JUAN JABON, ALEJANDRO DIGAL, CANDIDO JABON, and PAULINO JABON, petitioners,

vs.
HIPOLITO ALO, Judge of First Instance of Bohol, and SATURNINO alias CATALINO YTEM, respondents.
BAUTISTA ANGELO, J.:
This is a petition for certiorari with preliminary injunction seeking to nullify an order of respondent Judge entered on August 11, 1951.
Saturnino alias Catalino Ytem filed an action against Juan Jabon and three other persons praying that he be declared owner of a parcel of land containing
approximately an area of four hectares. Defendants in turn, prayed that Juan Jabon be declared owner of the property and the claim of the plaintiff for damages be
denied.
On March 13, 1950, Judge Jose Querubin, then presiding the court, after trial, rendered judgement, the dispositive part of which reads:
In view whereof, the Court declares the defendant Juan Jabon the owner of the portion of land described in his tax declaration No. 13439, having an extension of 2
hectares 07 ares and 36 centares and indicated in the report of the commissioner and his sketch, Exhibit X and X-1, as to the portion by angels A, B, C, D, and back to
A and the rest of the portions covered by tax declarations, Exhibits D, E, and F, belong exclusively to the plaintiff, without special pronouncement as to costs.
This decision became final for lack of appeal, and so on May 8, 1950, a writ of execution was issued ordering the defendants to vacate the portion of the land
adjudicated to the plaintiff. As defendants resisted the execution plaintiff asked the court to declare them in contempt, but Judge Jose Veluz, then presiding the
court, denied plaintiff's motion. ruling that the writ of execution was not in accordance with the dispositive part of the decision.
On August 6, 1951, or after the lapse of more than a year since the decision had become final, plaintiff moved that the dispositive part of the decision be
amended by including therein an order directing the defendants to vacate the land adjudicated to the plaintiff, and notwithstanding the vigorous opposition of
defendants, the respondent Judge, Hon. Hipolito Alo, entered an order on August 11, 1951, which practically amended the decision, for in said order he directs that
defendants should vacate the land and should deliver its possession to the plaintiff. The case is now before this Court on a petition for certiorari, defendants
contending that the respondent Judge acted in excess of his jurisdiction.
As may be noted from the dispositive part of the decision which appears quoted in the early part of this decision, the court merely declares plaintiff owner
of the portions of the land under litigation which are not covered by the area of 2 hectares, 07 ares and 36 centares adjudicated to defendant Juan Jabon. It does not
give plaintiff any other relief, much less it orders plaintiff to be placed in possession of the land adjudicated to him. It later developed, however, that when plaintiff
attempted to execute that part of the judgment rendered in his favor, a portion of the land was occupied by the defendants, and the latter had their houses built
thereon. And because the decision contains no directive for their ejectment they resisted the execution. The question now that arises for determination is whether
that decision, which has become final and executory more than a year ago, can still be amended by adding thereto a relief not originally included, such as the delivery
of the possession of the land and the ejectment therefrom of the defendants.
Our answer is in the negative. Rule 39, section 45, provides that "that only is deemed to have been adjudged in a former judgment which appears upon its
face to have been do adjudged, or which was actually and necessarily included therein or necessary thereto". Here there has been only a declaration of ownership.
No other relief is awarded to the plaintiff. In the absence of any other declaration, can we consider a mere declaration of owner-ship as necessarily including the
possession of the property adjudicated? We do not believe so, for ownership is different from possession. A person may be declared owner, but he may not be
entitled to possession. The possession may be in the hands of another either as a lessee of which tenant. A person may have improvements thereon of which he may
not be deprived without due hearing. He may have other valid defenses to resist surrender of possession. We, therefore, hold that a judgment for ownership, does
not necessarily include possession as a necessary incident.
In a similar case, this Court held:
It may be admitted that the judgment absolving defendant Talens was in effect a declaration that the sale to him was valid. It may also be admitted,
though with some reluctance or reservation, that it was a declaration of ownership of the lot. But it is doubtful whether it also included a direction to surrender it to
him. Although it is true that the owner is generally entitled to possession, it is equally true that there may be cases where the actual possessor has some rights which
must be respected or defined. A lessee is not the owner; yet a declaration of ownership in another person does not necessarily mean his ouster.
Touching the case at bar, if the possessor Garcia had made necessary improvements for which he is entitled to compensation, an order of possession
would deprive him of such payment without having had an opportunity to claim for them and prove their value. His Honor, the trial judge, obviously foresaw this
possibility among others, and refused to decree the restitution, taking "into consideration that said decision (of the Court of Appeals) seems not to close all the doors
for the parties to protect their interests, if they still have any."
Consequently, we hold that the judgment of the Court of Appeals in G. R. No. 3221-R absolving Talens from the complaint did not include an order for
delivery of possession of the land.
The petition is denied, with costs. (Talens vs. Garcia et al. 47 Off. Gaz. [Supp, to No. 12], pp. 358, 360-361.)
Consequently, we hold that the order of respondent Judge dated August 11, 1951, is null and void, it having been issued excess of his jurisdiction.
Petition is hereby granted, with costs. The preliminary injunction issued is declared final.
MELANIA A. ROXAS, petitioner, vs. THE HON. COURT OF APPEALS and ANTONIO M. CAYETANO, respondents.
G.R. No. 92245, 26 June 1991.
PARAS, J.:

Petitioner Melania Roxas ("Melania") is married to Antonio Roxas ("Antonio"), although they are already estranged and living separately.
Melania discovered that Antonio leased to Respondent Antonio Cayetano ("Mr. Cayetano") their conjugal lot in Novaliches without her knowledge and consent.
Thus, Melanie filed a case before the RTC praying for the annulment of the contract of lease between Antonio and Mr. Cayetano.
Mr. Cayetano moved to dismiss the complaint on the sole ground that the complaint states no cause of action.
The RTC Judge resolved said Motion by dismissing Melania's complaint.

ISSUE: W/N a husband, may legally enter into a long-term contract of lease involving conjugal real property without the consent of the wife.

Ruling: No. (Case remanded to the RTC by the SC)

Even if the husband is administrator of the conjugal partnership, administration does not include acts of ownership. For while the husband can administer the
conjugal assets unhampered, he cannot alienate or encumber the conjugal realty.

As stated in Black's Law Dictionary, the word "alienation" means "the transfer of the property and possession of lands, tenements, or other things from one person to
another ... The act by which the title to real estate is voluntarily assigned by one person to another and accepted by the latter, in the form prescribed by law." While
encumbrance "has been defined to be every right to, or interest in, the land which may subsist in third persons, to the diminution of the value of the land, but
consistent with the passing of the fee by the conveyance; any (act) that impairs the use or transfer of property or real estate..."

The pivotal issue in this case is whether or not a lease is an encumbrance and/or alienation.

Under Art. 1643 of the New Civil Code "In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing for a price certain,
and for a period which may be definite or indefinite...." Thus, lease is a grant of use and possession: it is not only a grant of possession.

In the contract of lease, the lessor transfers his right of use in favor of the lessee. The lessor's right of use is impaired, therein. He may even be ejected by the lessee if
the lessor uses the leased realty.

Therefore, lease is a burden on the land, it is an encumbrance on the land. The concept of encumbrance includes lease, thus "an encumbrance is sometimes
construed broadly to include not only liens such as mortgages and taxes, but also attachment, LEASES, inchoate dower rights, water rights, easements, and other
RESTRICTIONS on USE."

Moreover, lease is not only an encumbrance but also a qualified alienation, with the lessee becoming, for all legal intents and purposes, and subject to its terms, the
owner of the thing affected by the lease.

Thus, in case the wife's consent is not secured by the husband as required by law, the wife has the remedy of filing an action for the annulment of the contract.
 ESTEBAN RANJO, Plaintiff-Appellee, v. GREGORIO SALMON ET AL., Defendants-Appellants.

SYLLABUS

1. SALE; TRANSFER OF OWNERSHIP. — The act of selling of alienating real or personal property undisputably transfers the ownership of the vendor to the vendee
of transferee, but he who is not the owner can not perform any act which will affect the ownership, nor can the vendee acquire the thing bought, inasmuch as no right
was transferred by the vendor.

2. PLEDGE OR MORTGAGE; CREDITOR’S RIGHTS. — The creditor can not appropriate to himself the things held as pledge or under mortgage, nor can he dispose
of the dame as owner; he is merely entitled, after the principal obligation has become due, to move for the things pledged, in order to collect the amount of his claim
from the proceeds.
DECISION
TORRES, J. :

On the 27th of July, 1907, Esteban Ranjo filed a written complaint with the Court of First Instance of Ilocos Norte against Gregorio Salmon,
Francisca Gonzalez, and Valeriano Tomas, alleging that he was the owner, by inheritance from his deceased mother, Dorotea Adiarte, of a tract of
land used as a truck garden and a rice field, situated in the barrio of Rangtay, pueblo of Pasuquin, Ilocos Norte, with an area of about 2 hectares and
43 ares; that the property is bounded on the north by a path and land owned by Calixto Luna; on the east by lands belonging to Ubaldo Tagabilla,
Eugenio Blas, and Timoteo Caliba; on the south by lands of the same Caliba, Agustin Menor Macario Lagac, Cipriano Daquigan, Eugenio Blas. and
a sandy tract; and on the west by another sandy tract that in 1900 (the exact date being unknown) he pledged the said land to Francisca Gonzalez for
the sum of 100 pesos, with a right to redeem it upon repayment of the amount; that in 1904 Gonzalez transferred fed rights in the said land upon the
said condition to Valeriano Tomas, who in 1906 transferred his right to Gregorio Salmon for the sum of P140; that the defendants having amicably
requested to return the land in question to the question to the plaintiff, upon payment of the last-mentioned amount of the pledge made in favor of
Salmon; that the latter refused to comply with the request, wherefore the plaintiff prayed that judgment be rendered ordering the defendants to deliver
the above describe land to the plaintiff, upon repayment of P140 to Gregorio Salmon, and to pay the costs.

Gregorio Salmon having been summoned, made written answer to the above complaint, stating that the lands mentioned therein were not the property
of the plaintiff when they were sold to him by Valeriano Tomas, who was their exclusive owner, and therefore he prayed that judgment be rendered
in his favor, and that the plaintiff be adjudged to pay the costs.

The other defendant, Francisca Gonzalez, stated in her answer that she admitted as true the facts on which the plaintiff based his complaint, and that
she therefore agreed to the redemption of the land described therein, and prayed that judgment be rendered in favor of the said plaintiff with the costs
against the defendant Salmon.

Valeriano Tomas died on July 28, 1907, as appears from Exhibit B of the plaintiff.

After the hearing of the case and the evidence adduced by both parties, the documents exhibited having been made part of the record, the judge
therein, sentencing Gregorio Salmon to deliver the land claimed to the plaintiff Esteban Ranjo, upon repayment of P140, and to pay the costs.
Counsel for the defendant Ranjo excepted to this decision, and asked for the annulment thereof on the ground that it was not sufficiently sustained by
the evidence, that the findings deduced from the facts were clearly and manifestly contrary to the weight of the evidence, and stated that, should his
petition be denied, he excepted thereto and intended to file his bill of exceptions in the usual way; the motion was denied and the annulment asked for
was declared to be improper, and his notice of intention to submit his bill of exceptions in the usual way having been admitted, the said bill of
exceptions was prepared, certified, and approved, and thereafter filed with the clerk of this court.

It having been proved that Valeriano Tomas was not the owner of the land claimed by Esteban Ranjo, the allegation of Gregorio Salmon that it
belonged to him can not be supported, since he acquired it by purchase from the said Tomas, who was not the owner.

