FIRST DIVISION 4, 5, 12, and 17 of the complaint, but denied the allegations contained in paragraphs 6, 7, 8, 9, 10, 11, 14,
4, 5, 12, and 17 of the complaint, but denied the allegations contained in paragraphs 6, 7, 8, 9, 10, 11, 14, 16, and 18. They further
[G.R. No. L-3088. February 6, 1907.]
EL BANCO ESPAÑOL-FILIPINO, plaintiff-appellant, vs. JAMES PETERSON, sheriff of the city of Manila,
ET AL., defendants-appellees.
Del-Pan, Ortigas & Fisher, for appellant.
Hartigan, Marple, Rohde, & Gutierrez, for appellees.
SYLLABUS
1. JUDGMENT; FINDINGS OF FACT; EVIDENCE. — When the findings of fact set forth in a judgment appealed from
are plainly and manifestly against the weight of evidence, taken at the trial, such judgment is contrary to law and should be
reversed.
2. CONTRACT OF PLEDGE. — A contract of pledge which unites the requisites required by articles 1857 and 1865
of the Civil Code is perfectly valid and efficacious, when in addition the creditor or a third person appointed by common consent
of the contracting parties has taken possession of the goods pledged. (Art. 1863, Civil Code.)
3. POSSESSION, SYMBOLICAL DELIVERY OF. — The symbolical transfer by means of the delivery of the keys of
the premises in which are stored the goods pledged is sufficient to consider the creditor, or the depositary appointed by common
consent of the parties, in legal possession of the same.
4. CONTRACT; FRAUD. — Where in a suit for the nullification of a contract it has not been alleged nor proved that in
the stipulations entered into there has been any fraud to the prejudice of third persons, a finding of the court that such contract
was entered into in fraud of third person is erroneous.
DECISION
TORRES, J p:
On the 24th of October, 1905, the Spanish-Filipino Bank, a corporation, through its attorneys, Del-Pan, Ortigas and
Fisher, filed a complaint against the sheriff of the city of Manila and the other defendant, Juan Garcia, praying that judgment be
rendered against the said sheriff, declaring that the execution levied upon the property referred to in the complaint, to wit, wines,
liquors, canned goods, and other similar merchandise, was illegal, and directing the defendants to return the said goods to the
plaintiff corporation, and in case that he had disposed of the same, to pay the value thereof, amounting to P30,000, Philippine
currency, and further that it be declared that the said plaintiff corporation, under the contract of pledge referred to in the complaint
had the right to apply the proceeds of the sale of the said goods to the payment of the debt of P40,000, Philippine currency, for
the security of which the said merchandise was pledged, with preference over the claim of the other defendant, Juan Garcia and
that both defendants be held jointly liable to the plaintiff for the sum of P500, Philippine currency, as damages, and the said
defendants to pay the costs of the proceedings, and for such other and further relief as the plaintiff might be entitled to under the
law. Plaintiff alleges in its complaint that under the contract entered into on the 4th of March, 1905, by and between the Spanish-
Filipino Bank and Francisco Reyes, the former, loaned to the latter the sum of P141,702, Philippine currency; that on the same
date Francisco Reyes was already indebted to the bank in the sum of P84,415.38, Philippine currency, which, added to the
amount of the loan, made a total of P226,117.38, Philippine currency, received by the said Reyes as a loan from the plaintiff bank,
the entire sum at an annual interest of 8 per cent; that to secure the payment of these two sums and the interest thereon, the
debtor, Francisco Reyes, by a public instrument executed before a notary on the aforesaid date mortgaged in favor of the plaintiff
bank several pieces of property belonging to him, and pledged to the said bank part of his personal property, specifying the
proportion on which the said real and personal property thus mortgaged and pledged in favor of the plaintiff corporation would be
respectively liable for the payment of the debt; that the property pledged by the debtor to the bank included a stock or merchandise,
consisting of wines, liquors, canned goods, and other similar articles valued at P90,591.75, Philippine currency, then stored in the
warehouses of the debtor, Reyes, No. 12 Plaza Moraga, in the city of Manila, which said goods and merchandise were liable for
the payment of the said sum of P90,591.75, Philippine currency; that in the aforesaid deed of pledge it was agreed by and between
the bank and the debtor, Reyes, that the goods should be delivered to Ramon Garcia y Planas for safe-keeping, the debtor having
actually turned over to the said Garcia y Planas the goods in question by delivering to him the keys of the warehouse in which
they were kept; that in a subsequent contract entered into by and between the debtor, Reyes, and the plaintiff bank on the 29th
of September, 1905, the said contract executed on the 4th of March was modified so as to provide that the goods then (September
29) in possession the depositary should only be liable for the sum of P40,000, Philippine currency, the said contract of the 4th of
March remaining in all other respects in full force and effect, Luis M.a Sierra having been subsequently appointed by agreement
between the bank and the debtor as depositary of the goods thus pledged in substitution for the said Ramon Garcia y Planas.
On the 19th of October, 1905, in an action brought in the Court of First Instance of the city of Manila by Juan Garcia
y Planas against Francisco Reyes and Ramon Agtarat, judgment was rendered against the last-mentioned two for the sum of
P15,000, Philippine currency, to be paid by them severally or jointly, upon which judgment execution was issued against the
property of the defendants, Reyes and Agtarap. On the aforesaid 19th day of October, for the purpose of levying upon the property
of the defendants, the sheriff at the request of Garcia, the plaintiff in that case, entered the warehouse where the goods pledged
to the plaintiff bank were stored under the custody of the depositary, Sierra, and levied upon them as per list attached to the
complaint marked "Exhibit A." The sheriff seized the goods which had been pledged to the bank, depriving the latter of the
possession of the same, to which said contract executed on the 4th of March, 1905. Without the authority of the bank, Reyes
could not dispose of the said goods. The value of the goods seized by the sheriff was P30,000, Philippine currency, the said
sheriff, having refused, and still refusing, to return to the same to the bank, notwithstanding repeated demands made upon him
to this effect, and it being alleged in the complaint that unless prohibited by the court the sheriff would proceed to sell the said
goods at public auction and apply the proceeds to the satisfaction of the judgment rendered in favor of the Juan Garcia y Planas,
while the other debtor Reyes had not paid to the bank the P40,000, Philippine currency, to secure the payment of which the goods
mentioned in Exhibit A had been pledged to the bank, that is, to secure the payment of a sum in excess of the actual value of the
goods in the hands of the sheriff.
The defendant sheriff, James J. Peterson, and Juan Garcia, his codefendant, through their attorneys, Hartigan,
Marple, Rohde and Gutierrez, answering the complaint, stated that they admitted the allegations contained in paragraphs 1, 2, 3,
denied the allegations contained in paragraph 12, with the exception that the defendant sheriff levied upon the goods mentioned
in Exhibit A attached to the complaint for the purpose of satisfying the judgment referred to therein; and also the allegations
contained in paragraph 13 of the complaint, with the exception that the sheriff seized the property mentioned in Exhibit A under
the execution referred to therein; and finally defendants denied the allegation contained in paragraph 15 of the complaint, with
the exception of the allegation that the value of the property seized is P30,000. They accordingly asked that the action be
dismissed and that it be adjudged that the plaintiff had no interest whatever in the property described in the complaint, and that
the plaintiff be taxed with the costs of these proceedings.
The testimony introduced by the parties having been received, and the exhibits having been attached to the record,
the court below entered judgment on the 4th of January, 1906, dismissing plaintiff's action and directing that the defendant recover
from the Spanish-Filipino Bank the costs of this action, for which execution was duly issued. To this judgment counsel for plaintiff
excepted and announced his intention of prosecuting a bill of exceptions, and further made a motion for a new trial on the ground
that the judgment of the court below was contrary to law and that the findings of fact were plainly and manifestly contrary to the
weight of the evidence.
The decision of this case depends mainly upon the question as to whether the contract of pledge entered into by and
between the Spanish-Filipino Bank and Francisco Reyes to secure a loan made by the former to the latter was valid, all the
requisites prescribed by the Civil Code having been complied with.
If so, the bank's claim had preference over the claim of a third person not secured, as was the bank's, by a pledge,
with reference to the property pledged to the extent of its value, and therefore such property could not have been legally levied
upon by the sheriff at the request of the defendant, Juan Garcia. (Arts. 1921, 1922, Civil Code.)
The contract in question complies with all the requisites provided in article 1857 of the Civil Code, such as that the
property was pledged to secure a debt, the date of the execution, the terms of the pledge, and the property pledged, all of which
appears in a public document, and the property pledged was placed in the hands of a third person by common consent of the
debtor and creditor, under the supervision of an agent of the bank. (Arts. 1863, 1865, 1866, 1869, 1871, Civil Code.) The defect
alleged to exist in the said contract is that the debtor, Reyes, continued in possession of the property pledged; that he never
parted with the said property, and that neither the creditor nor the depositary appointed by common consent of the parties were
ever in possession of the property pledged, and for this reason, and upon the further ground that the contract was fraudulent, the
court below dismissed the complaint with the costs against the plaintiff.
In the motion for a new trial it was alleged by the plaintiff that the judgment of the court below was contrary to law, and
that the findings of fact contained therein were plainly and manifestly against the weight of the evidence. If plaintiffs contention is
correct, then the judgment of the court below should be reversed.
From the evidence introduced at the trial, both oral and documentary, it appears that a third person, appointed by the
common consent of the debtor and creditor, was in possession of the goods pledged in favor of the bank under the direct
supervision of an agent of the bank expressly appointed for this purpose, and it has not been shown that the said Reyes continued
in the possession of the goods after they had been pledged to the plaintiff bank.
