* '-

CIVIL LAW-PART TWO

PROPERTY
Vicente -4bad SantosO

I. INTRODUCTION
The year under review -1968 -produced a good harvest of decisions
on the law of property. Most of the decisions merely repeat previous
applications of the law so that the judgment could be anticipated
in the light of the given facts. It is not possible to be critical with
decisions of this type because, like a pair of old shoes, Ithey give
comfort and support the stability of the law so essential in the field
of property.
We have criticized a few of the decisions. One deals with co-
ownership, which we think was not correctly decided. Another deals
with public property, which we think was decided wrrectly but left
something to be desired in the process of reasoning. We shall be happy
to know the reaction of our readers to our criticisms.
As before, the present survey has been delimited by the editor of
this publication to cases, if any, applying the provisions of Book I1
of the Civil Code (excluding trademarks, trade-names and registry of
property) and the titles on occupation, donation and prescription of
Book I11 of the same code.

11. CLASSIFICATION
OF pRopwTy

There are two basic classifications of property in the Civil Code.

Accorlng to its nature, property is classified into immovable or real
and movable or personal. Depending on ownership, property is classified
into public and private. To be sure, thcre are other classifications of
property but they are less important than those already mentioned,
e.g., corporeal and incorporeal, fungible and non-fungible, present and
future, divisible and indivisible, urban and rural, generic and specific,
and principal and accessory.

A. The nature of property

Article 415 of the Civil Code does not define what is real property.
Instead, it lumps a number of seemingly unrelated items and dubs
them as immovable property. Thus, we find in the list not only proper-
* Professor and Dean, College of Law, University of the Philippines.
 -
19691 CIVIL LAW 7s

ties which are real by nature (land) but also others so considered
by attachment (paintings), by destination (machinery) and by analogy
I

{contracts for public works).

In Government Service Insurance System v. Calsons, Inc.,l the
Supreme Court held that machinery permanently placed on land be-
came real property. In that case, the corporation borrowed from the
System a sum of money secured by a real estate mortgage on several
parcels of land, together with improvements then existing or which
may be placed thereon later. The contract provided, inter alia, that
the mortgagor shall not sell, dispose of, mortgage or encumber any
of the mmtgaged properties without the consent of the mortgagee.
The mortgagor removed and disposed of the machinery installed in
the building, which was standing on the mortgaged properties. The
m’ortgagor justified its action by contending that the machinery was
not included in the mortgage. But the Supreme Court held the con-
tention groundless. It said:
“The mortgage was on the lands ‘together with all the buildings
and improvements now existing or which may hereafter be constructed’
thereon. And the machineries, as found by the trial court, were permanently
a t k l i e d to the property, and instalIed there by the former owner to meet
the needs of certain works or industry therein. They were therefore part
of the immovable pursuant to Article 415 of the Civil Code, and need
not be the subject of a separate chattel mortgage in order to be deemed
duly encumbered in favor of appellee.”Z
To the same effect, see, among other cases, Bischoff v. P o ~ n a r , ~
Cea v. ViIlan~e2;a,~ Cu Unjieng v. hfaba1aca-t Sugar CO.,~Berkenkotter
v. Cu Unjiens; Davao Sawmill Co. I ) . Cmtillo, Engineering Supplies,
Inc. v. C a r t of Appeals,q and People’s Bank and Trust Co. ”u. Dahican
Lumber C O . ~

B. The ownership of properLy

Among properties of public dominion are shores.” And the Spanish
Law of Waters of 1866 stipulates:
“By shore is understood that space covered and uncovered by the
movement of the tide. Its interior or terrestrial limit is the line reached
by the highest equinoctial tides. Where the tides are not appreciabIe, the

G.R. No. 1986’7, May 29, 1968, 23 S.C.R.A. 891.

l I d . at 897-898.
12 Phil. 690 (1909).
418 Phil. 538 (1911).
58 Phil. 439 (1933).
61 Phil. 663 (1935).
€3 Phil. 709 (1935).
96 Phil. 70 (1954).
QG.R. No. 17500, May 16, 1967, 20 S.C.R.A. 84 (1967).
CIVILCODE,art. 420.
 76 PHILIPPINE LAW JOURNAL [VOL. 44

shore begins on the land side at the line reached by the sea during ordinary
storms and tempests.”ll

In Cagmpang v. Morano,’2 the plaintiff sought to recover a parcel

of land abutting on the sea, which, he claimed, had been forcibly
entered by the defendant who, in turn, pleaded occupancy by virtue
of a foreshore grant from the government.
At a pre-trial, it was agreed:
“. . . Should the lot in question be reached by the ordinary highest
tide, then the plaintiff shall concede that the lot rightfully belongs to
the defendant and will relinquish any of his claim and interest in the
same. Should the hdings of the court be the other way, then the de-
fendant should abandon the lot in question in favor of the plaint8 . . .”

At an ocular inspection conducted by the trial court? it was found:

“. . . [T]bat the lot in question is not reached, much less, covered by
the highest ordinary tide. It can only be reached or covered by the highest
tide during the months of May,- June and July or during the months when
the highest tide of the year will occur.”

It gave judgment for the defendant but despite the pre-trial agree-
. ment the plaintiff appealed, urging reversal. In affirming, the Supreme
Court said:
“As the lot was covered by the highest tides from May to July,
and there is no showing that these. tides are due to abnormal conditions,
the land i s obviously part of the shore and public property. Hence, legal
possession thereof appertains to the national government or its grantees.
No error was, therefore, oommitted in holding that appellee Mvrano, being
such a grantee, has the supedor right to possession as against the plaintiff
who exhibited no State grant.”la

It should be noted that the quality of being a shore is not necessarily

an original condition. Thus, a piece of land? though privately owned,
can become a shore if it is eroded by the ebb and flow of the tide
and the owner makes no attempt to stop the advance of the sea so
that the land becomes submerged in water in ordinary tides. If such
should occur, the land becomes part of the shore and the owner loses
ownership over it. It i s a de f case of eminent d0main.l“
The Civil Code divides the property of provinces, cities and munic-
ipalities as either property for public use or patrimonial property.15
Their property for public use consist of roads and streets, squares, foun-
tains, public waters, promenades, and public works for public service
*l?irt. 1.
l’G.R. No. 25738, March 14, 1968, 22 S.C.R.A. 1040.
13Zd. at 1042-1043.
l4 Government v. Cabangis, 53 Phil. 112 (1929).
l5Art. 423.
19691 CIVIL LAW 77

paid for them. All other property by them possessed is patrimonial, which
shall be governed by the Civil Code, without prejudice to the provisions
of special laws.le
The case of Province of Zamboanga del Norte v. City of Zam-
boanga,” shows how the Supreme G o u t used the phrase “the provisions
of special laws” to arrive at a classification of provincial properties
different from that given in the Civil Code.
The municipality of Zamboanga used to be part, in fact the capital,
of Zamboanga province. In 1936, the, municipality of Zamboanga be-
came a city and in the charter creating it was included the provision
that -
“Buildings and properties which the province shall abandon u p n
the transfer of the capital to another place will be acquired and paid for
by the City of Zamboanga at a price to be &ed by the Auditor Gen-
eral.”’*

In 1952, Republic Act No. 711 divided Zamboanga province into

two: Zamboanga del Norte and Zamboanga del Sur. After the division,
the City of Zamboanga started to pay to Zamboanga del Norte its
share of the value of the abandoned properties but in 1961, the charter
of the former was amended by providing that-
“All buildings, properties and assets belonging to the former province
of Zamboanga and located within the City of Zamboanga are hereby
transferred, free of charge, in favor of the mid City of Zamboanga.”la

