valenzuela (Exhibit 5). After the execution of Exhibit 5, defendant Ignacio Wong asked for the delivery of the title to him and so he has in his possession TCT No. (T-4244) T-974 (Exhibit 6) in the name of William Giger. Mr. Wong declared the land in suit for taxation purposes in his name (Exhibit 7). He tried to register the pacto de retro sale with the Register of Deeds by paying the registration fee (Exhibit 8) but due to some technicalities, the pacto de retro sale could not be registered. The defendant Wong placed laborers on the land in suit, built a small farm house after making some clearings and fenced the boundaries. He also placed signboards (T.S.N., pp. 14-15, hearing of September 15, 1977). On September 27, 1976, plaintiff Manuel Mercado again went to the land in suit to make copras. That was the time the matter was brought to the attention of the police of Sta. Maria, Davao del Sur and the incident entered in the police blotter (Exhibit 11). Then on November 18, 1976, defendant Wong ordered the hooking of the coconuts from the land in litigation and nobody disturbed him. But on November 29, 1976, defendant received a copy of plaintiff's complaint for forcible entry with summons to answer which is the case now before the Court. During the pendency of this instant complaint for forcible entry, spouses William Giger and Cecilia Valenzuela filed a case for reformation of instrument with the Court of First Instance of Digos, Davao del Sur against plaintiff Mercado (Exhibit 4). The case pertains to Exhibit "A" of plaintiff. (pp. 1-3, CA Decision, pp. 82-84,Rollo). On the basis of the aforestated undisputed facts, the Municipal Court of Sta. Maria, Davao del Sur in its February 20, 1978 Decision found that herein petitioner (defendant Ignacio Wong) had prior, actual and continuous physical possession of the disputed property and dismissed both the complaint and the counter-claim. On appeal, the then Court of First Instance of Davao del Sur, in its September 29, 1978 Decision drew a completely different conclusion from the same set of facts and ruled in favor of herein private respondent (plaintiff Manuel Mercado). The decretal portion of the said decision, reads: WHEREFORE, the Court finds the plaintiff to have taken possession of the property earlier in point of time and defendant is an intruder and must, as he is hereby ordered to return, the possession of the land in question for the plaintiff, paying a monthly rental of P400.00 from August, 1976, till the property is returned with costs against the defendant. Judgment is reversed. Petitioner filed the instant petition with the Court of Appeals. But the Court of Appeals, in its March 1, 1979 Resolution **** found that the only issue is a pure question of law the correctness of the conclusion drawn from the undisputed facts and certified the case to this Court. In its April 4, 1979 Resolution, the Second Division of this Court docketed the case in this Court and considered it submitted for decision. Petitioner alleged two (2) errors committed by respondent judge, to wit:

A) THE CONCLUSION DRAWN BY RESPONDENT JUDGE THAT PETITIONER IS AN INTRUDER IS WITHOUT FACTUAL AND LEGAL BASIS FOR PURPOSES OF A FORCIBLE ENTRY. B) THE CONCLUSION DRAWN BY RESPONDENT JUDGE THAT PETITIONER MUST PAY A MONTHLY RENTAL OF P400.00 FROM AUGUST, 1976 TILL THE PROPERTY IS RETURNED HAS NO LEGAL AND FACTUAL BASIS. The petition is without merit. Petitioner, in claiming that the private respondent has not established prior possession, argues that private respondent's periodic visit to the lot to gather coconuts may have been consented to and allowed or tolerated by the owner thereof for the purposes of paying an obligation that may be due to the person gathering said nuts and that a person who enters a property to gather coconut fruits and convert the same to copras may only be a hired laborer who enters the premises every harvest season to comply with the contract of labor with the true owner of the property. The argument is untenable. It should be stressed that "possession is acquired by the material occupation of a thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities for acquiring such right." (Art. 531, Civil Code; Rizal Cement Co., Inc. vs. Villareal, 135 SCRA 15 [1985]); and that the execution of a sale thru a public instrument shall be equivalent to the delivery of the thing, unless there is stipulation to the contrary . . . . If, however, notwithstanding the execution of the instrument, the purchaser cannot have the enjoyment and material tenancy of the thing and make use of it herself, because such tenancy and enjoyment are opposed by another, then delivery has not been effected. (Paras, Civil Code of the Philippines, Vol. II, 1989 Ed., p. 400). Applying the above pronouncements on the instant case, it is clear that possession passed from vendor William Giger to private respondent Manuel Mercado by virtue of the first sale a retro (Exhibit A), and accordingly, the later sale a retro (Exhibit 5) in favor of petitioner failed to pass the possession of the property because there is an impediment the possession exercised by private respondent. Possession as a fact cannot be recognized at the same time in two different personalities except in the cases of copossession. Should a question arise regarding the fact of possession, the present possessor shall be preferred; if there are two possessions, the one longer in possession, if the dates of possession are the same, the one who presents a title; and if these conditions are equal, the thing shall be placed in judicial deposit pending determination of its possession or ownership through proper proceedings (Art. 538, Civil Code). As to petitioner's query that "Is the entry of petitioner to the property characterized by force, intimidation, threat, strategy, or stealth in order to show that private respondent has had possession so that the case is within the jurisdiction of the inferior court?" (p. 15, Petition; p. 16, Rollo). The same is answered in the affirmative. The act of entering the property and excluding the lawful possessor therefrom necessarily implies the exertion of force over the property, and this is all that is necessary. Under the rule, entering upon the premises by strategy or stealth is equally as obnoxious as entering by force. The foundation of the action is really the forcible exclusion of the original possessor by a person who has entered without right. The words "by force, intimidation, threat, strategy, or stealth" include every situation or condition under which one person can wrongfully enter upon real property and exclude another who has had prior possession therefrom. If a trespasser enters upon land in open daylight, under the very eyes of person already clothed with lawful possession, but without the consent of the latter, and there plants himself and excludes such prior possessor from the property, the action of forcible entry and detainer can unquestionably be maintained, even though no force is used by the trespasser other than such as is necessarily implied from the mere acts of planting himself on the ground and excluding the other party. (Tolentino, Civil Code of the Philippines, Vol. II, 1983 Ed., pp. 243244; Drilon vs. Gaurana, 149 SCRA 342 [1987]). Anent the award of rentals in favor of private respondent, the same is in order. Petitioner's argument that there is no legal or factual basis for the payment of monthly rentals because bad faith on the part of petitioner was never proved deserves no merit. It should be noted that possession acquired in good faith does not lose this character except in the case and from the moment facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully. (Art. 528, Civil Code). Possession in good faith ceases from the moment defects in the title are made known to the possessors, by extraneous evidence or by suit for recovery of the property by the true owner. Whatever may be the cause or the fact from which it can be deduced that the possessor has knowledge of the defects of his title or mode of acquisition, it must be considered sufficient to show bad faith. (Tolentino, Civil Code of the Philippines, Vol. II, p. 226). Such interruption takes place upon service of summons (Manotok Realty vs. Judge Tecson, 164 SCRA 587 [1988] citing Mindanao Academy, Inc. v. Yap (13 SCRA 190 [1965]). In the latter case, this Court held: . . . Although the bad faith of one party neutralizes that of the other and hence as between themselves their rights would be as if both of them had acted in good faith at the time of the transaction, this legal fiction of Yap's good faith ceased when the complaint against him was filed, and consequently the court's declaration of liability for the rents thereafter is correct and proper. A possessor in good faith is entitled to the fruits only so long as his possession is not legally interrupted, and such interruption takes place upon service of judicial summons (Arts. 544 and 1123, Civil Code). A perusal of the records of the case shows that petitioner received private respondent's complaint for forcible entry with summons on November 29, 1976 (Rollo, p. 46). His good faith therefore ceased on November 29,1976. Accordingly, the computation of the payment of monthly rental should start from December, 1976, instead of August, 1976. WHEREFORE, with the modification that the computation of the monthly rental should start from December, 1976 instead of August, 1976, the September 29, 1978 decision of respondent judge is Affirmed in all other respects, with costs against petitioner. SO ORDERED.

NICANOR SOMODIO, petitioner, vs. COURT OF APPEALS, EBENECER PURISIMA, and FELOMINO AYCO, respondents. Jose V. Panes for petitioner. Vencer, Purisima & Associates for private respondents. QUIASON, J.: This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court to reverse and set aside the Decision dated September 29, 1987 and the Resolution dated February 2, 1988 of the Court of Appeals in CA-G.R. SP No. 11602. I On October 21, 1974, Jose Ortigas executed an instrument designated as a Transfer of Rights, conveying to Wilfredo Mabugat the possession of a residential lot situated at Rajah Muda, Bula, General Santos City and described in the said instrument as: Lot No. (Unnumbered), bounded on the North by Temporary Road, on the South by Customs Zone (Sarangani Bay), on the East by Public Land, and on the West by Public Land. Nicanor Somodio, herein petitioner, contributed one-half of the purchase price. On October 22, 1974, Mabugat executed an Affidavit of Trust expressly recognizing the right of petitioner over one-half undivided portion of the lot. Later, petitioner discovered in the District Land Office that the lot was numbered "6328-X, Csd 2281-D." Thereafter, petitioner and Mabugat partitioned the property into two portions, with petitioner taking the western part. Immediately after the partition, petitioner took possession of his portion and planted thereon ipil-ipil trees, coconut trees and other fruit-bearing trees. In 1976, petitioner began construction of a structure with a dimension of 22-by-18 feet on his lot. His employment, however, took him to Kidapawan, North Cotabato, and he left the unfinished structure to the case of his uncle. He would visit the property every three months or on weekened when he had time. Sometime in October 1977, petitioner allowed respondent Felomino Ayco, to transfer his hut to petitioner's lot. About six years later, petitioner demanded that Ayco vacate the premises but such demand proved futile. Hence, on August 23, 1983, petitioner filed an action for unlawful detainer with damages against respondent Ayco before the Municipal Trial Court, Branch I, General Santos, docketed as Civil Case No. 2032-II. Meanwhile, on June 26, 1983, respondent Ebenecer Purisima entered the land and constructed a house thereon. Four days later, petitioner filed against respondent Purisima a complaint for forcible entry before the same court docketed as Civil Case No. 2013-I. Said case was later consolidated with Civil Case No. 2032-II. In his answer, respondent Purisima averred that the lot was a portion of the land subject of his application for miscellaneous sales patent with the Bureau of Lands. Purisima described the lot in question as: Lot No. 6328-Y, CSD-2281-D, Bula, General Santos, Cotabato. Bounded on the North by 6328-X; on the South by Sarangani Bay; on the East by a Municipal Road; and on the West by Lot No. 6328-W, containing an area of 1,095 square meters and covered by Tax Declaration No. 9647 (Rollo, p. 36; Emphasis supplied). Respondent Purisima contended that his father, a geodetic engineer, had surveyed the parcel of land comprising of Lots Nos. 6427 and 6328 for the Small Farmers Fishpond Association, Inc. in February 1958, and that his father's survey plan was approved by the Director of Lands in 1960. Respondent Ayco, on the other hand, did not present any evidence but merely anchored his right to possess the property on the evidence of Purisima. On April 30, 1986, the trial court rendered a decision finding that respondent Purisima built his house "almost on the spot where Somodio's unfinished house" stood "thru stealth and strategy," not knowing that the house was built on Lot No. 6328-X and not on Lot No. 6328-Y, the lot said respondent was claiming (Rollo, p. 43). The court went on to state that: . . . . He (private respondent Purisima) was a frequent visitor in Rajah Muda and had sometimes stayed with Mrs. Maturan in Judge Purisima's house on the adjoining lots, and could not have remained unaware of the possession of Somodio. He must have depended on the thought that it was his father who made the subdivision survey and had fenced an area which he had claimed. He did not exactly verify that the area fenced by his father had an area of only 1,095 square meters, which did not include the are Lot No. 6328-X could eventually be standing on his property, for Lot No. 6328-X is not claimed by him and has not been applied for even by his father. His father has been abroad and has not taken steps to apply for Lot No. 6328-X. This lot is not declared for taxation purposes in the name of any claimant-applicant. Unless and until there would be an administrative proceedings and the title ultimately issued in favor of an applicant, the possession of the actual claimant and occupant has to be respected and maintained in the interest of public order . . . (Rollo, pp. 43-44). The Municipal Trial Court further held that petitioner was the actual possessor of Lot No. 6328-X. The court did not believe respondent Ayco's claim that the administratrix of the estate of respondent Purisima's father authorized him to build a hut on Lot No. 6328-X in 1976. At any rate, the court said that respondent Ayco was willing to vacate the premises provided he be given financial assistance to do so (Rollo, pp. 43-44). Nothing that the ocular inspection of the area showed that the houses of respondents Purisima and Ayco were "inside Lot No. 6328-X" and not on Lot No. 6328-Y, the Municipal Trial Court held that the case became one which entailed mere removal of the houses from the lot in question. Accordingly, the court ordered private respondents to remove their respective houses, to deliver the land to petitioner, and to pay attorney's fees and litigation expenses.

On appeal, the Regional Trial Court, Branch 22, General Santos City, affirmed in toto the decision of the Municipal Trial Court. Respondent then elevated the cases on a petition for review to the Court of Appeals, which, in its decision dated September 27, 1987, set aside the decisions of the two trial courts and ordered the dismissal of the two complaints filed by petitioner. The Court of Appeals held that herein petitioner had not "clearly and conclusively established physical, prior possession over Lot No. 6328-X." Petitioner's motion for the reconsideration of the decision of the Court of Appeals having been denied, he filed the instant petition for review on certiorari. We grant the petition. II The procedural issue raised by private respondents should first be resolved. The issue is whether the instant petition is proper considering that petitioner "merely touch(es) upon questions of fact which had been carefully considered" by the Court of Appeals (Rollo, p. 92). As a general rule, the findings of fact of the Court of Appeals are binding on this Court. This rule, however, is not without exceptions, one of which is when the factual findings of the Court of Appeals and the trial court are contrary to each other. In such a case, this Court may scrutinize the evidence on record in order to arrive at the correct findings based on the record (Valenzuela v. Court of Appeals, 191 SCRA 1 [1990]; Roman Catholic Bishop of Malolos, Inc. v. Intermediate Appellate Court, 191 SCRA 411 [1990]). Upon a review of the records, we are convinced that petitioner indeed enjoyed priority of possession over Lot No. 6328-X, notwithstanding respondent Purisima's claim to the contrary. In ejectment cases, the only issue for resolution is who is entitled to the physical or material possession of the property involved, independent of any claim of ownership set forth by any of the party-litigants. Anyone of them who can prove prior possession de facto may recover such possession even from the owner himself. This rule holds true regardless of the character of a party's possession, provided, that he has in his favor priority of time which entitles him to stay on the property until he is lawfully ejected by a person having a better right by eitheraccion publiciana or accion reivindicatoria (De Luna v. Court of Appeals, 212 SCRA 276 [1992]). Petitioner took possession of the property sometime in 1974 when he planted the property to coconut trees, ipil- ipil trees and fruit trees. In 1976, he started the construction of a building on the property. It is immaterial that the building was unfinished and that he left for Kidapawan for employment reasons and visited the property only intermittently. Possession in the eyes of the law does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession (Ramos v. Director of Lands, 39 Phil. 175 [1918]). It is sufficient that petitioner was able to subject the property to the action of his will. Article 531 of the Civil Code of the Philippines provides: Possession is acquired by the material occupation of a thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities established for acquiring such right. Even if the Court of Appeals is correct in its finding that petitioner started introducing improvements on the land only in 1981, he still enjoyed priority of possession because respondent Purisima entered the premises only in 1983. It should be emphasized that the Court of Appeals noted that none of the parties had produced tax declarations or applications as public land claimants. As such, what should have been scrutinized is who between the claimants had priority of possession. Moreover, neither is the fact that respondent Purisima's father surveyed the property of help to his cause. As the Court of Appeals found, respondent Purisima's father surveyed the land for the Small Farmers Fishpond Association, Inc., not for himself. Although respondent Purisima now claims that Lot No. 6328-X was in payment of his fee for the services of his father and that he caused the construction of a perimeter wall in the area, these facts do not mean that respondent Purisima himself had prior possession. He did not present any proof that his father had authorized him to enter the land as his successor-in-interest. Neither did he present proof that between 1958, when his father allegedly took possession of the land, and 1983, when said respondent himself entered the land, his father ever exercised whatever right of possession he should have over the property. Under these circumstances, priority in time should be the pivotal cog in resolving the issue of possession. The Court of Appeals opined that petitioner had not properly identified the lot he had occupied. The matter of identification of the land, however, had been resolved by respondent Purisima's admission in his pleadings, as well as by two ocular inspections. In his answer to the complaint, respondent Purisima claimed possession over Lot No. 6328-Y, while petitioner identified the lot adjacent to it, Lot NO. 6328-X, as the area where private respondents built their houses. That these two lots are distinct from one another was resolved by the ocular inspection conducted by a Senior Geodetic Engineer of the Office of the City Engineer, who found that "south of lot 6328-H across a 10 meter wide road is lot 6328-Y and from thence to the south is lot 6328-X." On June 13, 1985, the Municipal Trial Court judge himself went to the premises in question and discovered that aside from the houses of respondents Purisima and Ayco, five other houses had been built on Lot No. 6328-X. Petitioner's prior possession over the property, however, is not synonymous with his right of ownership over the same. As earlier stated, resolution of the issue of possession is far from the resolution of the issue of ownership. Forcible entry is merely a quieting process and never determines the actual title to an estate (German Management & Services, Inc. v. Court of Appeals, 177 SCRA 495 [1989]; Manuel v. Court of Appeals, 199 SCRA 603 [1991]. WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE and that of the trial courts REINSTATED. Costs against private respondents. SO ORDERED. SUPREME COURT Manila THIRD DIVISION

G.R. No. 137944

April 6, 2000

FERNANDA MENDOZA CEQUEA and RUPERTA MENDOZA LIRIO, petitioners, vs. HONORATA MENDOZA BOLANTE, respondent. PANGANIBAN, J.: 4Tax receipts and declarations are prima facie proofs of ownership or possession of the property for which such taxes have been paid. Coupled with proof of actual possession of the property, they may become the basis of a claim for ownership. By acquisitive prescription, possession in the concept of owner public, adverse, peaceful and uninterrupted may be converted to ownership. On the other hand, mere possession and occupation of land cannot ripen into ownership. The Case 1 2 Before us is a Petition for Review on Certiorari of the March 19, 1999 Decision of the Court of Appeals (CA) in CA-GR CV No. 43423. 3 The assailed Decision disposed as follows: WHEREFORE, for all the foregoing, the decision of the trial court appealed from is REVERSED and SET ASIDE. In lieu thereof, judgment is hereby rendered declaring . . . Honorata Mendoza Bolante the rightful owner and possessor of the parcel of land which is the subject of this appeal. The Facts The Petition herein refers to a parcel of land situated in Barangay Bangad, Binangonan, Province of Rizal, having an area of 1,728 square meters and covered by Tax Declaration No. 26-0027. The undisputed antecedents of this case are narrated by the Court of 4 Appeals as follows: The facts not disputed revealed that prior to 1954, the land was originally declared for taxation purposes in the name of Sinforoso Mendoza, father of [respondent] and married to Eduarda Apiado. Sinforoso died in 1930. [Petitioners] were the daughters of Margarito Mendoza. On the basis of an affidavit, the tax declaration in the name of Sinforoso Mendoza of the contested lot was cancelled and subsequently declared in the name of Margarito Mendoza. Margarito and Sinforoso are brothers. [Respondent] is the present occupant of the land. Earlier, on October 15, 1975, [respondent] and Miguel Mendoza, another brother of [petitioners], during the cadastral survey had a dispute on [the] ownership of the land.1wphi1.nt During the pre-trial conference, parties stipulated the following facts: 1) The land subject of the case was formerly declared for taxation purposes in the name of Sinforoso Mendoza prior to 1954 but is now declared in the name of Margarito Mendoza. 2) The parties agree[d] as to the identity of the land subject of instant case. 3) [Petitioners] are the daughters of Margarito Mendoza while the [respondent] is the only daughter of Sinforoso Mendoza. 4) Margarito Mendoza and Sinforoso Mendoza [were] brothers, now deceased. 5) During the cadastral survey of the property on October 15, 1979 there was already a dispute between Honorata M. Bolante and Miguel Mendoza, brother of [petitioners]. 6) [Respondent was] occupying the property in question. The only issue involved [was] who [was] the lawful owner and possessor of the land subject of the case. After trial, the court a quo rendered its judgment in favor of [petitioners], the dispositive portion of which reads as follows: Wherefore, in view of the foregoing considerations, judgment is hereby rendered for the [petitioners] and against the [respondent]: 1. Declaring that the parcel of land situated in Bangad, Binangonan, Rizal covered by tax declaration no. 26-0027 in the name of Margarito Mendoza belong to his heirs, the [petitioners] herein; 2. Ordering [respondent] to vacate the property subject of the case and deliver possession thereof to the heirs of Margarito Mendoza. 3. Ordering the [respondent] to indemnify the [petitioners] in the sum of P10,000.00, as actual damages. 4. Ordering the [respondent] to pay the costs. Ruling of the Court of Appeals The Court of Appeals reversed the trial court because the genuineness and the due execution of the affidavit allegedly signed by the respondent and her mother had not been sufficiently established. The notary public or anyone else who had witnessed the execution of the affidavit was not presented. No expert testimony or competent witness ever attested to the genuineness of the questioned signatures. The CA further ruled that the affidavit was insufficient to overcome the denial of respondent and her mother. The former testified that the latter, never having attended school, could neither read nor write. Respondent also said that she had never been called "Leonor," which was how she was referred to in the affidavit. Moreover, the appellate court held that the probative value of petitioners' tax receipts and declarations paled in comparison with respondent's proof of ownership of the disputed parcel. Actual, physical, exclusive and continuous possession by respondent since 1985 indeed gave her a better title under Article 538 of the Civil Code. 5 Hence, this Petition. Issues 6 Insisting that they are the rightful owners of the disputed land, the petitioners allege that the CA committed these reversible errors: 1. . . . [I]n not considering the affidavit as an exception to the general rule that an affidavit is classified as hearsay evidence, unless the affiant is placed on the witness stand;

