EN BANC

[G.R. No. 13125. February 11, 1919.]

ROSALIO BAUTISTA , plaintiff-appellee, vs . FRANCISCO SIOSON, ET

AL., defendants. RAYMUNDO DE LA CRUZ , appellant.

Agapito Ignacio, for appellant.

A. Cruz Herrera, for appellee.

SYLLABUS

1. VENDOR AND PURCHASER; SALE OF REALTY TO DIFFERENT PERSONS;

REFERENCE. In a case where a real property has been sold two or three times to
different persons and the corresponding deeds of sale do not appear to have been
entered in the registry of property, the question as to who is the lawful owner of such
property, in accordance with the provisions of Article 1473 of the Civil Code, should be
resolved in favor of the purchaser who first took possession of the property, pursuant
to the provisions of Article 1462 of the same Code.
2. ID.; ID.; POSSESSION OF REALTY BY VENDOR AS LESSEE. In a case,
which frequently occurs, where the vendor, on the same date on which the deed of sale
is executed, by means of a constitutum possessorium agreement converts himself into
a tenant or lessee of the property that he sold, and continues in possession thereof as
such tenant, the purchaser who acquired the property through delivery or symbolic
tradition, with all the consequent effects of a deed of conveyance, is deemed to be in
possession thereof by the express will of the contracting parties, and, therefore, it must
be recognized that, through such constitutum possessorium agreement, the purchaser,
who by that covenant became the lessor, is in lawful possession of the leased property,
and that the vendor, by the same covenant, converted himself into the lessee and is in
material possession of the leased property in the name and representation of the
purchaser, its lawful owner.
3. ID.; ID.; ID.; RIGHT OF SECOND PURCHASER. From what has been said, it
logically follows that the second purchaser who acquired the property from the lessee
or tenant and who, through the acts of the latter, entered into the material possession
of the property by virtue of the second sale, could not have acquired any right of
ownership therein, inasmuch as he received the property, not from its lawful owner, but
from a mere tenant or lessee who had no right whatever to dispose of it; therefore, the
second purchaser's possession is merely precarious and was taken after the first
purchaser had exercised his right of possession, and the possession of the second
purchaser cannot prevail over that previously obtained by the first purchaser.

