5874 OFFICIAL GAZETTE Vou. 48, No. 12 Sui eee for the creation of substitute parental authority, are more apparent than real. It has not been satisfactorily shown that Petronilo Samson was aware of, or nl the acts imputed to his wife, w ile there is good an competent evidence in the record showing that the Sam- sons are financially able to care for and educate their children. Beyond these considerations, however, there fs the well-settled and all-pervading rule that the innocent parent may not be deprived of his child merely because the other parent has been excessively harsh or grossly un- fit, because to do so is to deprive the former of his parental rights without due process of law (State ex rel. Bethell v. Kilvington, 41 LRA 284). While a child is not the property of his parents, yet the interests which fa parent has in the nurture of his own offspring transcends property rights (Denton v. James, 12 ALR 1146.) In view, however, of our finding that Mrs. Marina Reyes Samson has been excessively harsh to Olivia, within the meaning of article 832 of the Civil Code, and the fact that the petitioners live together in the same house with all their children, the custody of the child Olivia by her father, Petronilo Samson, shall be subject to visitation at a reasonable hour of the day by the re- spondent-appellant, or any of her representatives, for a period not exceeding one year from the date this judg- ment becomes final. “Furthermore, the respondent-ap- pellant may, within the same period, take such step or action as the law and the judicial rules may provide with respect to abused children if, in her opinion, there exists compelling reasons therefor. With the modification above-stated, the judgment of the lower court should be, as it is hereby, affirmed, with- out pronouncement as to costs. So ordered. Concepeion and Dizon, JJ., concur. Judgment modified. (No. 8027-R. September 23, 1952] FERNANDO Lapra and Paz G. LapeRa, plaintiffs and appellees, vs. C. N. Hopczs Er sie AL, defendants and try an are ue: in Ti View of of the statute, the only possible doubt cough Se plain terms ise (as Man- Scanned with CamScannerDECEMBER, 1952 OFFICIAL GAZETTE Gemptcant® Out) in the case of a house sold for immediate lemolition, In all other eases, Manresa holds, “No creemos aue estas (opiniones contradictorias) caben con referencia al Codigo Espatol, euyo precepto es terminante.” (3 Manresa, Comm, 6th edition, p. 19.) ‘The applicable rule_is_ obviously the maxim “Ubi lez non distinguit nce nos distinguere debemus.” 5 Tb.; Inmovaste Property py DestiNaTion; IMMOVABLE Prop bety py INconroration; Cerrenio.—Further analysis Hie, 534 Gi will show that i 20 such as statues, paintings and re- liefs, jimal_houses), the code ‘Wient, in order to acquire the same nature or consideration of real property; a wae as houses, trees, plants, ete., the code nowhere re- 's that the attachment or incorporati bythe. owner of the land. (or ine corporation) 8.1p.; Ip.; ImMovaBie Property sy AccesstoN—Since it is a Tule in our law that buildings and constructions are regarded aS. mere accessories. tothe land. (following the Roman maxim “omne quod solo inacdifieatur solo cedit"), it is logical that said accessories should partake of the nature of the principal thing, which is the land, forming, as they do, but a single object (res) with it in contemplation of law. 4.10.5 Ip.; Doctrine THar BUILDING 15 TinovabLe on ReatPor- ; oP nexon AxD TrALiAN SUNSMS COURTS. — eee | This if the doctrine of our Supreme Court in feo ue. Strong Machinery Company, 37 Phil, 644. And it is amply supported by the rulings of the French Supreme Court (Cour de Cassation) in interpreting article 518 of tho code of Napoleon, similar to our article 884 in the genorality of its terms. (v. Dalloz Repertoire de Droit Civil” (1950), Vol 1p. 449 ot seq eting decisions of the Civil Chamber, July So'soe1, Dallos Périodique 1925, 1-78; Court of Appeals of Paris, February 1, 1028, DP. 1920, 216). As early ax “March 22, 1867, the Court of Appeals of Bourges (D.P. 67, Dine) ‘held that’a railroad built on land rented for a limited time is nevertheless immovable property. While the Spanish Hepeadence is silent on this question, the French appellate saeee have: persistently lied also that, buildings on leased seer sre susceptible of real eslate mortgage by the lessee or tenant “(Dallez, Rép, jam. eit, Cean, April 3, 1824; Lyon, cena erisTl; Chambre. des Roquétes, February 18, 187 Mare) starch 30, 1864; February 23, 1872; February 1, 1928). Pari Math commentators Planiol ‘and Ttipert, and Maurice Phard, reach the sare conclusion on the basis of the decisions Picard. {py the Chambre Civile (of Suly 19, 1898 and July 26, Tol) and the Chambre des Requétes (March 12, 1872; June 19, 1021) November. 