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TOPIC: CONSTRUCTIVE DELIVERY 1. In which of the two sales was title to the house in dispute transferred?

AVILES VS. ARCEGA 44 PHIL. 924 2. Whether or not it was an error to declare the defendants owners of said
house, the latter not having expressly prayed in their answer for such
declaration. The other errors assigned are but a consequence of these two
FACTS: The plaintiffs bring this action to recover title to a house of mixed materials points.
erected on a leasehold land of the Nagtahan estate, more particularly described in the
complaint. While the plaintiffs claim the ownership of said house, the defendants HELD: As to the first question, we have, by virtue of the stipulation and the
assert title in themselves. documents presented, the following facts, which must be considered proven:

At the trial of the case, the parties entered into the following stipulation of facts: The house in question belonged originally to the spouses Venancio Alcantara and
Vicenta Capulong. On the 10th of October, 1917, these spouses sold this house in a
1. That the house in dispute in this case was on October 10, 1917, sold by public document to Generosa Aviles, the herein plaintiff, it having been stipulated, in
the spouses Venancio Alcantara and Vicenta Capulong to the plaintiff the document executed for the purpose, that "during four months from the 10th of
Generosa Aviles, as evidenced by the document marked with the letter A, October, 1917, the vendors would continue in possession of the house" (to use the
and acknowledged on the 8th day of November of the same year, 1917, language of the stipulation of facts). We italicize the words would continue, which
before the notary public Jose Galang Serano, for the sum of P497, it having show that the vendors were in possession of the house before, and that at time of, its
been stipulated that during four months from the 10th of October, 1917, the conveyance, and continued thereafter in said possession. It is, further, to be noted
vendors would continue in possession of the house, the expenses for repairs, that the plaintiff never had possession of the house, as stated at the end of the second
land and other tax to be for their account, as well as the payment of the rent paragraph of the stipulation of facts, which says "the plaintiff Generosa Aviles never
for the lot on which it is erected. having taken possession thereof." From this it appears that the purchaser never took
possession of the house either at the execution of the deed of sale, or at any other
time. It thus being admitted by the appellants that the purchaser Generosa Aviles,
2. That in a document dated March 13, 1918, and acknowledged on the one of the plaintiff, never had possession of this house, it cannot be presumed that
following day before Ariston Rivera, notary public, the same property was she took possession thereof at the expiration of the four months following the sale, as
sold by the same spouses Venancio Alcantara and Vicente Capulong for stipulated by the parties. Such positive fact having been expressly admitted, there
P500 to the spouses Fortunato de Leon and Segunda Arcega, who took can be no presumption to the contrary.
possession of the property, as the stated in the third paragraph of the
complaint, the plaintiff Generosa Aviles never having taken possession
thereof. On the 13th of March, 1918, the same spouses Venancio Alcantara and Vicenta
Capulong (who are presumed to have been in possession of the house until then,
inasmuch as it is positively know that they were uninterruptedly prior to the first
Under the foregoing facts the case is submitted to the consideration of the sale, during the time the sale was in force and until at least four months thereafter,
court for the determination of the question law as to which of the two and it is a fact that the purchaser Aviles never had possession of the house), in a
purchasers acquired title to the property. public document sold the same house to the spouses Fortunato de Leon and Segunda
Arcega, the herein defendants, who then and there took possession of said house.
In view of these stipulated facts the trial court rendered judgement declaring the
defendants to be the owner of the house and absolving them from the complaint with None of the two sales appears to have been registered; therefore the question at issue
costs. From this judgement the plaintiffs appeal, alleging that the trial court erred (a) is, which of these purchasers was the first to take possession (art. 1473, Civil Code).
in not rendering judgement in their favor; (b) in not giving preference to the sale
made to them of the house in question; (c) in not declaring them owners of said
house; (d) in not sentencing the defendants to deliver the same plaintiffs; (e) in not We have already seen that the first purchaser, the plaintiff, never took possession of
sentencing the defendants to pay damages; ( f ) in declaring the latter owners of the the house, while the second purchasers, the defendant spouses, did. Under the Civil
house when they did not make a prayer to that effect; (g) in drawing from the facts Code, the conclusion is inevitable that the titles to the house was transmitted not to
stipulated a conclusion inconsistent therewith; and (h) in not granting a new trial. the plaintiff but to the defendants.