DECISION

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 TORRES , J : p

This appeal through bill of exceptions was led by counsel for the defendant
Raymundo de la Cruz from the judgment of December 29, 1916, whereby the judge of
the Court of First Instance of Rizal held (1) that Rosalio Bautista, the plaintiff, was by
merger the owner of the properties described in subparagraphs (a) and (b ) of
paragraph 2 of the complaint; (2) ordered Raymundo de la Cruz to deliver to the plaintiff
Bautista the camarinor warehouse, built of strong materials, described in the
subparagraph (a) above mentioned; (3) ordered Francisco Sioson to pay to said
plaintiff Bautista the sum of P200, the amount of the rent due; (4) absolved Francisco
Santos Paulino from the complaint, as the evidence did not show that he had taken
possession of the house described in said subparagraph (b ); and, nally (5) ordered
each of the defendants Francisco Sioson and Raymundo de la Cruz to pay one-half of
the costs. The appellant moved for a new trial, which motion being denied, he entered
an exception, and, upon ling the proper bill of exceptions, the same was approved and
forwarded, together with a transcript of all the evidence, to the of ce of the clerk of this
court.
On June 30, 1916, counsel for the plaintiff led a complaint in the Court of First
Instance of Rizal, in which he alleged that on September 4, 1912, by virtue of a contract
of sale executed on September 4, 1912, between the plaintiff Rosalio Bautista and the
spouses Francisco Sioson and Lorenza de la Cruz, for the sale of a camarin or
warehouse of strong materials with an iron roof and a house of mixed materials with a
nipa roof both buildings constructed on lots situated in the town of Malabon, Rizal,
and belonging to the chaplaincy known by the name of Concepcion said buildings
were delivered to him on the date of the contract, which was drawn up before a notary,
under the condition that the vendors might repurchase them within the term of two
years, counted from the date of the contract; that immediately after the sale the
plaintiff leased the purchased buildings to said vendor spouses, who had not paid the
price of the lease, nor repurchased said buildings, notwithstanding that the term of the
contract had elapsed, with the result that the other defendant Raymundo de la Cruz was
then (at the time of the ling of the complaint) in material possession of said camarin
under title of owner, and Francisco Santos Paulino was in possession of the house, also
under a like title. Therefore he prayed the court to hold that the plaintiff's ownership in
said buildings was consolidated, to order the defendants to deliver them to the plaintiff,
and to order Francisco Sioson to pay to the plaintiff the price of the lease and to pay
the costs.
The defendants Francisco Sioson and Francisco Santos Paulino did not put in an
appearance to answer the complaint, notwithstanding that they were duly summoned.
They were therefore declared in default. Counsel for the defendant Raymundo de la
Cruz admitted paragraphs 1 and 6 of the complaint, and denied generally and
specifically the other paragraphs thereof. In special defense he alleged that the camarin
described in subparagraph (a), paragraph 2 of the complaint, was of the exclusive
ownership of the defendant Raymundo de la Cruz. He therefore asked that his client be
absolved from the complaint, with the costs against the plaintiff.
Upon the hearing of the case and the introduction of evidence by the parties, the
court decided the suit in the manner aforesaid.
It now behooves us to determine who is the owner of the camarin of strong
materials with an iron roof, to which reference is made in subparagraph (a) of
paragraph 2 of the complaint: Whether it belongs to Rosalio Bautista, in whose favor its
ownership became consolidated by the lapse of the term of two years without its
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 having been repurchased by the vendors; or to Raymundo de la Cruz, to whom
Francisco Sioson likewise sold the said camarin on August 5, 1914, one year and eleven
months after the sale of this building to the plaintiff Bautista, effected on September 4,
1912.
In order that the issue raised in this suit may be properly decided we shall herein
make a statement of the contracts executed by and between the litigants.
On September 4, 1912, the defendant Francisco Sioson and his wife Lorenza de
la Cruz, through a notarial instrument, sold to the plaintiff Rosalio Bautista the camarin
in question, besides some other property, under the right of repurchase. It was
stipulated that if within two years from the date of the contract the vendors or their
successors in interest should not repurchase said properties for the sum of P400, the
price of the sale, such sale should become absolute and thenceforth the ownership in
the properties sold should be consolidated, the execution of another instrument being
unnecessary. (Exhibit A, p. 10.)
On the same date, September 4, 1912, Rosalio Bautista, through a notarial
instrument, leased the properties sold to him to the vendors Francisco Sioson and
Lorenza de la Cruz, for the price of P100 per annum, for the period of two years counted
from the date of the instrument. (Exhibit D, p. 15.)
On June 12, 1913, Lorenza de la Cruz died (sten. notes, p. 29) and on August 5,
1914, Francisco Sioson executed before a notary a document by which he sold under
right of repurchase to the defendant Raymundo de la Cruz, the camarin in question. It
was stipulated in this instrument that if within six months, counted from the 1st of
August. 1914, the vendor Francisco Sioson should return to the purchaser Raymundo
de la Cruz the sum of P422, the price of the purchase, then the purchaser Raymundo de
la Cruz would be obliged to execute in favor of said vendor Francisco Sioson an
instrument of resale, but that if within the period mentioned he should not make the
redemption stipulated, said sale should become absolute, the execution of another
instrument being unnecessary. (Exhibit 1, p. 17.)
From the instrument referred to in the preceding paragraphs it is concluded that
the original owner of the buildings in dispute, Francisco Sioson, and his wife, Lorenza de
la Cruz, sold, on September 4, 1912, the house and the camarin to the plaintiff Rosalio
Bautista for P400, under agreement of their resale within the term of two years counted
from said date; and that, on the same date, by means of a constitutum possessorium
agreement, and in another new notarial instrument, the purchaser Bautista leased the
properties sold to the vendors Francisco Sioson and Lorenza de la Cruz at an annual
rent of P100, for a period of two years counted from the date above mentioned.
After the lessee, Francisco Sioson, had been in possession of the properties
leased for one year and eleven months, he sold the camarin, one of them, by virtue of a
notarial instrument to Raymundo de la Cruz, under the agreement that if he did not
redeem the camarin so sold within six months from the 1st of August, 1914, and return
the sum of P422, such sale under right of repurchase should become absolute, the
execution of another instrument being unnecessary.
As a result of the two said alienations, both set forth in notarial instruments
though not recorded in the registry of property the issue raised and to be decided is,
which of the two purchasers, the plaintiff Bautista and the defendant Cruz, is the lawful
owner of the camarin successively sold to the former and to the latter by the other
defendant Francisco Sioson, its original owner, in accordance with the provisions
contained in Article 1473 of the Civil Code, the last paragraph of which, among other