Zamboanga del Norte then filed a complaint against the City of

Zamboanga which sought, inter alia, that the amendatory statute, Re-
public Act No. 3039, “be declared unconstitutional for depriving the
plaintiff province of property without due process and just compensation.”
The issue, as stated by the court, was: Were the abandoned
properties owned by the province in its public and governmental capa-
city or were they owned in its private or proprietory capacity? In
the case of the first, the property is public and Congress has absolute
control over it; in the case of the second, the property is patrimonial
and the owner cannot be deprived of i t without due process and
payment of just compensation.
The Supreme Court held that under Articles 423 and 424 of the
Civil Code, municipal corporations have only two kinds of properties:
property for public use and patrimonial property. These articles provide:
l6Art. 424.
G.R. No. 24440, March 28, 1968, 22 S.C.R.A. 1334.
Corn. Act No. 39 (1936), sec. 50.
l8 Rep. Act No. 3039 (1961), sec. 1.
78 PHILIPPINE LAW JOURNAL [VOL. 44

“Art. 423. The property of provinces, cities, and municipalities is

divided into property for public use and patrimonial property.
Art. 424. Property for public use, m the provinces, cities and munic-
ipalities, consist of the provincial roads, city streets, municipal streets,
the squares, fountains, public waters, promenades, and public works for
public service paid €or by said provinces, cities, or municipalities.
All other property po-ssessed by any of them is patrimonial and shall
be governed by this Code, without prejudice to the provisions of special
laws.”

The test, it said, as to whether property is for public use is its

free and indiscriminate use by anyone.
The Supreme Court held that, under the Civil Code classification,
two lots used as high school playgrounds were property for public
use whereas the rest of the abandoned properties were patrimonial
property. Even the capitol site, the hospital and leprosarium sites and
the school sites will be considered patrimonial property, said the court,
for they are not for public use. They fall, added the Court, under the
phrase “public w-orks for public service” for, under the e j u s d m generis
rule, such public works to be for public use must be for free and
indiscriminate use by anyone just like the preceding enumerated proper-
ties in Article 424, paragraph 1.
But the Court did not rely on its interpretation of ,the Civil Code to
determine the plaintiff‘s right to compensation. It relied instead on the
“principles constituting the law of Municipal Corporations” because Article
424, paragraph 2, provides that the applibation of the Code shall be “with-
out prejudice to the provisions of special laws” and citing Hinunangan o.
Director of and Municipality of Batangas v. Cantos,21 Tan-
toco c. Municipal Council of Iloilo,” held that property devoted to
public service is deemed for public use and under this norm, it is enough
that the property be held and devoted for governmental purposes like
lccal administration, public education, public health, etc. As a result,
of the 50 lots that had been abandoned by the province, 24 were de-
clared by the court to be property for public use because they were
devoted to governmental purposes and noncompensable, and 24 were
declared patrimonial in nature and therefore, compensable.
This case can stand some criticism.
(1) If, under the Civil Code, the test for determining whether
property is for public use is its free and indiscriminate use by anyone,
then a high sohool playground, contrary to the court’s holding, i s not
2 0 2 4 Phil. 124 (1913).
21 91 Phil. 514 (1952).
49 Phil. 52 (1926).
mn

1969J

property for public use because its use is not open to everyone but
to high school students only. A high school playground is therefore
patrimonial property.

(2) According to the Supreme Court, “[flor purposes of this

article (424), the principles obtaining under the laws of municipal cor-
porations can be considered as ‘special laws’.’’ It is believed, however,
that the Civil Code refers to statute law for it speaks of “prmisions”
which cannot include “principles” constituting the law of Municipal
Corporations. This is not to say that it was wrong for the court to
apply said principles for, as it said, “[tlhe controversy here is more
along the domains of the law of Municipal Corporations-State v.
Province - than along that of Civil Law.” The point we wish to
make is that it was not necessary to torture the coda1 provisions in
order to justify a different classification.

111. OWNERSHIP
IN GENERAL

A. The jus windicandi

One of the rights included in the ownership of property is the jus
vindicandi-‘“The owner has . . . a right of action against the holder
and possessor of the d i n g in order to recover it.”23
It is hornbook law that in the recovery of real property, the owner,
depending on the cause of deprivation, has the following actions avail-
able to him: “(a) the summary action for forcible entry (where pre-
liminary mandatory injunction may be sought within ten days from the
filing of the complaint under Article 439 of the Civil Code) or illegal
detainer, which seeks the recovery of physical possession only and is
brought within one year in the municipal court; ( b ) the accion pub-
liciana, which is for the recovery of the right to possess and is a plenary
action in an ordinary civil proceeding in a Court of First Instance; and
(c) acci6n de reivindicaci6n7 which seeks the recovery of ownership,
including the jus u t d i and the jus fmendi, also brought in the Court
of First Instance.”
This was pointed out in Emilia v. Budo,“ In that case, the plain-
tiff prayed for an injunction to restrain the defendants from continuing
with the construction of a house on a piece of land which the former
claimed to belong to her. The trial court issued an ex-parte preliminary
injunction but after a summary hearing on a motion to dismiss, it
dissolved the preliminaq- injunction and dismissed the complaint. In
v ~ art. 428, par. 1.
2 3 C ~ CODE,
24G.R. No. 23685, April 25, 1968, 23 S.C.R.A. 183, 189.
80 PHILIPPINE LAW JOURNAL [VOL.. 44

that hearing, the trial court gave credence to the testimony of a sur-
veyor that the house under construction was outside the plaintiff‘s hand.
The plaintiff appealed.
In dismissing the complaint, the Supreme Court said:
“The remedy of injunction has been the subject of numerous judicial
pronouncements. The court cannot now afford to depart from the well-
ingrained precept that injunctions are not available to take property out
of possession or control of one party and place it into that of another
whose title has not clearly been establi~hed.’~5

The Court then pointed out the three kinds of actions available to the
plaintiff, supra.

The reason why injunction is not the proper remedy has been given
in the case of Santos v. De as follows:

“This court, on more than one occasion, has held that injunction
will not be granted to take property out of the possession or control of
one party and place it in that of another whose title has not been clearly
established by law. (Devesa us. Arbes, 13 Phil. 273; Palafox us. Madamba,
19 Phil. 444; Evangelista vs. Pedrehs, 27 Phil. 648). The doctrine
proceeds on the familiar rule that the writ of injunction is an equitable
relief, and that the determination of title is a legal remedy. In jurisdictions
where courts of equity are separate and distinct from courts of law,
such distinction is by no means a matter of indifference. Indeed, it is
a matter of jurisdiction, for courts of equjty, by their nature, can only
administer equity. Thus, following this principle, this court has further
held that, where the defendant raised the question of title, injunction is not
the pmper remedy. (Asombra vs. Dorado and Gesmundo, 36 Phil. 883;
Liongson vs. Martinez, 6 Phil. 948.)”