2. . . . [I]n holding that respondent has been in actual and physical possession, coupled with . . . exclusive and continuous possession of the land since 1985, which are evidence of the best kind of circumstance proving the claim of the title of ownership and enjoys the presumption of preferred possessor. The Court's Ruling The Petition has no merit. First Issue: Admissibility of the Affidavit Petitioners dispute the CA's ruling that the affidavit was not the best evidence of their father's ownership of the disputed land, because the "affiant was not placed on the witness stand." They contend that it was unnecessary to present a witness to establish the authenticity of the affidavit because it was a declaration against respondent's interest and was an ancient document. As a declaration against interest, it was an exception to the hearsay rule. As a necessary and trustworthy document, it was admissible in evidence. And because it was executed on March 24, 1953, it was a self-authenticating ancient document. 7 We quote below the pertinent portion of the appellate court's ruling: While it is true that the affidavit was signed and subscribed before a notary public, the general rule is that affidavits are classified as hearsay evidence, unless affiants are placed on the witness stand (People's Bank and Trust Company vs. Leonidas, 207 SCRA 164). Affidavits are not considered the best evidence, if affiants are available as witnesses (Vallarta vs. Court of Appeals, 163 SCRA 587). The due execution of the affidavit was not sufficiently established. The notary public or others who saw that the document was signed or at least [could] confirm its recitals [were] not presented. There was no expert testimony or competent witness who attested to the genuineness of the questioned signatures. Worse, [respondent] denied the genuineness of her signature and that of her mother . . . [Respondent] testified that her mother was an illiterate and as far as she knew her mother could not write because she had not attended school (p. 7,ibid). Her testimony was corroborated by Ma. Sales Bolante Basa, who said the [respondent's] mother was illiterate. The petitioners allegations are untenable. Before a private document offered as authentic can be received in evidence, its due 8 execution and authenticity must be proved first. And before a document is admitted as an exception to the hearsay rule under the Dead Man's Statute, the offeror must show (a) that the declarant is dead, insane or unable to testify; (b) that the declaration concerns a fact cognizable by the declarant; (c) that at the time the declaration was made, he was aware that the same was contrary to his 9 interest; and (d) that circumstances render improbable the existence of any motive to falsify. In this case, one of the affiants happens to be the respondent, who is still alive and who testified that the signature in the affidavit was 10 not hers. A declaration against interest is not admissible if the declarant is available to testify as a witness. Such declarant should be confronted with the statement against interest as a prior inconsistent statement. The affidavit cannot be considered an ancient document either. An ancient document is one that is (1) more than 30 years old, (2) 11 found in the proper custody, and (3) unblemished by any alteration or by any circumstance of suspicion. It must on its face appear to be genuine. The petitioners herein failed, however, to explain how the purported signature of Eduarda Apiado could have been affixed to the subject affidavit if, according to the witness, she was an illiterate woman who never had any formal schooling. This circumstance casts suspicion on its authenticity. Not all notarized documents are exempted from the rule on authentication. Thus, an affidavit does not automatically become a public document just because it contains a notarial jurat. Furthermore, the affidavit in question does not state how the ownership of the subject land was transferred from Sinforoso Mendoza to Margarito Mendoza. By itself, an affidavit is not a mode of acquiring ownership. Second Issue: Preference of Possession The CA ruled that the respondent was the preferred possessor under Article 538 of the Civil Code because she was in notorious, actual, exclusive and continuous possession of the land since 1985. Petitioners dispute this ruling. They contend that she came into possession through force and violence, contrary to Article 536 of the Civil Code. We concede that despite their dispossession in 1985, the petitioners did not lose legal possession because possession cannot be 12 acquired through force or violence. To all intents and purposes, a possessor, even if physically ousted, is still deemed the legal 13 14 possessor. Indeed, anyone who can prove prior possession, regardless of its character, may recover such possession. However, possession by the petitioners does not prevail over that of the respondent.1wphi1 Possession by the former before 1985 was not exclusive, as the latter also acquired it before 1985. The records show that the petitioners' father and brother, as well as the respondent and her mother were simultaneously in adverse possession of the land. Before 1985, the subject land was occupied and cultivated by the respondent's father (Sinforoso), who was the brother of petitioners' 15 father (Margarito), as evidenced by Tax Declaration No. 26425. When Sinforoso died in 1930, Margarito took possession of the land and cultivated it with his son Miguel. At the same time, respondent and her mother continued residing on the lot. 16 When respondent came of age in 1948, she paid realty taxes for the years 1932-1948. Margarito declared the lot for taxation in his 17 18 name in 1953 and paid its realty taxes beginning 1952. When he died, Miguel continued cultivating the land. As found by the CA, the respondent and her mother were living on the land, which was being tilled by Miguel until 1985 when he was physically ousted by 19 the respondent. Based on Article 538 of the Civil Code, the respondent is the preferred possessor because, benefiting from her father's tax declaration of the subject lot since 1926, she has been in possession thereof for a longer period. On the other hand, petitioners' father acquired joint possession only in 1952. Third Issue:

Possession of Better Right Finally, the petitioners challenge the CA ruling that "actual and physical coupled with the exclusive and continuous possession [by respondent] of the land since 1985" proved her ownership of the disputed land. The respondent argues that she was legally presumed to possess the subject land with a just title since she possessed it in the concept of owner. Under Article 541 of the Code, she could not be obliged to show or prove such title. The respondent's contention is untenable. The presumption in Article 541 of the Civil Code is merely disputable; it prevails until the 20 contrary is proven. That is, one who is disturbed in one's possession shall, under this provision, be restored thereto by the means 21 established by law. Article 538 settles only the question of possession, and possession is different from ownership. Ownership in this case should be established in one of the ways provided by law. 22 To settle the issue of ownership, we need to determine who between the claimants has proven acquisitive prescription. 23 Ownership of immovable property is acquired by ordinary prescription through possession for ten years. Being the sole heir of her father, respondent showed through his tax receipt that she had been in possession of the land for more than ten years since 1932. When her father died in 1930, she continued to reside there with her mother. When she got married, she and her husband engaged in 24 kaingin inside the disputed lot for their livelihood. Respondent's possession was not disturbed until 1953 when the petitioners' father claimed the land. But by then, her possession, 25 which was in the concept of owner public, peaceful, and uninterrupted had already ripened into ownership. Furthermore she herself, after her father's demise, declared and paid realty taxes for the disputed land. Tax receipts and declarations of ownership for taxation, when coupled with proof of actual possession of the property, can be the basis of a claim for ownership through 26 prescription. 3 In contrast, the petitioners, despite thirty-two years of farming the subject land, did not acquire ownership. It is settled that ownership 27 28 cannot be acquired by mere occupation. Unless coupled with the element of hostility toward the true owner, occupation and use, however long, will not confer title by prescription or adverse possession. Moreover, the petitioners cannot claim that their possession was public, peaceful and uninterrupted. Although their father and brother arguably acquired ownership through extraordinary 29 prescription because of their adverse possession for thirty-two years (1953-1985), this supposed ownership cannot extend to the entire disputed lot, but must be limited to the portion that they actually farmed. We cannot sustain the petitioners' contention that their ownership of the disputed land was established before the trial court through the series of tax declarations and receipts issued in the name of Margarito Mendoza. Such documents prove that the holder has a claim of title over the property. Aside from manifesting a sincere desire to obtain title thereto, they announce the holder's adverse 30 claim against the state and other interested parties. 31 However, tax declarations and receipts are not conclusive evidence of ownership. At most, they constitute mere prima facie proof of 32 ownership or possession of the property for which taxes have been paid. In the absence of actual public and adverse possession, the 33 declaration of the land for tax purposes does not prove ownership. In sum, the petitioners' claim of ownership of the whole parcel has no legal basis.1wphi1.nt WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against petitioners. SO ORDERED. Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur. AVINA MAGLUCOT-AW, CATALINA ORCULLO, RICHARD ESTANO, NIDA MAGLUCOT, MELANIA MAGLUCOT-CATUBIG, EMILIANO CATUBIG, LADISLAO SALMA, petitioners, vs.LEOPOLDO MAGLUCOT, SEVERO MAGLUCOT, WILFREDA MAGLUCOT-ALEJO and CONSTANCIO ALEJO, respondents. DECISION KAPUNAN, J.: This petition for review on certiorari assails the Decision, dated 11 November 1997, of the Court of Appeals in CA-G.R. CV No. 48816 which reversed and set aside the Decision, dated 13 December 1994, of the Regional Trial Court, Branch 30 of Dumaguete City, Negros Oriental in an action for recovery of possession and damages. The core issue in this case is whether a partition of Lot No. 1639 had been effected in 1952. Petitioners contend that there was already a partition of said lot; hence, they are entitled to exclusive possession and ownership of Lot No. 1639-D, which originally formed part of Lot No. 1639 until its partition. Private respondents, upon the other hand, claim that there was no partition; hence, they are coowners of Lot No. 1639-D. Notably, this case presents a unique situation where there is an order for partition but there is no showing that the sketch/subdivision plan was submitted to the then Court of First Instance for its approval or that a decree or order was registered in the Register of Deeds. The antecedent facts of the case are as follows: Korte Petitioners filed with the RTC a complaint for recovery of possession and damages alleging, inter alia, that they are the owners of Lot No. 1639-D. Said lot was originally part of Lot No. 1639 which was covered by Original Certificate Title No. 6775 issued in the names of [1] Hermogenes Olis, Bartolome Maglucot, Pascual Olis, Roberto Maglucot, Anselmo Lara and Tomas Maglucot on 16 August 1927. On 19 April 1952, Tomas Maglucot, one of the registered owners and respondents predecessor-in-interest, filed a petition to subdivide [2] [3] Lot No. 1639. Consequently, on 13 May 1952, then CFI of Negros Oriental issued an order directing the parties to subdivide said lot into six portions as follows: Rtcspped a) Hermogenes Olis - lot 1639-A b) Pascual Olis - lot 1639-B c) Bartolome Maglucot - lot 1639-C d) Roberto (Alberto) - lot 1639-D

Maglucot e) Anselmo Lara - lot 1639-E [4] f) Tomas Maglucot - lot 1639-F. Sometime in 1963, Guillermo Maglucot rented a portion of Lot No. 1639-D (subject lot). Subsequently, Leopoldo and Severo, both surnamed Maglucot, rented portions of subject lot in 1964 and 1969, respectively, and each paying rentals therefor. Said respondents built houses on their corresponding leased lots. They paid the rental amount of P100.00 per annum to Mrs. Ruperta Salma, who represented the heirs of Roberto Maglucot, petitioners predecessor-in-interest. In December 1992, however, said respondents stopped paying rentals claiming ownership over the subject lot. Petitioners thus filed the complaint a quo. Sdaadsc After trial, the lower court rendered judgment in favor of petitioners. The RTC found the existence of tax declarations in the names of [5] Hermogenes Olis and Pascual Olis (purported owners of Lot Nos. 1639-A and 1639-B, respectively) as indubitable proof that there was a subdivision of Lot No. 1639. It likewise found that Tomas Maglucot, respondents predecessor-in-interest, took active part in the [6] partition as it was he, in fact, who commenced the action for partition. The court a quo cited Article 1431 of the Civil Code which states that "[t]hrough estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon." Applying said provision of law, it held that while there was no court order showing that Lot No. 1639 was partitioned, its absence could not be used by Tomas Maglucot, or respondents as his successors-in[7] interest, to deny the existence of an approved partition against the other co-owners who claim that there was one. Said court, [8] likewise, ruled that the tax declarations over the houses of respondents, expressly stating that the same are constructed on the lots [9] of Roberto Maglucot, constitute a conclusive admission by them of the ownership of the subject lot by the latter. The dispositive portion of the lower courts decision reads as follows: Missdaa WHEREFORE, on the basis of the foregoing discussion, judgment is hereby rendered in favor of the plaintiffs against the defendants ordering the latter: 1. To demolish their houses inside lot 1639-D, vacate the premises thereof and deliver the possession of the same to Plaintiffs; Slxmis 2. To jointly and solidarily pay plaintiffs the sum of P15,000.00 for attorneys fees; 3. To each pay plaintiffs the sum of P100.00 every year from 1993 for actual damages representing the amount of unpaid rentals up to the time they actually vacate the premises in question; Sclaw [10] 4. To pay the costs. On appeal, the CA reversed the decision of the RTC. The appellate court ruled that the sketch plan and tax declarations relied upon by [11] petitioners are not conclusive evidence of partition. The CA likewise found that the prescribed procedure under Rule 69 of the Rules of Court was not followed. It thus declared that there was no partition of Lot No. 1639. Slxsc Petitioners filed this petition for review on certiorari alleging that the CA committed the following reversible errors: I IN VIOLATING THE LAW ON ACQUISITIVE PRESCRIPTION PLAINTIFFS HAVING POSSESSED LOT 1639-D SINCE 1946; II IN VIOLATING THE LAW ON ESTOPPEL; THE FACT OF PAYMENT OF RENTALS AND OFFER TO BUY BY THE DEFENDANTS IS ADMISSION THAT THE AREA IN LOT 1639-D, HAD LONG BEEN ADJUDICATED TO PLAINTIFFS; III IN DECLARING THAT THERE WAS NO PRIOR PARTITION, CONTRARY TO THE FINDINGS OF THE TRIAL COURT, AND AGAINST THE EVIDENCE ON RECORD, OF WHICH IF PROPERLY CONSIDERED WOULD CHANGE THE OUTCOME OF THE CASE; IV IN DECLARING THAT THERE IS NO LAW OR JURISPRUDENCE APPLICABLE UNDER THE PREMISES; THIS WOULD ONLY SHOW THAT THE RECORD OF THE CASE WAS NOT PROPERLY SCRUTINIZED, AND THE LAW WAS NOT PROPERLY STUDIED; ESPECIALLY IN THE CASE AT BENCH THAT THE ORAL AND MUTUAL PARTITION HAPPENED DURING THE [12] REGIME OF THE OLD RULES OF PROCEDURE; Petitioners maintain that Lot No. 1639 was mutually partitioned and physically subdivided among the co-owners and that majority of them participated in the actual execution of the subdivision. Further, the co-owners accepted their designated shares in 1946 as [13] averred by Tomas Maglucot in his petition for partition. Petitioners opine that in 1952, Tomas Maglucot himself initiated a court proceeding for a formal subdivision of Lot No. 1639. In said petition, he averred that only Hermogenes Olis and the heirs of Pascual [14] Olis were not agreeable to the partition. Petitioners further contend that respondents admitted in their tax declarations covering [15] their respective houses that they are "constructed on the land of Roberto Maglucot." Simply put, petitioners vigorously assert that respondents are estopped from claiming to be co-owners of the subject lot in view of the mutual agreement in 1946, judicial confirmation in 1952, and respondents acquiescence because they themselves exclusively exercised ownership over Lot No. 1639-A [16] beginning 1952 up to the present. For their part, respondents posit three points in support of their position. First, they emphasize that petitioners failed to show that the interested parties were apprised or notified of the tentative subdivision contained in the sketch and that the CFI subsequently [17] confirmed the same. Second, they point to the fact that petitioners were unable to show any court approval of any [18] partition. Third, they maintain that Lot No. 1639 remain undivided since to date, OCT No. 6275 is still an existing and perfectly valid [19] title, containing no annotation of any encumbrance or partition whatsoever. After a careful consideration of the pleadings filed by the parties and the evidence on record, we find that the petition is meritorious. As stated earlier, the core issue in this case is whether there was a valid partition in 1952.Scslx

Preliminarily, this Court recognizes that "the jurisdiction of this Court in cases brought before it from the Court of Appeals via Rule 45 of the Rules of Court is limited to reviewing errors of law. Findings of fact of the latter are conclusive, except in the following instances: (1) when the findings are grounded entirely on speculation, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; and (10) when the [20] findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record." This case falls under exceptions (7), (8) and (10) in that the findings of facts of the CA are in conflict with that of the RTC, are mere conclusions without citation of specific evidence on which they are based and are premised on absence of evidence but are contradicted by the evidence on record. For these reasons, we shall consider the evidence on record to determine whether indeed there was partition. Slx In this jurisdiction, an action for partition is comprised of two phases: first, an order for partition which determines whether a coownership in fact exists, and whether partition is proper; and, second, a decision confirming the sketch or subdivision submitted by [21] the parties or the commissioners appointed by the court, as the case may be. The first phase of a partition and/or accounting suit is taken up with the determination of whether or not a co-ownership in fact exists, (i.e., not otherwise legally proscribed) and may be made by voluntary agreement of all the parties interested in the property. This phase may end with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exist, or partition is legally prohibited. It may end, upon the other hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order. In the latter case, the parties may, if they are able to agree, make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon. In either case i.e., either the action is dismissed or partition and/or accounting is decreed the order is a final one, and may be appealed by any party aggrieved thereby. The second phase commences when it appears that "the parties are unable to agree upon the partition" directed by the court. In that event, partition shall be done for the parties by the court with the assistance of not more than three (3) commissioners. This second stage may well also deal with the rendition of the accounting itself and its approval by the court after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share in the rents and profits of the real estate in question. Such an order is, to be sure, final and [22] appealable. The present rule on the question of finality and appealability of a decision or order decreeing partition is that it is final and [23] appealable. The order of partition is a final determination of the co-ownership over Lot No. 1639 by the parties and the propriety of the partition thereof. Hence, if the present rule were applied, the order not having been appealed or questioned by any of the parties to the case, it has become final and executory and cannot now be disturbed. Mesm The true test to ascertain whether or not an order or a judgment is interlocutory or final is: Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final. The key test to what is [24] interlocutory is when there is something more to be done on the merits of the case. An order for partition is final and not [25] interlocutory and, hence, appealable because it decides the rights of the parties upon the issue submitted. [26] However, this Court notes that the order of partition was issued when the ruling in Fuentebella vs. Carrascoso, which held that the order of partition is interlocutory, was controlling. In addition, the reports of the commissioners not having been confirmed by the trial [27] court are not binding. In this case, both the order of partition and the unconfirmed sketch plan are, thus, interlocutory. Nevertheless, where parties do not object to the interlocutory decree, but show by their conduct that they have assented thereto, [28] they cannot thereafter question the decree, especially, where, by reason of their conduct, considerable expense has been incurred [29] in the execution of the commission. Respondents in this case have occupied their respective lots in accordance with the sketch/subdivision plan. They cannot after acquiescing to the order for more than forty (40) years be allowed to question the binding effect thereof. [30] This case is to be distinguished from the order in the action for partition in Arcenas vs. Cinco. In that case, the order was clearly interlocutory since it required the parties " to submit the corresponding deed of partition to the Court for its approval." Here, the order appointed two commissioners and directed them merely to approve the sketch plan already existing and tentatively followed by the parties. Calrky Under the present rule, the proceedings of the commissioners without being confirmed by the court are not binding upon the [31] parties. However, this rule does not apply in case where the parties themselves actualized the supposedly unconfirmed sketch/subdivision plan. The purpose of court approval is to give effect to the sketch/subdivision plan. In this case, the parties themselves or through their predecessors-in-interest implemented the sketch plan made pursuant to a court order for partition by actually occupying specific portions of Lot No. 1639 in 1952 and continue to do so until the present until this case was filed, clearly, the purpose of the court approval has been met. This statement is not to be taken to mean that confirmation of the commissioners may be dispensed with but only that the parties herein are estopped from raising this question by their own acts of ratification of the supposedly non-binding sketch/subdivision plan. Kycalr [32] The records of the case show that sometime in 1946 there was a prior oral agreement to tentatively partition Lot No. 1639. By [33] virtue of this agreement, the original co-owners occupied specific portions of Lot No. 1639. It was only in 1952 when the petition to subdivide Lot No. 1639 was filed because two of the co-owners, namely Hermogenes Olis and heirs of Pascual Olis, refused to have said lot subdivided and have separate certificates of title. Significantly, after the 1952 proceedings, the parties in this case by