Only the owner can dispose of property, without any other limitations than those prescribed by the law, and he has a right of action against the holder
or possessor thereof to recover it. (Art. 348, Civil Code.) If Valeriano Tomas was not the owner, but a mere mortgage creditor of the land in question,
he could not sell it nor convey any right of ownership to the defendant Salmon notwithstanding the document exhibited by the said defendant and
marked "A."cralaw virtua1aw library

Article 1859 of the Civil Code reads as follows:jgc:chanrobles.com.ph

"A creditor can not appropriate to himself the things given in pledge or mortgage, nor dispose of them."cralaw virtua1aw library

What the creditor is entitled to do, after the principal obligation has become due, is to ask for the alienation of the things constituting the pledge or
mortgage, in order to secure reimbursement. (Art. 1858 of the same code.)

Valeriano Tomas, in order to obtain the 125 pesos he had loaned to Francisca Gonzalez, by way of mortgage on said land, conveyed his rights to
Gregorio Salmon for the sum of 140 pesos, which was paid to him by the latter. Valeriano Tomas testified under oath to this effect in the document
presented by the plaintiff (Exhibit A), which document was ratified before a notary, the contents of which confirm the statements made by Francisca
Gonzalez in her written answer to the complaint, agreeing to the pretensions of the plaintiff, Ranjo, and directly contradict the contents of the
document exhibited by the defendant Salmon as evidence of his allegation that he is the owner of the said land. The latter allegation is wholly
unfounded, inasmuch as, if his title of ownership is derived, according to his answer to the complaint, from the right of the said Valeriano Tomas, it
having been proved that the latter was not the owner of the land, but a mere creditor with the right to recover his credit from the proceeds of the sale
of the property, it is undisputable that he could not dispose of the land nor sell it absolutely and finally to the defendant Salmon, as the latter pretends,
basing his pretension on the said document of sale, which is notoriously inefficient because it is a contract wholly null and void.

The other defendant, Francisca Gonzalez, stated in her sworn testimony that after having held the land under mortgage for four years, and being in
need of money, after having notified its owner Esteban Ranjo, she in turn mortgaged it to Valeriano Tomas, from whom she received 125 pesos; no
new document was then executed, but she simply indorsed the old one executed by her and Esteban Ranjo; the latter in his sworn testimony
confirmed Gonzalez’s statements and added that he had inherited the said land from his mother, and that it is at present in possession of the defendant
Salmon, because the former mortgagee, Valeriano Tomas, had mortgaged it to him; and that, as Tomas assured him that upon paying Salmon the 140
pesos received as loan he could recover the land without any objection, he went to see the defendant Salmon (because Tomas was sick), to redeem
the land, and presented to him a letter from Tomas; but Salmon refused to receive the money, saying that he wanted to deliver the land to the same
person from whom he had received it.

From the above-stated facts it appears that the document evidencing the mortgage, and which Francisca Gonzalez avers was executed and indorsed to
Valeriano Tomas, must have been delivered to the last mortgagee, Gregorio Salmon; and the latter having failed to exhibit it at the trial (since the said
document contains and shows the successive mortgages to which the land in question has been subjected), it must have been because it did not suit
the defendant Salmon to produce such a document, which is evidently incompatible with the document of sale exhibited by him, the facts related by
the plaintiff and Francisca Gonzalez being moreover corroborated by the notary, David Cleto, and by the witness, Alejandro Blas.

The character of the plaintiff, as owner of the land, as denied and questioned, but the defendant does not take into account the fact that he himself
acknowledges and admits that he had acquired it from Valeriano Tomas; and, as it is a fact that the latter had in turn received it from Francisca
Gonzalez, in whose favor it was mortgaged by Esteban Ranjo, it is undisputable that the first and true owner of the land mortgaged is the plaintiff,
inasmuch as it has not been shown that it was Valeriano Tomas who, according to the defendant, sold and conveyed to him the land in controversy.

The act of selling or alienating real or personal property to another person conveys the ownership of the vendor as to the thing sold; one who is not
the owner can not perform any act which would transfer the ownership, nor could his pretended transferee acquire any rights in the property, because
his vendor did not convey to him any right of ownership.

Therefore, the judgment appealed from being in accordance with the law and the merits of the case, it is our opinion that it should be and it is hereby
affirmed, with the costs against the Appellant. So ordered.

REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,

vs.
CIRILO P. BAYLOSIS, ET AL., defendants and appellants.

REYES, J.B.L., J.:

This case is an offshoot of our decision in G.R. No. L-6191, Republic of the Philippines vs. Cirilo Baylosis, et al., promulgated January 31, 1955, (96 Phil., 461; 51 Off.
Gaz., No. 2, 62), sustaining the motions to dismiss of appellants and ordering the dismissal of the expropriation proceedings filed by the Republic of the Philippines in
the Court of First Instance of Batangas (C.C. No. 84) to expropriate seven lots formerly constituting part of the Lian Estate (Hacienda Lian) in the municipality of Lian,
Batangas.

It appears that after the records were returned by this Court to the Court a quo, the plaintiff Republic of the Philippines filed on June 30, 1955 a motion to withdraw its
preliminary deposit of P27,105.22 made pursuant to section 3, Rule 69 of the Rules of Court, and by virtue of which it was placed in the possession of parcels in
question, on the ground that whatever claims for damages the finality of our decision in G.R. No. L-6191, which made no pronouncement on nor contained a reservation
of defendants' right to claim damages. Defendants opposed the motion, claiming that their losses and damages resulting from the transfer of the possession of their lands
to plaintiff and which they alleged in their motions to dismiss had not yet been determined by the trial court. Notwithstanding the opposition, the court below, on July
25, 1955, ordered the result of the aforesaid deposit to plaintiff, for the reason that "the defendants have not taken any step towards the recovery of such damages," nor
"is there any assurance that they would do so in the immediate future, on the assumption that their right to pursue such claim for damages is not barred by laches".
Defendants accordingly moved for the reconsideration of such order, and before their motion for reconsideration was resolved, also moved that their counterclaims for
the damages be set for hearing. Both motions were denied by the court; whereupon, defendants interposed the present appeal to this Court.1awphîl.nèt

We find merit in the appeal.

Firstly, appellants are right in claiming that the lower court should not have authorized the withdrawal of plaintiff's preliminary deposit before their right to recover the
damages allegedly suffered by them by reason of the filing of the expropriation suit is finally determined and adjudicated. For as we said in Visayan Refining Co. vs.
Camus, 40 Phil., 562, said deposit protects the defendant "from any danger of loss resulting from the temporary occupation of the land by the Government, for it is
obvious that this preliminary deposit serve the double purpose of a prepayment upon the value of the property, if finally expropriated, and as an indemnity against
damages in the eventuality that the proceedings should fail of consummation." To return this deposit to plaintiff now would, therefore, be depriving defendants of this
legal safeguard for the payment of their damages in case they are finally held to have the right to collect said damages in these same proceedings.

The decisive question in this appeal, therefore, is whether or not appellants can still prove and recover their damages in this same action. Appellee and the lower court
entertain the view that appellants are now barred from claiming any damages in this case, because our decision in G.R. No. L-6191 made no reservation of their right to
do so, and said decision is now res judicata. Appellants, upon the other hand, maintain that the only issue involved in that appeal was plaintiff's right to expropriate their
lands, and as their right to damages was not brought up and litigated therein, the decision of this Court in said appeal can not be res judicata as to such matter. Again we
find appellant's position on this matter the more tenable. The records show that all of appellants' motion to dismiss contained counterclaims for damages supposedly
suffered by them as a result of the filing of the expropriation proceedings. When the motions to dismiss were called for trial, however, the hearing was confined to the
issue of plaintiff's right to expropriate, and evidence was accordingly adduced by the parties on this question alone (see Decision of the court below, R.A., pp. 162-163).
In fact, defendants at this hearing started to prove their damages, but they were prevented from doing so by the lower Court, saying that such matter "will be for the
commissioners" (t.s.n. of February 18, 1952, p. 293); and for that reason, defendants, through counsel, repeatedly manifested that they were reserving their right to
present evidence on their damages (t.s.n., ibid, pp. 293, 297, 298), and the reservation was approved by the court (ibid, p. 298). Unfortunately for defendants, the trial
court upheld plaintiff's right to expropriate; and from this finding exclusively, they appealed to this Court in G.R. No. L-6191.

In view of the antecedents, it can not be said that appellants are now barred from proving their alleged in this case simply because their right to do so had not been
reserved in our decision in G.R. No. L-6191. The reservation had already been made in the court below and duly approved therein; the reservation was not questioned
by the Government, and it did not appeal therefrom. As there was already that reservation, it was needless for appellants, to raise such matter on appeal or ask for a
reservation of their right to prove damages in our decision in G.R. No. L-6191. In a similar case wherein agreed to the appointment of commissioners and presented
evidence before them, upon the understanding that said hearing was without prejudice to discussing later the question relative to the right to plaintiff to expropriate, we
held that the reservation was "very expressive in the sense that in the mind of the court, defendants never had the intention of waiving that defense as otherwise it would
not stated in its order such reservation. Such reservation negatives the idea of waiver." (Republic vs. G.R. No. L-6161, May 28, 1954.) The reservation made by
appellants and approved by the court in this case can not be any less effective than the reservation in the Gabriel case.

Plaintiff-appellee cites two cases to support its contention that the absence of a reservation of appellants' right to recover damages in G.R. No. L-6191 forecloses such
right, but the case cited are inapplicable to this case because of the substantial differences in the facts and issues in said cases and the present one. In the first place, both
cases cited involved, not motions to dismiss filed by defendants wherein they expressly included counterclaims for damages as in this case, but motions to dismiss at the
instance of plaintiff, the very party that filed the expropriation proceedings. In the first case, Metropolitan Water District vs. De Los Angeles, 55 Phil., 776 plaintiff's
motion to dismiss was even filed after the lower court had already decided the case in its favor, and an appeal already taken by both parties on the question of just
compensation. In view of the motion to dismiss filed by plaintiff on appeal, the only question presented for decision was whether or not plaintiff should be allowed to
dismiss the proceedings at that stage, since defendants had already suffered great damages by reason of their dispossession and incurred into great expenses by reason of
the long and protracted litigation. In sustaining plaintiff's right to dismiss, we had, of necessity and in justice to defendants, to reserve to them the right to recover their
damages either in the same or in another action. While in the case of City of Manila vs. J.C. Ruymann, 37 Phil., 421, the lower court sustained plaintiff's motion to
dismiss the expropriation proceedings, reserving to defendants their to prove damages in another action, so that defendants appealed, urging that they should be allowed
to recover their damages in the same proceedings since they had claimed damages in their motions to dismiss. As the precise question presented to us in the appeal was
defendants' right to claim and recover damages in the same proceedings, it was necessary for us to declare in our decision that they had said right. These cases can not
be invoked in the case at bar, not only because the only question presented in G.R. No. L-6191 was whether or not plaintiff was entitled to expropriate defendants'
properties, but also because, as already stated, the right of defendants to prove in the same proceedings the damages alleged in their motions to dismiss had already been
reserved to them by the trial court.

The remaining question involves the denial by the court below of appellants' motion to set for hearing their counterclaims for damages, for the reason given that "the
motion of the defendants to set for hearing their counterclaim for damages would in effect be to reopen a case decided by the Supreme Court unconditionally and with
finality" (R.A., p. 208). This order will also have to be reserve, in view of what we have already said upholding appellants' right to prove and recover their damages in
these same proceedings. As for appellee's contention that appellants are guilty of laches in the prosecution of their claims for damages, we do not think the delay of four
months in their asking for the trial of their counterclaims (see Appellee's Brief, p. 8) is such unreasonable length of time as would justify us to dismiss said claims on the
ground of laches or non-suit. Anyway, no prejudice could have been caused plaintiff by this delay.