9, 1898) of the French Cour de Cassation. 16055, Merypert, Derecho Civil Franc, Tomo 3,75, trad, erp. Habana, Cuba, 1940). A opinion is held in Italy by Bianchi Habane Dy. civ, Waly 1%, 0 10); Pacifel-Mazzont (it {ores Vol, 2 p. $18); and Venai (Note aggiunke a Pacifici, Din oar, AT (a) quotes decisions of Italian Courts (Cass. ih 1, EO) “Sa Nol 0 Foe 86 A, lorence, T pril 1690 and 26 July 1893) in support. Genova, Scanned with CamScanner 58755876 ~ OFFICIAL GAZETTE Vou. 48, No. 12 G.Ib4; Toy Cnarren Morrosce; Docrrives oF STANDARD O¥ AND ‘jetiegs Nor ArrLicaBis To Case aT Ban—It is true that Gusta in subsequent decisions of the Supreme Court (Stand- Grd Oil vs. Jaramillo, 44 Phil, 630 and De Jesis ve, Guan Bee Co» 72 Phil, 446) and.of the Court of Appeals (Evan- ceo 72 Pa OM Gan, 2919; Tomine ve. San, Jean, rai nag) ave. tended to erode the doctrine of £ OF Gam, long Machinery Cay 81 Phil, 644 and Laane Fe, tainty of chatel mortgnges on houses) bull sated sade Bu reserving our opinion om the cormet- eed est seis well fo mae that the cas Men- nee of rue aise on stareenta hy the owner declaring ened chattel a condut hat may cnecvably est Me Mw onquently clang otervise.‘They are not wm ae aithe ase at bar where no sinilar declaration Seo pated tothe owner of the house in_ question ea i eorectiy emphasised by counsel for said owner ERE Sack Ste“bae the howe tn question, she was nob a Hat TRlzs but ocupie the land onder a valid contract with the owner of the land to sell to her sa; Suotens Sais or eat Paorsery; Pusacanios INDI Teigiata. Ae the object of the levy and. sale was real Property the publican in a newspaper of general reuse Tow was ‘ndipenble under section 16 of Rule 29, and ing admited that no such, pobeation was ever made, the exertion sale ‘was void and eanferrd. wo title on the yurchser (Balylas vs, Argues, 57 Phily 317; Compomanes we Burtlomé, 28" Phily 608; Terra. Velasquer, 41 Pa, 180). Shue or Tavovinis; Lack op Tinie or . Unlike in sales of chattels and personally, in tions coveringz-real property, stn; Avoriox Satz; Reoowrnos; Ervsce of Sale 1% Favor cr ‘Taiko Pasty Arron Reumarri0x.—Even if the ale to the purchaser at publle auction werd to be deemed valid, the payment of the redemption price by the execution debtor to the sheriff within one year rom the sale, was a. valid fand ficient redemption that resolved the ownership and rights of the execution purchaser (Morin, Rules of Court, Vol. I, p. 761; Enage ve, Vda, e Hijor de Eseato, 48 Phil, Sevan oy Mas, 40 Phil T).” Therefore, sb: fequent ale of the house in question does nat pass’ tite ‘the purchaser thereof. aula. APPEAL from a judgment of the Court of First Instance of Hoilo, Imperial Reyes, J. The facts are stated in the opinion of the court. aI. Manuel P. Villa for appellant, on his own representation. Leon P, Gellada for appellant Hodges. t Jesus Y. Mercado for appellee. Reves, J.B. L,, J. Appeal taken from the decision of the Court of Fis n from rst atnnes of Iloilo (Civil Case No. 1946) to the following effect: Scanned with CamScannerDace 1062 OFFICIAL GAZETTE 5377 ___OFICIAL.GAZETTE “Por tanto, el juzgado falla este. asunto: a sunto: (a) declarando al ertifendo de venta en pablien eubasta, suterite por el demandado Sherif! Femon Balbastro a favor de la demandaie velina A; Magno de Je casa en cvestin, de fecha 90 de abril de 2948, asi come la venta hecha por esta a favor del demandado Manvel P. Vi misma finea de fecha 6 de julio de 1948 nulas : sin valor; (0) se declara a ta demandada Paz G. Ladera duefia de Ia casa objeto de este litigio, y se ordena sea élla puesta ‘en possesién de la misma; (c) se ordena a In demandante Paz G. Ladera pague al demandado C. N, Hodges la suma de 22; (d) se condena al demandado Sheriff Filemon Balbastro a pagar a Jos demandantes 1a cantidad de P500, de conformidad con las Siaponioes el aren 1, Reg 2 Teglamenton de Tos Tribune eS asa ademas a los demandados al pago de Ins “"No habiendose interpuesto contra reclamacién por Ja demandada Avelina A. Magno contra, sus co-demandados, ef Sheriff Filemon Balbastro y C. N, Hodges, asi como tampoco