themselves and/or through their predecessors-in-interest occupied specific portions of Lot No. 1639 in accordance with the sketch plan. Such possession remained so until this case arose, or about forty (40) years later. From its order in 1952, it can be gleaned that the CFI took notice of the tentative subdivision plan by oral partition of the parties therein. Further, it appears that said court was aware that the parties therein actually took possession of the portions in accordance with the sketch/subdivision plan. With this factual backdrop, said court ordered the partition and appointed two (2) commissioners to approve the tentative sketch/subdivision plan. It would not be unreasonable to presume that the parties therein, having occupied specific portions of Lot No. 1639 in accordance with the sketch/subdivision plan, were aware that it was that same sketch/subdivision plan which would be considered by the commissioners for approval. There is no showing that respondents by themselves or through their predecessors-in-interest raised any objections. On the contrary, the records show that the parties continued their possession of the specific portions of Lot No. 1639 pursuant to the sketch/subdivision plan. Kyle It has been previously held that a co-owner, who, though not a party to a partition accepts the partition allotted to him, and holds and [34] conveys the same in severalty, will not be subsequently permitted to avoid partition. It follows that a party to a partition is also barred from avoiding partition when he has received and held a portion of the subdivided land especially in this case where respondents have enjoyed ownership rights over their share for a long time. Parties to a partition proceeding, who elected to take under partition, and who took possession of the portion allotted to them, are [35] estopped to question title to portion allotted to another party. A person cannot claim both under and against the same [36] instrument. In other words, they accepted the lands awarded them by its provisions, and they cannot accept the decree in part, and [37] repudiate it in part. They must accept all or none. Parties who had received the property assigned to them are precluded from [38] subsequently attacking its validity of any part of it. Here, respondents, by themselves and/or through their predecessors-in-interest, already occupied of the lots in accordance with the sketch plan. This occupation continued until this action was filed. They cannot now be heard to question the possession and ownership of the other co-owners who took exclusive possession of Lot 1639-D also in accordance with the sketch plan. Exsm In technical estoppel, the party to be estopped must knowingly have acted so as to mislead his adversary, and the adversary must have placed reliance on the action and acted as he would otherwise not have done. Some authorities, however, hold that what is tantamount to estoppel may arise without this reliance on the part of the adversary, and this is called, ratification or election by acceptance of benefits, which arises when a party, knowing that he is not bound by a defective proceeding, and is free to repudiate it [39] if he will, upon knowledge, and while under no disability, chooses to adopt such defective proceeding as his own. Ratification means that one under no disability voluntarily adopts and gives sanction to some unauthorized act or defective proceeding, which without his sanction would not be binding on him. It is this voluntary choice, knowingly made, which amounts to a ratification of what [40] was theretofore unauthorized, and becomes the authorized act of the party so making the ratification. The records show that respondents were paying rent for the use of a portion of Lot No. 1639-D. Had they been of the belief that they were co-owners of the entire Lot No. 1639 they would not have paid rent. Respondents attempted to counter this point by presenting an uncorroborated testimony of their sole witness to the effect that the amount so paid to Roberto Maglucot and, subsequently, to Ruperta Salma were for the payment of real property taxes. We are not persuaded. It is quite improbable that the parties would be unaware of the difference in their treatment of their transactions for so long a time. Moreover, no evidence was ever presented to show that a tax declaration for the entire Lot No. 1639 has ever been made. Replete in the records are tax declarations for specific portions of Lot 1639. It is inconceivable that respondents would not be aware of this. With due diligence on their part, they could have easily verified this fact. This they did not do for a period spanning more than four decades. The payment of rentals by respondents reveal that they are mere lessees. As such, the possession of respondents over Lot No. 1639-D is that of a holder and not in the concept of an owner. One who possesses as a mere holder acknowledges in another a superior right [41] which he believes to be ownership, whether his belief be right or wrong. Since the possession of respondents were found to be that of lessors of petitioners, it goes without saying that the latter were in possession of Lot No. 1639-D in the concept of an owner from 1952 up to the time the present action was commenced. Msesm [42] Partition may be inferred from circumstances sufficiently strong to support the presumption. Thus, after a long possession in [43] severalty, a deed of partition may be presumed. It has been held that recitals in deeds, possession and occupation of land, improvements made thereon for a long series of years, and acquiescence for 60 years, furnish sufficient evidence that there was an [44] actual partition of land either by deed or by proceedings in the probate court, which had been lost and were not recorded. And where a tract of land held in common has been subdivided into lots, and one of the lots has long been known and called by the name of one of the tenants in common, and there is no evidence of any subsequent claim of a tenancy in common, it may fairly be inferred [45] that there has been a partition and that such lot was set off to him whose name it bears. Respondents insist that the absence of any annotation in the certificate of title showing any partition of Lot No. 1639 and that OCT No. 6725 has not been canceled clearly indicate that no partition took place. The logic of this argument is that unless partition is shown in the title of the subject property, there can be no valid partition or that the annotation in the title is the sole evidence of partition. Esmso Again, we are not persuaded. The purpose of registration is to notify and protect the interests of strangers to a given transaction, who may be ignorant thereof, but the non-registration of the deed evidencing such transaction does not relieve the parties thereto of their [46] obligations thereunder. As originally conceived, registration is merely a species of notice. The act of registering a document is never [47] necessary in order to give it legal effect as between the parties. Requirements for the recording of the instruments are designed to [48] prevent frauds and to permit and require the public to act with the presumption that recorded instruments exist and are genuine. It must be noted that there was a prior oral partition in 1946. Although the oral agreement was merely tentative, the facts subsequent thereto all point to the confirmation of said oral partition. By virtue of that agreement, the parties took possession of specific portions

of the subject lot. The action for partition was instituted because some of the co-owners refused to have separate titles issued in lieu of the original title. In 1952, an order for partition was issued by the cadastral court. There is no evidence that there has been any change in the possession of the parties. The only significant fact subsequent to the issuance of the order of partition in 1952 is that respondents rented portions of Lot No. 1639-D. It would be safe to conclude, therefore, that the oral partition as well as the order of partition in 1952 were the bases for the finding of actual partition among the parties. The legal consequences of the order of partition in 1952 having been discussed separately, we now deal with oral partition in 1946. Given that the oral partition was initially tentative, the actual possession of specific portions of Lot No. 1639 in accordance with the oral partition and the continuation of such possession for a very long period indicate the permanency and ratification of such oral partition. The validity of an oral partition is already well[49] [50] [51] settled. In Espina vs. Abaya, we declared that an oral partition is valid. In Hernandez vs. Andal, reiterated in Tan vs. Lim, this Court has ruled, thus: On general principle, independent and in spite of the statute of frauds, courts of equity have enforce oral partition when it has been completely or partly performed. Esmmis Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will proper cases where the parol partition has actually been consummated by the taking of possession in severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize and enforce such parol partition and the rights of the parties thereunder. Thus, it has been held or stated in a number of cases involving an oral partition under which the parties went into possession, exercised acts of ownership, or otherwise partly performed the partition agreement, that equity will confirm such partition and in a proper case decree title in accordance with the possession in severalty. In numerous cases it has been held or stated that parol partition may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to parts of land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in severalty. A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or otherwise recognizing the existence of the partition. A number of cases have specifically applied the doctrine of part performance, or have stated that a part performance is necessary, to take a parol partition out of the operation of the statute of frauds. It has been held that where there was a partition in fact between tenants in common, and a part performance, a court of equity would have regard to enforce such partition agreed to by the parties. Esmsc Two more points have constrained this Court to rule against respondents. First, respondents Wilfreda Maglucot-Alejo and Constancio Alejo offered to buy the share of Roberto Maglucot. Second, the tax declarations contain statements that the houses of respondents were built on the land owned by Roberto Maglucot. Esm On the first point, petitioners presented Aida Maglucot who testified that after respondents were informed that petitioners were going to use Lot No. 1639-D belonging to Roberto Maglucot, respondents Wilfreda Maglucot-Alejo and Constancio Alejo went to the [52] house of said witness and offered to buy the share of Roberto Maglucot. Aida Maglucot further testified that they refused the offer [53] because they also intend to use the lot for a residential purpose. This testimony of Aida Maglucot is unrebutted by respondents, and the CA did not touch upon this finding of fact. Hence, the offer to buy has been established by the unrebutted evidence of the petitioners. Why would they give such offer if they claim to be at least a co-owner of the said lot? In effect, respondents impliedly admit the title of the petitioners and that they are not co-owners, much less the sole owners, of Lot No. 1639-D. Chief [54] On the second point, the existence of Tax Declaration No. 04-557 in the names of Constancio Alejo and Godofreda Maglucot, Tax [55] Declaration No. 04-87-13 in the names of Leopoldo Maglucot and Regina Barot, Tax Declaration No. 04-593 in the names of Severo [56] Maglucot and Samni Posida showing that the houses of the above-mentioned persons are constructed on the land of Roberto [57] Maglucot constitute incontrovertible evidence of admission by the same persons of the ownership of the land by Roberto Maglucot. Tax Declarations are public documents. Unless their veracity is directly attacked, the contents therein are presumed to be true and [58] accurate. The lone testimony of Severo Maglucot that Roberto Maglucot was only made to appear as owner of the land in their respective declarations because he was the administrator of Lot No. 1639 is uncorroborated and not supported by any other evidence. Jksm No injustice is dealt upon respondents because they are entitled to occupy a portion of Lot No. 1639, particularly Lot No. 1639-A, in their capacity as heirs of Tomas Maglucot, one of the original co-owners of Lot No. 1639 in accordance with the sketch plan of said lot [59] showing the partition into six portions. Finally, this Court takes notice of the language utilized by counsel for petitioners in their petition for review on certiorari. Thrice in the petition, counsel for petitioners made reference to the researcher of the CA. First, he alluded to the lack of scrutiny of the records and [60] lack of study of the law "by the researcher." Second, he cited the researcher of the CA as having "sweepingly stated without [61] reference to the record" that "[w]e have scanned the records on hand and found no evidence of any partition." Finally, counsel for [62] petitioners assailed the CA decision, stating that "this will only show that there was no proper study of the case by the researcher." Any court when it renders a decision does so as an arm of the justice system and as an institution apart from the persons that comprise it. Decisions are rendered by the courts and not the persons or personnel that may participate therein by virtue of their office. It is highly improper and unethical for counsel for petitioners to berate the researcher in his appeal. Counsel for petitioner should be reminded of the elementary rules of the legal profession regarding respect for the courts by the use of proper language in

its pleadings and admonished for his improper references to the researcher of the CA in his petition. A lawyer shall abstain from [63] scandalous, offensive, or menacing language or behavior before the courts. 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. h Y SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC DECISION March 25, 1911 G.R. No. 6019 JUAN N. ARAGON, petitioner-appellee, vs. THE INSULAR GOVERNMENT, oppositor-appellant. Attorney-General Villamor for appellant. Ariston Estrada for appellee. CARSON, J.: This is an appeal from a decree of the Court of Land Registration adjudicating title to a small lot or parcel of land in the city of Manila in favor of the appellees and ordering its registry in accordance with the provisions of The Land Registration Act. The Government of the Philippine Islands , through its proper representatives, objected to the application for registry on the ground that, as it alleges, the land in question is a part of the public domain, as defined in subsection 1, article 339, of the Civil Code, which is as follows: ART. 339. Property of public ownership is 1. That destined to the public use, such as roads, canals, rivers, torrents, ports, and bridges constructed by the State, and banks, shores, roadsteads, and that of a similar character. and also as defined in article 1 of The Law of Waters (Ley de Aguas) of the 3rd of August, 1886, which is as follows: The following belong to the national domain and are for the public use: xxx xxx xxx 3. The shores. Shore is understood to be that space which is alternatively covered and uncovered by water with the movement of the tides. Its interior or terrestrial limit is marked by the lone reached by the highest tides and equinoctials. Where the tides are not perceptible the shore begins at the line reached by the water during tempests and ordinary storms. The evidence of record leaves no room for doubt that, as alleged by the opponent, the land in question, at the time when the trial was had in the court below, was so located that at high tide it was completely covered by the waters of the Bay of Manila, though the receding waters left it completely bare at low tide. It can not be denied, therefore, that if there were no other evidence of record, touching the physical status of this land or title thereto, the contention of the Government would necessarily be sustained. It appears, however, that in the year 1892 a possessory title to the land in question was duly registered in favor of Inocencio Aragon, one of the predecessors in interest of these applicants; that for a long period of years, and perhaps from a time beyond which the memory of man runneth not to the contrary, the applicant and their predecessors in interest have been in possession of the parcel of land in question, under and undisputed claim of ownership; that it is located toward the center of one of the most valuable residential sections of the city of Manila, and that for many years a house stood upon this land, and was occupied by some of the predecessors in interest of the applicants in these proceedings; that with some relatively small expenditure by way of a fill or a retaining wall it would still be a valuable building lot for residential purposes; that the adjoining lots extend toward the bay to a line formed by the extension of the outer boundary line of the lot in question, and that these adjoining lots would be in substantially the same physical condition, by relation to the ebb and flow of the tide, as lot in question, but for low retaining walls which protect them against the incoming sea; that the water which spreads over the lot in question at high tide is of but little depth, and would be wholly excluded by a very limited amount of filling materials or a low retaining wall; that there are strong reasons to believe that the land in question was originally well above the ebb and flow of the tide; and that only in later years have the waters risen to such a height along the shores of the Bay of Manila at this point as to cover the land in question completely at high tide; though it does not definitely appear whether this is due to changes in the current and flow of the waters in the bay, or to the gradual sinking of the land along the coast. We think that these facts conclusively establish the right of possession and ownership of the applicants. Article 446 of the Civil Code is as follows: Every possessor has a right to be respected in his possession; and should he be disturbed therein, he must be protected or possession must be restored to him by the means established in the laws of procedure. Article 460 of that code is as follows: ART. 460. The possessor may lose his possession 1. By the abandonment of the thing. 2. By transfer to another for a good or valuable consideration. 3. By the destruction or total loss of the thing or by the thing becoming unmarketable. 4. By the possession of another, even against the will of the former possessor, if the new possession has lasted more than one year.

Under these provisions of the code it seems quite clear that if the Government is justified in disturbing the possession of the applicants, it can only be on the ground that they have abandoned their property, or that it has been totally destroyed and has now become a part of the public domain by the erosive action of the sea. It is quite clear that applicants have never abandoned their possession under a claim of ownership of this land. And we think the facts above stated fully sustain a finding that there has been no such destructive or total loss of the property as would justify a holding that the owners have lost possession. Doubtless the property has been injured by the erosive action of the sea. Doubtless the owners in order to profitably enjoy the possession of this property will be compelled to make some relatively small expenditures by way of a fill or a retaining wall. But the actual condition of the property as it appears from the record makes a claim that it has been totally lost or destroyed preposterous and wholly untenable. We need hardly add that if the applicants have not lost their right of possession, the Governments claim of ownership, on the ground that this is a part of the playa (shore) of Manila Bay, necessarily falls to the ground. We should not be understood, by this decision, to hold that in a case of gradual encroachment or erosion by the ebb and flow of the tide, private property may not become property of public ownership, as defined in article 339 of the code, where it appears that the owner has to all intents and purposes abandoned it and permitted it to be totally destroyed, so as to become a part of the playa (shore of the sea), rada (roadstead), or the like. Our ruling in this case is merely that it affirmatively appears that the owners of the land in question have never in fact nor in intent abandoned it, and that keeping in mind its location and actual condition it can not be said to have been totally destroyed for the purposes for which it was held by them, so as to have become a part of the playa (shore) of the Bay of Manila. The decree entered by the lower court should be affirmed, with the costs of this instance against the appellant. It is so ordered. CATHOLIC VICAR APOSTOLIC OF THE MOUNTAIN PROVINCE, petitioner, vs. COURT OF APPEALS, HEIRS OF EGMIDIO OCTAVIANO AND JUAN VALDEZ, respondents. Valdez, Ereso, Polido & Associates for petitioner. Claustro, Claustro, Claustro Law Office collaborating counsel for petitioner. Jaime G. de Leon for the Heirs of Egmidio Octaviano. Cotabato Law Office for the Heirs of Juan Valdez. GANCAYCO, J.: The principal issue in this case is whether or not a decision of the Court of Appeals promulgated a long time ago can properly be considered res judicata by respondent Court of Appeals in the present two cases between petitioner and two private respondents. Petitioner questions as allegedly erroneous the Decision dated August 31, 1987 of the Ninth Division of Respondent Court of 1 Appeals in CA-G.R. No. 05148 [Civil Case No. 3607 (419)] and CA-G.R. No. 05149 [Civil Case No. 3655 (429)], both for Recovery of Possession, which affirmed the Decision of the Honorable Nicodemo T. Ferrer, Judge of the Regional Trial Court of Baguio and Benguet in Civil Case No. 3607 (419) and Civil Case No. 3655 (429), with the dispositive portion as follows: WHEREFORE, Judgment is hereby rendered ordering the defendant, Catholic Vicar Apostolic of the Mountain Province to return and surrender Lot 2 of Plan Psu-194357 to the plaintiffs. Heirs of Juan Valdez, and Lot 3 of the same Plan to the other set of plaintiffs, the Heirs of Egmidio Octaviano (Leonardo Valdez, et al.). For lack or insufficiency of evidence, the plaintiffs' claim or damages is hereby denied. Said defendant is ordered to pay costs. (p. 36, Rollo) Respondent Court of Appeals, in affirming the trial court's decision, sustained the trial court's conclusions that the Decision of the Court of Appeals, dated May 4,1977 in CA-G.R. No. 38830-R, in the two cases affirmed by the Supreme Court, touched on the ownership of lots 2 and 3 in question; that the two lots were possessed by the predecessors-in-interest of private respondents under claim of ownership in good faith from 1906 to 1951; that petitioner had been in possession of the same lots as bailee in commodatum up to 1951, when petitioner repudiated the trust and when it applied for registration in 1962; that petitioner had just been in possession as owner for eleven years, hence there is no possibility of acquisitive prescription which requires 10 years possession with just title and 30 years of possession without; that the principle of res judicata on these findings by the Court of Appeals will bar a reopening of these questions of facts; and that those facts may no longer be altered. Petitioner's motion for reconsideation of the respondent appellate court's Decision in the two aforementioned cases (CA G.R. No. CV05418 and 05419) was denied. The facts and background of these cases as narrated by the trail court are as follows ... The documents and records presented reveal that the whole controversy started when the defendant Catholic Vicar Apostolic of the Mountain Province (VICAR for brevity) filed with the Court of First Instance of Baguio Benguet on September 5, 1962 an application for registration of title over Lots 1, 2, 3, and 4 in Psu-194357, situated at Poblacion Central, La Trinidad, Benguet, docketed as LRC N-91, said Lots being the sites of the Catholic Church building, convents, high school building, school gymnasium, school dormitories, social hall, stonewalls, etc. On March 22, 1963 the Heirs of Juan Valdez and the Heirs of Egmidio Octaviano filed their Answer/Opposition on Lots Nos. 2 and 3, respectively, asserting ownership and title thereto. After trial on the merits, the land registration court promulgated its Decision, dated November 17, 1965, confirming the registrable title of VICAR to Lots 1, 2, 3, and 4.

The Heirs of Juan Valdez (plaintiffs in the herein Civil Case No. 3655) and the Heirs of Egmidio Octaviano (plaintiffs in the herein Civil Case No. 3607) appealed the decision of the land registration court to the then Court of Appeals, docketed as CA-G.R. No. 38830-R. The Court of Appeals rendered its decision, dated May 9, 1977, reversing the decision of the land registration court and dismissing the VICAR's application as to Lots 2 and 3, the lots claimed by the two sets of oppositors in the land registration case (and two sets of plaintiffs in the two cases now at bar), the first lot being presently occupied by the convent and the second by the women's dormitory and the sister's convent. On May 9, 1977, the Heirs of Octaviano filed a motion for reconsideration praying the Court of Appeals to order the registration of Lot 3 in the names of the Heirs of Egmidio Octaviano, and on May 17, 1977, the Heirs of Juan Valdez and Pacita Valdez filed their motion for reconsideration praying that both Lots 2 and 3 be ordered registered in the names of the Heirs of Juan Valdez and Pacita Valdez. On August 12,1977, the Court of Appeals denied the motion for reconsideration filed by the Heirs of Juan Valdez on the ground that there was "no sufficient merit to justify reconsideration one way or the other ...," and likewise denied that of the Heirs of Egmidio Octaviano. Thereupon, the VICAR filed with the Supreme Court a petition for review on certiorari of the decision of the Court of Appeals dismissing his (its) application for registration of Lots 2 and 3, docketed as G.R. No. L-46832, entitled 'Catholic Vicar Apostolic of the Mountain Province vs. Court of Appeals and Heirs of Egmidio Octaviano.' From the denial by the Court of Appeals of their motion for reconsideration the Heirs of Juan Valdez and Pacita Valdez, on September 8, 1977, filed with the Supreme Court a petition for review, docketed as G.R. No. L-46872, entitled, Heirs of Juan Valdez and Pacita Valdez vs. Court of Appeals, Vicar, Heirs of Egmidio Octaviano and Annable O. Valdez. On January 13, 1978, the Supreme Court denied in a minute resolution both petitions (of VICAR on the one hand and the Heirs of Juan Valdez and Pacita Valdez on the other) for lack of merit. Upon the finality of both Supreme Court resolutions in G.R. No. L-46832 and G.R. No. L- 46872, the Heirs of Octaviano filed with the then Court of First Instance of Baguio, Branch II, a Motion For Execution of Judgment praying that the Heirs of Octaviano be placed in possession of Lot 3. The Court, presided over by Hon. Salvador J. Valdez, on December 7, 1978, denied the motion on the ground that the Court of Appeals decision in CA-G.R. No. 38870 did not grant the Heirs of Octaviano any affirmative relief. On February 7, 1979, the Heirs of Octaviano filed with the Court of Appeals a petitioner for certiorari and mandamus, docketed as CA-G.R. No. 08890-R, entitled Heirs of Egmidio Octaviano vs. Hon. Salvador J. Valdez, Jr. and Vicar. In its decision dated May 16, 1979, the Court of Appeals dismissed the petition. It was at that stage that the instant cases were filed. The Heirs of Egmidio Octaviano filed Civil Case No. 3607 (419) on July 24, 1979, for recovery of possession of Lot 3; and the Heirs of Juan Valdez filed Civil Case No. 3655 (429) on September 24, 1979, likewise for recovery of possession of Lot 2 (Decision, pp. 199-201, Orig. Rec.). In Civil Case No. 3607 (419) trial was held. The plaintiffs Heirs of Egmidio Octaviano presented one (1) witness, Fructuoso Valdez, who testified on the alleged ownership of the land in question (Lot 3) by their predecessor-ininterest, Egmidio Octaviano (Exh. C ); his written demand (Exh. BB-4 ) to defendant Vicar for the return of the land to them; and the reasonable rentals for the use of the land at P10,000.00 per month. On the other hand, defendant Vicar presented the Register of Deeds for the Province of Benguet, Atty. Nicanor Sison, who testified that the land in question is not covered by any title in the name of Egmidio Octaviano or any of the plaintiffs (Exh. 8). The defendant dispensed with the testimony of Mons.William Brasseur when the plaintiffs admitted that the witness if called to the witness stand, would testify that defendant Vicar has been in possession of Lot 3, for seventy-five (75) years continuously and peacefully and has constructed permanent structures thereon. In Civil Case No. 3655, the parties admitting that the material facts are not in dispute, submitted the case on the sole issue of whether or not the decisions of the Court of Appeals and the Supreme Court touching on the ownership of Lot 2, which in effect declared the plaintiffs the owners of the land constitute res judicata. In these two cases , the plaintiffs arque that the defendant Vicar is barred from setting up the defense of ownership and/or long and continuous possession of the two lots in question since this is barred by prior judgment of the Court of Appeals in CA-G.R. No. 038830-R under the principle of res judicata. Plaintiffs contend that the question of possession and ownership have already been determined by the Court of Appeals (Exh. C, Decision, CA-G.R. No. 038830-R) and affirmed by the Supreme Court (Exh. 1, Minute Resolution of the Supreme Court). On his part, defendant Vicar maintains that the principle of res judicata would not prevent them from litigating the issues of long possession and ownership because the dispositive portion of the prior judgment in CA-G.R. No. 038830-R merely dismissed their application for registration and titling of lots 2 and 3. Defendant Vicar contends