Exhibit C and the testimony of Francisco Reyes, Luis M.a Sierra, and Mariano Rodriguez corroborate the existence
and authenticity of the contract of pledge recorded in a public instrument and conclusively and satisfactorily show that the debtor,
after the pledge of the property, parted with the possession of the same, and that it was delivered to a third person designated by
common consent of the parties. For the purpose of giving this possession greater effect, the pledgee appointed a person to
examine daily the property in the warehouse where the same was kept.
The witness Matias Garcia also testified as to the status of these goods, and informed Juan Garcia of such status
before the same were levied upon.
The sheriff's testimony supports the allegation that the depositary, Sierra, was present at the place where the goods
were kept, as well as the representative of the bank, Rodriguez, when he, the sheriff, went there for the purpose of levying upon
the said property. He further testified that Rodriguez, the representative of the bank, then protested and notified him that the
property in question was pledged to the Spanish-Filipino Bank.
The contract in question was, therefore, a perfect contract of pledge under articles 1857 and 1863 of the Civil Code,
it having been conclusively shown that the pledgee took charge and possession of the goods pledged through a depository and
a special agent appointed by it, each of whom had a duplicate key to the warehouse wherein the said goods were stored, and
that the pledgee, itself, received and collected the proceeds of the goods as they were sold.
The fact that the said goods continued in the warehouse which was formerly rented by the pledgor, Reyes, does not
affect the validity and legality of the pledge, it having been demonstrated that after the pledge had been agreed upon, and after
the depository appointed with the common consent of the parties had taken possession of the said property, the owner, the
pledgor, could no longer dispose of the same, the pledgee being the only one authorized to do so through the depositary and
special agent who represented it, the symbolical transfer of the goods by means of the delivery of the keys to the warehouse
where the goods were stored being sufficient to show that the depositary appointed by the common consent of the parties was
legally placed in possession of the goods. (Articles 438, 1463, Civil Code.)
The fact that the debtor, Reyes, procured purchasers and made arrangements for the sale of the goods pledged and
that the bills for the goods thus sold were signed by him does not affect the validity of the contract, for the pledgor, Reyes,
continued to be the owner of the goods, (art. 1869, Civil Code), he being the one principally interested in the sale of the property
on the best possible terms.
As to the reservation stipulated in paragraph 13 of the contract executed on the 4th of March, 1905, it could not affect
the contract in question for the reason that reservation referred to the rent from the property mortgaged, to the bank and the
dividends from the shares of stock also pledged to the bank, and not the merchandise so pledged, and such reservation could
not have rendered the contract of pledge null.
 If the case is to be decided in accordance with the facts alleged and established, the defendant not having introduced
any evidence to show that the said contract of pledge was fraudulent as to other creditors, there was no legal ground upon which
the court below could have held that the contract evidenced by the instrument in question was entered into to defraud other
creditors of the pledgor.
For the reason herein before set out, and the judgment of the court below being contrary to the evidence, the said
judgment is hereby reversed, and it is hereby adjudged that the plaintiff corporation, under and by virtue of the contract of pledge
in question, had a preferential right over that of the defendant, Juan Garcia, to the goods pledged or the value thereof, the value
to be applied to the payment of the debt of P40,000, Philippine currency, for the security of which the said property was pledged,
and the defendants are accordingly hereby ordered to return to the plaintiff corporation the property improperly levied upon, or to
pay its value, amounting to P30,000, Philippine currency, without special provision as to costs. After the expiration of twenty days
let judgment be entered in accordance herewith, and ten days thereafter the case be remanded to the court below for execution.
So ordered.
Arellano, C.J., Mapa, Carson, and Willard, JJ,. concur.
||| (El Banco Español-Filipino v. Peterson, G.R. No. L-3088, [February 6, 1907], 7 PHIL 409-416)
THIRD DIVISION
[G.R. Nos. 154391-92. September 30, 2004.]
Spouses ISMAEL and TERESITA MACASAET, petitioners, vs. Spouses VICENTE and
ROSARIO MACASAET, respondents.
DECISION
PANGANIBAN, J p:
The present case involves a dispute between parents and children. The children were invited by the parents to occupy the
latter's two lots, out of parental love and a desire to foster family solidarity. Unfortunately, an unresolved conflict terminated this situation.
Out of pique, the parents asked them to vacate the premises. Thus, the children lost their right to remain on the property. They have
the right, however, to be indemnified for the useful improvements that they constructed thereon in good faith and with the consent of
the parents. In short, Article 448 of the Civil Code applies.
The Case
Before us is a Petition for Review 1 under Rule 45 of the Rules of Court, assailing the March 22, 2002 Decision 2 and the
June 26, 2002 Resolution 3 of the Court of Appeals (CA) in CA-GR SP Nos. 56205 & 56467. The challenged Decision disposed as
follows:
"WHEREFORE, the assailed Decision is AFFIRMED with the following MODIFICATIONS:
'1. Vicente and Rosario should reimburse Ismael and Teresita one-half of the value
of the useful improvements introduced in the premises prior to demand, which is equivalent to
P475,000.00. In case the former refuse to reimburse the said amount, the latter may remove the
improvements, even though the land may suffer damage thereby. They shall not, however, cause
any more impairment upon the property leased than is necessary.
'2. The award of attorney's fees is DELETED.
'3. The records of these consolidated cases are REMANDED to the Court of origin for
further proceedings to determine the option to be taken by Vicente and Rosario and to implement
the same with dispatch." 4
The assailed Resolution denied petitioners' Motion for Reconsideration. aAIcEH
The Facts
Petitioners Ismael and Teresita 5 Macasaet and Respondents Vicente and Rosario Macasaet are first-degree relatives.
Ismael is the son of respondents, and Teresita is his wife. 6
On December 10, 1997, the parents filed with the Municipal Trial Court in Cities (MTCC) of Lipa City an ejectment suit
against the children. 7 Respondents alleged that they were the owners of two (2) parcels of land covered by Transfer Certificate of Title
(TCT) Nos. T-78521 and T-103141, situated at Banay-banay, Lipa City; that by way of a verbal lease agreement, Ismael and Teresita
occupied these lots in March 1992 and used them as their residence and the situs of their construction business; and that despite
repeated demands, petitioners failed to pay the agreed rental of P500 per week. 8
Ismael and Teresita denied the existence of any verbal lease agreement. They claimed that respondents had invited them
to construct their residence and business on the subject lots in order that they could all live near one other, employ Marivic (the sister
of Ismael), and help in resolving the problems of the family. 9 They added that it was the policy of respondents to allot the land they
owned as an advance grant of inheritance in favor of their children. Thus, they contended that the lot covered by TCT No. T-103141
had been allotted to Ismael as advance inheritance. On the other hand, the lot covered by TCT No. T-78521 was allegedly given to
petitioners as payment for construction materials used in the renovation of respondents' house. 10
The MTCC 11 ruled in favor of respondents and ordered petitioners to vacate the premises. It opined that Ismael and
Teresita had occupied the lots, not by virtue of a verbal lease agreement, but by tolerance of Vicente and Rosario. 12 As their stay was
by mere tolerance, petitioners were necessarily bound by an implied promise to vacate the lots upon demand. 13 The MTCC dismissed
their contention that one lot had been allotted as an advance inheritance, on the ground that successional rights were inchoate.
Moreover, it disbelieved petitioners' allegation that the other parcel had been given as payment for construction materials. 14
On appeal, the regional trial court 15 (RTC) upheld the findings of the MTCC. However, the RTC allowed respondents to
appropriate the building and other improvements introduced by petitioners, after payment of the indemnity provided for by Article 448
in relation to Articles 546 and 548 of the Civil Code. 16 It added that respondents could oblige petitioners to purchase the land, unless
its value was considerably more than the building. In the latter situation, petitioners should pay rent if respondents would not choose to
appropriate the building. 17
Upon denial of their individual Motions for Reconsideration, the parties filed with the CA separate Petitions for Review, which
were later consolidated. 18
Ruling of the Court of Appeals
The CA sustained the finding of the two lower courts that Ismael and Teresita had been occupying the subject lots only by
the tolerance of Vicente and Rosario. 19 Thus, possession of the subject lots by petitioners became illegal upon their receipt of
respondents' letter to vacate it. 20
Citing Calubayan v. Pascual, 21 the CA further ruled that petitioners' status was analogous to that of a lessee or a tenant
whose term of lease had expired, but whose occupancy continued by tolerance of the owner. 22 Consequently, in ascertaining the right
of petitioners to be reimbursed for the improvements they had introduced on respondents' properties, 23 the appellate court applied the
Civil Code's provisions on lease. The CA modified the RTC Decision by declaring that Article 448 of the Civil Code was inapplicable.