Nonetheless, even if a case had been initiated as one for injunction,

it can be treated by the court as an ordinary action in order to avoid
multiplicity of suits between the same parties considering that Philippine
courts administer both law and equity.2’
In the EmiZia case, both parties claimed ownership over the same
portion of land. Clearly, as the Supreme Court pointed out, “a legiti-
mate issue of ownership emerges.” The plaintiff‘s suit should properly
have been an accion rdnvindicatoria. And in line with the Santos and
other cases, the court, instead of dismissing the complaint, could have
remanded the case to the lower court with instructions to amend the
complaint so that the question of ownership could be raised. But the
court did not remand because it was afraid, in view of the voluminous
record of the case, that confiision might arise.
25 Id. at 187.
2660 Phil. 573, 574-575 (1934).
27 Santos v. De Leon, supra.
 CIVIL LAW

An owner’s right to recover possession of his property may, in cer-

tain cases, have to give way to public interest. This is illustrated in
City of Legaspi v. A. I;. Ammen Transportation Co., Znc.,as

In that case, the defendant had earlier successfully reconstituted

its title to a piece of land situated in the. now City of Legaspi. It
afterwards sought to eject the occupants on the land, including the
City of Legaspi which had constructed a public road thereon. From
a judgment ordering the city to vacate the road, appeal by certiorari
was made by the city.
The Supreme Court affirmed the judgment but made the following
.. ’ - 2 1- ,.-a:,. I I L # -,dm, -
reservation: - I - I. .- .r r l l L

“Such a problem thus gives rise to a matter of public interest. For-

tunately, it is not a new one m this jurisdiction. The appmpriate solution
was indicated in the leading case of Alfonso w. Pasay City, where this
Court, through Justice Montemayor, held: ‘In the present case, Mfonso
remains up to now, the owner of the land in question, Lot No. 4388 of
the Cadastral Survey of Pasay, ‘becanse Wig registered land, the City of
Pasay or its predecessor, Municipality of Pasay, did not and could not
acquire it thru prescription. As registered owner, he could bring an action
to w v e r possession at any time because possession is one of the attributes
of ownership of land. However, said restoration of possession by the .
City of Pasay is neither &venient nor feasible because it i s now and
has been used for road purposes. So, the only relief available is for the
City of Pasay to make due compensstion, wllich it could and should have
done years aso since 19F.”’ (106 Phil. 1017, 1022 [1960].)
7 , I ’ .I ’ C’ P 1-r f’l ’ P i I -
‘I ’ 1. f 1 1 f f ‘I
I

I I J i t..Anlnlnm I .Jim I I , ’ - 1 I’L,

B. Limitakm dn ownership - . - It,

The owner of property has, among other rights, its enjoyment and
disposal, “without other limitations than those established by 1aw.’7p8
An example of a limitation on the right of ownership is given in
~ ~ Pinugcamuligan
the twin cases of Director of Foreshy, c. A ~ u i i 0 2 ,and
I n h A g r o Development Corp. v. Peralta?’ whose facts and issues need
not here be stated.
Under Section 1829, paragraph 1 of the Revised Administrative M e ,
“[elvery private owner of land containing timber, firewood and ohex
minor forest products shall register his title to the same with the Director
of Forestry.” If the title is not registered, the crwner is made to pay
charges for cutting, gathering and removing forest products from his
own Zand and he must, moreover, have first secured a license from the

28G.R. No. 22377, November 29, 1968.

a e C CQDE,
~ art. 428, par. 1.
30G.R. No. 24796, June 28, 1988, 23 S.C.R.A. 1183.
alG.R. No. 25159, June 28, 1968, 23 S.C.R.A. 1184.

. . .
-
82 PHILIPPINE LAW JOURNAL [VOL. 44

Director of Forestry otherwise his cutting, etc. are illegal and subject
to the payment of a penalty.32 Accordingly-
". . . [Rlegistmtion of titles by the owners of private woodlands with
the Bureau of Forestry results in an exemption 'from the payment of
forest products gathered therefrom for commercial or industrial purposes.'
If an owner fails to so register, he is obliged to pay forest charges, as
prescribed in Sections 264 and 265 of the Tax Code. . . . However, as
provided in Section 266, if an owner does not register his title, but he
desires to cut, gather and remove timber and other forest products from
his land. he may 'secure a license from the Director of Forestry in ac-
cordance with the Forest law and regulations.' If he does not, under the
same Section 266, his cutting, gathering and removing of timber and other
forest products from public forest produds 'shall be considered as unlawful
cutting, gathering and removing of forest products from public forests and
shall be subject to the charges prescribed in such cases.' And this would
bring into play Section 267, where the charges on forest products 'unlaw-
fully cut and gathered, in any public forest without license, or, if under
license, in violation d the terms thereof . . . shall be increased by three
hundred per centum.' "33

IV. RIGHT OF ACXXSSION

In industrial accession, the law pays particular attention to the
good or bad faith of the builder, planter or sower. Subject to a few
exceptions, he who acts in bad faith has no rights but, on the contrary,
the law vents on him its full retributive justice. On the obher hand,
he who acts in good faith is treated leniently by the law and is
given certain rights. Thus, a person who builds, plants or sows in good
k i t h on the land of another is entitled to indemnity from the owner
of the land if the latter does not choose the other options given to
him.34 But h e who builds, plants or sows in bad faith on the land
of another, loses what is built, planted or sown without right to
indemni,tys5
' I .. . Good faith, or the lack of it, i s in its last analysis a question
* 'ng the intention by which one is actuated
of intention; but in ascBTtau11
on a given occasion, we are necessarily controlled by the evidence as to
the conduct and outward acts by which alone the inward motive may, with
safety, be dezermined. So it is that 'the honesty of intention,' 'the honest
lawful intent,' which constitutes good faith implies a 'freedom fmm know-
ledge and circumstances which ought to put a person on inquiry,' and
so it is that proof of such knowledge overcomes the presumption of good
faith in which the courts always indulge in the absence of proof to the
oontrary. 'Good faith, or the want of it, is not a visible, tangible fact
that can be seen or touched, but rather a state or condition of mind
azTax CODE, sea. 266 and 267.
33 Director
of Forestry v. Muiioz, supra note 30 at 1200-1201.
"CIVIL CODE,art. 448.
3 5 C CODE,
~ ~ art.
~ 449.
19691 CIVIL LAW 83
which can only be judged of by actual or fancied tokens or signs.’ (Wilder
US. Gihan, 55 Vt., 504, 505; Cf. Cardenas us. Miller, 108 Cal., 250;
Bream-Renoudet, Cypress Lumber Co. us. Shadel, 52 La. Ann., 2094-u)98;
Pinkerton Bros. Co. us. Bromley, 119 Mich., 8, 10, 17.)”3”

The case of 1 . M . Tuason & Co. v . L~rnanlan,~~

answers the question
as to whether or not a person can be a builder in good faith on a
piece of land registered under the Torrens system.
In that case, Lumanlan had built a house on the registered proper-
ty of the plaintiff and in her counterclaim to the ejwtment suit, she
contended that she was a builder in good faith. But the Supreme
Court, relying on its previous decision in Tuascm & Co. v. Macalindong,88
held that there being presumptive knowledge of the Tarrens titles
issued to Tuason 8- Co. and its predecessors-in-interest since 1914, the
builder cannot, in good conscience, disregard the plaintiffs registered
title and was therefore a builder in bad faith.
The Tuason cases have reversed the decision in Labajo v . EnriqUez,39
where a person who had occupied by mistake another’s Torrens registered
land, was deemed to be a possessor in good faith, and sustained the
dissenting opinion of Justice Sabino Padilla in .the same case, as follows:
“It appears that the parcel of land acquired by purchase by the
defendant and the one adjoining it owned by the plaintiffs are registered
under the Land Registration Act (Act No. 496). The fact that the defendant
found it unoccupied or abandoned and that he was made to believe
that the parcel of land he had acquired by purchase included the adjoining
parcel of land owned by and registered in the name of the plaintiffs,
does not render him a possessor in good faith. Were this a matter of a
few square meters and with a standing wall pointing out the boundary
of the parcel of land acquired by the party who claims to be a possessor
in good faith of a small adjacent strip of land within the area of an
adjoining registered parcel of land belonging to another, good faith of
the f o m r might be accepted and believed, as held in Co Tao us. Chan
Chim, 46 off. Gaz. 5514. But one who purchases a parcel of land
registered under the Torrens system must be presumed to know the area
and boundaries of the acquired parcel of land. Assuming that he was told
that the adjoining parcel of land owned by another, also registered under
the same system, was included in the parcel of land he had acquired by
purchase, that does not make him a possessor in good faith of the p d
of land belonging to the other. . . . .”4 0