that only the dispositive portion of the decision, and not its body, is the controlling pronouncement of the Court of 2 Appeals. The alleged errors committed by respondent Court of Appeals according to petitioner are as follows: 1. ERROR IN APPLYING LAW OF THE CASE AND RES JUDICATA; 2. ERROR IN FINDING THAT THE TRIAL COURT RULED THAT LOTS 2 AND 3 WERE ACQUIRED BY PURCHASE BUT WITHOUT DOCUMENTARY EVIDENCE PRESENTED; 3. ERROR IN FINDING THAT PETITIONERS' CLAIM IT PURCHASED LOTS 2 AND 3 FROM VALDEZ AND OCTAVIANO WAS AN IMPLIED ADMISSION THAT THE FORMER OWNERS WERE VALDEZ AND OCTAVIANO; 4. ERROR IN FINDING THAT IT WAS PREDECESSORS OF PRIVATE RESPONDENTS WHO WERE IN POSSESSION OF LOTS 2 AND 3 AT LEAST FROM 1906, AND NOT PETITIONER; 5. ERROR IN FINDING THAT VALDEZ AND OCTAVIANO HAD FREE PATENT APPLICATIONS AND THE PREDECESSORS OF PRIVATE RESPONDENTS ALREADY HAD FREE PATENT APPLICATIONS SINCE 1906; 6. ERROR IN FINDING THAT PETITIONER DECLARED LOTS 2 AND 3 ONLY IN 1951 AND JUST TITLE IS A PRIME NECESSITY UNDER ARTICLE 1134 IN RELATION TO ART. 1129 OF THE CIVIL CODE FOR ORDINARY ACQUISITIVE PRESCRIPTION OF 10 YEARS; 7. ERROR IN FINDING THAT THE DECISION OF THE COURT OF APPEALS IN CA G.R. NO. 038830 WAS AFFIRMED BY THE SUPREME COURT; 8. ERROR IN FINDING THAT THE DECISION IN CA G.R. NO. 038830 TOUCHED ON OWNERSHIP OF LOTS 2 AND 3 AND THAT PRIVATE RESPONDENTS AND THEIR PREDECESSORS WERE IN POSSESSION OF LOTS 2 AND 3 UNDER A CLAIM OF OWNERSHIP IN GOOD FAITH FROM 1906 TO 1951; 9. ERROR IN FINDING THAT PETITIONER HAD BEEN IN POSSESSION OF LOTS 2 AND 3 MERELY AS BAILEE BOR ROWER) IN COMMODATUM, A GRATUITOUS LOAN FOR USE; 10. ERROR IN FINDING THAT PETITIONER IS A POSSESSOR AND BUILDER IN GOOD FAITH WITHOUT RIGHTS OF RETENTION AND 3 REIMBURSEMENT AND IS BARRED BY THE FINALITY AND CONCLUSIVENESS OF THE DECISION IN CA G.R. NO. 038830. The petition is bereft of merit. Petitioner questions the ruling of respondent Court of Appeals in CA-G.R. Nos. 05148 and 05149, when it clearly held that it was in agreement with the findings of the trial court that the Decision of the Court of Appeals dated May 4,1977 in CA-G.R. No. 38830-R, on the question of ownership of Lots 2 and 3, declared that the said Court of Appeals Decision CA-G.R. No. 38830-R) did not positively declare private respondents as owners of the land, neither was it declared that they were not owners of the land, but it held that the predecessors of private respondents were possessors of Lots 2 and 3, with claim of ownership in good faith from 1906 to 1951. Petitioner was in possession as borrower in commodatum up to 1951, when it repudiated the trust by declaring the properties in its name for taxation purposes. When petitioner applied for registration of Lots 2 and 3 in 1962, it had been in possession in concept of owner only for eleven years. Ordinary acquisitive prescription requires possession for ten years, but always with just title. 4 Extraordinary acquisitive prescription requires 30 years. On the above findings of facts supported by evidence and evaluated by the Court of Appeals in CA-G.R. No. 38830-R, affirmed by this Court, We see no error in respondent appellate court's ruling that said findings are res judicata between the parties. They can no longer be altered by presentation of evidence because those issues were resolved with finality a long time ago. To ignore the principle of res judicata would be to open the door to endless litigations by continuous determination of issues without end. 5 An examination of the Court of Appeals Decision dated May 4, 1977, First Division in CA-G.R. No. 38830-R, shows that it reversed the 6 trial court's Decision finding petitioner to be entitled to register the lands in question under its ownership, on its evaluation of evidence and conclusion of facts. The Court of Appeals found that petitioner did not meet the requirement of 30 years possession for acquisitive prescription over Lots 2 and 3. Neither did it satisfy the requirement of 10 years possession for ordinary acquisitive prescription because of the absence of just title. The appellate court did not believe the findings of the trial court that Lot 2 was acquired from Juan Valdez by purchase and Lot 3 was acquired also by purchase from Egmidio Octaviano by petitioner Vicar because there was absolutely no documentary evidence to support the same and the alleged purchases were never mentioned in the application for registration. By the very admission of petitioner Vicar, Lots 2 and 3 were owned by Valdez and Octaviano. Both Valdez and Octaviano had Free Patent Application for those lots since 1906. The predecessors of private respondents, not petitioner Vicar, were in possession of the questioned lots since 1906. There is evidence that petitioner Vicar occupied Lots 1 and 4, which are not in question, but not Lots 2 and 3, because the buildings standing thereon were only constructed after liberation in 1945. Petitioner Vicar only declared Lots 2 and 3 for taxation purposes in 1951. The improvements oil Lots 1, 2, 3, 4 were paid for by the Bishop but said Bishop was appointed only in 1947, the church was constructed only in 1951 and the new convent only 2 years before the trial in 1963. When petitioner Vicar was notified of the oppositor's claims, the parish priest offered to buy the lot from Fructuoso Valdez. Lots 2 and 3 were surveyed by request of petitioner Vicar only in 1962. Private respondents were able to prove that their predecessors' house was borrowed by petitioner Vicar after the church and the convent were destroyed. They never asked for the return of the house, but when they allowed its free use, they became bailors in commodatum and the petitioner the bailee. The bailees' failure to return the subject matter of commodatum to the bailor did not mean adverse possession on the part of the borrower. The bailee held in trust the property subject matter of commodatum. The adverse claim of petitioner came only in 1951 when it declared the lots for taxation purposes. The action of petitioner Vicar by such adverse claim could not ripen into title by way of ordinary acquisitive prescription because of the absence of just title.

The Court of Appeals found that the predecessors-in-interest and private respondents were possessors under claim of ownership in good faith from 1906; that petitioner Vicar was only a bailee in commodatum; and that the adverse claim and repudiation of trust came only in 1951. We find no reason to disregard or reverse the ruling of the Court of Appeals in CA-G.R. No. 38830-R. Its findings of fact have become incontestible. This Court declined to review said decision, thereby in effect, affirming it. It has become final and executory a long time ago. Respondent appellate court did not commit any reversible error, much less grave abuse of discretion, when it held that the Decision of the Court of Appeals in CA-G.R. No. 38830-R is governing, under the principle of res judicata, hence the rule, in the present cases CAG.R. No. 05148 and CA-G.R. No. 05149. The facts as supported by evidence established in that decision may no longer be altered. WHEREFORE AND BY REASON OF THE FOREGOING, this petition is DENIED for lack of merit, the Decision dated Aug. 31, 1987 in CAG.R. Nos. 05148 and 05149, by respondent Court of Appeals is AFFIRMED, with costs against petitioner. SO ORDERED. Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur. EDCA PUBLISHING & DISTRIBUTING CORP., petitioner, vs. THE SPOUSES LEONOR and GERARDO SANTOS, doing business under the name and style of "SANTOS BOOKSTORE," and THE COURT OF APPEALS, respondents. Emiliano S. Samson, R. Balderrama-Samson, Mary Anne B. Samson for petitioner. Cendana Santos, Delmundo & Cendana for private respondents. CRUZ, J.: The case before us calls for the interpretation of Article 559 of the Civil Code and raises the particular question of when a person may be deemed to have been "unlawfully deprived" of movable property in the hands of another. The article runs in full as follows: Art. 559. The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same. If the possessor of a movable lost or of which the owner has been unlawfully deprived has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor. The movable property in this case consists of books, which were bought from the petitioner by an impostor who sold it to the private 1 respondents. Ownership of the books was recognized in the private respondents by the Municipal Trial Court, which was sustained 2 3 by the Regional Trial Court, which was in turn sustained by the Court of Appeals. The petitioner asks us to declare that all these courts have erred and should be reversed. This case arose when on October 5, 1981, a person identifying himself as Professor Jose Cruz placed an order by telephone with the 4 petitioner company for 406 books, payable on delivery. EDCA prepared the corresponding invoice and delivered the books as 5 ordered, for which Cruz issued a personal check covering the purchase price of P8,995.65. On October 7, 1981, Cruz sold 120 of the books to private respondent Leonor Santos who, after verifying the seller's ownership from the invoice he showed her, paid him 6 P1,700.00. Meanwhile, EDCA having become suspicious over a second order placed by Cruz even before clearing of his first check, made inquiries with the De la Salle College where he had claimed to be a dean and was informed that there was no such person in its employ. Further verification revealed that Cruz had no more account or deposit with the Philippine Amanah Bank, against which he had drawn the 7 payment check. EDCA then went to the police, which set a trap and arrested Cruz on October 7, 1981. Investigation disclosed his real name as Tomas de la Pea and his sale of 120 of the books he had ordered from EDCA to the private 8 respondents. On the night of the same date, EDCA sought the assistance of the police in Precinct 5 at the UN Avenue, which forced their way into the store of the private respondents and threatened Leonor Santos with prosecution for buying stolen property. They seized the 120 9 books without warrant, loading them in a van belonging to EDCA, and thereafter turned them over to the petitioner. Protesting this high-handed action, the private respondents sued for recovery of the books after demand for their return was rejected by EDCA. A writ of preliminary attachment was issued and the petitioner, after initial refusal, finally surrendered the books to the 10 private respondents. As previously stated, the petitioner was successively rebuffed in the three courts below and now hopes to secure relief from us. To begin with, the Court expresses its disapproval of the arbitrary action of the petitioner in taking the law into its own hands and forcibly recovering the disputed books from the private respondents. The circumstance that it did so with the assistance of the police, which should have been the first to uphold legal and peaceful processes, has compounded the wrong even more deplorably. Questions like the one at bar are decided not by policemen but by judges and with the use not of brute force but of lawful writs. Now to the merits It is the contention of the petitioner that the private respondents have not established their ownership of the disputed books because they have not even produced a receipt to prove they had bought the stock. This is unacceptable. Precisely, the first sentence of Article 559 provides that "the possession of movable property acquired in good faith is equivalent to a title," thus dispensing with further proof.

The argument that the private respondents did not acquire the books in good faith has been dismissed by the lower courts, and we agree. Leonor Santos first ascertained the ownership of the books from the EDCA invoice showing that they had been sold to Cruz, who said he was selling them for a discount because he was in financial need. Private respondents are in the business of buying and selling books and often deal with hard-up sellers who urgently have to part with their books at reduced prices. To Leonor Santos, Cruz must have been only one of the many such sellers she was accustomed to dealing with. It is hardly bad faith for any one in the business of buying and selling books to buy them at a discount and resell them for a profit. But the real issue here is whether the petitioner has been unlawfully deprived of the books because the check issued by the impostor in payment therefor was dishonored. In its extended memorandum, EDCA cites numerous cases holding that the owner who has been unlawfully deprived of personal property is entitled to its recovery except only where the property was purchased at a public sale, in which event its return is subject to reimbursement of the purchase price. The petitioner is begging the question. It is putting the cart before the horse. Unlike in the cases invoked, it has yet to be established in the case at bar that EDCA has been unlawfully deprived of the books. The petitioner argues that it was, because the impostor acquired no title to the books that he could have validly transferred to the private respondents. Its reason is that as the payment check bounced for lack of funds, there was a failure of consideration that nullified the contract of sale between it and Cruz. The contract of sale is consensual and is perfected once agreement is reached between the parties on the subject matter and the consideration. According to the Civil Code: Art. 1475. The contract of sale is perfected at the moment there is a meeting of minds upon the thing which is the object of the contract and upon the price. From that moment, the parties may reciprocally demand performance, subject to the provisions of the law governing the form of contracts. xxx xxx xxx Art. 1477. The ownership of the thing sold shall be transferred to the vendee upon the actual or constructive delivery thereof. Art. 1478. The parties may stipulate that ownership in the thing shall not pass to the purchaser until he has fully paid the price. It is clear from the above provisions, particularly the last one quoted, that ownership in the thing sold shall not pass to the buyer until full payment of the purchase only if there is a stipulation to that effect. Otherwise, the rule is that such ownership shall pass from the vendor to the vendee upon the actual or constructive delivery of the thing sold even if the purchase price has not yet been paid. Non-payment only creates a right to demand payment or to rescind the contract, or to criminal prosecution in the case of bouncing checks. But absent the stipulation above noted, delivery of the thing sold will effectively transfer ownership to the buyer who can in turn transfer it to another. 11 In Asiatic Commercial Corporation v. Ang, the plaintiff sold some cosmetics to Francisco Ang, who in turn sold them to Tan Sit Bin. Asiatic not having been paid by Ang, it sued for the recovery of the articles from Tan, who claimed he had validly bought them from Ang, paying for the same in cash. Finding that there was no conspiracy between Tan and Ang to deceive Asiatic the Court of Appeals declared: 12 Yet the defendant invoked Article 464 of the Civil Code providing, among other things that "one who has been unlawfully deprived of personal property may recover it from any person possessing it." We do not believe that the plaintiff has been unlawfully deprived of the cartons of Gloco Tonic within the scope of this legal provision. It has voluntarily parted with them pursuant to a contract of purchase and sale. The circumstance that the price was not subsequently paid did not render illegal a transaction which was valid and legal at the beginning. 13 In Tagatac v. Jimenez, the plaintiff sold her car to Feist, who sold it to Sanchez, who sold it to Jimenez. When the payment check issued to Tagatac by Feist was dishonored, the plaintiff sued to recover the vehicle from Jimenez on the ground that she had been unlawfully deprived of it by reason of Feist's deception. In ruling for Jimenez, the Court of Appeals held: The point of inquiry is whether plaintiff-appellant Trinidad C. Tagatac has been unlawfully deprived of her car. At first blush, it would seem that she was unlawfully deprived thereof, considering that she was induced to part with it by reason of the chicanery practiced on her by Warner L. Feist. Certainly, swindling, like robbery, is an illegal method of deprivation of property. In a manner of speaking, plaintiff-appellant was "illegally deprived" of her car, for the way by which Warner L. Feist induced her to part with it is illegal and is punished by law. But does this "unlawful deprivation" come within the scope of Article 559 of the New Civil Code? xxx xxx xxx . . . The fraud and deceit practiced by Warner L. Feist earmarks this sale as a voidable contract (Article 1390 N.C.C.). Being a voidable contract, it is susceptible of either ratification or annulment. If the contract is ratified, the action to annul it is extinguished (Article 1392, N.C.C.) and the contract is cleansed from all its defects (Article 1396, N.C.C.); if the contract is annulled, the contracting parties are restored to their respective situations before the contract and mutual restitution follows as a consequence (Article 1398, N.C.C.). However, as long as no action is taken by the party entitled, either that of annulment or of ratification, the contract of sale remains valid and binding. When plaintiff-appellant Trinidad C. Tagatac delivered the car to Feist by virtue of said voidable contract of sale, the title to the car passed to Feist. Of course, the title that Feist acquired was defective and voidable. Nevertheless, at the time he sold the car to Felix Sanchez, his title thereto had not been avoided and he therefore conferred a good title on the latter, provided he bought the car in good faith, for

value and without notice of the defect in Feist's title (Article 1506, N.C.C.). There being no proof on record that Felix Sanchez acted in bad faith, it is safe to assume that he acted in good faith. The above rulings are sound doctrine and reflect our own interpretation of Article 559 as applied to the case before us. Actual delivery of the books having been made, Cruz acquired ownership over the books which he could then validly transfer to the private respondents. The fact that he had not yet paid for them to EDCA was a matter between him and EDCA and did not impair the title acquired by the private respondents to the books. One may well imagine the adverse consequences if the phrase "unlawfully deprived" were to be interpreted in the manner suggested by the petitioner. A person relying on the seller's title who buys a movable property from him would have to surrender it to another person claiming to be the original owner who had not yet been paid the purchase price therefor. The buyer in the second sale would be left holding the bag, so to speak, and would be compelled to return the thing bought by him in good faith without even the right to reimbursement of the amount he had paid for it. It bears repeating that in the case before us, Leonor Santos took care to ascertain first that the books belonged to Cruz before she agreed to purchase them. The EDCA invoice Cruz showed her assured her that the books had been paid for on delivery. By contrast, EDCA was less than cautious in fact, too trusting in dealing with the impostor. Although it had never transacted with him before, it readily delivered the books he had ordered (by telephone) and as readily accepted his personal check in payment. It did not verify his identity although it was easy enough to do this. It did not wait to clear the check of this unknown drawer. Worse, it indicated in the sales invoice issued to him, by the printed terms thereon, that the books had been paid for on delivery, thereby vesting ownership in the buyer. Surely, the private respondent did not have to go beyond that invoice to satisfy herself that the books being offered for sale by Cruz belonged to him; yet she did. Although the title of Cruz was presumed under Article 559 by his mere possession of the books, these being movable property, Leonor Santos nevertheless demanded more proof before deciding to buy them. It would certainly be unfair now to make the private respondents bear the prejudice sustained by EDCA as a result of its own negligence. We cannot see the justice in transferring EDCA's loss to the Santoses who had acted in good faith, and with proper care, when they bought the books from Cruz. While we sympathize with the petitioner for its plight, it is clear that its remedy is not against the private respondents but against Tomas de la Pea, who has apparently caused all this trouble. The private respondents have themselves been unduly inconvenienced, and for merely transacting a customary deal not really unusual in their kind of business. It is they and not EDCA who have a right to complain. WHEREFORE, the challenged decision is AFFIRMED and the petition is DENIED, with costs against the petitioner. Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur. CONSUELO S. DE GARCIA and ANASTACIO GARCIA, petitioners, vs. HON. COURT OF APPEALS, ANGELINA D. GUEVARA and JUAN B. GUEVARA, respondents. Deogracias T. Reyes and Jose M. Luison for petitioners. Tolentino and Garcia and D.R. Cruz for private respondents. Fernando, J.: This petition for certiorari to review a decision of respondent Court of Appeals was given due course because it was therein vigorously asserted that legal questions of gravity and of moment, there being allegations of an unwarranted departure from and a patent misreading of applicable and controlling decisions, called for determination by this Tribunal. The brief for petitioners-spouses, however, failed to substantiate such imputed failings of respondent Court. The performance did not live up to the promise. On the basis of the facts as duly found by respondent Court, which we are not at liberty to disregard, and the governing legal provisions, there is no basis for reversal. We affirm. The nature of the case presented before the lower court by private respondent Angelina D. Guevara, assisted by her spouse, Juan B. Guevara, as plaintiffs, was noted in the decision of respondent Court of Appeals thus: Plaintiff seeks recovery of `one (1) ladys diamond ring 18 cts. white gold mounting, with one (1) 2.05 cts. diamond-solitaire, and four (4) brills 0.10 cts. total weight which she bought on October 27, 1947 from R. Rebullida, Inc.1 Then came a summary of now respondent Guevara of her evidence: Plaintiffs evidence tends to show that around October 11, 1953 plaintiff while talking to Consuelo S. de Garcia, owner of La Bulakea restaurant recognized her ring in the finger of Mrs. Garcia and inquired where she bought it, which the defendant answered from her comadre. Plaintiff explained that that ring was stolen from her house in February, 1952. Defendant handed the ring to plaintiff and it fitted her finger. Two or three days later, at the request of plaintiff, plaintiff, her husband Lt. Col. Juan Guevara, Lt. Cementina of Pasay PD, defendant and her attorney proceeded to the store of Mr. Rebullida to whom they showed the ring in question. Mr. Rebullida a examined the ring with the aid of high power lens and after consulting the stock card thereon, concluded that it was the very ring that plaintiff bought from him in 1947. The ring was returned to defendant who despite a written request therefor failed to deliver the ring to plaintiff. Hence, this case. Later on when the sheriff tried to serve the writ of seizure (replevin), defendant refused to deliver the ring which had been examined by Mr. Rebullida, claiming it was lost.2 How the defendant, Consuelo S. de Garcia, the present petitioner before us, along with her husband Anastacio Garcia, sought to meet plaintiffs claim was narrated thus: On the other hand, defendant denied having made any admission before plaintiff or Mr. Rebullida or the sheriff. Her evidence tends to show that the ring (Exhibit 1) was purchased by her from Mrs. Miranda who got it from Miss Angelita Hinahon who in turn got it from the owner, Aling Petring, who was boarding in her house; that the ring she bought could be similar to, but not the same ring plaintiff purchased from Mr. Rebullida which was stolen; that according to a pawn-shop owner the big diamond on Exhibit 1 was before the trial never dismantled. When dismantled, defendants diamond was found to weigh 2.57 cts.3