The CA opined that under Article 1678 of the same Code, Ismael and Teresita had the right to be reimbursed for one half of the value
of the improvements made. 24
Not satisfied with the CA's ruling, petitioners brought this recourse to this Court. 25
The Issues
Petitioners raise the following issues for our consideration:
"1.a) Whether or not Section 17[,] Rule 70 of the Rules of Court on Judgment should apply in the
rendition of the decision in this case;
b) Whether or not the Complaint should have been dismissed;
c) Whether or not damages including attorney's fees should have been awarded to herein
petitioners;
"2.a) Whether or not the rule on appearance of parties during the Pretrial should apply on
appearance of parties during Preliminary Conference in an unlawful detainer suit;
b) Whether or not the case of Philippine Pryce Assurance Corporation vs. Court of Appeals (230
SCRA 164) is applicable to appearance of parties in an unlawful detainer suit;
"3. Whether or not Article 1678 of the Civil Code should apply to the case on the matters of
improvements, or is it Article 447 of the Civil Code in relation to the Article 453 and 454 thereof that should
apply, if ever to apply the Civil Code;
"4. Whether or not the [D]ecision of the Court of Appeals is supported by evidence, appropriate
laws, rules and jurisprudence;
"5. Whether or not Assisting Judge Norberto Mercado of the MTCC Lipa City should be held
accountable in rendering the MTCC [D]ecision;
"6. Whether or not Atty. Glenn Mendoza and Atty. Andrew Linatoc of the same [l]aw office should
be held accountable for pursuing the [e]jectment case[.]" 26
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Ejectment
Who is entitled to the physical or material possession of the premises? At the outset, we stress that this is the main issue
in ejectment proceedings. 27 In the present case, petitioners failed to justify their right to retain possession of the subject lots, which
respondents own. Since possession is one of the attributes of ownership, 28 respondents clearly are entitled to physical or material
possession.
Allegations of the Complaint
Petitioners allege that they cannot be ejected from the lots, because respondents based their Complaint regarding the
nonpayment of rentals on a verbal lease agreement, which the latter failed to prove. 29 Petitioners contend that the lower courts erred
in using another ground (tolerance of possession) to eject them.
In actions for unlawful detainer, possession that was originally lawful becomes unlawful upon the expiration or termination
of the defendant's right to possess, arising from an express or implied contract. 30 In other words, the plaintiff's cause of action comes
from the expiration or termination of the defendant's right to continue possession. 31 The case resulting therefrom must be filed within
one year from the date of the last demand.
To show a cause of action in an unlawful detainer, an allegation that the defendant is illegally withholding possession from
the plaintiff is sufficient. The complaint may lie even if it does not employ the terminology of the law, provided the said pleading is
couched in a language adequately stating that the withholding of possession or the refusal to vacate has become unlawful. 32 It is
equally settled that the jurisdiction of the court, as well as the nature of the action, is determined from the averments of the complaint. 33
In the present case, the Complaint alleged that despite demands, petitioners "refused to pay the accrued rentals and [to]
vacate the leased premises." 34 It prayed that judgment be rendered "[o]rdering [petitioners] and all those claiming rights under them
to vacate the properties . . . and remove the structures . . . constructed thereon." 35 Effectively then, respondents averred that
petitioners' original lawful occupation of the subject lots had become unlawful. CSDcTH
The MTCC found sufficient cause to eject petitioners. While it disbelieved the existence of a verbal lease agreement, it
nevertheless concluded that petitioners' occupation of the subject lots was by mere tolerance of respondents. Basing its conclusion on
the fact that the parties were close relatives, the MTCC ruled thus:
". . . [T]he parties herein are first degree relatives. Because of this relationship, this Court takes
judicial notice of the love, care, concern and protection imbued upon the parents towards their [children], i.e.,
in the instant case, the love, care, concern and protection of the [respondents] to the [petitioners]. With this
in mind, this Court is inclined to believe the position of the [petitioners] that there was no such verbal lease
agreement between the parties herein that took place in 1992. . . .
"From the allegations of the [petitioners], this Court is convinced that their stay and occupancy of
the subject premises was by mere tolerance of the [respondents], and not by virtue of a verbal lease
agreement between them." 36
 Having found a cause of action for unlawful detainer, the MTCC (as well as the RTC and the CA) did not err in ordering the
ejectment of petitioners as prayed for by respondents. There was no violation of Section 17 of Rule 70 37 of the Rules of Court. As
earlier explained, unlawful detainer was sufficiently alleged in the Complaint and duly proven during the trial. Significantly, the issue of
whether there was enough ground to eject petitioners was raised during the preliminary conference. 38
Not Merely Tolerated Possession
Petitioners dispute the lower courts' finding that they occupied the subject lots on the basis of mere tolerance. They argue
that their occupation was not under such condition, since respondents had invited, offered and persuaded them to use those
properties. 39
This Court has consistently held that those who occupy the land of another at the latter's tolerance or permission, without
any contract between them, are necessarily bound by an implied promise that the occupants will vacate the property upon demand. 40 A
summary action for ejectment is the proper remedy to enforce this implied obligation. 41 The unlawful deprivation or withholding of
possession is to be counted from the date of the demand to vacate. 42
Toleration is defined as "the act or practice of permitting or enduring something not wholly approved
of." 43 Sarona v. Villegas 44 described what tolerated acts means, in this language:
"Professor Arturo M. Tolentino states that acts merely tolerated are 'those which by reason of
neighborliness or familiarity, the owner of property allows his neighbor or another person to do on the
property; they are generally those particular services or benefits which one's property can give to another
without material injury or prejudice to the owner, who permits them out of friendship or courtesy.' . . . And,
Tolentino continues, even though 'this is continued for a long time, no right will be acquired by prescription."
. . . Further expounding on the concept, Tolentino writes: 'There is tacit consent of the possessor to the acts
which are merely tolerated. Thus, not every case of knowledge and silence on the part of the possessor can
be considered mere tolerance. By virtue of tolerance that is considered as an authorization, permission or
license, acts of possession are realized or performed. The question reduces itself to the existence or non-
existence of the permission." 45
We hold that the facts of the present case rule out the finding of possession by mere tolerance. Petitioners were able to
establish that respondents had invited them to occupy the subject lots in order that they could all live near one other and help in resolving
family problems. 46 By occupying those lots, petitioners demonstrated their acceptance of the invitation. Hence, there was a meeting
of minds, and an agreement regarding possession of the lots impliedly arose between the parties.
The occupancy of the subject lots by petitioners was not merely "something not wholly approved of" by respondents. Neither
did it arise from what Tolentino refers to as "neighborliness or familiarity." In point of fact, their possession was upon the invitation of
and with the complete approval of respondents, who desired that their children would occupy the premises. It arose from familial love
and a desire for family solidarity, which are basic Filipino traits.
Right to Use the Lots Terminated
That Ismael and Teresita had a right to occupy the lots is therefore clear. The issue is the duration of possession. In the
absence of a stipulation on this point, Article 1197 of the Civil Code allows the courts to fix the duration or the period.
"Article 1197. If the obligation does not fix a period, but from its nature and the circumstances it
can be inferred that a period was intended, the courts may fix the duration thereof.
"The courts shall also fix the duration of the period when it depends upon the will of the debtor.
"In every case the courts shall determine such period as may under the circumstances have been
probably contemplated by the parties. Once fixed by the courts, the period cannot be changed by them."
Article 1197, however, applies to a situation in which the parties intended a period. Such qualification cannot be inferred
from the facts of the present case.
To repeat, when Vicente and Rosario invited their children to use the lots, they did so out of parental love and a desire for
solidarity expected from Filipino parents. No period was intended by the parties. Their mere failure to fix the duration of their agreement
does not necessarily justify or authorize the courts to do so. 47
Based on respondents' reasons for gratuitously allowing petitioners to use the lots, it can be safely concluded that the
agreement subsisted as long as the parents and the children mutually benefited from the arrangement. Effectively, there is a resolutory
condition in such an agreement. 48 Thus, when a change in the condition existing between the parties occurs — like a change of
ownership, necessity, death of either party or unresolved conflict or animosity — the agreement may be deemed terminated. Having
been based on parental love, the agreement would end upon the dissipation of the affection. ICTacD
When persistent conflict and animosity overtook the love and solidarity between the parents and the children, the purpose
of the agreement ceased. 49 Thus, petitioners no longer had any cause for continued possession of the lots. Their right to use the
properties became untenable. It ceased upon their receipt of the notice to vacate. And because they refused to heed the demand,
ejectment was the proper remedy against them. Their possession, which was originally lawful, became unlawful when the reason
therefor — love and solidarity — ceased to exist between them.
No Right to Retain Possession
Petitioners have not given this Court adequate reasons to reverse the lower courts' dismissal of their contention that Lots
T-78521 and T-103141, respectively, were allegedly allotted to them as part of their inheritance and given in consideration for past
debts.
The right of petitioners to inherit from their parents is merely inchoate and is vested only upon the latters' demise.
Indisputably, rights of succession are transmitted only from the moment of death of the decedent. 50 Assuming that there was an
"allotment" of inheritance, ownership nonetheless remained with respondents. Moreover, an intention to confer title to certain persons
in the future is not inconsistent with the owners' taking back possession in the meantime for any reason deemed sufficient. 51 Other
than their self-serving testimonies and their affidavits, petitioners offered no credible evidence to support their outlandish claim of
inheritance "allocation."
We also agree with the lower courts that petitioners failed to prove the allegation that, through a dation in payment, Lot T-
78521 had been transferred to the latter as payment for respondents' debts. 52 The evidence presented by petitioners related only to
the alleged indebtedness of the parents arising from the latter's purported purchases and advances. 53 There was no sufficient proof
that respondents had entered into a contract of dation to settle the alleged debt. Petitioners even stated that there was a disagreement
in the accounting of the purported debt, 54 a fact that disproves a meeting of the minds with the parents.
Petitioners also admitted that a portion of the alleged debt is the subject matter of a collection case against respondents
(Civil Case No. 0594-96). 55 Thus, the former's allegation that the indebtedness has been paid through a dation cannot be given
credence, inconsistent as it is with their action to recover the same debt.