ISSUES: We are of the opinion that the plaintiff cannot invoked symbolic delivery by the
execution of the public document of sale, inasmuch as there was not, nor could there
have been, such delivery, the same being prevented by the express stipulation This kind of tradition, however, is, as to its efficaciousness, subject to the terms
contained in the deed of sale, to the effect that the vendors did not part with the of the document, for if it appears therein, or can be inferred therefrom, that it
possession of the house but would continue therein for four months. Article 1462 of was not the intention of the parties to make delivery, no tradition can be deemed
the Civil Code says: to have taken place. Such would be the case, for instance, where a certain date is
fixed when the purchaser should take possession of the thing, or where in the
If the sale should be made by means of a public instrument, the execution case of a sale by installments, it is stipulated that until payment of the last
thereof shall be equivalent to the delivery of the thing which is the subject- installment is made, the title to the property should not be deemed to have been
matter of the contract unless the contrary appears or may be clearly inferred transmitted, or where the vendor reserves the right to use and enjoy the property
from such instrument. until the gathering of the pending crops. (10 Manresa, Codigo Civil, p. 129.)

At the time, therefore, of the execution of the deed in favor of the plaintiff, the first The instant case is one of those above mentioned by the eminent commentator Mr.
purchaser, there was no symbolic delivery because there was an express stipulation Manresa. To use the phraseology of the above quoted passage, a certain date was
to the contrary. It cannot be said that after the lapse of the four months following, fixed (namely, at the end of four months, because id certum est quod certum reddi
during which the vendors were to continue in possession of the house, according to potest), when the purchaser should take possession of the thing.
the stipulation, any symbolic delivery subsisted. Nothing can subsist that did not
exist before. Neither can it be said that the house must be presumed to have been delivered to the
first purchaser after the lapse of the four months aforesaid, for such a presumption is
It cannot be said that symbolic delivery spontaneously took place after the lapse of overthrown by the fact stipulated by the parties that this first purchaser never
the four months stipulated, for there is no law providing that it should take place took possession of the house.
after the execution of the document where there is a stipulation to the contrary.
We entertain no doubt, either under the facts or under the law of the case, as to the
The law does not say that such a symbolic delivery is suspended when at the right of the defendants to the house in question, with absolute exclusion of the
execution of the document a stipulation to the contrary is made. What the law simply plaintiffs.
says is that no such symbolic tradition can take place, can exist when there is a
stipulation to the contrary. Turning to the second point which is of a procedural nature, we hold that the trial
court did not commit any error in declaring the defendants owners of the house in
As we understand the law, there is symbolic delivery when the sale is made in a question. It is true that the answer does not expressly pray for such as affirmative
public document, and nothing appears therein to the contrary either expressly or relief. But both parties expressly and solemnly stipulated that they submitted the case
impliedly; and no such symbolic delivery can be held to take place when, as in the to the trial court for the determination of the question as to which of the two
instant case, there is in the document a stipulation to the contrary. purchasers acquired title to the house, when in the stipulation of facts, they said the
following to the court:
We do not hesitate to term symbolic such delivery of the thing as is supposed to
be made by the execution of the document, as provided in article 1462, although Under the foregoing facts, the case is submitted to the consideration of the court
in that case it must be considered to take place partly by operation of law. This for the determination of the question of law as to which of the two purchasers
kind of tradition finds its precedent in law 8, title and Partida aforecited, which acquired title to the property.
provides that "when one grants another any property or thing, the latter acquires
possession thereof, if the grantor delivers to him the letters whereby the same is This statement made to the court below by both parties is tantamount to an
made, or makes a new one and hands it to him, although he is not given physical amendment of the prayer of the answer, and to a waiver by the party plaintiff of the
possession of the thing." right to question such a defect, if it is at all, of the prayer of the answer.