The case of Lumango F. Usrnan,‘l also dealt with accession in

bad faith.
a s h u n g Yee v. F. L. Strong Machinery Co., 37 Phil. 644, 651-652 (1918).
G.R. No. 23497, April 26, 1968, 23 S.C.R.A. 230.
38G.R. No. 15398, December 29, 1962.
39102 Phil. 908 (1958).
4oZd. at 911-912.
G.R. No. 25359, September 28, 1968, 25 S.C.R.A. 255.
84 PHILEPINE LAW JOURNAL

In that case, the plaintiffs sought to recover from the defendant

several parcels of land. The trial court gave judgment to the plaintiffs
but Jose Angeles, an intervenor, claimed reimbursement for the coconut
trees planted by him on the property in litigation.
Presumably, the trial court made no findings as to whether or not
Angeles was a planter in good faith and presumably also, it failed
to take into account the case of Rernardo v. Bata~lun,’~which recog-
nizes the primacy of the landowner’s right but on equitable grounds,
entered the following judgment:
“On the other hand, the plaintiffs are ordeed to reimburse to the
defendant-intervenor, JOSE ANGELES, the sum of 84,500.00 representing
the value of the 3,000 coconut trees introduced by him and his predecessors
in interest on Lots 892, 893 and SQ4. Should plaintiffs fail to do so
within ninety (90) days from the date this decision becomes M,the
three lots shall be ordered sold at public auction, the prooeeds of which
shall be applied to the 84,500.00 herein adjudged to Jose Angeles, and the
balance to be delivered to the plaint%.’’

The Court of Appeals found that the intervenor had bought the
lots in question with knowledge that they were rhe subject of a
litigation between plaintiff‘s predecessors and the defendants but on
grounds of equity, affirmed the lower court’s judgment with the sole
modification that the indemnity was reduced from 14,500 to €2,500
despite this statement:
“The [trial] Court found for a fact that around 3,000 coconut trees
wem planted on those lots aforementioned, some of them already fruit-
bearing. It appears f m the records that not an, but a portion, of the
3,000 were planted by intervenor Jose Angeles. The value placed by the
lower couit of F’1.50 per fruit-bearing coconut tree is reasonable enough,
inasmuch as the lower court w a s in a better position to make the assess-
ment, it being more closely in contact with the alnditiolls and circumstanC e S
of the locality. We are not prepared to disturb such &ding for lack of
evidence to warrant such an action on our part.”
Is the intervenor a planter in good faith? The Supreme Court,
on the basis of the Court of Appeals finding that he had knowledge
that the lots in question were under litigation, held him to be a
purchaser and a builder in bad faith. It held:
“. . . The praision applicable to this c898 is, accordingly, Article 449
of the Civil Code, which provides that, ‘(h)e who builds, plants or sows
in bad faith on the land of another. loses what is built, planted or sown
u < t h t right to indemnity.”’
. “Obviously, (the alleged equity in favor of Jose Angeles, on which
the lower courts have relied, cannot prevail over the aforementioned express
statutory provision to the contrary, apart from the fact that he who seeks
equity must come with dean hands.”
42 66 Phil. 598 (1938).
19691 CIVIL LAW

Despite bad faith, a builder, planter or sower is entitled to re-

imbursement for necessary expenses. “In this connection, it should be
noted that said trees are improvements, not necessary expenses of pre-
servation’, which a builder, planter or sower in bad faith may recover
under Articles 452 and 546, first paragraph, of the Civil Code.”
In Angela Estnte, Inc., c. Court of First I~wtance,’~one of t h e
defendants, a sugar central company, had been granted a conventional
right of way over the plaintiffs’ haciendas. After the expiration of
the contract term, the ceatral claimed that it was a possessor in good:
faith of the right of way traversing the haciendas and invoking Article
44.8 of the Civil Code, which stipulates that, “[tfie owner of the
land on which anything has been built, sown or planted in good
faith, shall have the right to appropriate as his own the works, sow-
ing or planting, after payment of the indemnity. . .” argued that its
railroad tracks, locomotives and cane cars may not be removed with-
out payment of their value. ,
The Supreme Court, relying on the case of Alburo v. ViZZanuev~,’~
held that the central could not validly claim to good faith because
it knew and recognized that the strip of land traversed by its rail-
road tracks was owned and possessed by the plaintiffs.
In the Alburo case, the Supreme Court held that Art. 361 of
the Spanish Civil Code, now Article 448 of the Philippine Civil Code,
“is manifestly intended to apply only to a case where one builds
or sows or plants on land in which he believes himself to have a
claim of title. . .’‘45 However, this principle was not applied in Jacia
, ~ ~ a person who built a house on his father’s land
v. J a ~ i e r where
with the consent of the latter, was held to be a builder in good faith;
and in Bernard0 c. Bdaclan,” where a person who was allowed by
the owner of the land to clear the same and make improvements
thereon, was held to be a possessor in good faith.

v. CO-OWNERSHIP

1. The nature o# a co-ou~ncr’sinterest

It is axiomatic that the interest of a person in property owned in
common with others is spiritual or intangible rather than physical
or concrete. True, he is the absolute owner of his share and he can
do as h e pleases with it, but he cannot point to any particular portion
43 G.R. No. 2i084, July 31, 1968, 23 S.C.R.A.
4 4 7 Phil. 27i (1907).
500. -
. 181 ;,
45Id. at 280.
497 P hil. 261 (1907).
4 7 Supra note 42.
86 PHILIPPINE LAW JOURNAL [VOL. 44

of the property owned in common as his. Accordingly, while he has

the right to freely sell and dispose of his individual interest, he has
no right to sell a divided part of the property. “If he is the owner
of an undivided half of a #tract of land, he has a right to sell and
convey an undivided half, but he has no right to divide the lot into
two parts, and convey the whole of one part by metes and bo~nds.”‘~
Supposing a co-owner violates the injunction stated above, what
would be the effect of the sale? The answer was given in Lopez u.
Cuagcmg4@where a co-owner of an hacienda sold to a third party
a portion thereof designated as Lot 178-B measuring 10,832 square
meters where the buyer subsequently erected a distillery and other
buildings. To the question, what rights did the buyer acquire in the
sale, the Supreme Court said that it transferred to the buyer an abstract
share equivalent in value to 10,832 square meters of the hacienda.
“The fact that the agreement in q tion purported to sell a concrete
portion of the haci r the sale void, for it is a well-
established principle that the binding force of a contract must be
recognized as far as it is legally possible to do so. ‘Quado res non
valet ut ago, valeat quontum oalere potest.’ (When a thing is of no
force as I do it, it shall have as much force as it can have).”’O
Estoque v. Pajim~la,~‘deals with a sale by a co-owner of a
definite portion of the common property.
In that case, a piece of land became the common property of
three persons through inheritance. On October 28, 1951, one of the co-
owners w1d her share to the plaintiff, definitely identifying it as the
1/3 portion located on the southeastern part of the property and
specifically bounded on the north by De Guzman street, on the east
by P m d a s street, on the south by Perez street, and on the west by
the remainder of the lot, with an area of 840 square meters.
On October 29, 1959, the day following the plaintiff‘s acquisition,
the plaintiffs vendor acquired the shares of the other co-owners, which
she in turn sold on December 30, 1959, to the defendant.
Plaintiff sought to exercise a right of redemption from the defendant
on the basis of Art. 1620, Civil Code, which reads:
“A co-owner of a thing may exercise the right of redemption in case
the shares of all the other co-owners or of any of them, are sold to a third
person. If the price of the diemtion is grossly excessive, the redemptioner
shall pay only a reasonable one.
*8 Lopez v. Ilustre, 5 Phil. 567, 568-56Q (1906).
4974 Phil. 601 (1944).
50Id. at 609.
slG.R. No. 24419, July 15, 1968, 24 S.C.R.A. 59.
 19691 CIVIL LAW

Should two or more cecmmers desire to exercise the riglit of redemption,

they may only do so in proportion to the share they may rerpectively have
in the thing owned in common.”