Despite their protestations, petitioners recognized the right of the parents to recover the premises when they admitted in
their Position Paper filed with the MTCC that respondents had a title to the lots.
"The [respondents] want to get their property because the title is theirs, the [petitioners] do not
object but what is due the [petitioners] including the reparation for the tarnish of their dignity and honor must
be given the [petitioners] for the benefits of their children before the premises will be turned over." 56
As a rule, the right of ownership carries with it the right of possession.
Second Issue:
Appearance at the Preliminary Conference
Section 8 of Rule 70 of the Rules of Court requires the appearance of the plaintiff and the defendant during the preliminary
conference. On the basis of this provision, petitioners claim that the MTCC should have dismissed the case upon the failure of
respondents to attend the conference. However, petitioners do not dispute that an attorney-in-fact with a written authorization from
respondents appeared during the preliminary conference. 57 The issue then is whether the rules on ejectment allow a representative
to substitute for a party's personal appearance.
Unless inconsistent with Rule 70, the provisions of Rule 18 on pretrial applies to the preliminary conference. 58 Under
Section 4 of this Rule, the nonappearance of a party may be excused by the showing of a valid cause; or by the appearance of a
representative, who has been fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions of facts and of documents. 59
Section 4 of Rule 18 may supplement Section 8 of Rule 70. Thus, the spirit behind the exception to personal appearance
under the rules on pretrial is applicable to the preliminary conference. If there are valid reasons or if a representative has a "special
authority," a party's appearance may be waived. As petitioners are challenging only the applicability of the rules on pretrial to the rule
on preliminary conference, the written authorization from respondents can indeed be readily considered as a "special authorization."
Third Issue:
Rights of a Builder in Good Faith
As applied to the present case, accession refers to the right of the owner to everything that is incorporated or attached to
the property. 60 Accession industrial — building, planting and sowing on an immovable — is governed by Articles 445 to 456 of the
Civil Code. DTESIA
Articles 447 and 1678 of the
Civil Code Inapplicable
To buttress their claim of reimbursement for the improvements introduced on the property, petitioners cite Article
447. 61 They allege that the CA erred in applying Article 1678, since they had no lease agreement with respondents.
We clarify. Article 447 is not applicable, because it relates to the rules that apply when the owner of the property uses the
materials of another. It does not refer to the instance when a possessor builds on the property of another, which is the factual milieu
here.
In view of the unique factual setting of the instant case, the contention of petitioners regarding the inapplicability of Article
1678 deserves attention. The CA applied the provisions on lease, because it found their possession by mere tolerance comparable
with that of a lessee, per the pronouncement in Calubayan v. Pascual, 62 from which we quote:
". . . It has been held that a person who occupies the land of another at the latter's tolerance or
permission, without any contract between them, is necessarily bound by an implied promise that he will
vacate upon demand, failing which a summary action for ejectment is the proper remedy against them. The
status of defendant is analogous to that of a lessee or tenant whose term of lease has expired but whose
occupancy continued by tolerance of the owner. In such a case, the unlawful deprivation or withholding of
possession is to be counted from the date of the demand to vacate." 63 (Emphasis in the original.)
As explained earlier, Ismael and Teresita's possession of the two lots was not by mere tolerance, a circumstance that negates
the applicability of Calubayan.
Article 448 Applicable
On the other hand, when a person builds in good faith on the land of another, the applicable provision is Article 448, which
reads: 64
"Article 448. The owner of the land on which anything has been built, sown or planted in good
faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the
indemnity provided for in Articles 546 and 548, or to oblige the one who built or planted to pay the price of
the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy
the land if its value is considerably more than that of the building or trees. In such case, he shall pay
reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper
indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall
fix the terms thereof."
This Court has ruled that this provision covers only cases in which the builders, sowers or planters believe themselves to
be owners of the land or, at least, to have a claim of title thereto. 65 It does not apply when the interest is merely that of a holder, such
as a mere tenant, agent or usufructuary. 66 From these pronouncements, good faith is identified by the belief that the land is owned;
or that — by some title — one has the right to build, plant, or sow thereon. 67
 However, in some special cases, this Court has used Article 448 by recognizing good faith beyond this limited definition.
Thus, in Del Campo v. Abesia, 68 this provision was applied to one whose house — despite having been built at the time he was still
co-owner — overlapped with the land of another. 69 This article was also applied to cases wherein a builder had constructed
improvements with the consent of the owner. The Court ruled that the law deemed the builder to be in good
faith. 70 In Sarmiento v. Agana, 71 the builders were found to be in good faith despite their reliance on the consent of another, whom
they had mistakenly believed to be the owner of the land. 72
Based on the aforecited special cases, Article 448 applies to the present factual milieu. The established facts of this case
show that respondents fully consented to the improvements introduced by petitioners. In fact, because the children occupied the lots
upon their invitation, the parents certainly knew and approved of the construction of the improvements introduced thereon. 73 Thus,
petitioners may be deemed to have been in good faith when they built the structures on those lots. DcICEa
The instant case is factually similar to Javier v. Javier. 74 In that case, this Court deemed the son to be in good faith for
building the improvement (the house) with the knowledge and consent of his father, to whom belonged the land upon which it was built.
Thus, Article 448 75 was applied.
Rule on Useful Expenses
The structures built by petitioners were "useful" improvements, because they augmented the value or income of the bare
lots. 76 Thus, the indemnity to be paid by respondents under Article 448 is provided for by Article 546, which we quote:
"Art. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in
good faith may retain the thing until he has been reimbursed therefor.
"Useful expenses shall be refunded only to the possessor in good faith with the same right of
retention, the person who has defeated him in the possession having the option of refunding the amount of
the expenses or of paying the increase in value which the thing may have acquired by reason thereof."
Consequently, respondents have the right to appropriate — as their own — the building and other improvements on the
subject lots, but only after (1) refunding the expenses of petitioners or (2) paying the increase in value acquired by the properties by
reason thereof. They have the option to oblige petitioners to pay the price of the land, unless its value is considerably more than that of
the structures — in which case, petitioners shall pay reasonable rent.
In accordance with Depra v. Dumlao, 77 this case must be remanded to the trial court to determine matters necessary for
the proper application of Article 448 in relation to Article 546. Such matters include the option that respondents would take and the
amount of indemnity that they would pay, should they decide to appropriate the improvements on the lots. We disagree with the CA's
computation of useful expenses, which were based only on petitioners' bare allegations in their Answer. 78
Ruling on Improvement Justified
While, ordinarily, the jurisdiction of the MTCC on ejectment proceedings is limited to the issue of physical or material
possession of the property in question, this Court finds it necessary to abbreviate the issue on the improvements in relation to Article
448. First, the determination of the parties' right to those improvements is intimately connected with the MTCC proceedings in the light
of the ejectment of petitioners. Second, there is no dispute that while they constructed the improvements, respondents owned the
land. Third, both parties raised no objection when the RTC and the CA ruled accordingly on this matter.
Equitable considerations compel us to settle this point immediately, pro hoc vice, to avoid needless delay. Both parties have
already been heard on this issue; to dillydally or equivocate would not serve the cause of substantial justice.
Other Issues Raised
Given the foregoing rulings, it is no longer necessary to address petitioners' allegation that the MTCC judge and
respondents' lawyers should be respectively held personally accountable for the Decision and for filing the case. 79 The insinuation of
petitioners that the lawyers manipulated the issuance of a false barangay certification is unavailing. 80 Their contention that
respondents did not attend the barangay conciliation proceedings was based solely on hearsay, which has little or no probative
value. 81
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are AFFIRMED with the following
MODIFICATIONS:
1. The portion requiring Spouses Vicente and Rosario Macasaet to reimburse one half of the value of the useful
improvements, amounting to P475,000, and the right of Spouses Ismael and Rosita Macasaet to remove those improvements (if the
former refuses to reimburse) is DELETED.
2. The case is REMANDED to the court of origin for further proceedings to determine the facts essential to the proper
application of Articles 448 and 546 of the Civil Code, specifically to the following matters:
a. Spouses Vicente and Rosario Macasaet's option to appropriate — as their own — the improvements on
the lots, after paying the indemnity, as provided under Article 546 in relation to Article 448 of the
Civil Code; or in requiring Spouses Ismael and Rosita Macasaet to pay for the value of the lots,
unless it is considerably more than that of the improvements, in which case petitioners shall pay
reasonable rent based upon the terms provided under the Civil Code
b. The value of the useful expenses incurred by Spouses Ismael and Rosita Macasaet in the construction of
the improvements on the lots
c. The increase in value acquired by the lots by reason of the useful improvements
d. Spouses Vicente and Rosario Macasaet's choice of type of indemnity to be paid (whether b or c)
e. Whether the value of the lots is considerably more than that of the improvements built thereon
No pronouncement as to costs. aTEACS
SO ORDERED.
||| (Spouses Macasaet v. Spouses Macasaet, G.R. Nos. 154391-92, [September 30, 2004], 482 PHIL 853-876)
FIRST DIVISION
[G.R. No. 9989. March 13, 1918.]
EDUARDO CUAYCONG ET AL., plaintiff-appellee, vs. RAMONA BENEDICTO ET AL., defendants-
appellants.
Ruperto Montinola and Aurelio Montinola for appellants.
No appearance for appellees.
SYLLABUS
1. ROADS AND STREETS; EASEMENTS; REGISTRATION OF LAND; TORRENTS TITLE. — Unless is made to
appear upon the certificate of title that the boundaries of any given highway, way, or private way upon the land have been
determined, the right to such highway, way, or private way is unaffected by the registration of the title.