Plaintiff lost in the lower court. She elevated the matter to respondent Court of Appeals with the judgment of the lower court being reversed. It is this decision now under review. These are the facts as found by respondent Court of Appeals: That the ring brought by the parties for examination by Rafael Rebullida on December 14, 1953 was the same ring purchased by plaintiff from R. Rebullida, Inc. on October 27, 1947 and stolen in February, 1952 has been abundantly established by plaintiffs evidence. Before plaintiff lost the ring, she had been wearing it for six years and became familiar with it. Thus, when she saw the missing ring in the finger of defendant, she readily and definitely identified it. Her identification was confirmed by Mr. Rafael Rebullida, whose candid testimony is entitled to great weight, with his 30 years experience behind him in the jewelry business and being a disinterested witness since both parties are his customers. Indeed, defendant made no comment when in her presence Rebullida after examining the ring and stock card told plaintiff that that was her ring, nor did she answer plaintiffs letter of demand, asserting ownership. Further confirmation may be found in the extra-judicial admissions, contained in defendants original and first amended answers 4 These further facts likewise appeal therein: The foregoing proof is not counter-balanced by the denial on the part of defendant or the presentation of the ring, Exhibit I, which has a diamond-solitaire 2.57 cts., or much heavier than the lost diamond weighing 2.05 cts. only. It is noteworthy that defendant gave a rather dubious source of her ring. Aling Petring from whom the ring supposedly came turned out to be a mysterious and ephemeral figure. Miss Hinahon did not even know her true and full name, nor her forwarding address. She appeared from nowhere, boarded three months in the house of Miss Hinahon long enough to sell her diamond ring, disappearing from the scene a week thereafter. Indeed, the case was terminated without any hearing on the third-party and fourthparty complaints, which would have shown up the falsity of defendants theory. Moreover, Mrs. Baldomera Miranda, third-party defendant, who tried to corroborate defendant on the latters alleged attempt to exchange the ring defendant bought through her, is [belied] by her judicial admission in her Answer that appellee `suggested that she would make alterations to the mounting and structural design of the ring to hide the true identity and appearance of the original one (Cunanan vs. Amparo, 45 O.G. 3796). Finally, defendant is refuted by her own extra-judicial admissions although made by defendants counsel. For an attorney who acts as counsel of record and is permitted to act such, has the authority to manage the cause, and this includes the authority to make admission for the purpose of the litigation Her proffered explanation that her counsel misunderstood her is puerile because the liability to error as to the identity of the vendor and the exchange of the ring with another ring of the same value, was rather remote.5 It is in the light of the above facts as well as the finding that the discrepancy as to the weight between the diamond-solitaire in Exhibit I and the lost diamond was due to defendant having substituted a diamond-solitaire of plaintiff with a heavier stone that the decision was rendered, respondent Court reversing the lower court and ordering defendant, now petitioner Consuelo S. de Garcia, to return plaintiffs ring or fact value of P1,000.00 and costs, as well as to pay plaintiff P1,000.00 as attorneys fee and P1,000.00 as exemplary damages. Hence this appeal. To repeat, there is no occasion to reverse respondent Court. It correctly applied the law to the facts as found. 1. The controlling provision is Article 559 of the Civil Code. It reads thus: The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from the person in possession of the same. If the possessor of a movable lost of which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor. Respondent Angelina D. Guevara, having been unlawfully deprived of the diamond ring in question, was entitled to recover it from petitioner Consuelo S. de Garcia who was found in possession of the same.3 The only exception the law allows is when there is acquisition in good faith of the possessor at a public sale, in which case the owner cannot obtain its return without reimbursing the price. As authoritative interpreted in Cruz v. Pahati, 6 the right of the owner cannot be defeated even by proof that there was good faith by the acquisition by the possessor. There is a reiteration of this principle in Aznar v. Yapdiangco.7 Thus: Suffice it to say in this regard that the right of the owner to recover personal property acquired in good faith by another, is based on his being dispossessed without his consent. The common law principle that where one of two innocent persons must suffer by a fraud perpetrated by the another, the law imposes the loss upon the party who, by his misplaced confidence, has enabled the fraud to be committed, cannot be applied in a case which is covered by an express provision of the new Civil Code, specifically Article 559. Between a common law principle and statutory provision, the latter must prevail in this jurisdiction.8 2. It is thus immediately apparent that there is no merit to the contention raised in the first assigned error that her possession in good faith, equivalent to title, sufficed to defeat respondent Guevaras claim. As the above cases demonstrate, even on that assumption the owner can recover the same once she can show illegal deprivation. Respondent Court of Appeals was so convinced from the evidence submitted that the owner of the ring in litigation is such respondent. That is a factual determination to which we must pay heed. Instead of proving any alleged departure from legal norms by respondent Court, petitioner would stress Article 541 of the Civil Code, which provides: A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it. She would accord to it a greater legal significance than that to which under the controlling doctrines it is entitled. The brief for respondents did clearly point out why petitioners assertion is lacking in support not only from the cases but even from commentators. Thus: Actually, even under the first clause, possession in good faith does not really amount to title, for the reason that Art. 1132 of the Code provides for a period of acquisitive prescription for movables through `uninterrupted possession for four years in good faith (Art. 1955 of the old Spanish Code, which provided a period of three years), so that many Spanish writers, including Manresa, Sanchez Roman, Scaevola, De Buen, and Ramos, assert that under Art. 464 of the Spanish Code (Art. 559 of the New Civil Code), the title of the possessor is not that of ownership, but is merely a presumptive title sufficient to serve as a basis of acquisitive prescription (II Tolentino, Civil Code of the Phil. p. 258: IV Manresa, Derecho Civil Espaol, 6th Ed., p. 380). And it is for the very reason that the title established by the first clause of Art. 559 is only a presumptive title sufficient to serve as a basis

for acquisitive prescription, that the clause immediately following provides that `one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same. As stated by the Honorable Justice Jose B. L. Reyes of this Court in Sotto vs. Enage (C.A.), 43 O.G. 5075, Dec. 1947: `Article 559 in fact assumes that possessor is as yet not the owner; for it is obvious that where the possessor has come to acquire indefeasible title by, let us say, adverse possession for the necessary period, no proof of loss or illegal deprivation could avail the former owner of the chattel. He would no longer be entitled to recover it under any condition. 9 The second assigned error is centered on the alleged failure to prove the identity of the diamond ring. Clearly the question raised is one of the fact. What the Court of Appeals found is conclusive. Again, petitioner could not demonstrate that in reaching such a conclusion the Court of Appeals acted in an arbitrary manner. As made mention of in the brief for respondents two disinterested witnesses, Mr. Rafael Rebullida as well as Lt. Col. Reynaldo Cementina of the Pasay City Police Department, both of whom could not be accused of being biased in favor of respondent Angelina D. Guevara, did testify as to the identity of the ring. The third assigned error of petitioners would find fault with respondent Court relying on the weakness of the title or evidence of petitioner Consuelo S. de Garcia. It is true, in the decision under review, mention was made of petitioner Consuelo S. de Garcia making no comment when in her presence Rebullida, after examining the ring the stock card, told respondent Angelina L. Guevara that that was her ring, nor did petitioner answer a letter of the latter asserting ownership. It was likewise stated in such decision that there were extra-judicial admissions in the original and first amended answers of petitioner. In the appraisal of her testimony, respondent Court likewise spoke of her giving a rather dubious source of her ring, the person from whom she allegedly bought it turning out to be a mysterious and ephemeral figure. As a matter of fact, as set forth a few pages back, respondent Court did enumerate the flaws in the version given by petitioner. From the weakness of the testimony offered which, as thus made clear, petitioner, did not even seek to refute, she would raise the legal question that respondent Court relied on the weakness of *her+ title or evidence rather than on the proof justifying respondent Angelina D. Guevaras claim of ownership. Petitioner here would ignore the finding of fact of respondent Court that such ownership on her part has been abundantly established by her evidence. Again here, in essence, the question raised is one of fact, and there is no justification for us to reverse respondent Court. The legal question raised in the fourth assignment of error is that the matter of the substitution of the diamond on the ring was a question raised for the first time on appeal as it was never put in issue by the pleadings nor the subject of reception of evidence by both parties and not touched upon in the decision of the lower court. Why no such question could be raised in the pleadings of respondent Angelina D. Guevara was clarified by the fact that the substitution came after it was brought for examination to Mr. Rebullida. After the knowledge of such substitution was gained, however, the issue was raised at the trial according to the said respondent resulting in that portion of the decision where the lower court reached a negative conclusion. As a result, in the motion for reconsideration, one of the points raised as to such decision being contrary to the evidence is the finding that there was no substitution. It is not necessary to state that respondent Court, exercising its appellate power reversed the lower court. What was held by it is controlling. What is clear is that there is no factual basis for the legal arguments on which the fourth assigned error is predicated. What is said takes care of the fifth assigned error that respondent Court was mistaken in its finding that there was such a substitution. Again petitioner would have us pass on a question of credibility which is left to respondent Court of Appeals. The sixth assigned error would complain against the reversal of the lower court judgment as well as petitioner Consuelo S. de Garcia being made to pay respondent Angelina D. Guevara exemplary damages, attorneys fees and costs. The reversal is called for in the light of the appraisal of the evidence of record as meticulously weighed by respondent Court. As to the attorneys fees and exemplary damages, this is what respondent Court said in the decision under review: Likewise, plaintiff is entitled to recover reasonable attorneys fees in the sum of P1,000, it being just and equitable under the circumstances, and another P1,000 as exemplary damages for the public good to discourage litigants from resorting to fraudulent devices to frustrate the ends of justice, as defendant herein tried to substitute the ring, Exhibit 1, for plaintiffs ring. 10 Considering the circumstances, the cursory discussion of the sixth assigned error on the matter by petitioner fails to demonstrate that respondent Courts actuation is blemished by legal defects. WHEREFORE, the decision of respondent Court of Appeals of August 6, 1962 is hereby affirmed. With costs. DOMINADOR DIZON, doing business under the firm name Pawnshop of Dominador Dizon, petitioner, vs. LOURDES G. SUNTAY, respondent. Andres T. Velarde for petitioner. Rafael G. Suntay for respondent. FERNANDO, J.: In essence there is nothing novel in this petition for review of a decision of the Court of Appeals affirming a lower court judgment sustaining the right of an owner of a diamond ring, respondent Lourdes G. Suntay, as against the claim of petitioner Dominador Dizon, who owns and operates a pawnshop. The diamond ring was turned over to a certain Clarita R. Sison, for sale on commission, along with other pieces of jewelry of respondent Suntay. It was then pledged to petitioner. Since what was done was violative of the terms of the agency, there was an attempt on her part to recover possession thereof from petitioner, who refused. She had to file an action then for its recovery. She was successful, as noted above, both in the lower court and thereafter in the Court of Appeals. She prevailed [[ ]] as she had in her favor the protection accorded by Article 559 of the Civil Code. 1 The matter was then elevated to us by petitioner. Ordinarily, our discretion would have been exercised against giving due course to such petition for review. The vigorous plea however, grounded on estoppel, by his counsel, Atty. Andres T. Velarde, persuaded us to act otherwise. After a careful perusal of the respective contentions of the parties, we fail to perceive any sufficient justification for a departure from the literal language of the applicable

codal provision as uniformly interpreted by this Court in a number of decisions. The invocation of estoppel is therefore unavailing. We affirm. The statement of the case as well as the controlling facts may be found in the Court of Appeals decision penned by Justice Perez. Thus: Plaintiff is the owner of a three-carat diamond ring valued at P5,500.00. On June 13, 1962, the plaintiff and Clarita R. Sison entered into a transaction wherein the plaintiffs ring was delivered to Clarita R. Sison for sale on commission. Upon receiving the ring, Clarita R. Sison executed and delivered to the plaintiff the receipt . The plaintiff had already previously known Clarita R. Sison as the latter is a close friend of the plaintiffs cousin and they had frequently met each other at the place of the plaintiffs said cousin. In fact, about one year before their transaction of June 13, 1962 took place, Clarita R. Sison received a piece of jewelry from the plaintiff to be sold for P500.00, and when it was sold, Clarita R. Sison gave the price to the plaintiff. After the lapse of a considerable time without Clarita R. Sison having returned to the plaintiff the latters ring, the plaintiff made demands on Clarita R. Sison for the return of her ring but the latter could not comply with the demands because, without the knowledge of the plaintiff, on June 15, 1962 or three days after the ring above-mentioned was received by Clarita R. Sison from the plaintiff, said ring was pledged by Melia Sison, niece of the [[ ]] husband of Clarita R. Sison, evidently in connivance with the latter, with the defendants pawnshop for P2,600.00 . 2 Then came this portion of the decision under review: Since the plaintiff insistently demanded from Clarita R. Sison the return of her ring, the latter finally delivered to the former the pawnshop ticket which is the receipt of the pledge with the defendants pawnshop of the plaintiffs ring. When the plaintiff found out that Clarita R. Sison pledged, she took steps to file a case of estafa against the latter with the fiscals office. Subsequently thereafter, the plaintiff, through her lawyer, wrote a letter dated September 22, 1962, to the defendant asking for the delivery to the plaintiff of her ring pledged with defendants pawnshop under pawnshop receipt serial-B No. 65606, dated June 15, 1962 . Since the defendant refused to return the ring, the plaintiff filed the present action with the Court of First Instance of Manila for the recovery of said ring, with P500.00 as attorneys fees and costs. The plaintiff asked for the provisional remedy of replevin by the delivery of the ring to her, upon her filing the requisite bond, pending the final determination of the action. The lower court issued the writ of replevin prayed for by plaintiff and the latter was able to take possession of the ring during the pendency of the action upon her filing the requisite bond. 3 It was then noted that the lower court rendered judgment declaring that plaintiff, now respondent Suntay, had the right to the possession of the ring in question. Petitioner Dizon, as defendant, sought to have the judgment reversed by the Court of Appeals. It did him no good. The decision of May 19, 1969, now on review, affirmed the decision of the lower court. In the light of the facts as thus found by the Court of Appeals, well-nigh conclusive on use, with the applicable law being what it is, this petition for review cannot prosper. To repeat, the decision of the Court of Appeals stands. [[ ]] 1. There is a fairly recent restatement of the force and effect of the governing codal norm in De Gracia v. Court of Appeals. 4 Thus: The controlling provision is Article 559 of the Civil Code. It reads thus: The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from the person in possession of the same. If the possessor of a movable lost of which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor. Respondent Angelina D. Guevara, having been unlawfully deprived of the diamond ring in question, was entitled to recover it from petitioner Consuelo S. de Garcia who was found in possession of the same. The only exception the law allows is when there is acquisition in good faith of the possessor at a public sale, in which case the owner cannot obtain its return without reimbursing the price. As authoritatively interpreted in Cruz v. Pahati, the right of the owner cannot be defeated even by proof that there was good faith in the acquisition by the possessor. There is a reiteration of this principle in Aznar v. Yapdiangco. Thus: Suffice it to say in this regard that the right of the owner to recover personal property acquired in good faith by another, is based on his being dispossessed without his consent. The common law principle that were one of two innocent persons must suffer by a fraud perpetrated by another, the law imposes the loss upon the party who, by his misplaced confidence, has enabled the fraud to be committed, cannot be applied in a case which is covered by an express provision of the new Civil Code, specifically Article 559. Between a common law principle and a statutory provision, the [[ ]] latter must prevail in this jurisdiction. 5 2. It must have been a recognition of the compulsion exerted by the above authoritative precedents that must have caused petitioner to invoke the principle of estoppel. There is clearly a misapprehension. Such a contention is devoid of any persuasive force. [[ ]] [[ ]] Estoppel as known to the Rules of Court 6 and prior to that to the Court of Civil Procedure, 7 has its roots in equity. Good faith is its [[ ]] [[ ]] basis. 8 It is a response to the demands of moral right and natural justice. 9 For estoppel to exist though, it is indispensable that there be a declaration, act or omission by the party who is sought to be bound. Nor is this all. It is equally a requisite that he, who would claim the benefits of such a principle, must have altered his position, having been so intentionally and deliberately led to comport himself thus, by what was declared or what was done or failed to be done. If thereafter a litigation arises, the former would not be allowed to disown such act, declaration or omission. The principle comes into full play. It may successfully be relied upon. A court is to see to it then that there is no turning back on ones word or a repudiation of ones act. So it has been from our earliest [[ ]] decisions. As Justice Mapa pointed out in the first case, a 1905 decision, Rodriguez v. Martinez, 10 a party should not be permitted to go against his own acts to the prejudice of *another+. Such a holding would be contrary to the most rudimentary principles of [[ ]] [[ ]] justice and law. 11 He is not, in the language of Justice Torres, in Irlanda v. Pitargue, 12 promulgated in 1912, allowed to gainsay *his+ own acts or deny rights which *he had+ previously recognized. 13 Some of the later cases are to the effect that an unqualified and unconditional acceptance of an agreement forecloses a claim for interest not therein provided. 14 Equally so the circumstance that about a month after the date of the conveyance, one of the parties informed the other of his being a minor, according to Chief Justice Paras, is of no moment, because *the former's+ previous misrepresentation had already estopped him from disavowing the contract. 15 It is easily understandable why, under the circumstances disclosed, estoppel is a frail reed to hang on to. There was clearly the absence of an act or omission, as a result of which a position had been assumed by petitioner, who if such elements were not

lacking, could not thereafter in law be prejudiced by his belief in what had been misrepresented to him. 16 As was put by Justice Labrador, a person claimed to be estopped must have knowledge of the fact that his voluntary acts would deprive him of some rights because said voluntary acts are inconsistent with said rights. 17 To recapitulate, there is this pronouncement not so long ago, from the pen of Justice Makalintal, who reaffirmed that estoppel has its origin in equity and, being based on moral right and natural justice, finds applicability wherever and whenever the special circumstances of a case so demand. 18 How then can petitioner in all seriousness assert that his appeal finds support in the doctrine of estoppel? Neither the promptings of equity nor the mandates of moral right and natural justice come to his rescue. He is engaged in a business where presumably ordinary prudence would manifest itself to ascertain whether or not an individual who is offering a jewelry by way of a pledge is entitled to do so. If no such care be taken, perhaps because of the difficulty of resisting opportunity for profit, he should be the last to complain if thereafter the right of the true owner of such jewelry should be recognized. The law for this sound reason accords the latter [[ ]] protection. So it has always been since Varela v. Finnick, 19 a 1907 decision. According to Justice Torres: In the present case not only has the ownership and the origin of the jewels misappropriated been unquestionably proven but also that the accused, acting fraudulently and in bad faith, disposed of them and pledged them contrary to agreement, with no right of ownership, and to the prejudice of the injured party, who was thereby illegally deprived of said jewels; therefore, in accordance with the provisions of article [[ ]] 464, the owner has an absolute right to recover the jewels from the possession of whosoever holds them, . 20 There have been [[ ]] many other decisions to the same effect since then. At least nine may be cited. 21 Nor could any other outcome be expected, [[ ]] [[ ]] considering the civil code provisions both in the former Spanish legislation 22 and in the present Code. 23 Petitioner ought to have been on his guard before accepting the pledge in question. Evidently there was no such precaution availed of. He therefore, has only himself to blame for the fix he is now in. It would be to stretch the concept of estoppel to the breaking point if his contention were to prevail. Moreover, there should have been a realization on his part that courts are not likely to be impressed with a cry of distress emanating from one who is in a business authorized to impose a higher rate of interest precisely due to the greater risk assumed by him. A predicament of this nature then does not suffice to call for less than undeviating adherence to the literal terms of a codal provision. Moreover, while the activity he is engaged in is no doubt legal, it is not to be lost sight of that it thrives on taking advantage of the necessities precisely of that element of our population whose lives are blighted by extreme poverty. From whatever angle the question is viewed then, estoppel certainly cannot be justly invoked. WHEREFORE, the decision of the Court of Appeals of May 19, 1969 is affirmed, with costs against petitioner. Concepcion, C.J., Zaldivar, Makasiar, Antonio and Esguerra, JJ., concur. Makalintal and Barredo, JJ., took no part. Castro, J., reserves his vote. JAIME LEDESMA, PETITIONER, VS. THE HONORABLE COURT OF APPEALS AND CITIWIDE MOTORS INC., RESPONDENTS. DECISION DAVIDE, JR., J.: Petitioner impugns the Decision of 22 September 1988 of respondent Court Of Appeals in C.A.-G.R. CV No. 05955 reversing the decision of then Branch XVIII-B (Quezon City) of the then Court of First Instance (now Regional Trial Court) of Rizal in a replevin case, Civil Case No. Q-24200, the dispositive portion of which reads: "Accordingly, the Court orders the plaintiff to return the repossessed Isuzu Gemini, 1977 Model vehicle, subject of this case to the defendant Ledesma. The incidental claim (sic) for damages professed by the plaintiff are dismissed for lack of merit. On defendant's counterclaim, Court (sic) makes no pronouncement as to any form of damages, particularly, moral, exemplary and nominal in view of [3] the fact that Citiwide has a perfect right to litigate its claim, albeit by this pronouncement, it did not succeed." which was supplemented by a Final Order dated 26 June 1980, the dispositive portion of which reads: "IN VIEW OF THE FOREGOING, the Court grants defendant Ledesma the sum of P35,000.00 by way of actual damages recoverable upon plaintiff's replevin bond. Plaintiff and its surety, the Rizal Surety and Insurance Co., are hereby ordered jointly and severally to pay defendant Jaime Ledesma the sum of P10,000.00 as damages for the wrongful issue of the writ of seizure, in line with Rule 57, Sec. 20, incorporated in Rule 60, Sec. 10. In conformity with the rules adverted to, this final order shall form part of the judgment of this Court on September 5, 1979. [4] The motion for reconsideration of the judgment filed by the plaintiff is hereby DENIED for lack of merit. No costs at this instance." The decision of the trial court is anchored on its findings that (a) the proof on record is not persuasive enough to show that defendant, [5] petitioner herein, knew that the vehicle in question was the object of a fraud and a swindle and (b) that plaintiff, private respondent herein, did not rebut or contradict Ledesma's evidence that valuable consideration was paid for it. The antecedent facts as summarized by the respondent Court of Appeals are as follows: "On September 27, 1977, a person representing himself to be Jojo Consunji, purchased purportedly for his father, a certain Rustico T. Consunji, two (2) brand new motor vehicles from plaintiff-appellant Citiwide Motors, Inc., more particularly described as follows: a) One (1) 1977 Isuzu Gemini, 2-door Model PF 50ZIK, with Engine No. 751214 valued at P42,200.00; and b) One (1) 1977 Holden Premier Model 8V41X with Engine No. 198-1251493, valued at P58,800.00. Said purchases are evidenced by Invoices Nos. 3054 and 3055, respectively. (See Annexes A and B). On September 28, 1977, plaintiff-appellant delivered the two-above described motor vehicles to the person who represented himself as Jojo Consunji, allegedly the son of the purported buyer, Rustico T. Consunji, and said person in turn issued to plaintiff-appellant
[1] [2]