things, prescribed:
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 "Should there be no entry, the property shall belong to the person who first
took possession of it in good faith . . .."
In view of the fact that the deed of sale executed by Francisco Sioson, the owner
of the camarin, and his wife, Lorenza de la Cruz, on September 4, 1912, in favor of
Rosalio Bautista, was not entered in the registry of property, and of the further fact that,
upon the execution of the second sale of the same camarin by the said Sioson which
sale was made after the death of his wife Lorenza by virtue of an instrument dated
August 5, 1914, in favor of Raymundo de la Cruz, under agreement of repurchase for the
price of P422 the term of two years xed for the redemption of the camarin so sold
had not yet expired, it may be presumed, in the absence of proof to the contrary, that
the second purchaser Raymundo de la Cruz, on acquiring the camarin of its original
owner Francisco Sioson, who, according to the written contract, became a tenant or
lessee of the camarin, was not aware of said rst sale to Bautista, and believed that
Sioson, who was in possession of the camarin, was still the owner thereof. Therefore,
Cruz acted in good faith in acquiring it, inasmuch as, through failure to enter the
property in the registry, there was no reason why the previous alienation of the camarin
should have been known. But be all this as it may, nevertheless, the actual and material
possession of the camarin by Cruz does not constitute a suf cient legal reason for
holding that he has a better right to the building than the rst purchaser Rosalio
Bautista, although the latter was not in actual, physical, and material possession of the
camarin that he had purchased. This conclusion is derived from a strict application of
the provisions of said Article 1473 of the Civil Code.
Both alienations, effected successively by Francisco Sioson in favor of Bautista
and Cruz, are recorded in notarial instruments, though they were not entered in the
registry of property. To determine who is the lawful owner of the camarin sold, if the
provisions of said article of the Code are to be observed, we have rst to determine the
contention in regard to which of the two purchasers is in possession thereof, and if, on
the execution of the contract of lease by the rst purchaser in favor of the vendor
himself, the constitutum possessorium agreement is to be considered to have been
stipulated, the conclusion must necessarily be reached as to which of the two
purchasers rst took possession of the camarin sold, and also whether the material
possession of the tenant is of a precarious nature, enjoyed in the name and
representation of the owner Bautista.
Article 1462 of the Civil Code reads:
"A thing sold shall be considered as delivered, when it is placed in the
hands and possession of the vendee.
"When the sale should be made by means of a public instrument, the
execution thereof shall be equivalent to the delivery of the thing which is the
object of the contract, if in said instrument the contrary does not appear or may
be clearly inferred."
From the context of this article it is deduced that the delivery or tradition of the
thing sold may be real or actual, and feigned. The execution of a public instrument
constitutes one of the kinds of symbolic tradition, but, in all the different manners by
which the thing sold may be delivered, it is necessary that the record bear proof and
that it may be held that such delivery or tradition was determined by the will of the
parties to deliver and receive, respectively, the thing that is the subject of the contract.
In the contract of lease (Exhibit D, record, p. 15) the lessor, Rosalio Bautista,
states that in his capacity as owner he leased to the spouses Francisco Sioson and
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 Lorenza de la Cruz, among other properties, a camarin of strong material with an iron
roof, at an annual rent of P100, the lessees binding themselves to report to the lessor
any act of disturbance committed by any other person, and all defects that might be
occasioned to the building. The execution of this instrument of lease shows that the
camarin would be continued to be occupied by its previous owner and vendor after it
had been delivered, symbolically, by means of the instrument executed for the purpose
in favor of the purchaser, in order that he might hold it in the capacity of lessee, it being
supposed, by a legal ction, that the purchaser entered into possession of the camarin
sold, a form of possession utilized by the purchaser by virtue of the clause known in law
as constitutum possessorium, stipulated between the contracting parties.
So that, by the execution of the deed of sale of September 4, 1912, Rosalio
Bautista entered into the material possession under title of owner, of the camarin sold
to him by Francisco Sioson, and, by virtue of another instrument of lease, of the same
date, the purchaser and owner of the camarin conveyed and delivered this building to
the lessee in view of said contract. Under these perfectly legal suppositions it is
unquestionable that the purchaser Rosalio Bautista was the rst person who entered
into the possession of the camarin as soon as he acquired it by virtue of said sale.
The material possession which the other defendant, Raymundo de la Cruz, now
enjoys, not only was subsequent by one year and eleven months, but also, on the other
hand, is an unlawful possession which was transmitted to him by Francisco Sioson,
who held the camarin precariously and in the capacity of tenant, and, consequently,
without any right whatever to convey to Raymundo de la Cruz the possession under title
of owner referred to in Article 1473, aforementioned of the Civil Code.
This article says: "If the same thing should have been sold to different vendees . .
.;" but it must be understood that said sale was made by its original owner. In the
instant case Francisco Sioson, on effecting the second sale in favor of Raymundo de la
Cruz, was in possession of the camarin and occupied it, not in the capacity of owner,
but in that of lessee or tenant, and therefore absolutely had no right to dispose of the
building in the capacity of owner thereof; consequently Sioson could not convey to the
second purchaser the lawful possession of the disputed camarin.
After the foregoing elucidation of the main issue submitted to this court for
decision, we deem it unnecessary to pass upon the other issues relative to whether
Francisco Sioson could have sold, only after the death of his wife, the said camarin to
Raymundo de la Cruz, and whether the price of the second sale was part of a larger sum
that pertained to the second purchaser, as proceeds derived from the game of jueteng,
inasmuch as, for the reasons above stated, it has been shown that Raymundo de la Cruz
could not have acquired any right in the camarin involved in this suit; for Francisco
Sioson, who sold to Cruz, occupied it as a mere tenant and not as owner, and,
consequently, was unable to transmit to the purchaser any property right whatever nor
lawful possession under title of owner.
For all the foregoing reasons, whereby the errors assigned to the judgment
appealed from have been duly refuted, said judgment, being in conformity with the
evidence of record, should be, as it hereby is, af rmed, with the costs against the
appellant Raymundo de la Cruz. So ordered.
Arellano, C.J., Johnson, Araullo, Street and Avancea, JJ., concur.

Separate Opinions
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 CARSON , J., dissenting :

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

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