2. REALTY; ENCUMBRANCES; PRESUMPTIONS. — Real property is presumed to be free from liens and
encumbrances.
3. ROADS AND STREETS; UPKEEP BY GOVERNMENT; PRESUMPTION. — Where it appears that a road has
been kept in repair by private enterprise and that the Government has not contributed to the cost of its construction or
maintenance, such road will be presumed to be private.
4. ID; PRESUMPTION; USER; TOLERANCE; PUBLIC USE. — The mere fact that a tract of land has been used for
a long time as a road will not warrant the presumption that it has been dedicated to the public.
5. REALITY; PRESCRIPTION; POSSESSION; TOLERANCE . — Possession, to constitute the foundation of a
perspective right, must be possession under claim of title. Acts of a possessory character performed by one who holds by the
mere tolerance of the owner cannot be made the basis of the perspective acquisition of rights.
6. IMMEMORIAL POSSESSION; EVIDENCE. — Under the Spanish law the proof of immemorial possession required
something more than the memory of living witnesses.
7. EASEMENTS OF WAY; USER; TOLERANCE; PRESCRIPTION. — The permissive use by an adjacent proprietor
of a road or path over the land of another no matter how long continued, will not create an easement of way prescription.
DECISION
FISHER, J p:
The issues in this case relate to the right of plaintiff to make use of two roads existing on the Hacienda Torena, a tract
of land in the municipality of Victorias, Negros Occidental, the property of the defendants, Blasa Benedicto and Ramona
Benedicto. One of these roads is referred to in the proceedings as the Nanca-Victorias road and the other as the Dacuman-
Toreno road. The court of First Instance held that those of the plaintiffs who claimed to be entitled to make use of the Dacuman-
Toreno road had failed to establish the asserted right, and dismissed the action as to them. From this decision they appealed to
this court but, their brief not having been filed within the time prescribed by the rules, their appeal was dismissed, on motion of
defendants, by resolution dated February 14, 1916. Consequently, the issues presented on this appeal are limited to those which
relate to the rights of the parties with respect to the Nanca-Victorias road, and the determination of the correctness of the decision
of the court concerning that part of the controversy submitted to its decision.
The allegations in the complaint with respect to the Nanca-Victorias road are that the appellees, Eduardo Cuaycong,
Lino Cuaycong, and Eulalio Dolor, are the owners of a group of hacienda situated between the southern boundary of the Hacienda
Toreno and the barrio of Nanca, of the municipality of Saravia, and that the appellees Silverio Ginoo, Gervasio Ascalon, and Juan
Ledesma, are the lessees of part of said hacienda; that for more than twenty years the appellees and their predecessors in interest
have made use of the Nanca-Victorias road, which crosses the Hacienda Toreno, openly, publicly, and continuously, with the
knowledge of the owners of the said hacienda, for the purpose of conveying the products of their hacienda to the town of Victorias
and to the landing place there situated, and for the purpose of transporting supplies from those points to their haciendas, making
use of the said road by means of carts, carabaos, and other usual means of transportation; that there is no outlet to a public road
from the hacienda occupied by these plaintiffs, the only road and way by which the products of the plaintiffs' property can be taken
to the town of Victorias and to the landing place there being across the Hacienda Toreno by the road marked on the plan attached
to the complaint; that on the fifteenth day of November, 1912, the defendants closed the road in question at the point at which it
crosses the Hacienda Toreno, and refused to permit plaintiffs to continue using it; that plaintiffs were about to commence to grind
their crop of sugar cane, and that, if prevented from transporting their sugar across the Hacienda Toreno to their point of
embarcation, would suffer damages difficult to estimate. Upon these averments of fact plaintiffs prayed for a judgment that they
are entitled to use the road in question as they have been using in the past, and that a perpetual injunction be issued against
plaintiffs restraining them from impeding such use. Upon the filing of the complaint, plaintiffs moved the court to issue a preliminary
injunction restraining defendants from interfering with the use of the road during the pendency of the suit, which motion was
granted by the court.
Defendants in their answer put in issue all the special averments of the complaint, as above set forth, and by way of
counterclaim and special defense, averred that the road crossing the Hacienda Toreno, over which plaintiffs claim the right of
passage, is the private property of defendants; and, further, that they have not refused plaintiffs permission to pass over this road
but have required them to pay toll for the privilege of doing so. Defendants also claimed damages for the use of the road by
plaintiffs during the pendency of the suit, alleging that the preliminary injunction had been improvidently issued upon false
statements contained in the verified complaint filed by plaintiffs.
The case was tried in July, 1913. The court on December 8, 1913, rendered judgment, dismissing the complaint with
respect to the plaintiffs Felix Suarez, Probo Jereza, Enrique Azcona, and Melecio Pido, these being the plaintiffs who claimed the
right to use the Dacuman-Toreno road. With respect to the Nanca-Victorias road, the court held that it was a public highway over
which the public had acquired a right of use of immemorial prescription, and ordered the issuance of a perpetual injunction against
plaintiffs, restraining them from interfering in any manner with the use of the said road.
The conclusion of the court with respect to the facts affecting the Nanca-Victorias road are as follows:
"Turning to a consideration of the evidence relative to the Nanca-Victorias road we find
incontestable proof that it has been in existence for at least forty years. That the hacenderos located in the
southwestern section of Victorias and the public generally passed over it freely and that it was used for all
purposes of transportation of farm produce, animals, etc. and by pedestrians as well as carromatas and other
 conveyances without break or interruption until two or three years ago when the defendants announced that
the road was private and that those who wished to pass over it with sugar carts would be obliged to pay as
toll of ten centavos-all-other vehicles, it appears, were permitted to pass free of charge. This arrangement
seems to have existed during the years of 1911 and 1912 and part of 1913, the money being collected
apparently from some hacenderos and not from others. There is some reason to believe from the evidence
presented by defendants themselves that the practice of making these payments to hacienda 'Toreno'
originated in an attempt to raise a fund for the repair of the road. There is no evidence that any other
hacenderos between Nanca and Victorias or any other person made any attempt to close the road or to
collect toll. On the contrary the road appears to have been repaired by the hacederos when it needed
repairing and everyone used it on equal terms until the defendants in 1910 or 1911 interposed the objection
that the road in dispute was private. This we think is a fair deduction from the evidence and although it is
asserted that toll was collected at an earlier date by the late Leon Montinola, brother of the defendant Ruperto
Montinola, there is no tangible evidence that this was so and all the circumstances are strongly indicative of
the fact that toll has been paid only during the years of 1911, 1912, and part of 1913."
The request presented by the assignment of error are in effect:
(a) Is the Nanca-Victorias road at the point at which it traverses the Hacienda Toreno a public highway or not?
(b) If it be held that the road in question is not a public highway, have plaintiff proven their acquisition of an easement
of way over the Hacienda Toreno at the point traversed by the road in question?
The trial judge, in holding that the road in question is public, bases his conclusion upon the fact, which he deems to
have been proven, that the road has been in existence "from time immemorial," and had been "continuously used as a public
road . . . and open to public as such for thirty or forty years . . . until . . . the defendants undertook to claim it as private and to
collect toll for the passage of carts." (Bill of Exceptions, p. 56.) There is no doubt that for he past thirty or forty years a road has
existed between the former site of the town of Victorias and the barrio of Nanca, of the municipality of Saravia, and that road
crosses defendants' hacienda. It is also true that during this period the plaintiffs and their predecessors in the ownership of the
hacienda now held by them have made use of this road for the purpose of going and coming from their haciendas to the town of
Victorias; but the question is whether this use was limited to the plaintiffs, and their tenants and employees, or whether it was, as
held by the lower court, a use enjoyed by the public in general. Plaintiffs produced only two witnesses, Segundo de Leon (stet.
notes, pp. 21-22) and Eduardo Cuaycong, (stet. notes, pp. 27-33) to testify as regards the use of the Nanca-Victorias road.
Several other witnesses testified on behalf of plaintiffs, but their testimony relates to the Dacuman-Toreno road, which is not
involved in this appeal. We have carefully read the testimony of the witnesses Leon and Cuaycong, given upon their direct and
cross examination, but we have been unable to find that either of them has testified that the road in question was ever used by
the public in general. These witnesses testified with regard to the use of the road by the present and former owners and occupants
of the estates of Bacayan, Esperanza, Alacaigan, Pusot, and Dolores for the transportation of the products of these estates to the
town of Victorias, and of supplies and agricultural implements from Victorias to the haciendas, but neither of them testified
expressly that any other use had been made of said road. Nevertheless, it may be reasonably inferred from the testimony of these
witnesses that all persons having occasion to travel between Victorias and the haciendas of Bacayan, Esperanza, Alacaigan,
Pusot, and Dolores, whether or not they were owners, tenants, or employees of said estates, made use of the road now in dispute,
crossing the Hacienda Toreno, and to this limited extent it may be said that the public made use of the road, but there is nothing
in the evidence to indicate that the so-called public use extended beyond this.
Apart from the fact that there is no direct evidence to support the finding of the court concerning the general public
use of the road in dispute, the record contains data strongly tending to show that when the complaint was filed plaintiffs did content
that the road was a public highway, but merely contended that they had acquired by prescription an easement of way across the
Hacienda Toreno. For example, the action is entitled an "action concerning a right of way." (Bill of Exceptions, pp. 64 and 65.) It
is not averred in the complaint averred in the complaint that the road in question was used by the public. On the contrary, it is
averred that it was used by the plaintiffs and their predecessors. The averment in paragraph 8 of the complaint that the plaintiff
have no other "outlet to a public road" than that which they have been accustomed to use by going to the town of Victorias also
shows that when they commenced this action they had in mind the provisions of articles 564, et seq. of the Civil Code, which
relate to the method of establishing the compulsory easement of way. The owners of an existing easement, as well as those
whose properties are adjacent with a public road, have no occasion to invoke these provisions of the Code, which relate to the
creation of new rights, and not the enforcement of rights already in existence.