Wherefore, the order appealed from is reserved, and the records are remanded to the court a quo for trial on appellants' counterclaims for damages and other reliefs
contained in their motions to dismiss. Costs against plaintiff-appellee.

FREDERICK GARFIELD WAITE, Plaintiff-Appellee, v. JAMES J. PETERSON, ET AL., Defendants-Appellants.

Hartigan, Rohde & Gutierrez, for Appellants.

Frederick Garfield Waite, in his own behalf.

SYLLABUS

1. WRONGFUL TAKING OF PROPERTY; SALE OR TRANSFER; ACTION BY THE TRANSFEREE. — When the property of one person is unlawfully taken by
another, the former has a right of action against the latter for the recovery of the property or for damages for the taking or retention, and he is entitled to his choice of
these two remedies. This is also a right which may be transferred by the sale or assignment of the property, and the transferee can maintain either action against the
wrongdoer.

2. ID.; ID.; ID.; RESPONSIBILITY OF THE SHERIFF. — When, however, the owner seeks to make the sheriff responsible for such wrongful act he must, in order to
preserve his right against the sheriff, comply with the provisions of section 451 of the Code of Civil Procedure.

3. LEVY UPON PROPERTY; RESPONSIBILITY OF THE CREDITOR. — If a sheriff levies upon property at the instance of a creditor and is indemnified by the
latter, the creditor is thenceforward liable for the acts of the sheriff with respect to the property.
DECISION
WILLARD, J. :
The appellant (Kwong We Shing) has not caused the proof in this case to be brought here. The only question therefore is whether the facts admitted in the pleadings and
those found by the court below in its decision sustain the judgment appealed from. That court found among other things as follows:jgc:chanrobles.com.ph

"From the evidence presented at the trial, the court finds that on December 8, 1905, one Henry Manheim delivered to L.K. Tiao Eng a diamond ring one consignment
for 800 pesos, to be returned, if not sold, in sixty days; that on the 22d day of January, 1906, while the ring was in the possession of L.K. Tiao Eng, the defendant, as
sheriff of Manila, levied upon the said ring; that on the 23d day of January, 1906, the aforementioned Henry Manheim, for value received, assigned all his right to and
interest in said ring to the said plaintiff herein; that on the 25th day of January, 1906, the plaintiff made demand upon the sheriff of Manila, who had made the levy, as
before said, for the said ring, and alleged the value thereof to be 800 pesos; that the sheriff was indemnified by the judgment creditor, in whose favor the levy had been
made, as provided by law, and retained possession of the ring and sold the same at public sale; that the said Henry Manheim has never been paid for the said ring, in
accordance with the terms of the contract hereinbefore mentioned or any part thereof; that at the time of the levy by the sheriff upon the said ring, as before stated, the
said Henry Manheim was the owner of and entitled to possession of the said ring; that while the ring was in the possession of the sheriff the said Henry Manheim
transferred his ownership and right to possession of said ring to plaintiff herein and that the plaintiff thereupon became the owner and entitled to possession of said
ring."cralaw virtua1aw library

Judgment was rendered against both of the defendants for the return of the ring, and, if that could not be had, for the sum of 725 pesos, with interest, and costs.
I. The appellant claims that by the terms of section 451 of the Code of Civil Procedure this action can not be maintained by the plaintiff because he was not the owner of
the ring at the time the levy was made. In other words, as we understand it, his claim is that no action for the value of the property taken can be maintained except by the
person who was the owner thereof at the time it was seized by the sheriff. We do not think that this contention can be sustained. Said section 451 is as
follows:jgc:chanrobles.com.ph

"Claims by third persons to property levied on. — Property levied on can be claimed by a third person as his property, by a written claim, verified by the oath of such
claimant, setting out his title thereto, his right to possession thereof, stating the ground of such title, and served upon the governor, or his deputy, or officer making the
levy. The officer in such case is not bound to keep the property, unless the plaintiff, or the person in whose favor the writ of execution runs, on demand, indemnify the
officer against such claim by an obligation, signed by the plaintiff, with good and sufficient surety, and no claim to such property shall be valid against the officer, or
shall be received or be notice of any rights against him, unless made as herein provided; but nothing herein contained shall prevent such third person from vindicating
his claim to the property by any proper action."cralaw virtua1aw library

The vice in the argument of the appellant consist in the fact that he assumes that section 451 is the only law which gives the plaintiff a right of action against the sheriff,
and that if he is not included within that section, he can not maintain any action. This is manifestly erroneous. So far from being the origin of any rights on the part of
the owner of property wrongfully taken by the sheriff, it is rather a limitation upon his rights previously existing. If property of a person is taken by the sheriff upon an
execution against another person, the sheriff is liable thereof in the absence of statute, as any private person would be. When one’s property is wrongfully taken by
another, the former has a right of action against the person who interfered with his property, whether for the recovery of the property itself or for damages for its taking,
and he has his choice of these remedies. If section 451 did not exist, by the general principles of the law the sheriff would always be responsible for wrongfully taking
the property of another. For the purpose of limiting the responsibility of the sheriff in such cases, and to provided that some notice should be given to him of the claims
of third persons, this section requires such third persons to make such claims in writing, so that the sheriff, after the notice is given to him, can decide for himself
whether he will proceed with the levy or abandon the property.

The right of action given by the general principles of law to the person whose property has wrongfully been taken from him, either to recover damages or the possession
of the property, is a right which can be transferred by him, and his transferee can maintain either one of these actions against the wrongdoer. On this first claim of the
appellant, then, the only question is whether this section 451 has taken away from the assignee of the owner his right to maintain an action to recover the value of the
property.

An examination of the section will show that there is no distinct statements therein, that the claim can only be made by a person who was the owner of the property at
the time the levy was made. As the section is written, we do not think that it should be so construed. Such a construction would, in case of the involuntary transfer of
rights, deprive the transferee of actions which might be absolutely necessary to him for the protection of his interest. If we so construed the section, we should have the
levy his executor or administrator would have no right to make a claim against the sheriff for the return of the property and would be deprived of an action against the
sheriff for the recovery of damages for such wrongful taking. The same rule would have to be made if an order in bankruptcy was passed against the owner of the
property the day after the levy. We do not think that the section requires any such construction.

II. It is further claimed by the appellant that in no event should judgment have been entered against him — that is to say, against Kwong We Shing. It will be noticed
that the court found that the sheriff was indemnified by the judgment creditor. This statement is sufficient to make the judgment creditor liable for the acts of the sheriff.
In the case of Lovejoy v. Murray (3 Wall. U.S., 1) the court said, at page 9:jgc:chanrobles.com.ph

"The demand for indemnity, and the giving of it by the defendants, proceeded upon the supposition that the sheriff would without it go no further in that direction, but
would give up the property to the claimant, the present plaintiff, and make his peace on the best terms he could. By the present statute of Iowa he had a right to do this,
if the plaintiff in attachment refused to assume the hazard of indemnifying him. And if there were no such statute, he had a right to deliver the property to the claimant,
and risk a suit by the plaintiff in attachment rather than a contest with a rightful claimant of the goods.

"The giving of the bond by the present defendants must, therefore, be held equivalent to a personal interference in the course of the proceeding, by directing or
requesting of the defendants in attachment. In doing this they assumed the direction and control of the sheriff’s future action, so far as it might constitute a trespass, and
they became to that extent the principals, and he their agent in the transaction. This made them responsible for the continuance of the wrongful possession and for the
sale and conversion of the goods; in other words, for all the real damages which plaintiff sustained."cralaw virtua1aw library

The judgment of the court below is affirmed, with the costs of this instance against the appellant, Kwong We Shing. So ordered.
THE MANILA RAILROAD COMPANY, petitioner,
vs.
The Honorable ISIDRO PAREDES, FLORENTINO ALANDY, JULIA ALANDY, and VENTURA ALANDY, respondents.
TRENT, J.:

This is an original action of mandamus in this Supreme Court. The plaintiff is a railroad corporation organized under the laws of the Philippine Islands and has the
power of eminent domain. In conformity with its charter it constructed and is now operating a branch line from Manila to Gumaca, Province of Tayabas. On April 29,
1913, the herein defendants surnamed Alandy instituted an action to recover the value of a parcel of land comprising a portion of the right of way of the Gumaca line,
alleging that they were the owners and that the company had never acquired title thereto by amicable purchase or expropriation proceedings. The amended complaint
asks for the restitution of the land, P5,000 damages for improvements thereon which it is alleged, the railroad company had destroyed, and an additional sum of P5,000
"by way of punishment and chastisement of the defendant company, so that it will not again illegally and arbitrarily occupy lands of private ownership." The company
answered, setting up its error in believing that it had acquired title to the land by purchase from the owner and that the mistake was due to a misdescription in the plans;
further alleging that it took possession of the parcel in question during September, 1912, constructed its railroad over the said parcel in due course, and continued to
occupy the land and operate its railroad over it without objection from any one and especially from the defendants, until shortly before the defendants instituted their
action to oust the company. By way of cross-complaint, the company instituted expropriation proceedings against the owners. These expropriation proceedings were
duly had before the respondent judge, who approved the award of damages made by the commissioners and entered judgment on March 3, 1915, for that amount. The
company promptly entered an exception to this judgment, notified the court of its intention to appeal, and presented a motion for a new trial upon the ground that the
judgment was against the law and the weight of the evidence. Upon receiving notice of the overruling of this motion, an exception was entered thereto and in due course
the corresponding bill of exceptions was presented and the same is now pending approval, subject to certain objections filed by the herein defendants. In the meantime,
the herein defendants moved for the execution of the judgment. Notwithstanding the fact that the company offered an appeal bond in excess of the amount of the
judgment, the court directed that: "If the defendant company desires to continue the occupation and enjoyment of the property of the plaintiffs, it must pay to the latter
the amount of the judgment; and therefore, if, within five days after notification of this order, the company fails to pay said amount or to signify its intention of vacating
the property, let a corresponding writ of execution issue."

The company thereupon instituted these present proceedings in the Supreme Court, alleging that unless the respondent Paredes is restrained by the injunction of this
court, he will execute the judgment complained of or dispossess the company of the parcel of land in controversy, pending the appeal, thus depriving this court of its
jurisdiction over the subject matter and of the ability to do complete justice between the parties to the litigation. And praying that a writ of mandamus issue to the
respondent judge, commanding him to permit the company to stay the execution of the judgment, pending the appeal, by the execution of a bond sufficient to secure the
performance of the judgment, in case it be affirmed in whole or in party by this court. A preliminary injunction was issued restraining the respondent judge from
executing the judgment in question until further orders of this court.

It is necessary to first determine just what the rights of the herein defendants were at the time they instituted their action in the court below.