Manager's Check No. 066-110-0638 of the Philippine Commercial and Industrial Bank dated September 28, 1977 for the amount of P101,000.00 as full payment of the value of the two (2) motor vehicles. However, when plaintiff-appellant deposited the said check, it was dishonored by the bank on the ground that it was tampered with, the correct amount of P101.00 having been raised to P101,000.00 per the bank's notice of dishonor. (Annexes F and G). On September 30, 1977, plaintiff-appellant reported to the Philippine Constabulary the criminal act perpetrated by the person who misrepresented himself as Jojo Consunji and in the course of the investigation, plaintiff appellant learned that the real identity of the wrongdoer/impostor is Armando Suarez who has a long line of criminal cases against him for estafa using this similar modus operandi. On October 17, 1977, plaintiff-appellant was able to recover the Holden Premier vehicle which was found abandoned somewhere in Quezon City. On the other hand, plaintiff-appellant learned that the 1977 Isuzu Gemini was transferred by Armando Suarez to third persons and was in the possession of one Jaime Ledesma at the time plaintiff-appellant instituted this action for replevin on November 16, 1977. In his defense, Jaime Ledesma claims that he purchases (sic) and paid for the subject vehicle in good faith from its registered owner, one Pedro Neyra, as evidenced by the Land Transportation Commission Registration Certificate No. RC01427249. After posting the necessary bond in the amount double the value of the subject motor vehicle, plaintiff-appellant was able to recover [6] possession of the 1977 Isuzu Gemini as evidenced by Atilt Sheriff's Return dated January 23, 1978. After trial on the merits, the lower court rendered the decision and subsequently issued the Final Order both earlier adverted to, which plaintiff (private respondent herein) appealed to the respondent Court of Appeals; it submitted the following assignment of errors: "The trial court erred: I IN HOLDING THAT THE DEFENDANT IS ENTITLED TO THE POSSESSION OF THE CAR; II IN HOLDING THAT THE DEFENDANT IS AN INNOCENT PURCHASER IN GOOD FAITH AND FOR VALUE; III IN RULING THAT THE PLAINTIFF SHOULD RETURN THE CAR TO DEFENDANT, DISMISSING ITS CLAIM FOR DAMAGES, AND GRANTING DEFENDANT P35,000.00 DAMAGES RECOVERABLE AGAINST THE REPLEVIN BOND AND P10,000.00 DAMAGES FOR ALLEGED WRONGFUL SEIZURE; IV [7] IN RENDERING THE DECISION DATED SEPTEMBER 3, 1979 AND THE FINAL ORDER DATED JUNE 26, 1980." In support of its first and second assigned errors, private respondent cites Article 559 of the Civil Code which provides: "ARTICLE 559. The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same. If the possessor of a movable lost or of which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor." Without in any way reversing the findings of the trial court that herein petitioner was a buyer in good faith and for valuable consideration, the respondent Court ruled that: Under Article 559, Civil Code, the rule is to the effect that if the owner has lost a thing, or if he has been unlawfully deprived of it, he has a right to recover it not only from the finder, thief or robber, but also from third persons who may have acquired it in good faith from such finder, thief or robber. The said article establishes two (2) exceptions to the general rule of irrevendicability (sic), to wit: when the owner (1) has lost the thing, or (2) has been unlawfully deprived thereof. In these cases, the possessor cannot retain the thing as against the owner who may recover it without paying any indemnity, except when the possessor acquired it in a public sale. (Aznar vs. Yapdiangco, 13 SCRA 486). Put differently, where the owner has lost the thing or has been unlawfully deprived thereof, the good faith of the possessor is not a bar to recovery of the movable unless the possessor acquired it in a public sale of which there is no pretense in this case. Contrary to the court's assumption, the issue is not primarily the good faith of Ledesma for even if this were true, this may not be invoked as a valid defense, if it be shown that Citiwide was unlawfully deprived of the vehicle. In the case of Dizon vs. Suntay, 47 SCRA 160, the Supreme Court had occasion to define the phrase unlawfully deprived, to wit: x x x it extends to all cases where there has been no valid transmission of ownership including depositary or lessee who has sold the same. It is believed that the owner in such a case is undoubtedly unlawfully deprived of his property and may recover the same from a possessor in good faith. x x x In the case at bar, the person who misrepresented himself to be the son of the purported buyer, Rustico T. Consunji, paid for the two (2) vehicles using a check whose amount has been altered from P101.00 to P101,000.00. There is here a case of estafa. Plaintiff was unlawfully deprived of the vehicle by false pretenses executed simultaneously with the commission of fraud (Art. 315 2(a) R.P.C.). Clearly, Citiwide would not have parted with the two (2) vehicles were it not for the false representation that the check issued in [8] payment thereupon (sic) is in the amount of P101,000.00, the actual value of the two (2) vehicles. In short, said buyer never acquired title to the property; hence, the Court rejected the claim of herein petitioner that at least, Armando Suarez had a voidable title to the property. [9] His motion for reconsideration having been denied in the resolution of the respondent Court of 12 December 1988, petitioner filed this petition alleging therein that: A

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING ARTICLE 559 OF THE NEW CIVIL CODE TO THE INSTANT CASE DESPITE THE FACT THAT PRIVATE RESPONDENT CITIWIDE MOTORS, INC. WAS NOT UNLAWFULLY DEPRIVED OF THE SUBJECT CAR, AS IN FACT CITIWIDE VOLUNTARILY PARTED WITH THE TITLE AND POSSESSION OR (sic) THE SAME IN FAVOR OF ITS IMMEDIATE TRANSFEREE. B THE FACTUAL MILIEU OF THE INSTANT CASE FALLS WITHIN THE OPERATIVE EFFECTS OF ARTICLES 1505 AND 1506 OF THE NEW CIVIL CODE CONSIDERING THAT THE IMMEDIATE TRANSFEREE OF THE PRIVATE RESPONDENT CITIWIDE MOTORS, INC., ACQUIRED A VOIDABLE TITLE OVER THE CAR IN QUESTION WHICH TITLE WAS NOT DECLARED VOID BY A COMPETENT COURT PRIOR TO THE ACQUISITION BY THE PETITIONER OF THE SUBJECT CAR AND ALSO BECAUSE PRIVATE RESPONDENT, BY ITS OWN CONDUCT, IS NOW [10] PRECLUDED FROM ASSAILING THE TITLE AND POSSESSION BY THE PETITIONER OF THE SAID CAR. There is merit in the petition. The assailed decision must be reversed. The petitioner successfully proved that he acquired the car in question from his vendor in good faith and for valuable consideration. According to the trial court, the private respondent's evidence was not persuasive enough to establish that petitioner had knowledge that the car was the object of a fraud and a swindle and that it did not rebut or contradict petitioner's evidence of acquisition for valuable consideration. The respondent Court concedes to such findings but postulates that the issue here is not whether petitioner acquired the vehicle in that concept but rather, whether private respondent was unlawfully deprived of it so as to make Article 559 of the Civil Code apply. It is quite clear that a party who (a) has lost any movable or (b) has been unlawfully deprived thereof can recover the same from the present possessor even if the latter acquired it in good faith and has, therefore, title thereto for under the first sentence of Article 559, such manner of acquisition is equivalent to a title. There are three (3) requisites to make possession of movable property equivalent to title, namely: (a) the possession should be in good faith; (b) the owner voluntarily parted with the possession of the thing; and (c) the [11] possession is in the concept of owner. Undoubtedly, one who has lost a movable or who has been unlawfully deprived of it cannot be said to have voluntarily parted with the possession thereof. This is the justification for the exceptions found under the second sentence of Article 559 of the Civil Code. The basic issue then in this case is whether private respondent was unlawfullydeprived of the cars when it sold the same to Rustico Consunji, through a person who claimed to be Jojo Consunji, allegedly the latter's son, but who nevertheless turned out to be Armando Suarez, on the faith of a Manager's Check with a face value of P101,000.00, dishonored for being altered, the correct amount being only P101.00. Under this factual milieu, the respondent Court was of the opinion, and thus held, that private respondent was unlawfully deprived of the car by false pretenses. We disagree. There was a perfected unconditional contract of sale between private respondent and the original vendee. The former voluntarily caused the transfer of the certificate of registration of the vehicle in the name of the first vendee -- even if the said vendee was represented by someone who used a fictitious name -- and likewise voluntarily delivered the cars and the certificate of registration to the vendees alleged representative. Title thereto was forthwith transferred to the vendee. The subsequent dishonor of the check because of the alteration merely amounted to a failure of consideration which does not render the contract of sale void, but merely allows the prejudiced party to sue for specific performance or rescission of the contract, and to prosecute the impostor for estafa under Article 315 of the Revised Penal Code. This is the rule enunciated in EDCA Publishing and Distributing Corp. vs. [12] Santos, the facts of which do not materially and substantially differ from those obtaining in the instant case. In said case, a person identifying himself as Professor Jose Cruz, dean of the De la Salle College, placed an order by telephone with petitioner for 406 books, payable upon delivery. Petitioner agreed, prepared the corresponding invoice and delivered the books as ordered, for which Cruz issued a personal check covering the purchase price. Two (2) days later, Cruz sold 120 books to private respondent Leonor Santos who, after verifying the seller's ownership from the invoice the former had shown her, paid the purchase price of P1,700.00. Petitioner became suspicious over a second order placed by Cruz even before his first check had cleared; hence, it made inquiries with the De la Salle College. The latter informed the petitioner that Cruz was not in its employ. Further verification revealed that Cruz had no more account or deposit with the bank against which he drew the check. Petitioner sought the assistance of the police which then set a trap and arrested Cruz. Investigation disclosed his real name, Tomas de la Pea, and his sale of 120 of the books to Leonor Santos. On the night of the arrest, the policemen whose assistance the petitioner sought, forced their way into the store of Leonor and her husband, threatened her with prosecution for the buying of stolen property, seized the 120 books without a warrant and thereafter turned said books over to the petitioner. The Santoses then sued for recovery of the books in the Municipal Trial Court which decided in their favor; this decision was subsequently affirmed by the Regional Trial Court and sustained by the Court of Appeals. Hence, the petitioner came to this Court by way of a petition for review wherein it insists that it was unlawfully deprived of the books because as the check bounced for lack of funds, there was failure of consideration that nullified the contract of sale between it arid the impostor who then acquired no title over the books. We rejected said claim in this wise: "The contract of sale is consensual and is perfected once agreement is reached between the parties on the subject matter and the consideration. According to the Civil Code: ART. 1475. The contract of sale is perfected at the moment there is a meeting of minds upon the thing which is the object of the contract and upon the price. From that moment, the parties may reciprocally demand performance, subject to the provisions of the law governing the form of contracts. x x x ART. 1477. The ownership of the thing sold shall be transferred to the vendee upon the actual or constructive delivery thereof. ART. 1478. The parties may stipulate that ownership in the thing shall not pass to the purchaser until he has fully paid the price.

It is clear from the above provisions, particularly the last one quoted, that ownership in the thing sold shall not pass to the buyer until full payment of the purchase price only if there is a stipulation to that effect. Otherwise, the rule is that such ownership shall pass from the vendor to the vendee upon the actual or constructive delivery of the thing soldeven if the purchase price has not yet been paid. Non-payment only creates a right to demand payment or to rescind the contract, or to criminal prosecution in the case of bouncing checks. But absent the stipulation above noted, delivery of the thing sold willeffectively transfer ownership to the buyer who can in [13] turn transfer it to another." [14] In the early case of Chua Hai vs. Hon. Kapunan, one Roberto Soto purchased from the Youngstown Hardware, owned by private respondent, corrugated galvanized iron sheets and round iron bars for P6,137.70; in payment thereof, he issued a check drawn against the Security Bank and Trust Co. without informing Ong Shu that he (Soto) had no sufficient funds in said bank to answer for the same. In the meantime, however, Soto sold the sheets to, among others, petitioner Chua Hai. In the criminal case filed against Soto, upon motion of the offended party, the respondent Judge ordered petitioner to return the sheets which were purchased from Soto. Petitioner's motion for reconsideration having been denied, he came to this Court alleging grave abuse of discretion and excess of jurisdiction. In answer to the petition, it is claimed that inter alia, even if the property was acquired in good faith, the owner who has been unlawfully deprived thereof may recover it from the person in possession of the same unless the property was acquired in good [15] faith at a public sale. Resolving this specific issue, this Court ruled that Ong Shu was not illegally deprived of the possession of the property: "x x x It is not denied that Ong Shu delivered the sheets to Soto upon a perfected contract of sale, and such delivery transferred title or ownership to the purchaser. Says Art. 1496: Art. 1496. The ownership of the thing sold is acquired by the vendee from the moment it is delivered to him in any of the ways specified in articles 1497 to 1501, or in any other manner signifying an agreement that the possession is transferred from the vendor to the vendee. (C.C.) The failure of the buyer to make good the price does not, in law, cause the ownership to revest in the seller until and unless the bilateral contract of sale is first rescinded or resolved pursuant to Article 1191 of the new Civil Code. And, assuming that the consent of Ong Shu to the sale in favor of Soto was obtained by the latter through fraud or deceit, the contract was not thereby rendered void ab initio, but only voidable by reason of the fraud, and Article 1390 expressly provides that: ART. 1390. The following contracts are voidable or annullable, even though there may have been no damage to the contracting parties: (1) Those where one of the parties is incapable of giving consent to a contract; (2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud. These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification. Agreeably to this provision, Article 1506 prescribes: ARTICLE 1506. Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller's defect of title.' (C.C.) Hence, until the contract of Ong Shu with Soto is set aside by a competent court assuming that the fraud is established to its satisfaction), the validity of appellant's claim to the property in question can not be disputed, and his right to the possession thereof [16] should be respected." It was therefore erroneous for the respondent Court to declare that the private respondent was illegally deprived of the car simply because the check in payment therefor was subsequently dishonored; said Court also erred when it divested the petitioner, a buyer in good faith who paid valuable consideration therefor, of his possession thereof. WHEREFORE, the challenged decision of the respondent Court of Appeals of 22 September 1988 and its Resolution of 12 December 1988 in C.A.-G.R. CV No. 05955 are hereby SET ASIDE and the Decision of the trial court of 3 September 1979 and its Final Order of 26 June 1980 in Civil Case No. Q-24200 are hereby REINSTATED, with costs against private respondent Citiwide Motors, Inc. SO ORDERED. LEONARDO AZARCON, MANUEL AZARCON and ESTEBAN ABOBO, petitioner, vs. VICTOR EUSEBIO, respondent. Leonardo N. Azarcon in his own behalf and for his co-petitioners. Melion Pajarillaga for respondent. LABRADOR, J.: Appeal from an order of the Court of Appeals, Fourth Division, in CA-G.R. No. 15444-R, promulgated September 5, 1956, finding Leonardo Azarcon, Manuel Azarcon and Esteban Abobo guilty of contempt of court, ordering each of them to pay a fine of P100, to remove certain improvements that they have constructed on the land, etc. The record discloses that respondent Victor Eusebio and petitioners herein had a dispute over the possession of a certain parcel of public land in the year 1954. Victor Eusebio had filed a lease application, No. V-79, for a parcel of land known as lot No. 3807, containing an area of about 349 hectares. A portion thereof was occupied by petitioners herein, Leonardo L. Azarcon and his companions, under a homestead application. The conflict between the lessee and the homesteaders was ordered to be investigated on May 25, 1955 by the Director of Lands and again on August 3, 1955 by the Secretary of Agriculture and natural Resources. Before the dispute could be settled and on April 28, 1954, Victor Eusebio filed a complaint in the Court of First Instance of Nueva Ecija, alleging that he had acquired a big parcel of land, 349 hectares in area, by lease from the Bureau of Lands (lease application

No. V-79); that while he was in possession thereof defendants occupied a portion, known as lot No. 2807, containing an area of six hectares more or less. He, therefore, prayed that defendants be ordered to vacate the six hectares occupied by them and pay damages. Defendant Leonardo Azarcon answered the complaint alleging that he is in actual possession of a portion of 24 hectares since 1941 by virtue of a homestead application, No. V-42995; that the lease application of plaintiff is subsequent to said homestead application of Leonardo Azarcon; that Azarcon had occupied the land since 1941 with interruption during the war and again in 1950 up to the time of the filing of the action. He, therefore, prayed that the action be dismissed. The answer was filed on June 2, 1954 and on motion of plaintiffs dated March 15, 1955, the defendants were declared in default. A motion to set aside the default was denied, and a judgment by default was entered by the court on April 26, 1955. It ordered defendants to restore possession of the land to plaintiff. Having failed to obtain a reconsideration of the above decision, defendants appealed to the Court of Appeals. While the case was pending in the Court of Appeals, a writ for the execution of the judgment of the lower court was issued on October 3, 1955. On October 8, 1955, defendants moved and the court on October 21 ordered that the said writ of execution be stayed upon defendants' depositing of a supersedeas bond of P1,000. The writ of execution was actually served on the defendants on October 7, 1955. Various petitions were submitted by the parties, and among them was that of defendants-appellants asking for the lifting of the writ of execution. This petition, dated October 14, 1955, was granted on November 1, 1955, and the court again fixed the supersedeas bond to stay execution in the amount of P1,000 to be filed with and approved by the Court of First Instance of Nueva Ecija as to its sufficiency. In the same order of November 7, the Court of Appeals denied a petition of the plaintiff-appellee to file a countersupersedeas bond as well as plaintiff appellee's motion for injunction. In the meanwhile the defendants-appellants had presented on November 21, 1955 the supersedeas bond required for the approval of the Court of First Instance of Nueva Ecija and the said bond was filed and approved on November 21, 1955. This fact was certified to by the clerk of the Court of First Instance of Nueva Ecija on November 14, 1955. On December 2, 1955 the Court of Appeals on motion of plaintiff, reconsidered its order or resolution of November 7, 1955 authorizing the stay of execution upon the filing of the bond by the defendants-appellants, on the ground that the defendantsappellants have not filed any supersedeas bond as required. On January 19, 1956, the Court of Appeals denied a petition of defendants-appellants to reconsider said order of December 2, 1955 on the ground that the writ of execution issued on October 3, 1955 had already been executed. The following appear to be clear: (a) the writ of execution dated October 3, 1955 was furnished the defendants on October 7, 1955; (b) said order of execution was set aside in an order of October 21, 1955, which order authorized the defendants-appellants to file a supersedeas bond in the amount of P1,000, the same to be approved by the Court of First Instance of Nueva Ecija; (c) said supersedeas bond was filed with Court of First Instance on November 21, 1955, but the certificate showing such filing of the bond was issued by the clerk of the Court of First Instance of Nueva Ecija only on December 14, 1955; and the Court of Appeals, not having been notified of the fact that the defendants have already secured the approval of their supersedeas bond, set aside the order to stay execution on December 2, 1955. The evidence shows that in spite of the receipt by the defendants of the notice of the writ of execution of October 3, 1955, which writ of execution commanded defendants "to forthwith remove from said premises and that plaintiff have restitution of the same," defendants-appellants nevertheless entered the land to gather palay which was then pending harvest. We gather further from the record that the rice found on the disputed land at the time of the service of the order of execution had been planted by defendantsappellants, who appear to have been in possession of the land from 1951. While the court order of October 3, 1955 ordered the defendant-appellant to move out from the premises, it did not prohibit them from gathering the crop then existing thereon. Under the law a person who is in possession and who is being ordered to leave a parcel of land while products thereon are pending harvest, has the right to a part of the net harvest, as expressly provided by Article 545 of the Civil Code. ART. 545. If at the time the good faith ceases, there should be any natural or industrial fruits, the possessor shall have a right to a part of the expenses of cultivation, and to a part of the net harvest, both in proportion to the time of the possession. xxx xxx xxx As the order of execution did not expressly prohibit the defendants-appellants from gathering the pending fruits, which fruits were the result of their possession and cultivation of the land, it cannot be said that the defendants-appellants committed an act which is clear violation of the courts' order. Besides, the defendants-appellants had presented, after receipt of the order of execution, a motion to set aside the said order of execution, and this motion to stay execution was granted. Defendants furthermore presented a bond in accordance with the order of the court and had it approved by the Court of First Instance. It was perhaps in expectation of this resolution of the court setting aside the order of execution that defendants-appellants may have felt justified in entering the land and harvesting the fruits existing thereon. Again the order of the court setting aside its order to stay execution was issued in the belief that the defendants-appellants had not presented before the Court of First Instance of Nueva Ecija and which said court actually approved). Under the circumstances above stated, we are not ready to conclude that the defendants-appellants can be held to have committed a clear defiance of the order of the court. Their act in harvesting the pending fruits was not only justified by law but was not expressly prohibited by the court's order, and was even ratified when the court ordered the suspension of the execution. There was, therefore, no open, clear and contumacious refusal to obey a definite order of the court such as would constitute contempt. Furthermore, a person who has been ordered to leave certain premises is ordinarily not prohibited from taking with him his own effects and possession, unless there is an express prohibition to this effect. No such, prohibition was contained in the order for the defendants to leave the land. There may have been a technical violation of an order not to enter the premises, but not of one prohibiting them from removing anything therefrom. Such technical violation of the order cannot be considered as one amounting to a defiance of the court's authority, punishable as contempt.