The lower court dismissed the complaint for failure to state a

cause of action and appeal was made directly to the Supreme Court
which affirmed the order of dismissal on the ground that the plaintiff
never .became co-owner with her vendor after the latter had acquired
the shares ,of the others for what was sold to the plaintiff was a
clearly specified portion and not a mere undivided interest.
This unusual decision, to say the least, disregards the principle
enunciated in the Impez cases mentioned above. For these cases al-
ready hold that a co-owner can sell only his ideal share in the prop-
erty owned in common even when he purports to sell a concrete portion.
The criticism on the Estoque case is reinforced by the case of
Diversified Credit Corporation v . Rosado,52 where a lot awned in common
by thirteen persons was by them sold to the plaintiff. Prior to the sale,
one of the co-owners and her husband had built a house on a portion
of the lot with conjugal funds. In an action to eject the builders
from the lot, the defense was that 1/13 of the lot had become con-
jugal property because of Article 158, paragraph 2, Civil Code, which
reads:
“Buildings constructed, at the expense of the partnership, during the
marriage on land belonging to one of the spouses, also pertain to the
partnership, but the value of the land shall be reimbursed to the spouse
who owns the same.”
It was contended that as the building of the house at the expense
of the conjugal partnership converted the 1/13 undivided share of
the co-owner (the wife) into community property, the sale made in
favor of the plaintiff was void insofar as said 1/13 share is concerned
because the wife had ceased to own such share from and after the
building of the house.
Rut the Supreme Court found this contention untenable, saying:
“We find appellant’s thesis legally untenable. For it is a basii prin-
ciple in the law of mwnership, both under the present Civil Code as
in the code of 1889, that rn individual co-owner can claim title to definite
portion of the land or thing owned in common until the partition thereof.
Prior to that time, all that the co-owner has is an ideal, or abstract, quota
or proportionate share in the entire thing owned in common by all the
co-owners. The principle is emphasized by the rulings of this court. In
Lopez vs. Ilustra. 5 Phil. 567, it was held that while a co-owner has the
right to freely sell and dispose of his undivided interest, he has no right
to sell a divided part of the real estate owned in common. ‘If he is the
owner of an undivided half of a tract of land, he has the right to sell

- 52G.R. No. 27935, December 24. 1968.

88 PHILIPPINE LAW JOURNAL [VOL. 44

and convey an undivided half, but lie has no right to divide the lot into
two parts, and m v e y the whole of one part by metes and bounds.' The
doctrim was reiterated in Mercado us. Liwunag, L-14429,June 20, 1962,
holding that a co-owner may not convey a physicit1 portion of the land
o w i d in c o r n . And in Suntos u. B w m c o ~ ' o L-20136,
, June 23, 1965,
it was ruled that a co-owner may not even adjudicate to himself any de-
terminate portion of land owned in common.
"Since the share of the wife, . . . was at no time physically de-
termined, it cannot be validly claimed that the house c o t u t m d by her
husband was built on land belonging to her, and Article 158 of the Civil
Code cannot apply. Certainly, on her 1/13 ideal or abstract undiviM
share, no house could be erected. IGecessarily, the claim of conversion of
the wife's share from paraphema1 to conjugal in character as a result of
the ~0mtmct.1'on must be rejected for lack of factual or legal basis."

2. Prescription in facor of a co-oumm

No co-owner shall be obliged to remain in the co-ownership. He
may, at any time, demand patition insofar as his share is concerned.
And no prescription shall run in favor of a co-owner or co-heir against
his co-owners or co-heirs so long as he expressly or impliedly recognizes
the co-owner~hip.~~
The reason why prescription does not ordinarily run in favor of
a co-owner or co-heir against the others is because the former's possession
is not adverse." And even where a co-owner acquires a Torrens title
in his own name to property owned in Common, he can be compelled
to stmmder to each of his co-owners his appropriate share and a
proceeding for partition is an appropriate remedy by which to enforce
the right."5
St8, as the law indicates, a co-owner may acquire the share of
another by prescription provided he has ceased to recognize the owner-
ship. But the repudiation must be clear, complete, conclusive and leave
no shadow of d ~ u b t . "And
~ the co-owner must be in possession for
there can be no prescription without possession.s7
Sun Buenaventura v. Court of Appeals,58 was gn action filed by
Crisanta San Buenaventura in 1962 against her sister, Julia, for the
partition of a pi of land inherited from their grandfather in 1937.
The defense was adverse possession since 1944. The trial court dismissed
the complaint, the Court of Appeals reversed, and review was sought
in the Supreme Court which, in turn, reversed the Court of Appeals
5 3 c k I L CODE, art. 494.
54Codova v. Codova, 102 Phil. 1182 (1958).
53 Ca&o v. Castro, 57 Phil. 675 (1932).
5'3Bargay0 v: Cammot, 40 Phil. 857 (1920).
57 Pmcho v. Villanueva, 99 Phil. 611 (1956).
58G.R. No. 23980, January 31, 1968, 22 S.C.R.A. 462
 - - ,-----
19691 8,- ’ , - # , CIVIL LAW 89

on the ground that Julia had acquired ownership of the property

through Prescription. Said the Supreme Court:
“This is borne out by the fact that, admittedly, she [Julia] had not
only held it since 19.44, but, also, built and maintained thereon a house
as early as 1947; that she resided therein continuously, since then up to
the presenc that on June 8, 1952, Julia had caused the land to be surveyed
in her name; that on March 31, 1958, she applied for a free patent thereto;
that she mortgaged the land . . . ; that she objected, in her name, to the
inclusion o€ said land in the application for registration Eled by a third
party; that Crisanta did not oppose said application; that Crisanta had
d, since 1944, either for the pussession of the land, or for
the enjoyment of any of the derived therefrom; that she did not
d e any demand for its partition; until March, 1962, or on the eve of the
institution of this case; and that such one and only demand for partition
was evidently preparatory to the filing of the complaint herein.”

VI. SERVITUDES
1. Acquisition
Servitudes are acquired either by title or by prescription. M y
continuous and apparent servitudes can be acquired by prescription
whereas any kind of servitude can be acquired by title. A servitude
of way has been held to be discontinuous so that it eannat be acquired
by pres~ription.’~It can be acquired by title only which is the juridical
act which gives birth to the servitude. “Son, pues, titulos, corlstitutivos
de Eos smidumbres cudquiera que sea su clme, la ley, la donmidn,
el contrato y el tmtamemto.’”o There are also equivalents of title,
namely: a deed of recognition by the owner of the servient estate,
a final judgment, and an apparent sign between two estates established
by the owner of both.“’
In Angela Estate, Znc. 2). Court of First the central
claimed that it had “acquired a legal easement. . . through 45 years
of continuous use of the railroad tracks under the. . . contracts.”

The Supreme Court did not discuss this contention, which is

presumably grounded on prescription. But in the light of the Ronquillo
case, supra, the central could not have acquired a right of way as
claimed. Moreover, even assuming $&at a right of way can be acquired
by prescription, it is manifest that the central’s possession was not
adverse so that it could not ripen into a real right.
-___
59 Ronquillo v. Row, 103 Phil. 84 (1958).
60 4 MANRESA,COD~GOCrvr~, 594-595 2nd ed. 1890, North Negros Sugar Co ,
Inc. v. Hidalgo, 63 Phil. 664, 696 (1936).
CIVIL CODE, arts. 623, 624; Amor v. Florentino, 74 Phil. 403 (1943).
62 Supra note 43. (on accession).
 PIIILIFPINE LAW JOURN,-iI, [VOL. 44

The central also contended that it had a right to a compulsory

right of way under the provisions of the Civil Code. The Supreme
Court observed:

“By express provision of articles 649 and 650 of the new Civil Code,
the onmer of an estate may claim a compulsory right of way only after he
has established the existence of four requisites, namely, (1) the estate is
surrounded by other immovables and is without adequate outlet to a public
highw-ay; (2) after payment of the proper indemnity; (3) the isolation was
not due to the proprietor‘s own acts; and ( 4 ) the right of way claimed is
‘at a point least prejudicial to the servient estate, and in so far as con-
sistent with this rule, where the distance from the dominant estate to a
public highway may be the shortest.’ The onus is upon the owner of the
dominant estate to show by specific averments in his complaint the existence
of the requisites or pre-conditions enumerated. . . .”