It must be noted that this manner of delivering the thing through the execution of The question having thus been raised, and both parties having requested the lower
a public document is common to personal as well as real property, for the Code court to determine which of the two litigating parties acquired the house in question,
does not distinguish, and besides, taking this rule in connection with the the lower court did but fulfill its duty in determining the question presented and
following article, 1463, a conclusion to this effect seems to be clearly justifiable. declaring upon the facts and the law of the case, that the defendants, and not the
plaintiffs, are the owners of the house in dispute. As above stated, the other For the foregoing reasons, Florendo instituted the present suit against Foz, wherein
assignments of error are but a corollary of the two points already decided. he asked that the defendant be sentenced: (a) To comply with the contract of
absolute purchase and sale, by delivering to the plaintiff the property sold; (b) to pay
The judgment appealed from is affirmed, with the costs against the appellants. So to the plaintiff the rents of the entire realty from July 1, 1909, until the judgment
ordered. should be fulfilled, together with the legal interest on the amount of such rents, and
that the court fix sum which the defendant must pay for his use of a part of the
property; (c) that, out of the P4,000 deposited by the plaintiff in the municipal
treasury of Vigan, Ilocos Sur, payment be made to The Roman Catholic Apostolic
Church, in the said pueblo of Vigan, "Obispado de Nueva Segovia," of the mortgage
TOPIC: CONSTRUCTIVE DELIVERY
credit due that it holds against the defendants, and that the remainder left paying all
FLORENDO VS. FOZ, MARCH 19, 1914
the debts found to be owing by the judgment to be rendered, be delivered, to the said
defendant; and, (d) to pay the costs of the trial.
FACTS: On May 11, 1909, Eustaquio P. Foz executed in Manila a contract, ratified
before a notary, and substantially of the following purport:
The defendant, in his answer to the complaint, alleged that it was false that he had
sold his property for the price of P6,000; that, if he signed the deed of sale, he was
I, D. Eustaquio Foz . . ., in consideration of the sum of six thousand pesos deceived in so doing, as he had heard, or believed that he had heard, when it was
(P6,000) Philippine currency, hereby sell, cede, and convey forever and previously read to him, that the amount stated therein was P10,000, which was the
perpetually to Sr. Jose Florendo, my house and camarin of strong materials, true sum agreed upon between himself and the plaintiff as the price of the property.
together with the lots on which they are elected, the boundaries of which as The defendant therefore asked that the deed of sale be declared to be false, null and
follows: (and the boundaries are expressed). void, and, in counter complaint, prayed that the plaintiff be compelled to return to
him the ownership title of the property, which was in the plaintiff's possession.
Of the six thousand pesos, I have already received from the said Sr. Jose
Florendo, two thousand pesos (P2,000), and the said [party shall pay me the The Court of First Instance of Ilocos Sur, after hearing the evidence adduced by both
remaining four thousand in Vigan when I go there at any time during month or sides, rendered judgment in conformity with the plaintiff's petition, except with
next month. regard to fixing the amount which the defendant should pay as rent for the personal
use of a part of the house, and disallowed the defendant's counter-complaint.
In case of my beingunable go to Vigan, I authorize the said Jose Florendo to pay
my debt to the church at that place, as well also (that is, I authorize him) to The latter appealed from that judgment, and the hearing on the appeal discloses the
obtain the title papers of the house tat is the subject matter of this sale, and the following facts:
said Florendo shall send the remainder to me here in Manila.
1. That the evidence presented by the defendant was rather intended to prove that the
Record is also made in this instrument that the rents of the said properties may year before he had been offered the price of P8,000 for his property and that the
be collected by me only up to and including the month of June; after such latter was worth more than P6,000, in rebuttal of which the plaintiff showed the price
period, I shall have no further right to said rents and Seor Florendo may then for which the property had been acquired and its assessed valuation, neither of which
begin to collect them. exceeded P6,000.