For the foregoing considerations, the order appealed from should be, as it is hereby, set aside, and the defendants-appellants acquitted of the charge against them. Without costs. Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion and Endencia, JJ., concur. FELIPA CORDERO (Deceased) MAURO OCAMPO, CASIMIRO OCAMPO and ELISEA OCAMPO, petitioners, vs. VICTORIA P. CABRAL, ALEJANDRO BERBOSO, DALMACIO MONTAOS and HONORABLE COURT OF APPEALS, respondents. ABAD SANTOS, J.: Petition to review a decision of the defunct Court of Appeals. In Civil Case No. 2323 of the defunct Court of First Instance of Bulacan, Felipa Cordero and her children Mauro, Casimiro and Elisea all surnamed Ocampo sued Victoria Cabral, Alejandro Berboso and Dalmacio Montaos in aComplaint which reads as follows: 1. That the plaintiffs are all of legal age, all residing and with postal address at Meycauayan, Bulacan; Felipa Cordero is a widow while Elisea Ocampo is single; and the defendants are all of legal age, Victoria P. Cabral is married but she is living apart and separate from her husband so the latter is not included herein as party defendant, and all of them are residing and with postal address at Meycauayan, Bulacan, where they may be served with summons; 2. That Mr. Gregorio Z. Ocampo of Meycauayan, Bulacan, husband of the plaintiff Felipa Cordero and father of the other plaintiffs surnamed Ocampo, died on May 17, 1958, and that said deceased left several properties, which were inherited by the plaintiffs, one of which is a parcel of land described as follows: A parcel of land (Lot No. 5, plan Psu-43302), with the improvements thereon, situated in the barrio of Saluysoy, Municipality of Meycauayan. Bounded on the N. by Sapa and properties of Pedro Dazo and Catalino Exaltacion; on the NE. by property of Trinidad Rodriguez & Mateo Mistica; on the SE. by properties of Vicente Mistica, Antonio Rodriguez, Hermogenes Blanco, Lucio Sulbera and Pablo Francia; on the SW. by properties of Concepcion Rodriguez and Alejandro de la Cruz; and on NW. by a Sapa ... ; containing an area of Seventy-eight thousand one hundred and eighty-one square meters (78,181), more or less. With TRANSFER CERTIFICATE OF TITLE NO. 14513 in the name of Gregorio Z. Ocampo and has Tax Declaration No. 2819 and is assessed at P4,290.00. which parcel of land was originally registered in accordance with the Land Registration Act on December 14, 1933, and was registered and/or transferred in the name of Mr. Gregorio Z. Ocampo on July 31, 1934; 3. That after the death of the said Mr. Gregorio Z. Ocampo the plaintiffs herein took possession of the properties left by him, among others is the afore-described parcel of land which is a riceland, but they found out that the southern portion of the same with an area 4,303 square meters, more or less, upon verification, was possessed by the defendants herein, Victoria P. Cabral, Alejandro Berboso and Dalmacio Montaos and that the defendant Victoria P. Cabral claimed to be the owner of said portion while her co-defendants co-possessed the same as her tenants; 4. That the plaintiffs demanded of the defendants to surrender to the former possession of the afore-mentioned portion of land and/or vacate it but they refused and failed to do so, and the defendant Victoria P. Cabral continued claiming to be the owner of the same while her co-defendants continued recognizing her as the owner thereof instead of the plaintiffs; that the plaintiffs had the afore-described parcel of land (with T.C.T. No. 14513) relocated in the presence of the defendants' representatives and it was found and/or determined that the afore-said portion of land with the area of 4,303 square meters, more or less, was a part of the plaintiffs' land with T.C.T. No. 14513; that even after the said relocation the defendant Victoria P. Cabral persisted and still persist in her claim of ownership over the said portion and her co-defendants persisted and still persist in recognizing her as the owner thereof instead of the plaintiffs; that the defendants continue in possession of the same; and that the defendants still refuse and fail to surrender and/or vacate said portion of land inspite of demands made on them by the plaintiffs; 5. That because of the defendants' occupancy of the aforementioned plaintiffs' portion of land with the area of 4,303 square meters, more or less, to the exclusion of the latter, the said plaintiffs failed to realize a yearly harvest of at least ten (10) cavanes of palay at the rate of P10.00 per cavan, from the harvest-time of 1958 up to the present; 6. That because of the defendants' refusal to recognize plaintiffs' ownership over the afore-mentioned portion of land and also because of their refusal and failure to surrender and/or vacate the same the plaintiffs were forced to employ the services of the undersigned counsel to institute this action at an agreed fees of P500.00. WHEREFORE, premises considered, the plaintiffs herein respectfully pray of this Hon. Court to render judgment in favor of the plaintiffs and against the defendants thus ordering them: a) To recognize the ownership of the plaintiffs over the afore- mentioned portion of land with an area of 4,303 square meters, more or less, and to surrender it to the plaintiffs or vacate the same;

b) To deliver, jointly and severally, to the plaintiffs palay in the amount of ten (10) cavanes or pay their market price at the rate of P10.00 per cavan per harvest-time beginning the year 1958 up to the time of their delivery or payment. c) To pay, jointly and severally, the plaintiffs' lawyer's fees in the amount of P500.00; and d) To pay the costs of this suit. And to grant any remedy and relief just and equitable in the premises." (Record on Appeal, pp. 2-6.) The Answer of the defendants contains the following allegations: I. That defendants have no knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 2 of the complaint; II. That defendants admit being in possession of the portion of land alleged in paragraph 3 of the complaint, as said portion of land belongs to defendant Victoria P. Cabral; III. That defendants deny the allegation in paragraph 4 of the complaint to the effect that the said portion of 4,303 square meters, more or less, is a part of the plaintiffs' land; IV. That defendants have no knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 5 of the complaint; V. That defendants likewise have no knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 6 of the complaint; And by way of SPECIAL DEFENSE, defendants allege: VI. That defendant Victoria P. Cabral and her predecessors in interest before her are the real owners, and have been in actual, adverse, peaceful and continuous possession, of that portion of land claimed by the plaintiffs in their complaint, which portion is more particularly described as Lot 5-B of plan Psd-11496, duly approved by the Director of Lands on December 21, 1935; VII. That the deceased Gregorio Z. Ocampo and/or his heirs, the herein plaintiffs, have admitted, acknowledged and recognized the defendant Cabral and her predecessors in said portion of land, as the real owners thereof; VIII. That the deceased Gregorio Z. Ocampo and his predecessors in interest, as well as the defendant Cabral and her predecessors in interest, have always recognized as the boundary between their respective properties, a barrio road which has existed since the Spanish regime and has continued to exist up to the present time; and all the residents of the rural areas using said barrio road know for a fact that, with respect to the respective properties of the parties hereto, said road is the boundary between said properties; IX. That the inclusion of that portion claimed by the plaintiffs in their complaint in the original registration of their property was obtained thru error or fraud by the original applicant, but was never possessed by him nor by his successors in interest, as they have always openly recognized the ownership of said portion as belonging to defendant Cabral and her predecessors in interest before her; And by way of COUNTER CLAIM, defendants allege: X. That all the foregoing paragraphs are pleaded herein and made parts hereof; XI. That the defendant Victoria P. Cabral is the real owner of Lot No. 5- B, plan Psd-11496, with an area of 4,303 square meters, more or less, erroneously or fraudulently included in the property described in Transfer Certificate of Title No. 14513 of the Register of Deeds of the Province of Bulacan, registered in the name of the deceased Gregorio Z. Ocampo and now claimed by the herein plaintiffs; XII. That defendant Cabral and her predecessors in interest have been in possession of said portion of land for more than fifty years, their possession being actual, adverse, peaceful and continuous, as owners thereof; XIII. That said deceased Gregorio Z. Ocampo and/or his heirs, and their predecessors in interest have openly admitted, acknowledged and recognized the defendant Victoria P. Cabral and her predecessors in interest as the real owners of said portion of land, Lot 5-B plan Psd-11496, and said Gregorio Z. Ocampo and/or his heirs and their predecessors in interest have never been in possession of said portion of land; XIV. That the plaintiffs, claiming to be the heirs of the deceased Gregorio Z. Ocampo, are therefore under obligation to execute a deed of transfer of said portion of land in favor of the true owner thereof, the herein defendant Victoria P. Cabral, in accordance with law; XV. That because of the present action filed by the plaintiffs, the defendants have suffered damages in the amount of Pl,000.00; WHEREFORE, defendants pray that judgment be rendered: (a) dismissing the complaint, with costs against the plaintiffs; (b) declaring the defendant Victoria P. Cabral as the owner of Lot 5-B, plan Psd- 11496, which has been erroneously included in the property of the deceased Gregorio Z. Ocampo covered by Transfer Certificate of Title No. 14513, Bulacan, and ordering the herein plaintiffs to execute a deed of transfer of said Lot No. 5-B, plan Psd-11 496 in favor of the defendant Victoria P. Cabral; and (c) ordering the plaintiffs to pay to the defendants the sum of P l,000.00. Defendants further pray for such other reliefs and remedies which may be proper and just under the premises. (R.A., pp. 8-13.) The plaintiffs filed a Reply and Answer to Counterclaim as follows:

1. That the plaintiffs deny the allegation in paragraph II of the Answer that the portion of land now under litigation belongs to the defendant Victoria P. Cabral, and likewise deny the allegations in paragraphs VI and XI of the same that the defendant Victoria P. Cabral and her predecessors in interest are the real owners of this portion (under litigation) with an area of 4,303 square meters, Lot 5-B of plan Psd-11496 with Transfer Certificate of Title No. 14513 in the name of Mr. Gregorio Z. Ocampo, because the truth is that the said Mr. Ocampo and his successors in interest, the plaintiffs herein, are the real owners thereof; and that said portion is a part and is included in the plaintiffs' big parcel of land known as Lot 5, Psu-43302, and covered by the afore-mentioned Certificate; That the defendant Victoria P. Cabral and her predecessors in interest were never the owners of the said portion of land and in fact none of them, much less Victoria P. Cabral, has been in possession or in possession of any title or any document. either public or private, showing his or her ownership, and not even a Tax Declaration for taxation purposes; the truth is that when the late Mr. Antonio Rodriguez, original owner of the land with plan Psu100536, adjacent to that of the plaintiffs, sold said land to his successor Segunda Prodon he did not include in the said sale this portion, under litigation, Lot 5-B, of plan Psd-11496 with an area of 4,303 square meters, more or less, knowing that it did not belong to him; and because of Segunda Prodon has not acquired this portion of land with an area of 4,303 square meters, more or less, it is clear, therefore, that she could not have transmitted it to her successors including the herein defendant, Victoria P. Cabral; 2. That the plaintiffs deny the defendants' allegations in paragraphs VI and XII of their Answer that the defendant Victoria P. Cabral and her predecessors in interest have been in actual, adverse, peaceful and continuous possession of this portion of land for a period of more than 50 years because the truth is that, if they were ever in possession of the same, their possession was 'not adverse' and 'not continuous'. When Mr. Gregorio Z. Ocampo bought the parcel of land known as Lot 5, Psu-43302 with an area of 78,181 square meters, more or less, in 1934, (wherein this portion under litigation is included) the said Mr. Ocampo took possession of this whole land. In the year 1935 the adjoining owner of the said property, the late Mr. Antonio Rodriguez and predecessor of the defendant Victoria P. Cabral, requested Mr. Ocampo to sell to him a portion of said land with an area of 4,303 square meters, more or less, to which Mr. Ocampo agreed. As there was already a meeting of the mind Mr. Rodriguez requested Mr. Ocampo that he be allowed to possess the said portion as they were going to make the formal deed of sale, to which proposition Mr. Ocampo likewise agreed. This proposed sale never materialized so if Mr. Rodriguez ever possessed the said portion of land, now under litigation, he did not possess it as owner but only as a 'prospective owner'. His possession cannot, therefore, be termed 'adverse'. Such possession cannot also be termed 'continuous' for 50 years because Mr. Ocampo was in possession of the same in 1934 before Mr. Rodriguez came in possession of the same, first, with the consent and later by toleration of Mr. Ocampo. Granting but without admitting, that the defendant Cabral and her predecessors in interest have been in possession of this portion of land with an area of 4,303 square meters, more or less for more than 50 years, does she mean to imply now that she acquires ownership over the same by virtue of 'prescription' She must remember that this property is titled under Act 496 and, therefore, 'imprescriptible', 3. That the plaintiffs deny the defendants' allegations in paragraphs VI and IX of their Answer that the plaintiffs have admitted, acknowledged and recognized the defendant Cabral and her predecessors in said land as the real owners thereof, because the truth is that the plaintiffs are the real owners of the same, and that they have never admitted, acknowledged nor recognized the defendant Cabral nor any of her predecessors in interest as the owners of said portion of land; 4. That the plaintiffs admit he allegation in paragraph VIII of the Answer that the defendant Victoria P. Cabral owns an adjoining property which is described in her plan Psu-100536 but they deny there is a 'barrio road' between her land and that of the plaintiffs which serves as the boundary and that there has never been any road much less a barrio road between their properties. That, if the defendants are referring to Lot 5-B, plan Psd- 11496, and the rest of the land of the plaintiffs Lot No. 5, Psu-43302, which said Lot 5-B is a part, the plaintiffs deny the existence of such road much less a barrio road, and that there has never been a road therein. With the permission of the Hon. Court the existence or non-existence of a road can be verified by an ocular inspection and if need be with the aid of a licensed surveyor; 5. That the plaintiffs deny the allegations in paragraphs IX and XIII of the Answer that Mr. Gregorio Z. Ocampo and his successors in interest have never been in possession of this portion of land now under litigation. Mr. Gregorio Z. Ocampo took possession of said property after he bought it in 1934 and if the predecessors in interest of the defendant Cabral happened to be in its possession it was, first, with the consent of Mr. Ocampo and later by his toleration as we have already explained in paragraph 2 of this Reply; 6. That the plaintiffs deny the allegation in paragraph IX of the Answer that the inclusion of this portion of property under litigation was 'obtained thru error or fraud' by the original applicant, and they likewise deny the allegation in paragraph XI of the Answer that this portion with an area of 4,303 square meters, more or less, was erroneously and fraudulently included in the property described in Transfer Certificate of Title No. 14513 of the Register of Deeds of the Province of Bulacan, because in truth and in fact there was no such error or fraud. The title of this property was granted and obtained in a regular proceeding. If there was any error or fraud the predecessor in interest of the defendant Victoria P. Cabral would have filed a petition for review or would have sued for damages. Or the said defendant or any of her predecessors in interest would have resorted to some legal remedy.

The fact is that the defendant Victoria P. Cabral or any of her predecessors in interest did not sincerely and honestly believe that they were the owners of this portion of property. In fact they did not have and do not have any kind of title or any kind of document, either public or private, over this property and they did not even have this property declared in their names for taxation purposes. Granting, but without admitting, that the title to this property was obtained either by error or fraud yet the defendant Victoria P. Cabral can have no valid claim against the plaintiffs because she has never been the owner of said property and also because the plaintiffs' predecessor, Mr. Gregorio Z. Ocampo, acquired this property as 'an innocent purchaser, in good faith and for value. 7. That the plaintiffs deny the allegation in paragraph XIV of the Answer that the plaintiffs are under obligation to execute a deed of transfer of the portion of land in favor of the defendant Victoria P. Cabral because, first, the title to this land was obtained in a regular proceeding where there was neither error nor fraud; second, said defendant or her predecessors in interest are not the owners of said land much less said defendant Cabral who has nothing at all in her possession to show any kind of right over said portion of land, and third, Mr. Gregorio Z. Ocampo, the predecessor in interest of the plaintiffs, acquire this property as an 'innocent purchaser, in good faith and for value', and 8. That the plaintiffs have no knowledge or information sufficient to form a belief as to the truth of the allegation in paragraph XV of the defendants, Answer (Counterclaim). WHEREFORE, it is respectfully prayed of this Hon. Court to grant the plaintiffs Petition in their Complaint." (R.A., pp. 14-21.) It can be seen that the thrust of the Complaint is that a piece of land covered by T.C.T. No. 14513 in the name of Gregorio Z. Ocampo was illegally possessed by the defendants. Upon the other hand, the thrust of the Answer is that "the defendant Victoria P. Cabral is the real owner of Lot No. 5-B, plan Psd-11496, with an area of 4,303 square meters, more or less, erroneously or fraudulently included in the property described in Transfer Certificate of Title No. 14513 of the Register of Deeds of the Province of Bulacan, registered in the name of the deceased Gregorio Z. Ocampo and now claimed by the herein plaintiffs." (Answer, par. XI.) The decision of the trial court is not clear as to whether or not the disputed lot is included in T.C.T. No. 14513. However, the decision contains the following statement: "if it is included in their title, such title is void insofar as the portion of the Pandayan road is concerned." (R.A., p. 30.) The trial court gave the following judgment: WHEREFORE, plaintiffs' complaint is hereby DISMISSED, without costs. For lack of proof that plaintiffs were in bad faith in the filing of the present action, defendants' counter-claim is likewise dismissed. (R.A., p. 30.) The plaintiffs appealed to the Court of Appeals and made the following assignment of errors: I. THE LOWER COURT ERRED IN HOLDING THAT THE PANDAYAN ROAD IS LOCATED INSIDE THE PROPERTY DESCRIBED IN T.C.T. NO. 14513 AND INCONSEQUENTLY HOLDING THAT THE SAME CONSTITUTES THE BOUNDARY LINE BETWEEN THE PROPERTIES OF PLAINTIFFS-APPELLANTS AND DEFENDANT-APPELLEE VICTORIA CABRAL. II. THE LOWER COURT ERRED IN HOLDING THAT T.C.T. NO. 14513 IS 'VOID INSOFAR AS THE PORTION FROM THE PANDAYAN ROAD IS CONCERNED', AND IN NOT HOLDING THAT SAID T.C.T. IS INCONTROVERTIBLE. III. THE LOWER COURT ERRED IN GIVING IMPORTANCE TO DEFENDANTS-APPELLEES' ALLEGED 'OPEN, CONTINUOUS AND ADVERSE POSSESSION' AND IN DISMISSING PLAINTIFFS-APPELLANTS' COMPLAINT." (Brief, pp. a-b). The Court of Appeals found as a fact: "That disputed portion Lot 5-a is admittedly part of the land originally registered in the name of plaintiff's predecessor in interest, there should be no question that that title had become imprescriptible and original registrant as well as his successors had the right to vindicate their ownership against any body else. " (Rollo, p. 54.) But the Court of Appeals went further. Seizing a statement in the Reply and Answer to Counterclaim filed by the plaintiffs, it held that Gregorio Z. Ocampo had by an oral contract sold the disputed land to Antonio Rodriguez the defendant's predecessor in interest. The Court of Appeals further said "that agreement oral albeit, became binding upon Ocampo, it was even executed in part by the actual delivery of possession, it amounted to a supervening fact, posterior to the title, and the fact that Ocampo's title was not afterwards cancelled can not at all mean that the title could be used as a weapon to annul that posterior agreement by Ocampo voluntarily entered into and by reason of which he had delivered possession unto defendant's predecessor; of course, no deed of sale was formalized for a reason not clear in the evidence; but whether or not formalized, it was a binding personal agreement upon Ocampo. " (Rollo, pp. 56-57.) The statement upon which the Court of Appeals built its decision is as follows: When Mr. Gregorio Z. Ocampo bought the parcel of land known as Lot 5, Psu-43302 with an area of 78,181 square meters, more or less, in 1934, (wherein this portion under litigation is included), the said Mr. Ocampo took possession of this whole land. In the year 1935 the adjoining owner of the said property, the late Mr. Antonio Rodriguez and predecessor of the defendant Victoria P. Cabral, requested Mr. Ocampo to sell to him a portion of said land with an area of 4,303 square meters, more or less, to which Mr. Ocampo agreed. As there was already a meeting of the mind Mr. Rodriguez requested Mr. Ocampo that he be allowed to possess the said portion as they were going to make the formal deed of sale, to which proposition Mr. Ocampo likewise agreed. This proposed sale never materialized so if Mr. Rodriguez ever possessed the said portion of land, now under litigation, he did not possess it as owner but only as a 'prospective owner'. His possession cannot, therefore, be termed 'adverse'. Such possession cannot also be termed 'continuous' for 50 years because Mr. Ocampo was in possession of the

same in 1934 before Mr. Rodriguez came to possession of the same, first, with the consent and later by toleration of Mr. Ocampo. (R.A. pp. 15-16.) It passes understanding why the plaintiffs mentioned a non-consummated transaction between Gregorio Z. Ocampo and Antonio Rodriguez when the defendants made no claim of such transaction nor was the name of Antonio Rodriguez even mentioned in their Answer. Even as the Court of Appeals found that the disputed piece of land is registered in the name of the plaintiffs but because of the supposed oral sale of the same to the predecessors of the defendants, it affirmed the judgment of the trial court dismissing the complaint for the recovery of the land. The instant petition assails the Court of Appeals for rendering a decision based on a ground which was never raised nor discuss whether in the trial court or before it by any of the parties. The ground to be sure, is the supposed oral contract of sale made to the predecessors of the defendants covering the disputed piece of land. The petition is highly impressed with merit. It is a well-settled rule that, except questions on jurisdiction, no question will be entertained on appeal unless it has been raised in the court below and it is within the issues made by the parties in their pleadings. (See cases cited in II Moran, Rules of Court, pp. 504-505 [1970].) In this case, the Court of Appeals erred when it rendered a decision based on a ground which was not litigated in the trial court and which could not have been raised on appeal. That the supposed oral contract of sale was never an issue is demonstrated by the following. 1. The pleadings of the parties have been purposely reproduced in full above. It can be seen therefrom that no issue in respect of the supposed oral sale actually emerged. 2. The decision of the trial court is absolutely silent on the supposed oral contract of sale. 3. The plaintiffs who appealed the decision of the trial court to the Court of Appeals did not make an assignment of error in respect of the supposed oral sale. The Court of Appeals found as a fact that the disputed piece of land is registered in the name of the plaintiffs' predecessor. The defendants claimed in their answer that they and their predecessors are the owners of the land in dispute but that the plaintiffs' predecessor was able to register the same in his name through error or fraud. However, the trial court made no categorical finding on this claim of the defendants otherwise it would have granted the affirmative relief which they asked, namely: "(b) declaring the defendant Victoria P. Cabral as the owner of Lot 5-B, plan Psd-11496, which has been erroneously included in the property of the deceased Gregorio Z. Ocampo covered by Transfer Certificate of Title No. 14513, Bulacan, and ordering the herein plaintiffs to execute a deed of transfer of said Lot No. 5-B, plan Psd- 11496 in favor of the defendant Victoria P. Cabral." The Court of Appeals did not deal with this issue because there was no appeal made by the defendants. The following conclusions have to be made. 1. The disputed land is included in T.C.T. No. 14513 issued to Gregorio Z. Ocampo, the predecessor of the plaintiffs. 2. The original registration which includes the disputed land was not vitiated by error or fraud. 3. The Court of Appeals erred when it held that Gregorio Z. Ocampo had orally sold the disputed land to the predecessors of the defendants. 4. The defendants, by their own admission, are in possession of the disputed land. There is no evidence that they were possessors in bad faith. However, their good faith ceased when they were served with summons to answer the complaint. (Art. 528, Civil Code; Tacas vs. Tobon, 53 Phil. 356 [1929].) As possessors in bad faith from the service of the summons they "shall reimburse the fruits received and those which the legitimate possessor could have received, ... (Art. 549, Civil Code.) WHEREFORE, the judgment of the Court of Appeals is hereby reversed and another one rendered in that the defendants shall vacate and surrender the land in question to the plaintiffs; and the defendants shall also account for the fruits thereof pursuant to Article 549 of the Civil Code from the service of the summons. Costs against the defendants. SO ORDERED. MARTIN MENDOZA and NATALIO ENRIQUEZ, plaintiffs-appellees, vs. MANUEL DE GUZMAN, defendant-appellant. MAX B. SOLIS, intervenor-appellant. Juan S. Rustia for appellants. Godofredo Reyes for appellees. MALCOLM, J.: This case calls for the application of articles 361, 435, and 454 of the Civil Code to the proven facts. On November 6, 1916, Leandra Solis and her husband Bernardo Solis brought an action in the Court of First Instance of Tayabas against Martin Mendoza for the recovery of a certain piece of land. Judgment was rendered in that case absolving Mendoza from the 1 complaint, and this judgment was subsequently affirmed by the Supreme Court. When the case was remanded to the court of origin, the trial judge issued an order requiring the provincial sheriff immediately to dissolve the preliminary writ of injunction and to put Mendoza in the possession of the land. By virtue of this order, Mendoza was in fact put in possession of the property. In the cadastral proceedings of the municipality of Sariaya, Tayabas, the piece of land above-mentioned was identified as lot No. 687. In the decision rendered in the cadastral case, this lot was adjudicated in favor of Martin Mendoza and Natalio Enriquez in equal