existe reclamacién ‘alguna por parte del demandado Manuel P. Villa contra Ia demandada Avelina A. Magno, el juzgado se abstiene de hacer Bonundamento ‘lguno con reipecto ala, repnsilades ave jas personas habian incurrido entre si.” Record on L dices pen ton. Appeal There is no substantial controversy on the main facts cadastre, wi pellee aforementioned subject to certain terms and co ditions set forth in the contract which is 1_Hodges. -P800 , with interest at 1 per cent a month payable monthly until P2,085 is paid in full. Tnzenne of falls of the purchaser to make any mionthly paymel 10 days after it fel gue, “this contract may be taken and considered as paid is, and a ry to dispose of the said {th all improvements thereon to any other acd Wanner as if this contract had never been vive” In case of ejectment proceedings, the contract Tuther provided for P100 attorney's fees payable to the vendor. “after the execution of the contract, in her 1s ‘assessment was later name at ee S00 by the Provincial Assessor (Exhibit * paella ya tered ‘On September 17, 1946, ine pellant C. N. Hodges re fs; whereupon, OM pit Hodges and on January 7, contract © “e-eiactment (Exhibit A) 1947 filed an action for Scanned with CamScannermH 5378, OFFICIAL GAZETTE Vou. 48, No. 12 a ee in the Municipal’ Court of Hoilo, On February 3, 1947, that court rendered a decisi ment of the part c : ra, tol vate al jon of the lot and to pay P10 a month until delivery of the premises. On February 3, 1947, Hodges received P188.50 from appellee, for which he issued a receipt (Exhibit D) in the following terms: “Toile, February 8, 1967 eceived from Paz G, Ladera the sum of one hundred eighty- Bight Pesos and 60/100 (P188.50) as rent or interest from March 18, 1046... January 17, 1947 leaving a balance still due of (P1885). “(Sgd.) _C. N. Hovces” (Bxhibit D) On March 18, 1948, the court issued an alias writ of execution and pursuant thereto, the City Sheriff, Fi- lemon Balbastro, levied upon “all rights, interests and participation over your house standing on lot No. 945-B- 23,” ‘The sheriff’ subsequently posted notices of sale at auction but did not publish the same in a newspaper of general circulation. At the auction sale held on April 30, 1948, the appellee did not attend because she had gone to Manila; and the sheriff sold the property to Avelina A. Magno as highest bidder for the sum of P210 and executed in her favor the corresponding certificate of sale (Exhibit J, also Exhibit 2). 1948, & i apel- ibit on the same day, the latter purchased the house from Avelina Magno for P200 (Exhibit 5-Villa), but this last transac- VSEAID EEL SSE STOTT after the sale and =: she went to see the Sheriff Bal- astro; and upon the latter’s representation that she could redeem the property, she paid him P230 as satisfaction of judgment and costs; and the sheriff issued a reeei as follows (Exhibit K). ued a receipt “onto care “To Wuom It May Concern: eel ae “This isto erty that T havo rectved trom Mrs. Paz Ladera the amount of Two hundred. thirty” (R20). In. eonnecion ete the execution against her howse at’ Del Carmen, Lt Pee Tel the sald amount to be paid to Mr. Hodges as rental in the anid (Sed) “Puswos: Baunasto "Oy Sherif (Exhibit K) meet, It does not appear, however, that this money was turt eee ley was turned Scanned with CamScannerDECEMBER, 1952 OFFICIAL GAZETTE perma wie ia ere OL eyesore ee ‘Thereupon, the Ladera spouses filed an action against C. N. Hodges, the Sheriff Balbastro, and the judgment sale purchasers, Avelino Magno and Manuel Villa, to set aside the sale and recover the house. i while ‘WasnleadedLitoningauceer in |. Balbastro was declared in defaul pon the rendition of the adverse judgment of the court below, the defendants Hodges and Villa appealed. ‘The main burden of the appeal is the contention that the trial court erred in setting aside the sale for non- compliance with section 16, Rule 39 of the Rules of Court regarding judicial sales of real property. The appellants contend that the house, being built on land owned by another person, should be regarded in law as movable, or personal property. We are of the opinion that the appellants are in error. Article 334 of the Civil Code of 1889, that was the law applicable when this case arose, enumerates among the things declared by it-as immovable property the following: “4, Lands, duildings, roads and construction of all kinds adhering to the soil;” and makes no