It seems that this is the first case in this jurisdiction in which it has been attempted to compel a public service corporation endowed with the power of eminent domain to
vacate property occupied by it without first acquiring title thereto by amicable purchase or expropriation proceedings. This point, with special reference to railroads, has
been the subject of numerous cases in the United States, from which country we have derived our law of eminent domain. The cases are practically unanimous in
principle, and turn upon the point whether the railroad company has the capacity to acquire the land in dispute by virtue of its delegated power of eminent domain, and,
if so, whether the company occupied the land with the express or implied consent or acquiescence of the owner. If these questions of fact be decided in the affirmative,
it is uniformly held that an action of ejectment or trespass or injunction will not lie against the railroad company, but only an action for damages, that is, recovery of the
value of the land taken, and the consequential damages, if any. The primary reason for thus denying to the owner the remedies usually afforded to him against usurpers
is the irremedial injury which would result to the railroad company and to public in general. It will readily be seen that the interruption of the transportation service at
any point on the right way impedes the entire service of the company and causes loss and inconvenience to all passengers and shippers using the line. Under these
circumstances, public policy, if not public necessity, demands that the owner of the land be denied the ordinarily remedies of ejectment and injunction. The fact that the
railroad company has the capacity to eventually acquire the land be expropriation proceedings undoubtedly assists in coming to the conclusion that the property owner
has no right to the remedies of ejectment or injunction. There is also something akin to equitable estoppel in the conduct of one who stands idly by and watches the
construction of the railroad without protest. (Union Pac. R. Co. vs. City of Greeley [C.C.A.], 189 Fed., 1.) But the real strength of the rule lies in the fact that it is
against public policy to permit a property owner, under such circumstances, to interfere with the service rendered to the public by the railroad company.itc-a1f

We quote from northern Pacific Railroad Co. vs. Smith (171 U.S., 260, 275; 43 L. ed., 157, 163): "This subject was fully considered by this court in the case of Roberts
vs. Northern Pac. R.R. Co. (158 U.S., 1; 38 L. ed., 873), where, upon the foregoing authorities and others, it was held that if a landowner, knowing that a railroad
company has entered upon his land and is engaged in constructing its road without having complied with a statute requiring either payment by agreement or proceedings
to condemn, remains inactive and permits it to go on and expend large sums in the work, he is stopped from maintaining either trespass or ejectment for the entry, and
will be regarded as having acquiesced therein, and will be restricted to a suit for damages."

This case was affirmed in Donohoe vs. El Paso & S.W.R. Co. (214 U.S., 499; 63 L. ed., 1060), in a memorandum decision affirming a judgment of the Supreme Court
of the Territory of Arizona, reported in volume 11 of the Arizona Reports, at p. 293. Among the numerous cases from state jurisdiction affirming the rule, we cite
Pickert vs. Ridgefield Park Railroad Co. (25 N.J. Eq., 316); Boise Valley Construction Co. vs. Kroeger (17 Idaho, 384); Kakeldy vs. Columbia & P.S.R. Co. (37 Wash.,
675); Webster vs. Kansas City & S. R. co. (116 Mo., 114); Buckwalter vs. Atchison, T. & S. F. R. Co. (64 Kan., 403); Florida Southern Railroad Co. vs. Hill (40 Fla., 1;
74 Am. St. Rep., 124). The rule has been applied in favor of a municipal corporation in New York vs. Pine (185 U.S. 93; 46 L. ed., 820); in favor of the Federal
Government in United States vs. Lynah (188 U.S. 445; 47 L. ed., 539); and in favor of an electric power company in Gurnsey vs. Northern Cal. Power Co. (160 Cal.,
699).

There is, however, a limit to this rule. The power of eminent domain in essential to the general welfare of society. It is assumed as an attribute of sovereignty by the
state and by it delegated to persons or corporations whose functions are to offer services of some sort to the general public, such as highways, railroads, telegraph and
telephone companies, public service plants, and the like. While the power of eminent domain is usually and ordinarily delegated to all such enterprises, and may be
considered essential to their proper development and efficiency, it is theirs only by grant from the state and within the limits prescribed. If therefore, any such person or
corporation enters upon private property in the absence of such authority, they are there as mere trespassers and stand in no better position than any other intruder. A
concrete case in point is that of the State of Washington ex rel. Sylvester vs. Superior Court (60 Wash., 583), where a railroad company entered upon a street in the
nighttime and proceeded with the construction of its railroad notwithstanding it had no franchise. The abutting property owners immediately contested the right of the
company to thus enter upon the street. In disposing of one branch of the litigation, the Supreme Court of the State of Washington said: "In Slaight vs. Northern Pac. R.
Co. (39 Wash., 576; 81 Pac., 1062), and the numerous cases therein cited, this court held, in effect, that where a property owners stands by and permits a railroad
company to construct it railroad upon his land, without objection or protest, he cannot thereafter recover the right of way in an action of ejectment, or restrain the
operation of the road by injunction, without first giving the company an opportunity to acquire the right of way by condemnation. But the railroad company in this case
does not bring itself within the reason or equity of these decisions. Here there has been no acquiescence on the part of land owners, and no consent to the construction of
the road , express or implied. The company is a trespasser ab initio, and acquire no rights by its trespass which a court of equity can respect or protect. To permit a
railroad company to acquire even a temporary right to occupy the property of another by such means is a palpable invasion of the constitutional and property rights of
the citizen."1awphil.net

In Wood vs. Charing Cross Railway Company (33 Beav. [55 Eng. Rep., 379], it was said by Sir John Romilly, M.R.: "I apprehend the rule of the court in all these
matters is this: The legislature empowers the railway company to take the property on paying a reasonable sum for it; but they must not take it arbitrarily or without
giving fair and reasonable compensation to the owner of the property, and they are bound to put the matter in such shape that a jury or arbitrator may be able to form an
accurate estimate of its value. If a railway company, disregarding the provisions of the act, thinks fit to take possession of property, to act with a high hand and set the
owner in defiance, this court interferes and prevents the company from taking any further step in the matter; but it only does so if the owner comes with reasonable
diligence, at the proper time, and without doing unnecessary injury to the company. But if a company acting bona fide take possession of property by mistake, and it is
merely a question of value between the company and the owner, I apprehend the court does not act in the same way, unless it is shown that there has been culpable
negligence on the part of the company."

In the case at bar the company has been granted a franchise for its line to Gumaca. (Act No. 1905, sec. 1.) It entered upon the land of the herein defendants in good
faith. The continued silence of the defendants while the railroad was in the course of construction and until it was completed amounts to an implied acquiescence in the
taking of their property. Hence, all the requirements of the rule we have discussed above have been met and the defendants are now left with an action for damages as
their only remedy.

This case must, in our opinion, be governed by that of the Manila Railroad Co. vs. Arzadon (17 Phil. Rep., 288). This was a case of expropriation. The award of the
Commissioners was modified, but resulted in a judgment in favor of some of the defendants far in excess of the preliminary deposit. The plaintiff appealed on the sole
issue of the amount of the award. In the meantime, the defendants petitioned the trial court to execute the judgment. Whether this petition was presented before or after
the appeal was perfected, we were not informed. Thereupon the Supreme Court, upon motion of the plaintiff, issued a preliminary injunction restraining the
enforcement of the judgment until further orders of this court. The appellees moved to dissolve the preliminary injunction thus issued upon the ground that an appeal in
actions of this character does not, under section 248 of the Code of Civil Procedure, operate as a supersedeas and therefore the judgment may be executed, although an
appeal has been taken. Upon this point we held that section 248 is not applicable to cases "in which the plaintiff was an appellant," and authorized the appellant to file
bonds in the amounts of the awards, thereby staying the execution of the judgment pending appeal. In that case the company entered into possession of the land at the
beginning of the proceedings upon the order of the court, while, in the case at bar, the company entered into possession of the land in question with the implied consent
or acquiescence of the herein defendants. Here the position of the company is at least as strong as in the case cited. The mere fact that the herein defendants were the
plaintiffs in the original action in the court below can make no material difference, as the case was converted on the cross complaint of the company into condemnation
proceedings, the company by reason thereof becoming the real plaintiff. The two cases being the same in principle, any further discussion of the questions raised
becomes unnecessary.

For the foregoing reasons the preliminary injunction heretofore issued in this case is continued in force until further orders of this court. The respondent judge will
approve the bond offered by the plaintiff company, if, in his judgment, it is sufficient for the purposes presented. The appeal will then take its ordinary course. The
herein defendants surnamed Alandy will pay the costs of this cause. So ordered.
THOMAS YANG, petitioner,
vs.
THE HONORABLE MARCELINO R. VALDEZ, Presiding Judge, Regional Trial Court, 11th Judicial Region, Branch XXII, General Santos City, SPS. RICARDO MORANTE
and MILAGROS MORANTE, respondents.