parts pro indiviso subject to the right of retention on the part of Manuel de Guzman until he shall have been indemnified for the improvements existing on the land. By virtue of this judgment, De Guzman presented a motion requesting the issuance of a writ of possession for lot No. 687 in his favor which was granted on June 25, 1924. From the time Leandra Solis and Bernardo Solis, as well as Manuel de Guzman who was working on the land, were ejected therefrom, Martin Mendoza possessed it until June 25, 1924, when de Guzman obtained the writ of possession above- mentioned. Since then De Guzman has had dominion over the land. Being unable to come to an agreement as to the amount which should be allowed for the improvements made on the land, Martin Mendoza and Natalio Enriquez began an action requesting the court to (a) fix the value of the necessary and useful expenses incurred by Manuel de Guzman in introducing the improvements; (b) require the defendant to render an accounting of the fruits received by him and order that the value of the fruits be applied to the payment of the necessary and useful expenses; and (c) decree the restitution of the possession to the plaintiffs. To the complaint, the defendant filed an answer in the form of a general denial with special defenses and appended a counter-claim and crosscomplaint, in which a total of P6,000 was asked. During the pendency of the case, Bernardo Solis, or Max. B. Solis, one of the persons who was ejected from the land, asked leave to intervene, alleging, among other things, that De Guzman, in consideration of the sum of P5,000, had transferred all his rights in the improvements and in the lot to him with the exception of two hundred coconut trees. This petition was granted by the trial court. When the case was called for trial, the parties entered into the follwing stipulation: 1. That the plaintiffs are the owners and proprietors of the land described in the second paragraph of the complaint. 2. That a decree of registration has been issued on said land in the terms set forth in paragraph 3 of the complaint. 3. That the defendant Manuel de Guzman is the one who has been in possession and enjoyment of the land from June 25, 1924, up to the present time by virtue of a writ of possession obtained by him from the Court of Land Registration. 4. That the defendant has made improvements on said land be planting coconut trees thereon. 5. That the plaintiff Martin Mendoza is the one who has been in possession and enjoyment of said property and its improvements since December 16, 1916, by virtue of a writ of possession in civil case No. 356 until said pssession was transferred to the defendant Manuel de Guzman. 6. That from March 20, 1920, the plaintiff Natalio Enriquez has been in possession and enjoyment of a portion of the land, the subject matter of the complaint herein, by virtue of a deed of sale executed in his favor by Attorney Agustin Alvarez, who, in turn, acquired it from the other plaintiff Martin Mendoza, until June 25, 1924. The parties desire to submit, as they do submit, under this stipulation of facts the following questions: (a) The amount of the indemnity to be paid to the defendant for the improvements made by him on said lot and the basis upon which said amount shall be fixed. (b) Whether or not the defendant is obliged to render an account of the fruits received by him from June 25, 1924, until the improvements are delivered after same have been paid for. 1awph!l.net (c) Whether the value of said fruits and products received by the defendant shall be applied to the indemnity to which he is entitled, or whether said defendant is obliged to deliver to the plaintiffs the remainder in case of excess. (d) Whether or not the defendant has the right to be paid by the plaintiffs in whole or in part for the value of the fruits received by Martin Mendoza and Natalio Enriquez from the respective dates that they were in possession and enjoyment of the land until June 25, 1924. The parties at the same time that they submit to the court for decision the questions presented in the above stipulation reserve to themselves, whatever said decision may be, the right to present later their evidence in support of their respective views with respect to the amount of the indemnity. After the preliminary questions have been decided, the parties request that commissioners be appointed to receive said evidence with respect to the amount of the indemnity in accordance with the views of both parties. The trial court resolved the questions presented by holding (1) that in accordance with the provisions of articles 435 and 454 in relation with article 361 of the Civil Code, the value of the "indemnization" to be paid to the defendant should be fixed according to the necessary and useful expenses incurred by him in introducing "las plantaciones en cuestion"; (2) that the plaintiffs as the owner of the property have the right to make their own "las plantaciones hechas por el demandado" upon payment in the form indicated in No. 1, the defendant having the right to retain the land until the expenditures have been refunded; (3) that the defendant is obliged to render a detail and just account of the fruits and other profits received by him from the property for their due application; and (4) that the value of the fruits received by the defendant should first be applied to the payment of the "indemnizacion," and in that it exceeds the value of the "indemnizacion," the excess shall be returned to the plaintiffs. With respect to the last question as to whether or not the plaintiffs are obliged to return to the defendant the value of the fruits received by them before the defendant took possession of the land, the trial court abstained from making any pronouncement for the reason that the circumstances under which the plaintiffs acquired possession and the defendant again acquired it were not before him, the parties needing to submit their evidence with respect to this point. At the trial which followed and at the instance of the parties, two commissioners were appinted with instructions to inspect the land and to count the number of coconut trees planted thereon, determining the number of fruit-bearing trees and those that are not fruit-bearing as well as the condition of the same. After trial, Judge of First Instance Gloria rendered judgment declaring (a) that the defendant Manuel de Guzman and the intervenor Bernardo Solis have the right to collect from the plaintiffs Martin Mendoza and Natalio Enriquez the sum of P2,046 as compensation for the necessary and useful expenditures in the proportion of 20 per cent for Manuel de Guzman and 80 per cent for Bernardo Solis; and (b) that Manuel de Guzman and Bernardo Solis are obliged to pay to the plaintiffs the sum of P666.93 per annum from June 25, 1924, one-fifth of this amount to be paid by Manuel de Guzman and the other

four-fifths by Bernardo Solis. As on the date when this judgment was rendered, that is on September 23, 1927, the amount that the plaintiffs were required to pay to the defendant and intervenor exceeded the amount that the latter were to pay the former, the defendant and intervenor were ordered to deliver the land and its improvement as soon as the plaintiffs have paid the difference, without special pronouncement as to costs. The appeal of the defendant and intervenor is based on fourteen assigned errors relating to both questions of fact and of law. The question of fact mainly concerns the amount to be paid as "indemnizacion" in the form of necessary and useful expenditures incurred by the defendant. The question of law mainly concerns the interpretation of articles 361, 453, and 454 of the Civil Code. Counsel for the appellants has presented a learned brief divided into three chapters. Counsel for the appellees has countered with an equally helpful brief in which the fourteen assigned errors are reduced for purposes of arguments to four fundamental questions. It would not be profitable and it is not necessary to follow opposing counsel into all of their refinements of fact and law. As to the facts, the findings of the trial judge should be given effect. An examination of the evidence shows that these findings are fully substantiated. Our only doubt has been as to the just value for each coconut tree now found on the land. However, everything considered, we have at last determined that we would not be justified in changing the value per tree of P2 as fixed in the trial court. With respect to the fruits received by the defendant while the land was in his possession, the finding in the trial court is correct. With the facts as above indicated, little time need be taken to discuss the points of law. Article 361 of the Civil Code in the original Spanish text uses the word "indemnizacion." However one may speculate as to the true meaning of the term "indemnizacion" whether correctly translated as "compensation" or "indemnity," the amount of the "indemnizacion" is the amount of the expenditures mentioned in articles 453 and 454 of the Civil Code, which in the present case is the amount of the necessary and useful expenditures incurred by the defendant. Necessary expenses have been variously described by the Spanish commentators as those made for the preservation of the thing (4 Manresa's Comentarios al Codigo Civil, p. 258); as those without which the thing would deteriorate or be lost (Scaevola's Comentarios al Codigo Civil, p.408); as those that augment the income of the things upon which they are expanded (4 Manresa's Comentarios al Codigo Civil, p. 261; 8 Scaevola'sComentarios al Codigo Civil, p. 416). Among the necessary expenditures are those incurred for cultivation, production, upkeep, etc. (4 Manresa's Comentarios al Codigo Civil, p. 257). Here the plaintiffs have chosen to take the improvements introduced on the land and are disposed to pay the amount of the necessary and useful expenses incurred by the defendant. Inasmuch as the retentionist, who is not exactly a posessor in good faith with in the meaning of the law, seeks to be reimbursed for the necessary and useful expenditures, it is only just that he should account to the owners of the estate for any rents, fruits, or crops he has gathered from it. In brief, therefore, and with special reference to the decision appealed from, the errors assigned on appeal, and the argument of counsel as addressed to the decision in the lower court and the assignment of errors, we may say that we are content to make the findings of fact and law of Judge Gloria in the lower court the findings of fact and law in the appellate court. Based on the foregoing considerations, the judgment appealed from will be affirmed, with the costs of this instance against the appellants. Avancena, C.J., Johnson, Street, Ostrand, Romualdez and Villa-Real, JJ., concur. VARISTA ROBLES and her husband ENRIQUE MARTIN, plaintiff-appellants, vs. LIZARRAGA HERMANOS and THE REGISTER OF DEEDS OF ILOILO, defendants-appellees. Pantaleon E. Del Rosario for appellant. Attorney-General Villamor for appellee. Johnson, J.: The defendant appeals from a judgment convicting him of a violation of Act No. 1761, wherein he was sentenced to six months imprisonment, a fine of P300, and, in default of such payment, to the corresponding subsidiary imprisonment at the rate of one day for each 12 pesetas and a half he fails to pay, not to exceed one-third of the time of the principal penalty, and to payment of the costs. It is a fact which we find to be sufficiently proven that on the date mentioned in the complaint, an internal-revenue agent went to the defendants house and found in various places therein two little cans and a small horn jar, all containing opium; another small tin with about 50 grams of opium ashes; scales for weighing opium; a pan for cooking the said drug, and two small lamps such as are used in smoking opium. This fact effectively sustains the finding in the judgment appealed from as to the defendants guilt. Counsel for the defense alleges that the trial court obliged the defendant to stand trial without the assistance of an attorney, and refused to allow his request for time to procure such counsel for his defense; this, he alleges, is an error that affects the essential rights of the defendant. The facts in no manner support this allegation. Nowhere in the record does it appear that any postponement was requested by the defendant for securing counsel. That part of the record in which reference is made to this point reads as follows: The above-mentioned case was called for rehearing on this date, September 29, 1910, there being present the defendant, not represented by counsel, and the fiscal representing the United States. On the defendants being asked whether he could afford to employ a lawyer, he replied in the affirmative, but said that he had been unable to come to an agreement with one as to the amount he should pay him for his services. This court being of the opinion that the defendant is not entitled to the appointment of counsel de oficio, and, declining to recognize the fact of his not having reached an agreement with his attorney in the matter of his fees as a proper excuse for postponing the hearing of this case, orders the reading of the complaint. The reason of the court for not postponing the hearing is set forth in another part of the record and is as follows:

The bond given by the defendant in this case was first forfeited; later, the forfeiture was canceled. Another date was set for the hearing, at least two days in advance. The court sees no reason whatever for postponing this case, and still less for showing any consideration to the defendant because he is not represented by counsel, since he does not belong to the class of poor people who are entitled to the appointment of counsel de oficio. If he can not come to an agreement with Mr. Sotto as to the amount of the latters fees for defending him, the court is not called upon to take the matter into consideration as a ground for postponement and other similar delays. By order of the court the complaint was duly read to the defendant: the latter acknowledged notification thereof and replied by pleading not guilty. Neither on that occasion, nor before, nor afterwards, nor, in short, at any time during the progress of the trial, did the defendant request the postponement or suspension of the same or raise any objection or protest of any sort against the continuance of the trial. Far from so doing, the record shows that during the presentation of the evidence he crossed-examined the witness, notwithstanding that he was advised by the court of his right not to testify unless he desired to do so of his own free will and consent. These being the facts, the assignment of error contained in the brief filed by the defendants counsel is absolutely devoid of foundation. Accused persons are undoubtedly entitled to appoint an attorney to defend them at trial, or to have one appointed de oficio, should they ask for one and not possess the necessary means to employ an attorney of their own. But it devolves exclusively upon them to avail themselves of this right. It is one which they are perfectly entitled to waive and they may defend themselves in person. The law expressly authorizes them, as it could not but do, to defend themselves in person, without the assistance of counsel. (Sec. 15, General Orders, No. 58. It is understood, of course, that they waive their right to be assisted by counsel when they not only do not appoint or request one, but voluntarily submit to trial, and especially when they actually exercise therein the right of defense by cross-examining the witnesses for the prosecution and by introducing evidence in their own behalf, as was done in the present case. It is evident that the defendant herein preferred to defend himself personally in the Court of First Instance and, therefore, he can not be heard to complain that he was not assisted by any attorney in the proceedings there had. When an accused person in a criminal case chooses to defend himself in person, none of his rights are infringed by the fact that the action was prosecuted without the intervention of an attorney in his behalf. In such a case the attendance of the latter is no wise necessary for the legality and perfect propriety of the proceedings. In consideration of the circumstances of the case, we are of the opinion that a fine of P300 is a sufficient penalty for the crime committed by the accused. The judgment appealed from is therefore modified in the sense that the defendant is sentenced only to pay the fine of P300, or, in case of insolvency, to suffer the corresponding subsidiary imprisonment at the rate of one day for each P2.50 which he may fail to pay, and the costs in this instance. Torres, Johnson, Carson and Moreland, JJ., concur. METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM, petitioner, vs. THE COURT OF APPEALS and THE CITY OF DAGUPAN, respondents. Miguel T. Caguioa, Ireneo B. Orlino and Manuel D. Victorio for respondent City of Dagupan. FERIA, J.: This is a petition for review on certiorari of the decision of the Court of Appeals which affirmed the decision of the then Court of First Instance of Pangasinan. The lower court had declared respondent City of Dagupan the lawful owner of the Dagupan Waterworks System and held that the National Waterworks and Sewerage Authority, now petitioner Metropolitan Waterworks and Sewerage System, was a possessor in bad faith and hence not entitled to indemnity for the useful improvements it had introduced. Before proceeding further, it may be necessary to invite attention to the common error of joining the court (be it a Regional Trial Court, the Intermediate Appellate Court, or the Sandiganbayan) as a party respondent in an appeal by certiorari to this Court under Rule 45 of the Rules of Court. The only parties in an appeal by certiorari are the appellant as petitioner and the appellee as respondent. (Cf. Elks Club vs. Rovira, 80 Phil. 272) The court which rendered the judgment appealed from is not a party in said appeal. It is in the special civil action of certiorari under Section 5 of Rule 65 of the Rules of Court where the court or judge is required to be joined as party defendant or respondent. The joinder of the Intermediate Appellate Court or the Sandiganbayan as party respondent in an appeal by certiorari is necessary in cases where the petitioner-appellant claims that said court acted without or in excess of its jurisdiction or with grave abuse of discretion. An example of this is a case where the petitioner-appellant claims that the Intermediate Appellate Court or the Sandiganbayan acted with grave abuse of discretion in making its findings of fact, thus justifying the review by this court of said findings of fact. (See the exceptions to the rule of conclusiveness of the findings of fact of the Intermediate Appellate Court or the Sandiganbayan in the case of Sacay vs. Sandiganbayan, G.R. Nos. 66497-98, July 10, 1986.) In such a case, the petition for review on certiorari under Rule 45 of the Rules of Court is at the same time a petition for certiorari under Rule 65, and the joinder of the Intermediate Appellate Court or the Sandiganbayan becomes necessary. (Cf. Lianga Lumber Company vs. Lianga Timber Co., Inc., March 31, 1977, 76 SCRA 197). The City of Dagupan (hereinafter referred to as the CITY) filed a complaint against the former National Waterworks and Sewerage Authority (hereinafter referred to as the NAWASA), now the Metropolitan Waterworks and Sewerage System (hereinafter referred to as MWSS), for recovery of the ownership and possession of the Dagupan Waterworks System. NAWASA interposed as one of its special defenses R.A. 1383 which vested upon it the ownership, possession and control of all waterworks systems throughout the Philippines and as one of its counterclaims the reimbursement of the expenses it had incurred for necessary and useful improvements amounting to P255,000.00. Judgment was rendered by the trial court in favor of the CITY on the basis of a stipulation of facts. The trial

court found NAWASA to be a possessor in bad faith and hence not entitled to the reimbursement claimed by it. NAWASA appealed to the then Court of Appeals and argued in its lone assignment of error that the CITY should have been held liable for the amortization of the balance of the loan secured by NAWASA for the improvement of the Dagupan Waterworks System. The appellate court affirmed the judgment of the trial court and ruled as follows: However, as already found above, these useful expenses were made in utter bad faith for they were instituted after the complaint was filed and after numerous Supreme Court decisions were promulgated declaring unconstitutional the taking by NAWASA of the patrimonial waterworks systems of cities, municipalities and provinces without just compensation. Under Article 546 of the New Civil Code cited by the appellant, it is clear that a builder or a possessor in bad faith is not entitled to indemnity for any useful improvement on the premises. (Santos vs. Mojica, L-25450, Jan. 31, 1969). In fact, he is not entitled to any right regarding the useful expenses (II Paras (1971) 387). He shall not have any right whatsoever. Consequently, the owner shall be entitled to all of the useful improvements without any obligation on his part (Jurado, Civil Law Reviewer (1974) 223). Petitioner-Appellant MWSS, successor-in-interest of the NAWASA, appealed to this Court raising the sole issue of whether or not it has the right to remove all the useful improvements introduced by NAWASA to the Dagupan Waterworks System, notwithstanding the fact that NAWASA was found to be a possessor in bad faith. In support of its claim for removal of said useful improvements, MWSS argues that the pertinent laws on the subject, particularly Articles 546, 547 and 549 of the Civil Code of the Philippines, do not definitely settle the question of whether a possessor in bad faith has the right to remove useful improvements. To bolster its claim MWSS further cites the decisions in the cases of Mindanao Academy, Inc. vs. Yap (13 SCRA 190) and Carbonell vs. Court of Appeals (69 SCRA 99). The CITY in its brief questions the raising of the issue of the removal of useful improvements for the first time in this Court, inasmuch as it was not raised in the trial court, much less assigned as an error before the then Court of Appeals. The CITY further argues that petitioner, as a possessor in bad faith, has absolutely no right to the useful improvements; that the rulings in the cases cited by petitioner are not applicable to the case at bar; that even assuming that petitioner has the right to remove the useful improvements, such improvements were not actually identified, and hence a rehearing would be required which is improper at this stage of the proceedings; and finally, that such improvements, even if they could be identified, could not be separated without causing substantial injury or damage to the Dagupan Waterworks System. The procedural objection of the CITY is technically correct. NAWASA should have alleged its additional counterclaim in the alternativefor the reimbursement of the expenses it had incurred for necessary and useful improvements or for the removal of all the useful improvements it had introduced. Petitioner, however, argues that although such issue of removal was never pleaded as a counterclaim nevertheless it was joined with the implied consent of the CITY, because the latter never filed a counter-manifestation or objection to petitioner's manifestation wherein it stated that the improvements were separable from the system, and quotes the first part of Sec. 5 of Rule 10 of the Rules of Court to support its contention. Said provision reads as follows: SEC. 5. Amendment to conform to or authorize presentation of evidence.-When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. ... This argument is untenable because the above-quoted provision is premised on the fact that evidence had been introduced on an issue not raised by the pleadings without any objection thereto being raised by the adverse party. In the case at bar, no evidence whatsoever had been introduced by petitioner on the issue of removability of the improvements and the case was decided on a stipulation of facts. Consequently, the pleadings could not be deemed amended to conform to the evidence. However, We shall overlook this procedural defect and rule on the main issue raised in this appeal, to wit: Does a possessor in bad faith have the right to remove useful improvements? The answer is clearly in the negative. Recognized authorities on the subject are agreed on this point. * Article 449 of the Civil Code of the Philippines provides that "he who builds, plants or sows in bad faith on the land of another, loses what is built, planted or sown without right to indemnity." As a builder in bad faith, NAWASA lost whatever useful improvements it had made without right to indemnity (Santos vs. Mojica, Jan. 31, 1969, 26 SCRA 703). Moreover, under Article 546 of said code, only a possessor in good faith shall be refunded for useful expenses with the right of retention until reimbursed; and under Article 547 thereof, only a possessor in good faith may remove useful improvements if this can be done without damage to the principal thing and if the person who recovers the possession does not exercise the option of reimbursing the useful expenses. The right given a possessor in bad faith is to remove improvements applies only to improvements for pure luxury or mere pleasure, provided the thing suffers no injury thereby and the lawful possessor does not prefer to retain them by paying the value they have at the time he enters into possession (Article 549, Id.). The decision in the case of Mindanao Academy, Inc. vs. Yap (13 SCRA 190) cited by petitioner does not support its stand. On the contrary, this Court ruled in said case that "if the defendant constructed a new building, as he alleges, he cannot recover its value because the construction was done after the filing of the action for annulment, thus rendering him a builder in bad faith who is denied by law any right of reimbursement." What this Court allowed appellant Yap to remove were the equipment, books, furniture and fixtures brought in by him, because they were outside of the scope of the judgment and may be retained by him.

Neither may the decision in the case of Carbonell vs. Court of Appeals (69 SCRA 99), also cited by petitioner, be invoked to modify the clear provisions of the Civil Code of the Philippines that a possessor in bad faith is not entitled to reimbursement of useful expenses or to removal of useful improvements. In said case, both the trial court and the Court of Appeals found that respondents Infantes were possessors in good faith. On appeal, the First Division of this Court reversed the decision of the Court of Appeals and declared petitioner Carbonell to have the superior right to the land in question. On the question of whether or not respondents Infantes were possessors in good faith four Members ruled that they were not, but as a matter of equity allowed them to remove the useful improvements they had introduced on the land. Justice Teehankee (now Chief Justice) concurred on the same premise as the dissenting opinion of Justice Munoz Palma that both the conflicting buyers of the real property in question, namely petitioner Carbonell as the first buyer and respondents Infantes as the second buyer, may be deemed purchasers in good faith at the respective dates of their purchase. Justice Munoz Palma dissented on the ground that since both purchasers were undoubtedly in good faith, respondents Infantes' prior registration of the sale in good faith entitled them to the ownership of the land. Inasmuch as only four Members concurred in ruling that respondents Infantes were possessors in bad faith and two Members ruled that they were possessors in good faith said decision does not establish a precedent. Moreover, the equitable consideration present in said case are not present in the case at bar. WHEREFORE, the decision of the appellate court is affirmed with costs against petitioner. SO ORDERED. Fernan, Gutierrez, Jr., Paras and Cruz, JJ., concur. Alampay, ** J., took no part.