And the court rejected the contention because the central was in fact
easily accessible from various points through existing provincial roads
The court also noted that in one crop year, most of the cane milled
was hauled to the central by the use of trucks and truck-trailers.
Finally, the court said: “It may be true that the railroad tracks provide
an economical and convenient means of transportation to and from
the mill sites. Unfortunately, our Civil Code speaks of necessity and
not of comfort and c~nvenience.’’~~
This case reiterates the ruling made in Bacolod-Murcia Milling Co.,
lnc. o. Capitol Subdivision, I ~ C To . ~the
~ same effect, Bacolod-Murcia
Milling Co., Inc. o. Q ~ e r u b i n . ~ ~

2. Extinction
Servitudes are extinguished, according to Article 631 of the Civil
Code:
* ‘ ( l ) By merger in the same person of the ownership of the dominant
and servient estates;

( 2 ) By nonuser for ten years; with respect to discontinuous easements,

this period shall be computed from the day on which they ceased to be
used; and, with respect to continuous easements, from the day on which an
act contrary to the same took place;

( 3 ) When either or both of the estates fall into such condition that
the easement cannot be used; but it shall revive if the subsequent con-
dition of the estates or either of them should again permit its use, unless
when the use becomes possible, s&c;ent time for prescription has elapsed,
in accordance with the provisions of the preceding number;

e31d. at 511-512.
64 G.R. No. 25887, Tulv 26. 1966. 17 S.C.R.A. 731.
1060J CIVIL LAW 91
( 4 ) By the expiration of the term or the ful@.lmtmt of the condition;
if the easement is temporary or conditional;
( 5 ) By the renunciation of the owner of the dominant estate;
(6)By the redemption agreed upon between the owners of the dominant
and servient estates.”

In the case of a right of way, it is also provided that:

“If the right of way granted to a surrounded estate ceases to be
neoessary because its owner has joined it to another abutting on a public
mad, the owner of the servient estate may demand that the easement be
extinguished, returning what he may have received by way of indemnity.
The interest on the indemnity shall be deemed to be in payment of rent
for the use of the easement.”SS

The case of Benedicto v. Court of dealt with a claim

that a servitude of way had been extinguished by nonuser and by
the cessation Q€ the necessity for a passageway.
The servitude came about as follows: Miriam Hedrick owned a
parcel of land abutting on San Marcelino St. in Manila on which
were constructed two chalets of equal size and similar shape. Between
the two buildings was a passageway for reaching the rear portion
of the land.
In 1917, Hedrick sold part of the land including one of the houses
to Claro Recto. In the deed of sale, the following was stipulated:
“‘SEXTO. Que entre la porcion vendida a Claro M. Recto y la que
queda en poder de Miriam R. Hedrick hay un pas0 para vehiculos, de
unos tres a cuatro metros de anchura proxjmamente mnstituido por mitad
o iguales partes sobre cada una de dichas porciones, y ambas partes de
esta escritura se obligan cada una a respetar el derecho de la otra a usar
de toda la extencion de dicho pas0 para todo el tiempo y todas las necesi-
dades de cada UM de las & propriedades, la vendida por la presente a
Clam M. R e d o y la que queda en poder de Miriam R. Hedrick, siendo
obligatorio este pact0 para todos 10s que con posterioridad adquirieran por
cualquier titulo las fincas mencionadas.”

The above covenant was inscribed in Recto’s title as well as- in

those of his successors, the latest being Salvador Benedict’o. The portion
retained by Hedrick was in turn sold to successive vendees, the latest
being Vicente Heras.
In 1941, Heras demolished the house on his land. In 1946, Bene-
dicto walled h e passageway by constructing a fence. And in 1955,
Heras filed action to demand the reopening of the passageway between
his property and that of Benedicto.
6 6 C r v ~CODE,
~ art. 655, par. 1.
67G.R. No. 22733, Sepember 25, 1968, 25 S.C.R.A. 145.
92 PHILIPPINE LAW JOURNAL. [VOL. 44

The trial court found that the right of way was entirely within
the property of Benedicto, contrary to the stipulation in the Hedrick-
Recto deed of sale tha’t it should be between their properties, with
each contributing an equal portion of his property.
The trial court rejected Benedicto’s claim that the servitude had
been extinguished by nonuser and by the cessation of the necessity
for a passageway and ordered that it be maintained. From a decision
of the Court of Appeals affirming that of the lower court’s, Benedicto
sought a review in the Supreme C h r t .
To the Benedicto claim that when Heras demolished his build-
ing in 1941, the property gained direct access to San Marcelino Street
with the result that since then there has been no need for the passage-
way, the Supreme Court said that as inscribed in the titles, the servitude
is perpetual in character and its continued existence must be up-
held and respected although its necessity might have ceased.
.4nd to the other Benedicto claim that the servitude had been
extinguished by nonuser for 10 years, the court pointed out that there
was no indubitable proof of nonuser. And even if nonuser be conceded,
said the court, it could have started only in 1946 when the passageway
was walled and since the present action was filed in 1955, the pre-
scriptiyh,g . -lapsed.
db-4,
VII. DONATION
A person cannot be obliged to received anything against his will.
It is for this reason why the Civil Code is so repetitious on the need
for acceptance in respect of donations inter vivos. Thus, Articles 725,
738, 741, 742, 745, 746, 747, 748 and 749 of the Civil Code mention
acceptance of a donation.
Article 745 of the Civil Code provides that “[tlhe donee must
accept the donation personally, or through an authorized person with
a s p i a l power for the purpose, or with a general and sufficient
power; otherwise, the donation shall be void.”
In Gennto 2;. Lol.enzu,ps Simona Genato was the owner of two
certificates of stock, Nos. 7 and 18 each for 265 shares in Genato
Commercial Corporation. On December 24, 1942, she delivered the
certificates of stock to Florentino Genato and told him to “transfer
them.” Each of the certificates had been endorsed by Simona Genato
to Florentino Genato and Francisco Genato and upon receiving the
certificates, Florentino, who was then Assistant Secretary-Treasurer of
t%e Corporation, cancelled them and in lieu thereof, issued certificate
-
“8G.R. No. 24983, May 20, 1968, 23 S.C.R.A. 618.
~
19691 CIVIL JAW

No. 118 for 265 shares in his favor and certificate No. 119 also for
265 shares in favor of Francisco Cenato.
From a judgment of the Court of Appeals holding that there was
no valid donation of the shares of stock to Florentino and Francisco
Genato and ordering the issuance of a certificate of stock for the.
shares in the name of !the Administrator of the Estate of Simona Genato,
appeal was taken to the Supreme Court which affirmed,. saying:
“The key question, therefore, is whether there has been a valid
donation as appeIhts claim. The Court of Appeals concluded that there
was none, and we find no reason to overturn the opinion thus reached.
Assuming, ,ad wg&, that the late simona Vda. de Genato gave the
certificates of Stock Nos. 7 and 18 to Florentine with instrudtions to transfer
the same to him and his brother, thii act did not wnstitute a valid manual
donation in law for lack of proper acceptance. (Civ. Code of 1889, Art.
630). Incontestably, one of the two donees was not present at the delivery,
and there is no showing that he, Francisco Genato, had authorized bis
brother, Florentino to accept for both of them. As pointed out by Manresa
in his Commentaries to the Civil Code of 1889 (Vol. V, f3th edition, pp.
131-132, 141-142), the delivery by the donor and the acceptance by donee
must be simultaneous, and the acceptance by a person other than the true
donee must be authorized by a proper power of attorney set forth in a
public document. None has been claimed to exist in this case.
Since by appellants’ own version, the donation intended w a s a joint
one to both donees, one could not accept independently of his milonee,
for there is no accretion among donees unless expressly so provided (k.
637) or unless they be husband and wife.”