FELICIANO, J.:
The present Petition for Certiorari 1 seeks to annul and set aside the orders dated 7 January 1985, 18 January 1985 and 28 February 1985, of Judge Marcelino R.
Valdez of the Regional Trial Court of General Santos City, Branch 22. The assailed orders, respectively, had approved a replevin bond posted by respondents, denied
the counter-replevin bond filed by Manuel Yaphockun, and rejected petitioner Thomas Yang's counter replevin bond.
On 4 January 1985, respondent spouses Ricardo and Milagros Morante brought an action in the Regional Trial Court of General Santos City against petitioner Thomas
Yang and Manuel Yaphockun, to recover possession of two (2) Isuzu-cargo trucks. In their complaint, the Morante spouses alleged that they had actual use and
possession of the two (2) cargo trucks, having acquired them during the period from 1982 to 1984. The trucks were, however, registered in the name of petitioner
Thomas Yang who was the Treasurer in the Morante spouses' business of buying and selling corn. The Morante spouses further alleged that they were deprived of
possession of the vehicles in the morning of 3 January 1985, when petitioner Yang had the vehicles taken from where they were parked in front of the Coca-Cola
Plant in General Santos City, to the warehouse of Manuel Yaphockun and there they were thereafter held. Despite repeated demands, the complaint alleged,
petitioner Yang refused to release the trucks to respondent spouses.
To obtain immediate possession of the Isuzu trucks, respondent spouses applied for a writ of replevin and put up a replevin bond of P560,000.00 executed by
respondent Milagros Morante and Atty. Bayani Calonzo (counsel for respondent spouses).lâwphî1.ñèt
On 7 January 1985, the respondent judge issued an order of seizure directing the Provincial Sheriff of South Cotabato to take immediate possession and custody of
the vehicles involved. The Sheriff carried out the order.
On 10 January 1985, defendant Manuel Yaphockun filed a motion seeking repossession of the cargo trucks, and posted a replevin counter-bond of P560,000.00
executed by himself and one Narciso Mirabueno. The respondent judge promptly required the respondent spouses to comment on the counter-bond proffered.
The respondent spouses reacted by amending their complaint on 13 January 1985 by excluding Manuel Yaphockun as party-defendant. The following day, i.e., 14
January 1985, the respondents submitted an opposition to Yaphockun's counter-bond, contending that since Manuel Yaphockun was merely a nominal defendant, he
had no standing to demand the return of the cargo trucks. By an order dated 18 January 1985, the respondent judge disapproved the counter-bond filed by Manuel
Yaphockun, since the latter had been dropped as party-defendant and accordingly no longer had any personality to litigate in the replevin suit. The trial court also
ordered the immediate release and delivery of the cargo trucks to respondent spouses.
For his part, petitioner Yang moved, on 21 January 1985, for an extension of fifteen (15) days within which to file an answer to the complaint for replevin. Four days
later, on 25 January 1985, petitioner put up a counter-bond in the amount of P560,000.00 which counter-bond was, however, rejected by the respondent judge for
having been filed out of time.
Petitioner Yang now argues before us that, firstly, respondent judge had committed a grave abuse of discretion amounting to lack or excess of jurisdiction in
approving the replevin bond of respondent spouses. It is contended by petitioner that replevin bond was merely an undertaking of the bondsmen Milagros Morante
and Atty. Calonzo to pay the sum of P560,000.00, that no tangible security, such as "cash, property or surety," was placed thereby at the disposal and custody of the
court. It is argued, secondly, that the replevin bond was defective considering that it had been filed by only one of the two (2) private respondents and that the
bondsmen thereon had failed by its terms to undertake to return the cargo trucks to petitioner should he (the petitioner) be adjudged lawful owner thereof.
We are not persuaded by petitioner's arguments.
A bond that is required to be given by law is commonly understood to refer to an obligation or undertaking in writing that is sufficiently secured. 2 It is not
indispensably necessary, however, that the obligation of the bond be secured or supported by cash or personal property or real property or the obligation of a surety
other than the person giving the bond. Most generally understood, a "bond" is an obligation reduced to writing binding the obligor to pay a sum of money to the
obligee under specified conditions. 3 At common law, a bond was merely a written obligation under seal. 4 A bond is often, as a commercial matter, secured by a
mortgage on real property; the mortgagee may be the obligee, although the mortgagee may also be a third party surety whose personal credit is added to that of the
principal obligor under the bond.
The sufficiency of a bond is a matter that is addressed to the sound discretion of the court which must approve the bond. In the case at bar, the replevin bond given
by the respondent Morante spouses was properly secured by the sureties themselves who declared their solvency and capacity to answer for the undertaking
assumed, through an Affidavit of Justification which read as follows:
We, MILAGROS MORANTE and BAYANI L. CALONZO, both of legal age, Filipinos, married and residents of Maltana, Tampakan, South Cotabato, and General Santos
City, respectively, after having been duly sworn to in accordance with law do hereby depose and say:
1. That each of them is a resident householder or free-holder within the Philippines;
2. That each of them is worth the amount specified in the under-taking assumed by them in the above bond over and above all debts, obligations and property
exempt from execution.
IN WITNESS WHEREOF, we have hereunto set our hands, this 4th day of January, 1985, at General Santos City, Philippines.
The above sworn declaration of solvency which was submitted to the judge together with the bond, in effect secured the replevin bond. We note also that the
sureties or bondsmen under the bond included not only Milagros Morante who was party-plaintiff below, but also a third person, Atty. Bayani L. Calonzo who was not
a party-litigant. Petitioner Yang never put in issue the financial capability of these two (2) sureties. It follows that the approval of the replevin bond by respondent
judge, before whom it was presented and who was in a better position than this Court to appreciate the financial standing of the sureties, can scarely be questioned
as a grave abuse of discretion.
The other objections to the replevin bond are equally lacking in merit. The fact that the other respondent, Ricardo Morante, did not act as surety on the same bond as
his wife did, does not affect the validity or the sufficiency of that bond. It would appear to the benefit of petitioner that Atty. Bayani L. Calonzo signed up as the other
or second surety or bondsman on that bond, since petitioner thereby acquired a right of recourse not only against the respondent spouses but also against a third
person, not a party to the replevin suit. Further, the failure of the replevin bond to state expressly that it was "conditioned for the return of the property to the
defendant, if the return thereof be adjudged," 5 is not fatal to the validity of the replevin bond. The replevin bond put up by Milagros Morante and Bayani L. Calonzo
stated that it was given "under the condition that [they] will pay all the costs, which may be adjudged to the said defendants and all damages which said defendants
may sustain by reason of the order of replevin, if the court shall finally adjudge that the plaintiffs were not entitled thereto." 6 We believe that the condition of the
bond given in this case substantially complied with the requirement of Section 2, Rule 60. Moreover, the provisions of Rule 60, Section 2 of the Revised Rules of Court
under which the replevin bond was given may be regarded as having become part of the bond as having been imported thereunto. All the particular conditions
prescribed in Section 2, Rule 60, although not written in the bond in printer's ink, will be read into the bond in determining the scope and content of the liability of
the sureties or bondsmen under that bond. 7
Petitioner also contends that since the respondent spouses are not the registered owners of the cargo trucks involved, the writ of replevin should not have been
issued. We do not think so. The provisional remedy of replevin is in the nature of a possessory action and the applicant who seeks immediate possession of the
property involved need not be holder of the legal title to the property. It suffices, if at the time he applies for a writ of replevin, he is, in the words of Section 2, Rule
60, "entitled to the possession thereof."
Petitioner further urges that the dropping of Manuel Yaphockun as party-defendant in the amended complaint was fraudulently intended to deprive him (Yaphockun)
of the right to demand the return of the vehicles in dispute. The difficulty with this argument is that it is merely question-begging. A person in actual or constructive
possession of the goods sought to be replevied, should of course be made a party-defendant. At the same time, however, the respondent spouses, as complainants in
the suit for replevin, were entitled, for their own convenience and at their own peril, to exclude or strike out the name of a party previously impleaded from the
complaint. In excluding Manuel Yaphockun as party-defendant from the complaint, the respondent spouses were well within their rights; no leave of court was
needed, no responsive pleading having been previously filed. 8
Petitioner would finally challenge the order of respondent judge dated 28 February 1985 rejecting his counter-replevin bond for having been filed out of time.
Petitioner received summons on the amended complaint on 25 January 1985 and on the same day, filed his counterbond. It is his contention that his redelivery bond
was not filed out of time, since he was served with summons only on 25 January 1985.
A defendant in a replevin suit may demand return of possession of the property replevied by filing a redelivery bond within the periods specified in Sections 5 and 6
of Rule 60, which provide:
Sec. 5. Return of property. — If the defendant objects to the sufficiency of the plaintiffs bond, or of the surety or sureties thereon, he cannot require the return of the
property as in this section provided; but if he does not so object, he may, at any time before the delivery of the property to the plaintiff, require the return thereof by
filing with the clerk or judge of the court a bond executed to the plaintiff, in double the value of the property stated in the plaintiff's affidavit, for the delivery of the
property to the plaintiff, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the defendant, and by serving a copy of
such bond on the plaintiff or his attorney;
Sec. 6. Disposition of property by officer. — If within five (5) days after the taking of the property by the officer, the defendant does not object to the sufficiency of the
bond, or of the surety or sureties thereon, or require the return of the property as provided in the last preceding section; or if the defendant so objects and the
plaintiffs first or new bond is approved; or if the defendant so requires, and his bond is objected to and found insufficient and does not forthwith file an approved
bond, the property shall be delivered to the plaintiff. If for any reason the property is not delivered to the plaintiff, the officer must return it to the defendant.
(Emphasis supplied)
Under Section 5, petitioner may "at any time before the delivery of the property to the plaintiff" require the return of the property; in Section 6, he may do so,
"within five (5) days after the taking of the property by the officer." Both these periods are mandatory in character. 9 Thus, a lower court which approves a counter-
bond filed beyond the statutory periods, acts in excess of its jurisdiction. In the instant case, the cargo trucks were taken into custody by the Sheriff on 7 January
1985. Petitioner Yang's counter-replevin bond was filed on 25 January 1985. The matter was treated at length in the trial court's order of 28 February 1985:
... It is also borne by the record that defendant, thru counsel, was served with copy 6f the amended complaint dropping defendant Manuel Yap from the complaint on
January 14, 1985 and hence, said receipt of the amended complaint was tantamount to a summons issued to the defendant Thomas Yang. It is a truism that the
primary purpose of summons is to acquire jurisdiction over the person of the parties, and jurisdiction can be acquired by the voluntary submission of the defendant
to the jurisdiction of the Court. Hence, after defendant had been duly represented by counsel even at the inception of the service of summons and a copy of the order
of replevin on January 7, 1985, defendant Thomas Yang had already been duly served, especially so, when counsel manifested in their comment to the opposition filed
by plaintiffs that Manuel Yap has been duly authorized to represent Thomas Yang. From then on defendant should have been on guard as to the provision of Section
6, Rule 60 of the Rules of Court — re — the five (5) days period within which to file the counter-replevin for the approval of the court, counted from the actual taking
of the property by the officer or the sheriff on January 7, 1985. It is honestly believed that the five-day period spoken of by the Rule begins from the taking of the
property by the sheriff and not from the service of summons to the defendant, for even if summons was already duly served to the defendant but the property has
not yet been taken by the sheriff, the provision above cited does not apply. Hence, it is clear that the prescriptive period for filing a counter-replevin bond must be
counted from the actual taking of the property by the sheriff, subject of the replevin bond and in this particular case on January 7, 1985. True indeed, that defendant
Manuel Yap filed the counter-replevin bond on January 10, 1985, which was denied by this court, that was three (3) days after the property was taken on January 7,
1985 but when the said defendant was dropped from the complaint on January 14, 1985, defendant Thomas Yang should have immediately filed the proper counter-
replevin bond after Manuel Yap has been dropped from the complaint on January 14, 1985 considering that the counter-replevin bond filed on January 10, 1985 by
Manuel Yap has become obsolete on this date, January 14, 1985. The service of summons to Thomas Yang on January 25, 1985, has become an academic formality
because on January 21, 1985, counsel has already filed a motion for extension of time of fifteen (15) days within which to file their responsive pleading counted from
January 31, 1985, for the original period of fifteen (15) days for filing the corresponding answer lapsed on January 31, 1985, which this court readily granted. Hence,
irrespective of the order of this court dated January 18,1985, denying the counter-replevin bond filed, defendant Thomas Yang should and must have filed his counter
replevin bond within two (2) days from service of the amended complaint, the same must have been)'filed on January 18, 1985, to conform with liberal interpretation
of the rules and not on January 25, 1985, for then the counter replevin bond had been filed beyond the period provided by the Rules. The decisional principle on the
filing of counter replevin bond to entitle the defendant to the redelivery or retaining possession of the property, is compliance with all the conditions precedent
pursuant to the rules, and failure to comply therewith entitles plaintiff to possession, and the initial steps in obtaining redelivery must be taken within the time limit
provided thereto . . . 10 (Emphasis supplied)
We agree with the conclusion of respondent judge that petitioner's right to file a counterbond had already prescribed.
We consider, accordingly, that respondent judge did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the orders here
assailed.
WHEREFORE, the Resolution of the Court dated 8 February 1988 granting due course to the Petition is hereby WITHDRAWN and the "Petition for Review on Appeal
by Certiorari" is DENIED for lack of merit and the orders of respondent Judge Marcelino R. Valdez dated 7 January 1985, 18 January 1985 and 28 February 1985 are
hereby AFFIRMED. No pronouncement as to costs.
SO ORDERED.

MAXIMIANO FUENTES, Petitioner, v. THE JUSTICE OF THE PEACE OF PILA, LAGUNA, ET AL., Respondents.

SYLLABUS

1. ACTION FOR UNLAWFUL DETAINER OF LAND; PENDENCY OF ANOTHER ACTION FOR OWNERSHIP BETWEEN SALE PARTIES; JURISDICTION
OF JUSTICE OF THE PEACE. — In entering the appealed resolution, the Court of First Instance relied on the fact that the case regarding ownership between the same
parties and over the same land, already takes in the same question of possession which is the subject matter of the case decided by the justice of the peace court of Pila.
This is error. The possession which is the subject matter of the summary action for detainer is the material possession which has nothing to do with ownership. It is not
the civil possession which arises from ownership as one of its attributes. The actions for the recovery of one and the other are consistent with each other and are
regulated by independent procedures established for distinct purposes. The action for ownership includes that of possession and there is a right to the latter if ownership
is proved. In the action for unlawful detainer of land it is not necessary to establish ownership if it is brought within one year. from the accrual of the cause of action.

2. ID.; ID.; ID. — It has been repeatedly held by this court that the fact that, in an action for unlawful detainer in the justice of the peace court, the defendant raises the
question of ownership, does not divest the court of its jurisdiction over the case, except when ownership is necessarily involved.

3. ID.; ID.; ID.; CASE AT BAR. — In the present case the action is based on the fact that the defendant leased the lands and refuses to return the possession thereof to
the lessor upon the expiration of the contract. The question of ownership is not only not necessarily involved in the case; it cannot be raised therein. The lease being
admitted, the law does not permit the lessees to deny the lessor’s ownership. The allegation of the lessee that he is the owner of the land is a denial of the lessor’s
ownership. Held: That the justice of the peace of Pila has jurisdiction to decide the case for detainer instituted by C. del M. against M. F.
DECISION
AVANCEÑA, C.J. :
Cayetano del Mundo filed in the justice of the peace court of Pila, Laguna, a complaint for unlawful detainer of land against Maximiano Fuentes, alleging that he leased
to the latter certain parcels of land and that, notwithstanding the expiration of the contract and a demand to return said land, the latter has refused to do so.

Fuentes, answered this complaint, alleging, in turn, that he is the owner of the land and that there is a pending case between the same parties in the Court of First
Instance of Laguna for the ownership thereof.