distinction as to whether the owner of the land is or is not the owner of the building. In view of the plain terms of the statute, the only possible doubt could arise (as Manresa points out) in the case of a house sold for immediate demolition, In all other cases, Manresa holds, “No creemos que estas (opiniones contra- dictorias) caben con referencia al Cédigo Espafiol, cuyo precepto es terminante.” (3 Manresa, Comm., 6th edition, p. 19.) ‘The applicable rule is obviously the maxim “Ubi- lex non distinguit nec nos destinguere debemus.” Further analysis of article 334 will show that in the case of immovables by destination (such as statues, paint- ings and reliefs, machinery and implements, and animal houses), the code requires that they be placed by ‘the owner of the tenement, in order to acquire the same nature or consideration of real property; but in the cases of immovable by incorporation, such as houses, trees, plants, etc., the code nowhere requires that the attachment or incorporation be made by the owner of the land. The only criterion is the union (or incorporation) with the soil. ‘A third argument can be derived from thé) prindiplés (of ateession. Since it is a rule in our law that buildings and constructions are regarded as mére)aeeessoriesito the iand! (following the Roman maxim omne quod solo ina- edificatur solo cedit), it is logical that said accessories should partake of the nature of the principal thing, which Scanned with CamScannerFFICIAL GAZETTE vou. 48, No. 12 Bees | __ OF MCL Cae gle object (res) js the land, forming, as they do, but a with it in contemplation of law It follows from the foregoing one merely superposed on the s property, whether it is erected or by a usufructuary or lessee. ory preme Court in Leung Yee vs. Strong Machinety Company, 87 Phil, 644. And it is amply supported by the cringe of the French Supreme Court (Cour de Cassation) in interpreting article 518 of the Code Napoleon, similar to our article $34 in the gener: lity of its terms. (V. Haller, Réportoire be Droit Civil (1950), Vol. I, p. 449 et seq., citing decisions of the Civil Chamber, July 26, 1921, Dalloz Périodique 1925, 1-78, Court of Appeals of Paris, February 1, 1928, D. P., 1929, 2.16). As early as limited time is nevertheless immovable property. While the Spanish jurisprudence is silent on this question, the French appellate courts have persistently held also that buildings on leased land are ‘susceptible of real estate mort- page by the lessee or tenant (Dalloz, Rép., jam. cit.; Caen, April 8, 1824; Lyon, March 18, 1871; Chambre des Requé- tes, February 13, 1872; Paris, May 30, 1864; February 23, 1872; February 1, 1928). The French commentators, Pla- nio) and Ripert, and Maurice Picard, reach the same con- clusion on the basis of the decisions rendered by the Chambre Civile (of July 19, 1893 and July 26, 1921) and ‘the Chambre des Requétes (March 12, 1872; June 19, 1895; November 9, 1898) of the French Cour de Cassation. “Los edifiion son inmoebles cualquiera que fea Ia. persona que Jos do aque to ara a propiclaro del terreno, Esta Sine" ae ng rg cui en 4 are ic uestion de propiedad, que examinare (Plano Ripert, Derecho Civil Francés, Tomo 3, p. 7 sftisnne Rip, Dehn Cit Fran, Tomo, p76, tad, em A like opinon is held in Italy by Bis i li Dir. civ. Teal, 1X, m. 19) Peder ae Giv,, Vol. 2, p. 818); and Venzi (Note aggiunte a Paci- fici. Lib. II, Tit. II[d] quotes decisions of Italian Courts (Cass. Florence, 7 February 1881; Cass, Napl Sur 1885; App. Genova, 28 April 1890 and 26 July pes support, july 1898) in Tt is true that dicta in subsequent decisi rete Court (Standard Oi en detain 44 Pai Goo sd De Jeads 06. Guan Bec Co,, 72 Phil, 446) and of the Court of Avpesis (VHGA ESEALG Reon ae, 2918; Tomines ve. San Juan, 45 Off. Ga ee tended to erod vines aa atoe ceo) have le the doctrine of Leung Lee 0: Machinery Co, 37 Phil, 644, and admitted the’ the A of chattel mortgages on houses built on vented land, ne that a true building (not ‘oil) is immovable or real by the owner of the land ‘This is the doctrine of Scanned with CamScannerDECEMBER, 1952 OFFICIAL GAZETTE Teserving our opinion on the correctness of such rulings, it is well to note that the cases mentioned are predicated on statements by the owner declaring his house to be a chattel, a conduct that may conceivably estop him from sub- penny otherwise. ‘They atejnot applicable to ‘here no similar declaration can be attrib- uted