VIII. TRADITION
Ownership and other real rights over property are acquired and
transmitted by, among other modes, tradition in consequence of certain
contracts. -4 contract alone will not be effective to transfer owner-
ship or other real rights over the subject matter thereof for “non
nudis pactis sed traditiione dominia rerum tr~nsferentur.”~~
Tradition is nothing more or less than delivery. But Sanchez Roman
describes it as “un modo dmivatiuo de adquirir el dominio zi &TO$
dererchos reaks, pm el cual, cancudendo voluntd y capacidad en
en tramitente y adquirente y preexistencia de dqu&Uos en el patrimonio
del primero, se tranmiten a1 segundo por la nzdiacJdn de un just0
titulo.”70
Tradition can take various forms. Sanchez Roman speaks of species
of tradition as consisting of tradicicin real, tradicidn fingida ( simbdlica,
eeFidelity and Deposit Co. of Maryland v. Wilson, 8 Phil. 51 (1967).
CIVIL,238 (1900).
 PHILIPPINE LAW JOURNAL [VOL. 44

Zonga manu, brevi mnnu, constiticturn poissesorium ), cuasi tradicidn,

ministerio de la ley.”
The case of Yuliongsiu v. Philippine National holds that
constructive delivery is sufficient to validate a pledge.
, the plaintiff borrowed a sum of morney from the
defendant anmdas security, executed a contract of pledge over its
vessels which were not actually delivered to the creditor but remained
in the debtor’s possession “who shall hold said property subject to
the order of the Pledgee.”
When the debtor defaulted, the crediter took possession of the
vessels and pursuant to the terms of the pledge contract, sold the same.
In questioning the defendant’s actuations, one of the arguments
advanced by the plaintiff was that the pledge was not effective because
there was only constructive and not actual deIivery of the vessels to
the defendant. It should be noted that according to Article 2093 of
the Civil Code, one of the essential requisites for the co,nstitution of
a pledge is ‘‘that the thing pledged shall be placed in the possession
of the creditor, or of a third person by c a m o n agreement.” Plaintiff
cited the case of Betita v. G n n ~ o n ,where
~~ it. was held “that the
delivery of po erred to in article 186374 implies a change
in the actual of the property pledged and that a mere
symboiic delivery is not sufficient.” However, the Supreme Court said:
“. . . But then there is also Banco Espdol-Filipino v . Peterson, 7 Fhii.
409 ruling that symbolic delivery would suffice. An examination of the
peculiar nature of the things p d in the two cases will readily dispel
the apparent contrad ‘between the two rulings. In Betita 0. Ganaon,
the objects pledged -carabaos -were easily capable of actual, manual
delivery unto the pledgee. In Bunco Esp&LFiZipino D. Peterson, the objects
pledged -goods contained in a warehouse -were hardly capable of actual,
manual delivery in the sense that it was impractical as a whole for the
particular transaction and would have been an unreasonable requirement.
Thus, for purposes of showing the transfer of control to the pledgee,
delivery to him of the keys to the warehouse sufficed. In other words,
the type of delivery will depend upon the nature and the peculiar circum-
stances of each case. The parties here agreed that the vessels be delivered
by the ‘pledgor to the pledgor who shall hold said property subject to
the order of the pledgee.’ Considering the circumstances of the case and
the nature of the objects pledged, i.e., vessels used in maritime business,
such delivery is sufficient.”

711d. at 239-240.
72 G.R. No. 19227, February 17, 1968, 22 S.C.R.A. 585.
73 49 Phil. 87, 93 (1926).
74 Now 2093.
19691 CIVIL LAW

1. Extinctive prescription and laches

The Civil Code provides for both acquisitive and extinctive pre-
scription.” Acquisitive prescription is also known as adverse possession;
extinctive prescriptioa as limitation of action. It is sometimes said
that the two kinds of prescription are in their operation, correlative.
This is not so. The Civil Code itself provides, for example, that “[alctions
to recover movables shall prescribe eight years from the time the
possession thereof is lost, unless the possessor has acquired the owner-
ship by prescription for a less period. . . .”76 This shows that the
operation of t,he two kinds of prescription is not correlative. And
the reason lies in the fact that they are based on different considerations.
Thus, a writer has said:
“usucaption and prescription cortinued to exist concurrently until the
time of Justinian but were essentially different in theory if not in operation.
Prescription was a statute of limitations. Whereas usucaption expressly ‘vests
the property’ and raised a new title in the occupant, prescription did noth-
ing more than bar the right of action The concept most fundamental to a
system of title by possession is that the relationship between the occupant
and the land in terms of possession is capable of producing legal con-
sequences. In other words, it is the possessor who is the ador. Under a
statute of limitations, however, one does not look to the act of the possessor
but to the neglect of the owner. In the former the important feature is
the claimant in possession, and in the latter it is the owner out of possession
which controls.”T7

Because of the similarfty between extinctive prescription and laches,

they are often confused with each other. But they should not be
because -
“Laches is m e r e n t from the statute of limitations. Prescription is
ooncemed with the fact of delay, whereas laches is concerned with the
effect of delay. P d p t i o n is a matter of time; laches is principally
a question of inequity of permitting a claim to be e n f o d , this inequity
being founded on some change in the condition of the property or the
relation of the parties. Prescription is statutory; laches is not. Laches ap-
plies in equity, whereas prescription applies at law. Prescription is based
on fixed time, laches is not.?*

The above was the explanation given in Nielson & Co., Inc. w.
Lepanto Consolidded Mining CO.,’~and quoted in MigueE v. CataZino.80
75Art. 1106.
78Al.t. 1140.
7 7 Montgomery, The Historical Development of the Prescriptive Acquisitioti
of Land Titles, 26 PHn.L. J. 353, 356-357 (1951).
7 8 3 0 C.J.S.,
p. 55
.%; See also 2 POMEROY’SEQUITYJURISPRUDENCE, 177 (5th ed.).
?@G.R.No. 21601, December 17, 1966, 18 S.C.R.A. 1040, 1053.
80G.R. No. 23072, November 29, 1968.
8
 I-

9ci PHILIPPINE LAW JOURNAL [VOL. 44

In the Miguel case, a non-Christian named Bacaquio was the

owner of a piece of land covered by an original certificate of title
issued in 1927. He sold the land in 1928 without the written approval
of the provincial governor of the Mt. Province, contrary to bhe Adminis-
trative Code of Mindanar, and Sulu, made applicabla to the Mt.
Province and Nueva Vizcaya by Act3 Nos. 2798 and 2913.
In an action by the heirs of Bacaquio to recover the land from
the heir of the vendee, the Supreme Court said that the 1928 sale
was technically invalid and Bacaquio remained owner of the land until
his death in 19.13 but nonetheless, ruled against the plaintiffs:
“For despite the invalidity of his sale to Catalino Agyapm, father of
defendant-appellee, the vendor Bacaquio suffered the latter to enter,
possess and enjoy the land in question without protest, from 1928 to 1943,
when the seller die4 and the appellants, in turn, while succeeding the
deceased, also remained inactive, witbout taking any step to revindicate the
lot from 1944 to 1962, when the present suit was commenced in court.
Even granting appellants’ proposition that no prescription lies against their
father‘s recorded title, their passivity and inaction for more than 34 years
(1928-1962) justifies the defendant-appellee in setting up the equitable
defense of laches in his own behalf. As a result, the action of plaintiffs-
appellants must be considered barred and the court below correctly so held.
Courts cannot look with favor at parties who, by their silence, deIay
and inaction, knowingly induce another to spend time, effort and expense
in cultivating the land, paying taxes and making improvements thereon
for 30 long years, only to spring from ambush and claim title when the
possessctr’s efforts and the rise of land values offer an opportunity to make
easy profit at his expense.”