On September 7, 1936, the justice of the peace court of Pila rendered a decision in the case ordering the defendant Maximiano Fuentes to return to the plaintiff
Cayetano del Mundo the possession of the land.

On the 18th of the same month Fuentes filed in the Court of First Instance of Laguna a petition for certiorari against the justice of the peace of Pila and Cayetano del
Mundo. Passing upon this petition, the Court of First Instance ordered the said justice of the peace of Pila and Cayetano del Mundo not to carry out the execution of the
judgment rendered by the former on September 7, 1936, for the same is null and void because entered in excess of his jurisdiction. This resolution was appealed to this
court.

In entering the appealed resolution, the Court of First Instance relied on the fact that the case regarding ownership between the same parties and over the same land,
already takes in the same question of possession which is the subject matter of the case decided by the justice of the peace court of Pila. This is error. The possession
which is the subject matter of the summary action for detainer, is the material possession which has nothing to do with ownership. It is not the civil possession which
arises from ownership as one of its attributes. The actions for the recovery of one and the other are consistent with each other and are regulated by independent
procedures established for distinct purposes. The action for ownership includes that of possession and there is a right to the latter if ownership is proved. In the action
for unlawful detainer of land it is not necessary to establish ownership if it is brought within one year from the accrual of the cause of action.

Another ground set out in the appealed decision is to the effect that Maximiano Fuentes alleged in his answer in the justice of the peace court of Pila that he is the owner
of the land, thus making it necessary to resolve the question of ownership thereof, over which the justice of the peace court is without jurisdiction. But it has been
repeatedly held by this court that the fact that, in an action for unlawful detainer in the justice of the peace court, the defendant raises the question of ownership, does
not divest the court of its jurisdiction over the case, except when ownership is necessarily involved. In the present case the action is based on the fact that the defendant
leased the lands and refuses to return the possession thereof to the lessor upon the expiration of the contract. The question of ownership is not only not necessarily
involved in the case; it cannot be raised therein. The lease being admitted, the law does not permit the lessee to deny the lessor’s ownership. The allegation of the lessee
that he is the owner of the land is a denial of the lessor’s ownership.

Our conclusion is that the justice of the peace of Pila has jurisdiction to decide the case for detainer instituted by Cayetano del Mundo against Maximiano Fuentes.

Wherefore, the appealed decision is reversed, and the petition for certiorari is denied, without special pronouncement as to the costs. So ordered.

DE PA PAZ VS PANIS

This petition for certiorari and mandamus began in 1972 as a complaint for recovery of possession filed by the petitioners in the then Court of First Instance of
Zambales, Branch III, Olongapo City. Docketed as Civil Case No. 1133-0, it involves a dispute over a 7,531-square meter parcel of land in Subic, Zambales, being
claimed by the petitioners as communal owners on the strength of their Transfer Certificate of Title No. T-14807 of the Registry of Deeds of Zambales, and by the
private respondents as actual possessors.

The petitioners alleged in their complaint that sometime in 1970 or 1971 the private respondents illegally entered portions of the said property, established
possession thereof, and introduced illegal improvements. In their answer, the private respondents admitted that they indeed entered into the said property, but
averred that they did so in the honest belief that it was part of the public domain; that they introduced the improvements without objection from any party; and that
they have been in peaceful, open, and uninterrupted material possession thereof for more than ten years.

During the pre-trial conference, some of the private respondents represented by Atty. Jose S. Sarte did not deny petitioners' title to the subject property, in effect
admitting such fact. The parties then limited the questions to be resolved during the trial to the following issues: (a) the identity and extent of the land claimed by
the petitioners; (b) whether or not the area respectively occupied by defendants are within the limits of the said land; and (c) whether or not the parties are entitled
to damages.1

Atty. Sarte was later substituted by Atty. Nicolas C. Adolfo who attempted during the trial to ask questions which delved into his predecessorrs pre-trial admission.
When this line of questioning was blocked by the respondent judge, private respondents filed a petition for certiorari and prohibition with preliminary injunction with
this Court, which was assigned G.R. No. L-38773.

On November 15, 1974, the Court resolved the said petition by declaring that the only issue between the parties is whether or not the land occupied by the private
respondents is included in TCT No. 14807 of the petitioners, and approved a compromise agreement dated October 18, 1974, whereby the parties agreed, among
others, to have a relocation survey made upon the property in question, the result of which snail be respected by them.

The Court also ordered "the parties, including the respondent judge or whomsoever is acting in his place," to comply with the said compromise agreement. In other
words, the issue of petitioners' title to the land was made to depend upon the results of the relocation survey.

On June 3, 1977, the court-appointed geodetic engineer, Serafin J. Garcia, submitted his report which confirmed in part the allegation of the petitioners that the
private respondents were occupying certain portions of their titled land.
This report notwithstanding, a decision was reached in Civil Case No. 1133-0 on January 19, 1981 (received by the petitioners on January 30, 1981), disposing of
the case in this wise:

WHEREFORE, judgment is hereby rendered dismissing the plaintiffs' (petitioners herein) complaint against all the defendants (private
respondents herein). The counterclaims of defendants (1) Jose Ramirez, (2) Eugenio Laao, (3) Gomercindo Bolante, (4) Carlos Batungbakal,
(5) Jacobo Isip, (6) Bayani Ramirez, (7) Alfredo Quilaquil, (8) Agustin del Rosario, (9) Roman de Vera, Jr., (10) Miguel Alfonso, are hereby
likewise dismissed.

On the counterclaim of defendants (1) Gregorio Fellorin, (2) Rodito Marabe, (3) Alfredo Panugao, (4) Alfredo Coronel, Jr., (5) Domingo
Bartolo, (6) Adriano Valdez, Jr., and (7) Alfredo de Guzman, judgment is hereby rendered ordering plaintiffs to jointly and severally pay each
of the said defendants the sum of One Thousand Pesos (P1,000.00) as and by way of attorney's fees and expenses of litigation.

SO ORDERED.

Judge Panis observed that while the complaint was one for recovery of possession, it was "in reality one for ejectment or illegal detainer."

On February 5, 1981, petitioners filed a motion for reconsideration maintaining that their action was for recovery of possession and was not an ejectment case.

This was denied by the respondent judge in an order dated March 5, 1981, received by the petitioners on April 10, 1981.

In this petition for certiorari, the petitioners pray for an order nullifying the decision dated January 19, 1981, and compelling the respondent judge to issue a writ of
execution enforcing the compromise agreement approved by the Court in G.R. No. L-38773.

Private respondents argue in their comment and memorandum that since the petitioners "had not yet entered the land in question (at the time of filing of the
complaint), they had not lost any possession, and the civil case they filed for recovery of possession was wrong as no possession had been lost by them."

This argument is untenable. It amounts to a recognition by the private respondents of petitioners' equal, if not greater, right to possess the land in question. It even
confirms the absence of any past or present tenancy relationship between the parties, which in turn proves the propriety of the course of action taken by the
petitioners.

Private respondents further aver that G.R. No. L-38773 "cannot be enforced as all proceedings of Civil Case No. 1133-0 of the Court of First Instance of Zambales,
Branch III, Olongapo City, were null and void as the hearing was done by a judge without jurisdiction to try it."

This contention is likewise unacceptable. Judge Panis dismissed the action on the assumption that it is one for ejectment cognizable by the municipal court. Such
supposition is erroneous.

Ejectment may be effected only through an action for forcible entry or unlawful detainer. Forcible entry is a summary action to recover material or physical
possession of real property when the person who originally held it was deprived of possession by "force, intimidation, threat, strategy, or stealth." An action for
unlawful detainer, on the other hand, may be filed when possession by "a landlord, vendor, vendee, or other person against whom the possession of any land or
building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied."2 Both actions may be
filed with the municipal courts within one year after the unlawful deprivation or withholding of possession. Their main difference lies in the time when possession
became unlawful — in forcible entry, it is from the time of entry, while in unlawful detainer, possession which is at first lawful later becomes illegal, as when the
lease contract has expired and the lessee refuses to vacate the premises despite the demand.

We must rule out forcible entry; there is no allegation in the complaint that petitioners were denied possession of the land in question through any of the methods
stated in Section 1, Rule 70 of the Rules of Court, although private respondents prior possession was clearly alleged. Neither is the action one for unlawful
detainer; it was noted earlier that there is no lease contract between the parties, and the demand to vacate made upon the private respondents did not make them
tenants of the petitioners.

In order to gain possession of the land occupied by the private respondents, the proper remedy adopted by the petitioners was the plenary action of recovery of
possession before the then Court of First Instance. Respondent judge, therefore, had jurisdiction over the case and should not have dismissed it on the ground of
lack thereof.

Respondent judge should have stuck to the issues defined by the parties during pre-trial, namely, the identity and extent of the land claimed by the petitioners;
whether or not the area occupied by the private respondents is within the limits of the said land; and whether or not the parties are entitled to damages. Trial of the
case should have been limited to these three issues. As we held in the early case of Permanent Concrete Products, Inc. v. Teodoro:3

One of the objectives of pre-trial procedure is to take trial of cases out of the realm of surprise and maneuvering. Pre-trial is primarily
intended to make certain that all issues necessary to the disposition of a cause are properly raised. Thus, to obviate the element of surprise,
parties are expected to disclose at a pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as may
involve privilege or impeaching matter.

The determination of the first two issues were delegated to the geodetic engineer appointed by the court to conduct the relocation survey sought and accepted by
the parties in their compromise agreement.

Ignoring the result of the survey, Judge Panis instead concluded that petitioners' action is actually one for ejectment. This conclusion is totally without basis, for the
private respondents never alleged in their answers that the complaint should be dismissed on the ground of lack of jurisdiction, the action being cognizable by the
municipal court. The only reference made in the separate answers regarding the jurisdiction — or the lack of it — of the respondent judge alleges that the lands
occupied by the private respondents are portions of the alienable and disposable lands of the public domain, an allegation neither proved nor pursued at the trial.

Finally, the private respondents claim that the petition was filed out of time and that the lower court's decision has gained finality.

Petitioners received a copy of the decision on January 30, 1981, and filed their motion for reconsideration on February 5, 1981. The running of the reglementary
period to appeal was suspended upon such filing and resumed only when the petitioners received on April 10, 1981, the trial court's resolution denying their
motion. The old Rules of Court, allowing an appeal from an adverse judgment of the then Court of First Instance to the Court of Appeals to be taken within 30 days
from notice, applies in this case considering that Batas Pambansa Blg.4 which uniformly shortened the reglementary period to fifteen [15] days, took effect only on
August 10, 1981. Under this set of facts, the petitioners had 24 more days from April 10, 1981, or until May 4, 1981, within which to appeal the adverse decision to
the Court of Appeals.

Instead of appealing, petitioners filed, on May 29, 1981, the instant petition for certiorari and mandamus.

The Revised Rules of Court, under Section 1 of Rule 65, states that the special civil action of certiorari will lie only when "there is no appeal, nor any plain, speedy,
and adequate remedy in the ordinary course of law." Hence, we reiterate here the rule that the civil action of certiorari (or mandamus, for that matter) cannot be
allowed when a party to a case fails to appeal a judgment to the proper forum despite the availability of that remedy. In other words, certiorari may not be used as
a substitute for a lost appeal.5
This procedural rule cannot, however, be strictly enforced when to do so would result in a miscarriage of justice, especially when, as in this case, the petition is
really meritorious and the trial judge indeed committed a grave abuse of discretion.

In the case at bar, respondent judge's grave abuse of discretion was manifested in three ways: (a) by utterly disregarding the compromise agreement of the parties
approved by this Court; (b) by holding himself without jurisdiction over the case when in fact he did; and (c) by ignoring the survey report of the geodetic engineer
whom he himself had appointed.