It is true that in the opening statement made to the court, counsel for plaintiffs, who was not the same attorney by
whom the complaint was signed, stated that plaintiffs contend that the road in question is public, but as no evidence was
introduced tending to establish this contention concerning the Nanca-Victorias road, counsel for defendants had no occasion to
object upon the ground that such testimony was not relevant to the averments of the complaint. No evidence was taken to indicate
that at any time since the road in question has been in existence any part of the expense of its upkeep has been defrayed by the
general government, the province, or the municipality. The trial judge said upon this subject:
"It is also true whatever repairs were made on the road were made irregularly. The municipality
of Victorias had no funds to devote to the construction and repair of road, and the upkeep of the road
depending entirely therefore on the initiative of the persons who used it, was attended to only at such times
as repairs were absolutely necessary." (Bill of Exceptions, p. 49.)
The court also held that appears from the government grant issued in 1885 to the original owner of the hacienda
adjacent to the Hacienda Toreno on its western boundary, that the Nanca-Victorias road at that time separated that estate from
the Jalbuena Hacienda, and that these facts constitute "circumstantial evidence that the document to which the court refers, and
we agree that the road in question existed in 1885; but we do not believe that the document in question proves that the said road
was a public highway.
Another circumstance established by the evidence, and which is of some importance in the determination of this issue,
is that although the defendants closed the Nanca-Victorias road in the month of February, 1911, and since that time have collected
toll from persons passing over it with carts loaded with sugar, including those belonging to several of the plaintiffs, nothing was
done by them to prevent the continuation of this commenced. It is natural to assume that if plaintiffs and considered that the road
in question was public, they would have protested immediately against the action of the defendants, and would have either
commenced a civil action, as they subsequently did, or would have brought about a prosecution under section 16 of Act No. 1511.
Upon the evidence taken and admission contained in the pleadings and those made during the course of the trial we
consider that the following findings are warranted:
1. The town of Victorias has always been the shipping point of the products of the Hacienda Toreno, and of the
haciendas of appellees, as we place from which supplies were brought to those properties.
2. For thirty or forty years before the commencement of the suit a wagon road, herein called the Nanca-Victorias road,
has been in existence, connecting the haciendas of appellees with the town of Victorias, and this road traverses the property of
defendants. Since the removal of the town of Victorias to a new site the Nanca-Victorias road has been used by appellees in
travelling between their properties and the provincial road which crosses the Hacienda Toreno from east to west.
3. No public funds have at any time been expanded on the construction or upkeep of the Nanca-Victorias road, but
from time to time work has been done on it by the laborers employed by the present and former owners of the Hacienda Toreno
and the haciendas owned by the appellees and their predecessors in title.
4. The Nanca-Victorias wagon road, including that part of it which crosses the Hacienda Toreno, has for thirty-five or
forty years been used by the appellees and their predecessors in title for the transportation, by the usual means, of the products
of their estates to their shipping points in or near the town of Victorias, and the transportation to their estates of all supplies
required by them, and has been used by all persons having occasion to travel to and from all or any of the estates now owned by
the appellees.
5. The use of the Nanca-Victorias road in the manner and by the persons above mentioned was permitted without
objection by the owners of the Hacienda Toreno until the year 1911, when they closed it, and began charging a toll of 5 centavos
for each cart which passed over the road, including carts belonging to the appellants, until restrained from continuing to do so by
the preliminary injunction granted in this case.
6. The Nanca-Victorias road constitutes the only outlet from the estates of appellants to the nearest public road which
is the provincial road which crosses the Hacienda Toreno from east to west.
Upon these facts the questions of law to be decided are:
(a) Is the Nanca-Victorias road a public highway?
(b) If the Nanca-Victorias road, or that part of it which crosses the Hacienda Toreno, is not a public highway, is it
subject to a private easement of way in favor of the appellees?
The defendants are the owners of the Hacienda Toreno under a Torrens title issued in accordance with the Land
Registration Act, conferring to them its absolute ownership, subject only to the limitations of paragraph four of section 39 of said
Act. It is admitted that there is no annotation on the certificate of title regarding the road here in question, either as a "public road"
or a a "private way established by law" and, therefore, the questions presented by this appeal are to be determined precisely as
they would be had the Hacienda Toreno not been brought under the operation of the Land Registration Act. The plaintiffs being
the owners of the property in question, the presumption of law is that it is free from any lien or encumbrance whatever, and the
burden therefore rests upon plaintiffs to establish the contrary. As this court said in the case of Fabie vs. Lichauco and the children
of Francisco L. Roxas (11 Phil. Rep., 14):
"It is a settled doctrine of law that a property is assumed to be free from all encumbrance unless
the contrary is proved."
There is admittedly no evidence to show that the land occupied by the road here in question was at any time conveyed
to the general government or any of its political subdivisions by the presents or any of the former owners of the Hacienda Toreno.
There is no evidence, even remotely, tending to show that the road existed prior to the time when the property now known as the
Hacienda Toreno passed from the State into private ownership. The record fails to disclose any evidence whatever tending to
show that the Government has at any time asserted any right or title in or to the land occupied by the road, or that it has incurred
any expense whatever in its upkeep or construction. The Civil Code defines as public roads those which are constructed by the
State (art. 339), and a provincial and town roads those " the expense of which is borne by such towns or provinces." (Civil Code,
art. 344.) While it is not contended that this definition is exclusive, it does show that during the Spanish regime, under normal
conditions, roads which were public were maintained at the public expense, and that the fact that at no time was any expense
incurred by the Government with respect to the road here in question tends strongly to support the contention of the defendants
that it is private way.
During the Spanish regime the law required each able bodied citizen not within one of the exempted classes to work
a certain number of days in each year, his labor to be devoted to "services of general utility" to the municipality of his residence.
(Royal Decree of July 11, 1883, Art. 5.) Under this Decree and the Regulations for its enforcement (Berriz, vol. 11, 258) the greater
part of the work on the public roads of the Islands was accomplished. Had the road here in question been a public way, it is
reasonable to assume that the polistas of the town of Victorias would have been employed in maintaining it. It is most significant
that no mention is made in the testimony of the plaintiffs' witnesses of any work of this character having been done on the road
at any time, particularly in view of the fact that their attention was drawn to this point. (Stet. notes, pp. 8, 10, 11, 12, 13, and 14.)
The evidence shows that the repairs were made by the owners of the estates benefited by the road, and by their
laborers, as a purely voluntary act for their own convenience and interest. There being no evidence of a direct grant to the
government of the land occupied by the road in question or that any Government funds or labor were expended upon it, the
question presents itself whether the use to which the road has been put was such as to justify the conclusion of the lower court
that it has become public property. There being no evidence that the original use of the road by plaintiffs' predecessors was based
upon any express grant of the fee to the road or of an easement of way, or that it began under the assertion of a right on their
part, the presumption must be that the origin of the use was the mere tolerance or license of the owners of the estates affected.
This being so, has that merely permissive use been converted into a title vested in the public at large, or in the plaintiffs
by reason of their ownership of the land beneficially affected by the use?
 Had it been shown that the road had been maintained at the public expense, with the acquiescence of the owners of
the estates crossed by it, this would indicate such adverse possession by the government as in course of time would ripen into
title or warrant the presumption of a grant or of a dedication. But in this case there is no such evidence, and the claims of plaintiffs,
whether regarded as members of the public asserting a right to use the road as such, or as persons claiming a private easement
of way over the land of another must be regarded as resting upon the mere fact of user.
If the owner of a tract of land, to accommodate his neighbors or the public in general, permits them to across his
property, it is reasonable to suppose that it is not his intention, in so doing, to divest himself of the ownership of the land so used,
or to establish an easement upon it, and that the persons to whom such permission, tacit or express, is granted, do not regard
their privilege of use as being based upon anything more than the mere tolerance of the owner. Clearly, such permissive use is
in its inception based upon an essentially revocable license. If the use continues for a long period of time, no change being made
in the relations of the parties by any express or implied agreement, does the owner of the property affected lose his right of
revocation? Or, putting the same question in another form, does the mere permissive use ripen into title by prescription?
It is a fundamental principle of the law in this jurisdiction concerning the possession of real property that such
possession is not affected by acts of a possessory character which are "merely tolerated" by the possessor, or which are due to
his license (Civil Code, arts. 444 and 1942). This principle is applicable not only with respect to the prescription of the dominium
as a whole, but, to the prescription of right in rem. In the case of Cortes vs. Palanca Yu-Tibo (2 Phil. Rep., 24, 38), the Court said:
"The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated
produce no effect with respect to possession is applicable as much to the prescription of real rights as to the
prescription of the fee, it being a glaring and self-evident error to affirm the contrary, as does the appellant in
his motion papers. Possession is the fundamental basis of the prescription. Without it no kind of prescription
is possible, not even the extraordinary. Consequently, if acts of mere tolerance produce no effect respect to
possession, at that article provides, in conformity with article 444 of the same Code, it is evident that they
can produce no effect with respect to prescription, whether the prescriptive acquisition be of a fee or of real
rights, for the same reason holds in one and the other case; that is, that there has been no true possession
in the legal sense of the word." (See also Ayala de Roxas vs. Maglonso, 8 Phil. Rep., 745; Municipality of
Caceres vs. Director of Lands and Roman Catholic Bishop of Nueva Caceres, 24 Phil. Rep., 485.)
Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be possession under claim
of title (en concepto de dueño), to use the common law equivalent of the term, it must be adverse. Acts of possessory character
performed by one who holds by mere tolerance of the owner are clearly not en concepto de dueño, and such possessory acts,
no matter how long so continued, do not start the running of the period of prescription.
A similar question was presented in the case of the Roman Catholic Archbishop of Manila vs. Roxas (22 Phil. Rep.,
450), in which case it appeared that Roxas, the owner of the Hacienda de San Pedro Macati, claimed a right of way across the
property of the church to Calle Tejeron, a public street of the town of San Pedro Macati. The proof showed that the road in question
had been used by the tenants of the Hacienda de San Pedro Macati for the passage of carts in coming and leaving the hacienda
"from time immemorial," and further that the road had been used for time out of mind, not only by the tenants of the hacienda but
by many other people in going and coming from a church half-way between the boundary line of the hacienda and Calle Tejeron.
The court held that the facts did not give rise to a perspective right of easement in favor of the owner of the hacienda, upon the
ground that such use "is to be regarded as permissive and under an implied license, and not adverse. Such a use is not
inconsistent with the only use which the proprietor thought fit to make of the land, and until the appellee thinks proper to enclose
it, such use is not adverse and will not preclude it from enclosing the land when other views of its interest render it proper to do
so. And though an adjacent proprietor may make such use of the open land more frequently than another, yet the same rule will
apply unless there be some decisive act indicating a separate and exclusive use under a claim of right. A different doctrine would
have a tendency to destroy all neighborhood accommodations in the way of travel; for if it were once understood that a man, by
allowing his neighbor to pass through his farm without objection over the pass-away which he used himself, would thereby, after
the lapse of time, confer a right on such neighbor to require the pass-way to be kept open for his benefit and enjoyment, a
prohibition against all such travel would immediately ensue."
The decisions of the supreme court of Louisiana, a State whose jurisdiction is based, as is our own, upon the Roman
Law, and whose Civil Code is taken, as is our own, very largely from the Code of Napoleon, are particularly persuasive in matters
of this character. In the case of Torres vs. Fargoust (37 La. Ann., 497), cited by appellants in their brief, in which the issues were
very similar to those of the present case, the court held that —
"The mere fact that for thirty or forty years the public was permitted to pass over this ground would
not of itself constitute the place a locus publicus . . . dedication must be shown by evidence so conclusive as
to exclude all idea of private ownership; . . . such dedication can not be inferred from mere user alone; . . .
no one is presumed to give away his property. The burden is on him who avers a divestiture of ownership to
prove it clearly.'
We are, therefore, of the opinion, and so hold, that upon the facts established by the evidence it does not appear that
the road in question is a public road or way. We are also of the opinion that plaintiff have failed to show that they have acquired
by prescription a private right of passage over the lands of defendants. The supreme court of Spain has decided that under the
law in force before the enactment of decided that under the law in force before the enactment of the Civil Code, the easement of
way was discontinuous, and that while such an easement might be acquired by prescription, it must be used in good faith, in the
belief of the existence of the right, and such user must have been continuous from time immemorial. (Judgment of December 15,
1882.) In the appealed decision the court below says that the plaintiff and their predecessors made use of the road in question
"from time immemorial," but there is no evidence whatever in the record to support this finding, although it is true that the evidence
shows the existence of the road and its use by the plaintiffs and their predecessors for thirty-five or forty years. Speaking of the
evidence required under the present Code of Civil Procedure to show immemorial use of an easement, this court said in the case
of Ayala de Roxas vs. Case (8 Phil. Rep., 197, 198):
"The third Partida in title 31, law 15 . . . says that discontinuous servitudes . . . must be proved by
usage or a term so long that men can not remember its commencement. . . . In many judgments the supreme
court of Spain has refused to accept proof of any definite number of years as a satisfaction of this requirement
of the law . . . We are of the opinion that in order to establish a right of prescription [title of prescription based
upon use from time immemorial] something more is required than the memory of living witnesses. Whether
this something should be the declaration of persons long dead, repeated by those who testify, as exacted by
the Spanish law, or should be the common reputation of ownership recognized by the Code of Procedure, it
is unnecessary for us to decide. On either theory the appellant has filed in this proof . . . "
The same thing may be said in this case. Witnesses has testified that they have known the road for a certain period
of years, beginning at a time prior to the enactment of the Civil Code, but no evidence has been made to prove immemorial use
by either of the means of proof mentioned in this decision cited, nor is immemorial user averred in the complaint as the basis of
the right. It is evident, therefore, that no vested right by user from immemorial had been acquired by plaintiffs at the time the Civil
Code took effect. Under that Code (art. 539) no discontinuous easement could be acquired by prescription in any event. Assuming,
without deciding, that this rule has been changed by the provisions of the present Code of Civil Procedure relating to prescription,
and that since its enactment discontinuous easement may be acquired by prescription, it is clear that this would not avail plaintiffs.
The Code of Civil Procedure went into effect on October 1, 1901. The term of prescription for the acquisition of rights in real estate
is fixed by the Code (sec. 41) at ten years. The evidence shows that in February, 1911, before the expiration of the term of ten
years since the time the Code of Civil Procedure took effect, the defendants interrupted the use of the road by plaintiffs by
constructing and maintaining a toll gate on it and collecting toll from persons making use of it with carts and continued preliminary
injunction by the trial court in December, 1912. Our conclusion is, therefore, that plaintiffs have not acquired by prescription a
right to an easement of way over the defendants' property; that their use of the Nanca-Victorias road across the Hacienda Toreno
was due merely to the tacit license and tolerance of the defendants and their predecessors in title; that the license was essentially
revocable; and that, therefore, the defendants were within their rights when they closed the road in 1911.
While in the allegation from plaintiffs' complaint it might be inferred that it was their purpose to seek to impose upon
defendants the easement to which arts. 564 et seq. of the Civil Code relate, that purpose was evidently abandoned, and the case
was tried upon a wholly different theory. Proof was offered to show that the right of passage across defendants' land is necessary
to enable plaintiffs to get their products to market, but there was no offer on their part to pay defendants the indemnity required
by section 564.
For the reasons stated the judgment of the court below is reversed, the injunction issued against defendants is
dissolved, and the action is dismissed. No costs will be allowed on this appeal. So ordered.
Arellano, C.J., Torres, Araullo, Street, Malcolm, and Avanceña, JJ., concur.
||| (Cuaycong v. Benedicto, G.R. No. 9989, [March 13, 1918], 37 PHIL 781-797)
SECOND DIVISION
[G.R. No. L-28066. September 22, 1976.]
PEREGRINA ASTUDILLO, petitioner-appellant, vs. THE BOARD OF DIRECTORS OF PEOPLE'S
HOMESITE AND HOUSING CORPORATION, RAMON P. MITRA, SALUD O. MITRA, and REGISTER OF
DEEDS, QUEZON CITY, respondents-appellees.
Jose Villa Agustin for petitioner-appellant.
San Juan, Africa, Gonzales & San Agustin for appellees Mitras.
Manuel L. Lazaro & Leonardo A. Reyes, Gov't. Corp. Counsel's Office for appellee Board of Director of the PHHC.
DECISION
AQUINO, J p:
Peregrina Astudillo appealed from the "resolution" dated April 18, 1967 of the Court of First Instance of Rizal, Quezon
City Branch V, granting the motion for summary judgment filed by Ramon P. Mitra and dismissing her petition
for certiorari and mandamus (Civil Case No. Q-8741). LibLex
According to the pleadings of respondents Mitra and the People's Homesite and Housing Corporation (PHHC) * , Mitra
on December 28, 1957 applied, in behalf of his minor son, Ramon Mitra Ocampo, for the purchase of Lot 16, Block E-155 of the
East Avenue Subdivision of the PHHC in Piñahan, Quezon City.
His application was approved on January 3, 1958. He made a downpayment of P840, an amount equivalent to ten
percent of the price of the lot. On September 9, 1961 the PHHC and Mitra executed a contract of conditional sale. After Mitra had
paid in full the price, which totalled more than nine thousand pesos, a final deed of sale was executed in his favor on February
18, 1965. Transfer Certificate of Title No. 89875 was issued to him on March 1, 1965.
The lot in question is actually in the possession of Peregrina Astudillo. She constructed thereon a residential house
(a shanty, according to Mitra). She admits that she has been squatting on the said lot "uninterruptedly since 1957 up to the
present" (p. 52, Record). She filed with the administrative investigating committee of the PHHC a request dated February 24,
1963, praying for the cancellation of the award of Lot 16 to Congressman Mitra and asking the committee to recommend that it
be re-awarded to her. No action was taken on that request.
On May 3, 1965 Peregrina filed in the lower court her aforementioned petition against the PHHC board of directors,
the register of deeds of Quezon City and the spouses Ramon P. Mitra and Salud O. Mitra. She questioned the legality of the
award of Lot 16 to Mitra. She asked that Lot 16 be sold to her.
After the respondents had filed their answers, the Mitra spouses filed a verified motion for summary judgment. They
assumed that there was no genuine issue as to any material fact. Peregrina Astudillo opposed the motion. The parties submitted
memoranda.