To the same effect, Arcuino 21. Aparis.81 Both the Miguel and Arcuino
cases cited Lucas o. Gamponia.RZ
Cases on acquisitive and extinctive prescription decided during
the year under review have not been novel so they are here summarily
reported.
Fabian c. F ~ b i a n , 8was
~ an action for reconveyance of a piece of
land on the ground that the defen ts acquired and registered the
same through fraud. Held, the cause of action accrued in 1928 and
it was only in 1960 when the action was commenced so that it is
barred by laches and by prescription. The defendants have, moreover,
acquired ownership of the land by adverse possession.
Quetulio ‘~j.De la Cuesta,s‘ was an action to recover a piece of
land which was allegedly usurped by one of the defendants in 1948.
**G.R. No. 23424, January 31, 1968, 22 S.C.R.A. 40‘7.
a2 100 Phil. 277 (1956).
a3 G.R. No. 20449, January 29, 1968, 22 S.C.R.A. 231.
a4 G.R. No. 25083, January 31, 1M8,22 S.C.R.A. 420.
19691 ‘CIVIL L A W 97

Held, the complaint was filed only in 1964 and it has prescribed because
“the law applicable is Section 40 of Act 190, otherwise known as the
Code of Civil Procedure, which provides for a ten-year prescriptive
period for actions to recover title to or possession of real property or
any interest therein, counted from the date of the amrual of the
cause of action.”
Cunrto v. L ~ n n was
, ~ ~an action by a widow to recover her half
of alleged conjugal properties which the husband had sold under an
allegedly fictitious and simulated contract in 1947 to one of the defend-
ants. The action was commenced in 1963 and the defendants pleaded
prescription of action. HeZd, it is well settled, not only in our juris-
prudence, but also by specific legal provisions that “the action or
defense for the declaration of the inexistence of a contract does not

Municipality of Opon v . Caltex (Phil.) Z ~ C . ~was

’ an action to
recover municipal taxes which had been illegally imposed. The defense
was the lapse of the two-year prescriptive period provided in section
306 of the National Internal Revenue Code. Held, the period for pre-
scription of action to recover municipal license taxes in six years under
article 1145(2) of the Civil Code for the National Internal Revenue
Code clearly refers exclusively to claims for the refund of national
internal revenue taxes.
R i d Surety & lnsurnnce Co. v . Macondray & Co., Znc.,s8 was a
suit commenced on February 10, 1%4 by an insurer against a carrier
for insured cargo which should have been discharged on or before
November 4, 1962 but was not. Defendant invoked the prescriptive
period provided in section 3 of the Carriage of Goods by Sea Act,
which stipulates one year in respect of claims for loss or damage as
opposed to the plaintiff‘s claim for the application of the general statute
of limitations. Held, the failure to discharge the cargo was a loss within
the purview of the Act and the action has therefore prescribed.
Pahang v. S o t t ~ ,was
~ ~ an action for compulsory recognition as a
natural child. One of the defenses was prescriptiun of the action be-
cause plaintiff commenced the suit when she was already over 47 years old.
Held, an action for recognition, if brought within the lifetime of the
presumed parent, is impresciptible for the status of persuns is outside
the commerce of man and cannot be acquired or lost by prescription.
85 G.R. NO. 232i9, January 31, 1968. 22 S.C.R.A. 459.
8%‘Iiptonv. Velasco, 6 Phil. 67 (1906);Corpus v. Bel.h.an, 97 Phil. 772 (1955);
Quetulio v. Ver, 99 Phil. 1048 (1956); CIVIL CODE,art. 1410.
E7G.R. No. 21853, February 26, 1968, 22 S.C.R.A. 755.
88 G.R. No. 26064,February 29, 1968, 22 S.C.R.A. 902.
8*G.R. No. 211i5, July 15, 1968, 24 S.C.R.A. 33.
98 PHILIPPINE LAW JOURNAL [VOL. 44

Philippine Natimal Bank v. O~ete,~O was an action upon a judg-

ment whiah became final and execufory on January 23, 1953. The
suit upon the judgment was commenced on January 30, 1963, beyond
the 10 years provided in Article 1144(3) of the Civil Code. But the
bank invoked Article 1155 of the same code which provides, inter alia,
that prescription of actions is interrupted when there is any written
acknowledgment of the debt by the debtor and the bank pointed to
partial payments made on the judgment. Held, Article 1155 of the
Civil Code refers to actions to collect not based on a judgment sought
to be revived. Moreover, that provision requires a written acknowl-
edgment so that payment, if not complied with a communication signed
by the payor, would not interrupt the running of the period of pre-
scription.

Veluz v. V e l u ~ was
, ~ ~ an action for reformation of an instrument
commenced in 1958, based on fraud alleged to have been discovered
in 1953. In Carhta v. Benare~,~’it was held that such an action pre-
scribes in four years but in Con& u. Ciiencq9’ the period was fixed
a t ten years. Held, the Conde case which is of a later date should
prevail. The court said also that the Cadotn case is different because
it referred to annulment and not reformation of contract. But in that
case, it was said: “. . . the remedy of plaintiffs is either annulment
on the ground of fraud, or reformation ‘of the contracts to make them
express the parties’ true intention and agreement. In either case, the
action should be filed within four years from the time the cause of
action accrues, i.e., from the discovery of the fraud.” Moreover, the
period of prescription of action on a written contract as in the CarZota
case appears to be ten years under Article 1144(1) of the Civil Code.
Davao Coal Mining Syndicate, Ltd. v. L a ~ r e n t e ,dealt,
~ ~ among
other things, with a petition by Laurente for the revocation of an order
directing the cancellation of an encumbrance over a piece of land
over which “he might possibly have an interest as a purchaser” but
which interest was not shown by primary or even secondary evidence.
Held, Laurente’s claim is too vague and unsubstantial to give him a
standing in court. “What is worse is that Laurente allowed more than
20 years to elapse without asserting the alleged conveyance in his
favor, when a period of 10 years sufficed under Act 190 (then in
force) to bar any claim to or over real property. Nor has Laurente
adequately explained such laches on his part.”
gOG.R. No. 24997, July 18, 1968, 24 S.C.R.A. €8.
g1 G.R. No. 23281, July 31, 1968, 24 S.C.R.A. 559.
82G.R. No. 6.432, June 30, 1955.
9599 Phil. 1056 (1956).
94 G.R. No. 20075, November 27, 1968.
19691 CIVIL LAW Y9

Nielson & Co., lnc. c. Imnnto Consolidated Mining C O . , ~was ~

a resolution on a motion for reconsideration by the defendant of
the decision rendered on December 17, l%6,sson laches. To the
contention that the Supreme Court erred in reversing the finding of
the lower court that Nielson’s action had prescribed by considering
only the first claim and ignoring the prescriptibility of the other claims,
held:
“In our decision We stated that the claims of Nielson are based
on a written document, and, as such, the cause of action prescribes in ten
years. Inasmuch as there are different claims which accrued on difFerent
dates the prescriptive periods for all the claims are not the same.”

__._
95G.R. No. 21601, December 2.8, 1988.
g6 Supra.