It must be understood that this petition for certiorari and mandamus seeks not a review of the lower court's decision but its nullification for having been rendered in
excess of jurisdiction. It is not concerned with the wisdom or legal soundness of the decision, but insists that jurisdiction is properly laid in the CFI (now RTC), and
is asking said court to exercise it in this case. It must be noted that the complaint of petitioners was case.

To correct the situation, petitioner rightly filed the instant petition, a special civil action under Rule 65 of the Rules of Court, which may be filed within a reasonable
period from the time the petitioners received notice of the denial of their motion for reconsideration. In as much as a period of three (3) months is considered
reasonable,6 the filing of the petition after 45 days from notice is definitely within the allowable period. The petition must perforce be given due course.

The issue of damages was, however, correctly disposed of by respondent judge who found no basis for the award of any form of damages" in favor of the private
respondents who were actually occupying portions of the petitioners' land, according to the relocation survey result. This, as well as the finding that the
respondents who were found not to be occupying the said land should be entitled to attorney's fees in the amount of P1,000.00 each, should not be disturbed.

WHEREFORE, in view of the foregoing, the decision dated January 19, 1981 in Civil Case No. 1133-0 is hereby nullified and set aside, except the portions
dismissing the private respondents' counterclaim and granting the aforementioned attorney's fees, which are affirmed. Respondent judge, or whoever is acting in
his stead or behalf, is hereby directed to issue the writ of execution prayed for by the petitioners in connection with the Court's Resolution in G.R. No. L-38773
dated November 15, 1974, and in keeping with the relocation survey report submitted by Engineer Serafin J. Garcia on June 3, 1977.

SO ORDERED.

G.R. No. L-1748 June 1, 1906

THE BISHOP OF CEBU, REPRESENTING THE ROMAN CATHOLIC CHURCH, Plaintiff-Appellee, vs. MARIANO MANGARON,Defendant-Appellant.law
library

The plaintiff in this case relates to a tract of land in the district of Ermita of this city, it is alleged is at present occupied by the defendant. The object of the original
complaint was to recover the possession of the said land, while in the amended complaint the plaintiff prays that the said land be declared to be the property of the
Catholic Church and that it be restored to the latter. Counsel for appellant admits in his brief that the object of the action is the recovery of possession when he refers to
the judgment of the court below as being "in favor of the plaintiff in an action to recover the possession of certain real estate." (Record, p. 1.)chanrobles virtual law
library
Neither party has exhibited any title papers to the land in question nor pay other documentary proof. They have only offered certain parol evidence as to the former
possession of the land and as to certain acts of ownership exercised by the parties over the same.chanroblesvirtualawlibrary chanrobles virtual law library

The court below found ( a) "that the defendant's parents and brothers had been in possession of the land in question until about the year 1887;" ( b) "that it had not been
clearly shown in what capacity they had occupied the lands;" ( c) "that about the year 1887 the defendant and his relatives vacated the land by the virtue of an order
from the municipality, which declared that the land was included within the zone of materiales fuertes (fire zone) and the houses in which they lived upon the said land
without objection;" ( d)"that after the land was vacated the parish priest of the Ermita Church fenced the land and cleaned the same without any objection whatsoever on
the part of anyone; that the plaintiff claimed that this property had belonged to the Catholic Church from the time immemorial, the defendant, his parents and brothers
having occupied a part thereof by the mere tolerance of the Catholic Church," ( e) "that in the year 1898 the defendant, without the consent of anyone, entered upon the
land in question and built thereon a nipa house and continued to live thereon without the consent of the parish priest of the Ermita Church or the plaintiff in third case."
(Bill of exceptions, p. 11.) The court then ordered "that the defendants vacate the land described in the complaint and pay the costs of this action" (p.
12).chanroblesvirtualawlibrary chanrobles virtual law library

Counsel appellant says in his brief "that the defendant claims to be owner of the land by inheritance." (Brief, p. 8.) It is not necessary for this court to apply to the
present case the well-settled doctrine that it is not sufficient to allege a universal title of inheritance without showing the manner and form in which such title was
converted into a singular title in favor of the person invoking the same, particularly where, as in the present, case, the question involved does not relate to the ownership
of the property but rather to who has the better right to the possession of the same. But the court below suggest that there are several brothers of the defendant who
might also claim the same right to occupy the land but who, however, had not done so. The court says "from the evidence introduced at the trial and from the fact that
the defendant's brothers do not claim any right to the land in question, it seems that the claim of the plaintiff is the more credible." (Bill of exceptions, p. 11.)chanrobles
virtual law library

The complaint is directed against the illegal act of spoliation committed by the defendant in October, 1898, while as he himself says there was no priest in Ermita who
could take care of the church and of the land in question, the American troops having occupied the parish house according to the defendant, and the Filipino troops
having occupied it according to other witness. This is one of the points as to which there is no dispute between the parties, the defendant and the witnesses of both
important details relating to this matter.chanroblesvirtualawlibrary chanrobles virtual law library

Counsel for appellant sums up his brief in the following paragraph:

The defendant was the legal owner of the property when he was unlawfully ejected by the plaintiff in 1879, and we insist that he had a right to reenter upon the land
when he did so, the time for prescription not having expired since he was ejected in 1879 (p. 8).

Upon this point the court below said: "The occupation of the land by the defendant in the year 1898 was illegal, for, if her brought he had a right to the land, he should
have applied to the courts for the possession of what belonged to him, and not proceed to occupy property claimed (he should have said possessed) by another against
the will of the latter."chanrobles virtual law library

The conclusion of law of the trial court is entirely in conformity with the conclusion would sanction the recovery of possession through violence or other unlawful and
arbitrary means, and would permit a person to take the law into his own hands. "If a person thinks that he is entitled to the property which another possesses he should
claim the same from the person in possession. If the latter accedes and voluntarily returns possession and acknowledges that the property does not belong to him, there
is no necessity of any one interfering, but if the person in possession refuses to deliver the property, the one who believes himself to be entitled to it, however well
founded his belief may be, can not take the law into his own hands but must seek the aid of the competent authorities." (4 Manresa, Commentaries on the Civil Code, p.
163.) The action of the defendant in 1898 was therefore absolutely unlawful.chanroblesvirtualawlibrary chanrobles virtual law library

This possession held by the defendant in 1898 can not be added to the former possession, which was interrupted in 1877 by the order of the municipality, so as to
consider such possession continous, the time intervening not being of sufficient duration to cover the statutory period of "a person who recovers possession according to
law, which was improperly lost, is considered as having enjoyed it redound to his benefit." But in this case it appears (1) that it can not be affirmed that the possession
enjoyed by the defendant was improperly lost; that possession ceased by virtue of an order from the municipality and no proof to the contrary has been offered on this
point; (2) that it is impossible to say what was the nature of the possession prior to the year 1877 - that is to say, whether it was held by right or by the mere tolerance of
the plaintiff in this case. The code refers to the recovery of the possession, according to law, which was improperly lost, and to "recover according to law means
through the proper writs and actions, or by requesting the aid of competent authorities in the special cases where the provisions of article 441 may apply." (4 Manresa,
Commentaries on the Civil Code, p. 329.) "Of course," continues Manresa "the acts of violence or secrecy or mere tolerance can not affect the right of possession."
Consequently the defendant in this case could never have lawfully and legally done what he did, to wit, to reenter upon the land which he had been ejected by the city of
Manila. If the order of the municipality was illegal, and the possession was improperly lost, the defendant should have requested the assistance of the competent
authorities to recover it. He should have applied to the executive or administrative officials, as the case might have been, or to the courts of justice in a plenary action
for possession, for a year having elapsed since he was ejected from the premises, he could not maintain a summary action for possession.chanroblesvirtualawlibrary
chanrobles virtual law library

The legal provisions hereinbefore quoted would be sufficient ground upon which to base the confirmation of the decision of the trial court, but on account of the facts
involved in this case a question of law has been raised by the members of this court which has not been urged by the parties themselves. It is absolutely necessary to
decide this question, which naturally arises from the facts alleged in the complaint. The question is whether, after the promulgation of the Civil Code, the accion
publiciana, which had for its object the recovery of possession in a plenary action before an action for the recovery of title could be instituted, still existed. It is well
known that under the legislation prior to the Civil Code, both substantive and adjective, there were three remedies which a party unlawfully dispossessed could avail
himself of, to wit: The accion interdictal, which could be brought within a year, in a summary proceeding; the plenary action for possession in an ordinary proceeding,
which could only be brought after the expiration of a year; and the action for title in an ordinary proceeding, which was brought in case the plenary action for possession
failed. The accion interdictal had for its object the recovery of the physical possession; the plenary action for possession, the better right to such possession; and the
action for title, the recovery of the ownership.chanroblesvirtualawlibrary chanrobles virtual law library

We lay down as a conclusion that if the plaintiff, when he was deprived in October, 1898, of the possession which he had enjoyed quietly and peacefully for twenty
years, more or less, had within a year instituted the accion interdictal, or summary action for possession, he would have been, necessarily and undoubtedly, restored to
the possession of the land. It would have availed the defendant nothing to allege, as he now alleges, that he had merely recovered the possession which he improperly
lost in 1877, when he dispossessed the plaintiff as he did. Any tribunal, in the same arbitrary manner in which the defendant dispossessed the party in possession, would
have condemned the said defendant to return the possession to that party.chanroblesvirtualawlibrary chanrobles virtual law library

But a year elapsed and the plaintiff brought this summary action for possession, and we also lay down as a conclusion that such summary action for possession could
not be maintained, either under the old Code of Civil Procedure or under the new Code of Procedure in Civil Actions. (Laws 1 and 2, title 34 of the Novisima
Recopilacion; art. 1635 of the Spanish Code of Civil Procedure and sec. 80 of the present Code of Procedure in Civil Actions.) chanrobles virtual law library

This quiet and peaceful possession of twenty years, more or less, thus lost in a moment, could not be recovered in a summary action for possession after the expiration
of one year, but possession could still be recovered through the accion publiciana, which involved the right to possess. This latter action would be then based upon the
fact that he, having been in possession for twenty years, could not lose the same until he had been given an opportunity to be heard and had been defeated in an action in
court by another with a better right. (The same laws.) This fact of itself would have been sufficient to recover the possession, not in summary, but in a plenary action, in
which it would likewise have availed the defendant nothing to allege that all that he did was to recover a possession improperly lost in 1877. In one way or the other the
plaintiff would have recovered such possession, in the first case the physical possession and in the second case the right to possess, which is not lost by the mere
occupation of a third person, whether such occupation was effected violently, secretly, or arbitrarily.chanroblesvirtualawlibrary chanrobles virtual law library

But the doubt which now exists is whether, after the promulgation of the Civil Code, the accion publiciana continued to exist.chanroblesvirtualawlibrary chanrobles
virtual law library
The doubt arises from the provisions of article 460 of the Civil Code, which reads as follows: chanrobles virtual law library

The possessor may lose his possession -

1. By the abandonment of the thing.chanroblesvirtualawlibrary chanrobles virtual law library

2. By transfer to another for a good or valuable consideration.chanroblesvirtualawlibrary chanrobles virtual law library

3. By the destruction or total loss of the thing or by the thing becoming unmarketable.chanroblesvirtualawlibrary chanrobles virtual law library

4. By the possession of another, over against the will of the former possessor, if the new possession has lasted more than one year.