This contract was signed by the party who executed it, by his wife and two 2. That, as regards the defendant's special defense to the effect that the deed of sale
witnesses, and was, by the first mentioned, ratified before a notary. was read to him before he signed it and that he heard or believed that he heard that
the price stipulated in the deed was P10,000, not only was no evidence whatever
Eustaquio Foz went to Vigan, and on June 23 of the same year, Jose Florendo, presented, but also no offer nor attempt was made to introduce any.
accompanied by a notary, tendered to the former the P4,000, the rest of the price of
the sale; but Foz refused to receive them, saying that the true price of the sale, 3. That the court ordered the deposit of the P4,000, as the remainder of the payment
recorded in another instrument held by Florendo, was P10,000, and that on the of the price and which in the complaint was said to be deposited in the municipal
second or third day after the first instrument the contract. These facts were recorded treasury of Vigan, to be made in the provincial treasury, from which ruling the
by the notary in a notarial certificate. (Exhibit C, of the plaintiff.) defendant took an exception, alleging that it was another defense of his, in support of
his refusal to deliver the property sold, that the rest of the price thereof had not been In accordance with the first of the said quoted clauses, the period for payment is
properly deposited, either in May or in June, 1909. when the vendor shall have arrived at Vigan; and if he does not arrive at Vigan, such
period is, according to the second clause, indefinite, the vendee merely taking it upon
4. That the defendant ratified at the trial his answer in the notarial certificate of June himself to send the rest to Manila, after the month of June, 1909, should the vendor
23, 1909 (Exhibit C of the plaintiff), that is, his avernment that another instrument not arrive at Vigan.
had been executed in which the true price of P10,000 was stipulated; but this
averment was not repeat nor proved during the whole trial. The provisions of the said article 1466, contain a rule and an exception: the rule is
that the thing shall not be delivered, unless the price be paid; and the exception is
5. That in the appellant's brief in this instance, on page 14 thereof, the following that the thing must be delivered, though the price be not first paid, if a time for such
statements appear: payment has been fixed in the contract.

The plaintiff, on his reading this instrument to the defendant, made the latter Hence, all the discussions between the contending parties, with respect to whether
believe that the amount stipulated therein as the price of the contract was the deposit of the P4,000, a part of the price, was or was not made, or was duly or
P10,000, and in this belief the defendant signed that notarial document. That fact unduly made, is entirely impertinent: the conveyance of the thing sold does not
having proved by the defendant's testimony, which was neither contradicted nor depend on the payment of the price, in this case of exception contained in article
rebutted, is that document to prevail over all the proofs adduced? 1466 of the Civil Code.

None of these statements can be accepted as correct. It was not proved, nor was it If this period was fixed, the vendor, notwithstanding that such period has not
attempted to be proved, that the instrument, before being signed by the appellant, terminated, nor, consequently, that he has not collected the price, is obliged to
was read to him by another person; nor that such other person was the appellee deliver the thing sold. (10 Manresa, Commentaries on the Civil Code, 130.)
himself; nor that any person read one thing for another, as being what was stipulated
in the instrument. For the se reasons it was the conclusion of the trial court that There was no need, therefore, of assent on the part of the plaintiff to pay the P4,000,
neither the deceit alleged by the defendant to have been employed by the plaintiff in the remainder of the price, in order to oblige the defendant unconditionally to deliver
the execution of the contract, nor the falsity of the instrument executed, was proved. the property sold. With still more reason should the defendant be compelled to effect
(B. of e., p. 12.) the material delivery of the property, since, after the lapse of the period for the
delivery of the price, the plaintiff hastened to pay it and, on account of the
Consequently, the instrument of contract is valid and effective. From the validity and defendant's refusal to receive it, duly deposited it, in order to avoid the consequences
force of the contract is derived the obligation of the part of the vendor to deliver the that might issue from delinquency in the payment of a sum entrusted to him for a
thing sold. fixed period.

ISSUE: Whether or not material delivery of the property should be made to Florendo It is the material delivery of the property sold which the defendant must make in
compliance with the contract, inasmuch as the formal delivery de jure was made,
HELD: YES. Pursuant to article 1466 of the Civil Code, the vendor shall not be according to the provisions of article 1462, 2nd paragraph, of the same code:
bound to deliver the thing sold, if the vendee should not have paid the price, or if a
period for the payment has not been fixed in the contract. If in the contract a period When the sale should be made by means of a public instrument, the execution
has been fixed for the payment, the vendor must deliver the thing sold. In the thereof shall be equivalent to the delivery of the thing which is the object of the
contract in question, a period was fixed for the payment: contract, if in said instrument the contrary does not appear or may be clearly
inferred.
The said party (the vendee) says the vendor shall pay me the remaining four
thousand in Vigan when I go there at any time during this month or next month. In As the contrary does not appear nor is to be inferred from the public instrument
case of my being unable to go to Vigan, . . . the said Florendo shall send the executed by the defendant, its execution was really a formal or symbolical delivery
remainder (after paying the vendor's debt to the Church of Vigan) to mere here in of the property sold and authorized the plaintiff to use the tile of ownership as proof
Manila. that he was thenceforth the owner of the property. The judgment appealed from is
affirmed in all its parts, with the costs of this instance against the appellant.

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