to the appellee Paz G. Ladera. And it is correctly emphasized by counsel for said appellee that when she built the house in question, she was not a mere lessee but occupied the land under a valid contract of C, N. Hodges to sell it to her. ‘The lower Court was therefore right in concluding that, as the object of the levy and sale was real property, the publication in a newspaper of general circulation was ing 16 of Rule 3: ing e the Purchaser (Balagtas ve. Arguelles, 57 Phil., $17; Cam- pamanes vs. Bartolomé, 38 Phil., 808; Iturralde vs. Velas- quez, 41 Phil, 1886). It is to be noted at this juncture that the alleged pur- chaser at the auction sale, Avelina Magno, is a mere em- * ployee of the judgment creditor C. N. Hodges; and the low bid made by her, as well as the fact that she sold the house to appellant Villa Cee ied fox and in behalf of Hodges bi Appellants argue that, since there was a judgment of ejectment when the house was sold, the sale of the latter meant that the purchaser would have to uproot it, and therefore the sale should be regarded as one of movables, like the sale of a house with the intent of immediately demolishing it. We think this argument is untenable; because the purchaser of the house may be the same owner of the land, or else the buyer of the house may acquire the land, as in this case has happened, both land and house being ultimately sold to appellant Villa; in either event, the uprooting of the house became unnecessary. ‘And as the selling sheriff is not in a position to deter- mine beforehand who will be the ultimate purchaser, it is logical and consistent with the protection of the debtor that the sale of his house be given the maximum publicity provided by law. Otherwise, the debtor may not reap the true value of the property sold under execution, as it happened in the case at bar, where a house assessed at 4,000 was sold for the unconscionable price of P210. ‘Appellants urge as erroneous the finding of the trial Court that appellant's house was worth 4,000 although purchased for only P210 by Avelina Magno, acting in fact for Hodges, though purporting to be an independent Scanned with CamScannerae PS - illy substan' ited purchaser. ‘The questioned finding, ** ore, The appraisal made bY the by the evidence on. h City Assessor in 1947 (Exhibit G) ‘vithout the owner's Satervention, is certainly a more reliable index of its true inne, being prepared by a disinterested party, than the price of P210 paid by Avelina Magno, not only because Brice Ofion sale was held in the absence of the judgment titer and without the requisite publicity, put also be- Gebtor tegno waa « bool of Hodges bidding to enable Tree tor to acquire the house at a price that would just ‘about cover the judgment and the expenses Concerning the claim of Villa that he was innocent purchaser of the house, the lower come rightly pointed rie that the erroneous discrepancy between the assessed oetye (P4,000) and the price for which it w offered to valve (yo00) was enough to place an ordinarily prudent aim Con inguiry. His alleged good faith i= not satis- factorily established. In fact, regardl illa’s_g0 ith, ep s ts » Villa. acquired no title from Magno. Teanould ceo K alike in sales of chattels and personalty, in PulMeactions covering veal property, possession in ‘good faith is not equivalent to title. ‘Finally, even if the sale to Avelina Magno were to, be deemed valid, the payment of P230 made by appellee fecthe Sheriff Balbastro on June 1, 1948, within one yoat te sshe sale, was a valid and sufficient redemption that freslved the ownership and rights of the execution pur- Theor (Morn, Rules of Court, Vol. J, p. 761, Enage Escaiio, 48 Phil., 657; Javellana vs. Mira~ Vda. e Hijos de so, 40 Phil, 771). ‘Therefore, when, on July 6, 1948, Magno sold the property to appellant Villa, she had no title to the house that could pass to him. ‘Finding no reversible error in the judi ealed from, ‘De la Rosa and Ocampo, JJ., concur. Judgment afirmed. [Nos, 1097-R and 7988-R. September 26, 1952] THE PEoLPE OF THE PHILIPPINES, plaintift and appellee, Ma, SERGIO ANDAL, defendant and appellant Hoscie; Secr-Durense; UNLAWFUL Agciissi0x— iJsettied Fale that it is incumbent upon an accused to establish exculpatory acts (People 689; People vs, Gutierrez, 52 Phil, Off. Gaz, 2802, July, 1949), not Crunan LAW: It is a wel who admits the killing bs. Paguio, 43 Phils 609; People vs. Buco, Scanned with CamScanner