The last provision of this article has given rise to the doubt whether possession which is lost by the occupation of another against the will of the former possessor is
merely possession de facto or possession de jure.chanroblesvirtualawlibrary chanrobles virtual law library

The most powerful reason why it is thought that it refers to possession both de facto and de jure is that, whereas the two are equally lost in the manner indicated in the
first three provisions of this article, it would be rather strange that the fourth provision should only refer to possession de facto.chanroblesvirtualawlibrary chanrobles
virtual law library

This, however, is not convincing because not only can the right of possession of any kind be lost in the aforesaid three ways, but the right of ownership as well. It could
not be inferred from this, however, that the right of ownership can be lost in the fourth manner indicated. The legislation and the jurisprudence of all countries will
allow a party after he has lost possession to bring an action to recover the ownership of the property - that is to say, to recover what belongs to him - except where he is
barred by the statute of limitations. There is no law fixing one year and one day as the period of prescription of such actions.chanroblesvirtualawlibrary chanrobles
virtual law library

Manresa expressly propounds this question and says:

Meditation upon the nature of possession, being convinced as we are of the fact that possession constitutes a right, a right in rem, whenever it is exercised over real
property or property rights, has merely served to strengthen as far as possible our conviction of the existence of the accion publiciana. We confess, willing to rely only
upon a sound basis, that a doubt has occurred to us as to whether or not such action should be exercised by the possessor, as we find nothing definite upon which to
place such reliance, although we have noticed that most of the authors admit that he should, and we know that where there is a right there is a cause of
action.chanroblesvirtualawlibrary chanrobles virtual law library

We have later seen this question raised and the proposition advanced that, although, as an exception to the general rule, such action is based upon equity, but as equity is
not sufficient to allow the exercise of such action, it would be necessary to have a legal provision, an article in the code, establishing the same, a provision and an article
which do not exist, and their nonexistence shows that there is no such thing as the accion publiciana.chanroblesvirtualawlibrary chanrobles virtual law library

That we have no knowledge of the existence of any legal text or recent provisions which expressly relate to such action, is true. The same thing is true in France.
However, the majority of the authors admit its existence. Among us it existence is also generally admitted by the authorities on civil and procedural law. But we do not
desire to base our conclusions upon the arguments of the authorities, particularly when we note that Sanchez Roman is the only one who has attempted to support in any
way his conclusions. It is sufficient, says this author, that the right existing, there should be an action to protect it. There is no necessity of any special declaration in the
Civil Code.chanroblesvirtualawlibrary chanrobles virtual law library

We are of the same opinion as the author in question, but certainly not because we believe that if the possessor is deprived of the accion publiciana his right ceases to be
a right in rem. In regard to this matter we refer to what we have already said in our preliminary consideration of the question of possession.chanroblesvirtualawlibrary
chanrobles virtual law library

In regard to this matter the idea is present in the code that possession should be considered as an actual right and it is so stated in various articles of that code, as for
instance in article 438. It would be impossible to admit that a mere physical act would confer all the rights which a possessor ordinarily
enjoys.chanroblesvirtualawlibrary chanrobles virtual law library

Article 445 presupposes that possession may be considered either as de facto or de jure, for when it refers to controversies arising from the possession de facto, it
clearly indicates that other controversies may arise which would not relate to the possession de facto. Further it can not be conceived that had its intent been different it
should have preferred actual possession to any other possession. The article in question ends with the following significant words: "The thing shall be placed in deposit
or judicial keeping until the possession or ownership thereof is decided in the proper manner." That is to say, the question of fact can not be determined until the
question of law has been decided either in regard to the ownership or in regard to the possession (pp. 220-221).chanroblesvirtualawlibrary chanrobles virtual law library

Further, let us take another subject, for instance, the subject for easements. It was generally believed that the accion confesoria existed. Vain delusion! We have
carefully examined all the provisions of the code relating to easements and we find absolutely nothing in regard to such an action. Then the accion confesoria is another
error. It does not really exist. Then, if the owner of the dominant estate is denied the use of the easement, it would not be because he has not a right to such use of it. The
only thing that he has not is the action.chanroblesvirtualawlibrary chanrobles virtual law library

No; such an absurdity can not be admitted. It is impossible to conceive that a person has a right which need not be respected by others, and such respect can not be
exacted unless the law provides an adequate remedy for its enforcement. If a person has aright over any kind of property, such right would not be complete unless it
could be enforced as against the whole world. The action is the recognition of the right; it is the weapon for its protection; the right certainly does not arise from the
action, but on the contrary the action arises from the right. There is a right recognized by the code - then this is sufficient! That right necessarily carries with it the action
to enforce it, the life-giving force. The action is, under this aspect, the actual enforcement of the right, and these two things are so closely allied that if the action is
denied the right is also virtually and actually denied. the accion publiciana, therefore, exists, not for the sake of equity, but because it must necessarily exist if the right
to possession exists or can exist as provided in article 445, and as is inferred from the other articles of the code dealing with this subject.chanroblesvirtualawlibrary
chanrobles virtual law library

There are not, in reality, any practical difficulties, for the courts consider as owners many who are simply possessors, and actions for title are maintained upon evidence
which appears to be proof of ownership, but which in reality is not, for the reason that the title under which such ownership is claimed is not always in question, but
merely its superiority over the claim of title of another. In a word, it is necessary to state the nature of the action but not the name by which it is known, and the claim
being a just one, it is allowed in an action for title which in a multitude of cases would be nothing but an accion publiciana (plenary action for possession). Do not give
the name of the action because it is not necessary; merely ask that the right be enforced. Who can reject the claim ? (Pages 223-224.)

Paragraph 4 of article 460 is not an innovation in the Civil Code, nor does it mean the modification or reformation of the old law. Law 17, title 30 of the third Partida
contains the same provision: "One who holds property can not lose the possession thereof except in one of the following manners: (1) If he is ejected from it by force;
(2) if another person occupies in while he is absent and upon his return refuses him admission. . . . But although he may lose the possession in either of the aforesaid
manners, he can, however, recover the same, and even the title thereto by an action in court." There is no doubt that paragraph 4 of article 460 is nothing but a repetition
of the law in force prior to the Civil Code. He who loses possession in either of these ways may demand the return of the same in an action in court, as well as the
ownership of the property, the glossator in expanding the word juizio which appears in the law, saying, "by means of an action, unde vi, namely, that of recovery, or by
any such restorative means." So that the possession thus lost may be recovered not only in an action unde vi but some other restorative means, such as the accion
publiciana or a penal action; this aside from an action for title.chanroblesvirtualawlibrary chanrobles virtual law library

Law 2, title 34, book 11 of the "Novisima Recopilacion" contains in its title the following prohibitive provision: "No one shall be deprived of his possession until he has
had an opportunity to be heard and his right is defeated in accordance with the law." chanrobles virtual law library

As a legal precedent to paragraph 4 of article 460 we have law 3, title 8, of the same book 11, which says: "The laws of some cities provide that he who has been in
possession of a building, vineyard, or other land for one year and one day, peacefully and adversely to the person claiming to be entitled to such possession who travels
in and out of the village, shall not be held responsible therefor. There being doubt as to whether such possession for the period of one year and one day requires title in
good faith, we, to dispell this doubt, do hereby order that he who holds such possession for the period of one year and one day shall not be exempt from liability therefor
while in possession unless such possession of one year and one day was accompanied by title in good faith." chanrobles virtual law library

If the whole provision of article 460, paragraph 4, was contained in the old law and such was the meaning and efficacy that possession of one year and one day had
under the said old law, the courts must give some satisfactory and convincing explanation why the meaning and efficacy of such possession of one year and one day
referred to in the code should be different. We are unable to give such explanation, because in the act which was the basis of the present code nothing new was provided
upon this subject, nor was any rule or procedure specified by which the various sections of the new law should be governed. Therefore the provisions of the code should
be construed, as to the possession of one year and one day, as they were construed in the prior legislation, unless it appears that the intention of the legislature was
otherwise - that is to say, unless it appears that the said legislature intended exactly the contrary of what had been established preceding the enactment of the
code.chanroblesvirtualawlibrary chanrobles virtual law library

The right acquired by the person who has been in possession for one year and one day is the right that the former possessor lost by allowing the year and one day to
expire. The right is lost by the prescription of the action. And the action which prescribes upon the expiration of the year is "the action to recover or to retain possession;
" that is to say, the interdictory action. (Art. 1968, par. 1.) then the only right that can be acquired now, as before, by the person who was in possession for one year and
one day is that he can not be made to answer in an interdictory action, but this is not so in a plenary action unless he had some title in good faith. The former possessor
who had been in possession for twenty years, more or less, was considered as owner, and unless he was given an opportunity to be heard, and was defeated in law, he
could not be deprived of such possession; and notwithstanding all this, and in spite of such prohibition, the maintenance of a possession wrongfully taken from the
former possessor by a willful act of the actual possessor had to be sustained.chanroblesvirtualawlibrary chanrobles virtual law library

The lessee, the depositary, the pledgee, the intruder, the usurper, the thief himself, after the expiration of a year would not be responsible for the possession of which the
lawful possessor was wrongfully deprived, and if the latter could produce no evidence of his right of ownership - the only thing that he could do according to the
contrary theory - it would be impossible for him to recover such possession thus lost by any other means.chanroblesvirtualawlibrary chanrobles virtual law library

If, in addition to the fact of possession, the action for the enforcement of which prescribes after the expiration of one year and one day, there exists without any doubt
whatsoever the right to possess (or more properly speaking in the case at bar, to continue to possess, which said right of possession would be a right in rem, such
possession would not be on a less favorable footing than a mere possession de facto; and, if in the latter case the interdictory action lies, the action which existed prior to
the enactment of the code, to wit, the accion publiciana, should continue to lie in the former case. The code establishes rights and the Law of civil Procedure prescribes
actions for the protection of such rights, and we can not look to the code to find any provision defining the action which every civil right carries with
it.chanroblesvirtualawlibrary chanrobles virtual law library

This is the reason why as a title of chapter 3 of the code in which article 460 is included, and a sanction of the whole of title 5, book 2, which deals with possession,
article 446 provides that every possessor has a right to be respected in his possession, and should he be disturbed therein, he must be protected or possession must be
restored to him by the means established in the laws of procedure.chanroblesvirtualawlibrary chanrobles virtual law library

The code refers to the laws of procedure enacted in Spain in 1881 and extended to the Philippines in 1888. Article 1635 of the old Code of Civil Procedure makes
provision for summary proceedings to retain or to recover, to protect or to restore, possession, provided the action is brought within a year, but after the expiration of
this period the party may bring such action as may be proper. This latter action, as has been explained before, may be either the plenary action for possession referred to
or an action for title. This assumed, and reading article 1635 of the old Code of Civil Procedure immediately before article 446 of the Civil Code, we are unable to
conceive how that could be successfully denied after the 8th of December, 1889, when the Civil code went into effect, which could not be denied prior to that date, to
wit, the existence of the accion publiciana to recover the right of possession, to enforce the right to possess, which although it could not be brought within the year as a
mere interdictory action for the protection of the mere physical possession, there can be no valid reason why it could not be brought after the expiration of the year in
order to protect the right and not the mere physical possession.chanroblesvirtualawlibrary chanrobles virtual law library

Article 1635 of the old Code of Civil Procedure not having been repealed by the Civil Code, if the accion publiciana existed prior to its enactment, it must necessarily
exist after such enactment. We consequently conclude that the action brought by the plaintiff in this case to recover the possession of which he was unlawfully deprived
by the defendant can be properly maintained under the provisions of the present Civil Code considered as a substantive law, without prejudice to any right which he
may have to the ownership of the property, which ownership he must necessarily establish in order to overcome the presumption of title which exist in favor of the
lawful possessor, the plaintiff in this case, who had been in the quiet and peaceful possession of the land for twenty years, more or less, at the time he was wrongfully
dispossessed by the defendant.chanroblesvirtualawlibrary chanrobles virtual law library

Having reached this conclusion, the judgment of the court below is accordingly affirmed, with the cost of this action against the appellant. So
ordered.chanroblesvirtualawlibrary chanrobles virtual law library