The lower court treated the motion for summary judgment as a motion to dismiss. It dismissed Peregrina's petition on
the grounds that she is a mala fide squatter and that the sale of Lot 16 to Mitra cannot be assailed by means
of certiorari and mandamus. Peregrina appealed to this Court.
 Her four assignments of error raise questions of law. She contends that the lower court erred in holding that certiorari
and mandamus do not lie in this case and that she has no right to question the award to Mitra, and in not holding that the award
of Lot 16 to him was in contravention of the Anti-Graft and Corrupt Practice Law and of the constitutional provision that a Senator
or Representative should not directly or indirectly be financially interested in any contract with the government of any subdivision
or instrumentality thereof during his term of office.
In the ultimate analysis the issue is whether Peregrina Astudillo has a cause of action to annul the sale of Lot 16 to
Mitra and to compel the PHHC board to award that lot to her.
We hold that she has no cause of action to impugn the award to Mitra and to require that she be allowed to purchase
the lot. As a squatter, she has no possessory rights over Lot 16. In the eyes of the law, the award to Mitra did not prejudice her
since she was bereft of any rights over the said lot which could have been impaired by that award (Bañez vs. Court of Appeals,
L-30351, September 11, 1974, 59 SCRA 15, 22).
The record does not show, and Peregrina does not claim, that she is a member of the Piñahan Homeowners
Association some of whose members are "deserving squatters" (Kempis vs. Gonzales, L-31701, October 31, 1974, 60 SCRA
439).
In the familiar language of procedure, she was not entitled to sue Mitra and the PHHC for the enforcement or protection
of a right, or the prevention of a wrong. Those respondents did not commit any delict or wrong in violation of her rights because,
in the first place, she has no right to the lot. Not being principally or subsidiarily bound in the contract of sale between Mitra and
the PHHC, she is not entitled to ask for its annulment (Art. 1397, Civil Code).
Peregrina invokes the PHHC charter (erroneously referred to as section 11 of Commonwealth Act No. 648) which
provides that the PHHC should acquire buildings so as to provide "decent housing for those who may be unable otherwise to
provide themselves therewith" and that it should acquire large estates for their resale to bona fide occupants.
Those provisions do not sustain her action in this case. They do not justify her act of squatting on a government-
owned lot and then demanding that the lot be sold to her because she does not yet own a residential lot and house. She is not
a bona fide occupant of Lot 16.
The State is committed to promote social justice and to maintain adequate social services in the field of housing (Secs.
6 and 7, Art. 11, New Constitution). But the State's solicitude for the destitute and the have-nots does not mean that it should
tolerate usurpations of property, public or private.
"In carrying out its social readjustment' policies, the government could not simply lay aside moral standards, and aim
to favor usurpers, squatters, and intruders, unmindful of the lawful and unlawful origin and character of their occupancy. Such a
policy would perpetuate conflicts instead of attaining their just solution" (Bernardo vs. Bernardo, 96 Phil. 202, 206).
Indeed, the government has enunciated a militant policy against squatters. Thus, Letter of Instruction No. 19 dated
October 2, 1972 orders city and district engineers "to remove all Illegal constructions, including buildings . . . and those built
without permits on public or private property" and provides for the relocation of squatters (68 O.G. 7962. See Letter of Instruction
No. 19-A). As noted by Justice Sanchez, "since the last global war, squatting on another's property in this country has become a
widespread vice" (City of Manila vs. Garcia, L-26053, February 21, 1967, 19 SCRA 413, 418).
The lower court did not err in holding that Peregrina Astudillo cannot use the special civil actions
of certiorari and mandamus to secure a judicial review of the award of Lot 16 to Mitra. Rule 65 of the Rules of Court provides:
"SECTION 1. Petition for certiorari. — When any tribunal, board, or officer exercising judicial
functions, has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there
is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings, as the law requires, of such tribunal, board or
officer.
"The petition shall be accompanied by a certified true copy of the judgment or order subject
thereof, together with copies of all pleadings and documents relevant and pertinent thereto."
"SEC. 3. Petition for mandamus. — When any tribunal, corporation, board, or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust,
or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other
is entitled, and there is no other plain, speedy and adequate remedy in the ordinary courts of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant, immediately or at some other specified time, to do
the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant."
Respondent PHHC board is not the board contemplated in section 1 of Rule 65. It does not exercise judicial functions.
The award being questioned was a routinary corporate act that was within the board's competence. No jurisdictional issue was
involved in that award. Certiorari lies only for the correction of jurisdictional errors (Gov't. of the P.I. vs. Judge of 1st Instance of
Iloilo, 34 Phil. 157, 159).
Nor is the relief sought by Peregrina Astudillo, which is to compel the PHHC board to cancel the award of Lot 16 to
Mitra and to resell it to her, a right that can be enforced by mandamus. What she wants is to force the PHHC to execute a contract
of sale in her favor. That is not within the purview of the writ of mandamus.
Thus, it was held that "the writ of mandamus is not an appropriate or even admissible remedy to enforce the
performance of a private contract which has not been fully performed by either party" (Quiogue vs. Romualdez, 46 Phil. 337). In
Jacinto vs. Director of Lands, 49 Phil. 853, a petition for a writ of mandamus to compel the Director of Lands to execute a deed
of conveyance for certain lots in favor of the petitioner was denied. Generally, title to property cannot be litigated in
a mandamus proceeding (City of Manila vs. Posadas, 48 Phil. 309, 337).
It is not a ministerial duty of the PHHC board to award Lot 16 to Peregrina. Anyway, it has already been shown that
as a squatter she is not clothed with any right to Lot 16 that may be enforced in a court of justice.
The PHHC board completely ignored the alleged demands of Peregrina for the purchase of Lot 16. It did not render
any decision against her. Its inaction cannot be assailed by certiorari or mandamus.
Peregrina's other assignment of error is that the award of Lot 16 to Congressman Mitra was a violation of section 3(h)
of the Anti-Graft and Corrupt Practices Law and of section 17, Article VI of the 1935 Constitution, now section 11, Article VIII of
the new Constitution.
On the other hand, Mitra contends that the PHHC performs proprietary functions. He observed that the following
highranking officials were awarded PHHC lots: Felixberto Serrano, Dominador Aytona, Manuel Lim, Fernando Lopez, Pacita M.
Gonzales, Genaro Magsaysay, Daniel Romualdez, Felipe A. Abrigo, Bartolome Cabangbang, Juan Duran, Manuel Enverga,
Angel Fernandez, Jose Nuguid, Antonio de Pio, Lorenzo Teves, Faustino Tobia, Pedro Trono, Marcelino Veloso and Valeriano
Yancha.
We are of the opinion that assignment of error need not be resolved in this case. Having shown that Peregrina has
no cause of action to assail the award of Lot 16 to Mitra, it follows that in this particular case she cannot assail that award by
invoking the provisions of the Anti-Graft and Corrupt Practices Law and the Constitution. This is not the proper forum for the
ventilation of that question. (See Commonwealth Act No. 626; Hernandez vs. Albano, 112 Phil. 506; Solidum and Concepcion,
Jr. vs. Hernandez, 117 Phil. 335). cdphil
WHEREFORE, the lower court's order of dismissal is affirmed. No costs.
SO ORDERED.
||| (Astudillo v. Board of Directors of People's Homesite and Housing Corp., G.R. No. L-28066, [September 22, 1976], 165 PHIL 19-26)
FIRST DIVISION
[G.R. No. L-57259. October 13, 1983.]
ANGEL P. PERAN, petitioner, vs. THE HONORABLE PRESIDING JUDGE, BRANCH II, COURT OF
FIRST INSTANCE OF SORSOGON, 10th JUDICIAL DISTRICT, RAMON ESPERA and ENCARNACION
EVASCO, as private-respondents, respondents.
Irene P. Escandor for petitioner.
Esteban Escalante, Jr. for private respondents.
SYLLABUS
1. CIVIL LAW; PROPERTY; POSSESSION; PROOF OF TITLE OR LAWFUL RIGHT THERETO, A PRE-REQUISITE;
CASE AT BAR. — Private respondents admit that the land in question was originally owned by Jose Evasco. The tax declarations
covering their house clearly state "house built on land owned by Jose Evasco under Tax No. 1599." Since the land had been
partitioned to Alejandro Evasco by his father, Jose Evasco, respondent Encarnacion can lay no claim to the property even as a
grand-daughter of Jose Evasco. Respondents may have been in possession of the portion they occupy prior to petitioner but they
have not proved their title thereto, nor their right to possess the same. As the 2nd Municipal Circuit Court of Bulusan-Barcelona
found, no concrete evidence was introduced by respondents on this point. Moreover, it is noteworthy that the validity of the
"Repartition Extra-judicial" whereby said lot was adjudicated to Mejandro Evasco by his father Jose Evasco, predecessors-in-
interest of petitioner, had never been challenged.
2. ID.; ID.; ID.; POSSESSION BY MERE TOLERANCE; BECOMES ILLEGAL UPON REFUSAL TO VACATE ON
DEMAND BY THE OWNER. — If at all, private respondents` possession of their portion of the property was by mere tolerance of
petitioner's predecessors- in-interest, which, however, does not vest in them a right which they can assert against petitioner.
Possession by tolerance is lawful, but this becomes illegal when, upon demand to vacate by the owner, the possessor refuses to
comply with such demand.
3. ID.; ID.; ID.; ID.; ID.; REMEDY THEREFOR. — A possessor by tolerance is necessarily bound by an implied
promise to vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. It is not necessary
that there be a formal agreement or contract of lease before an unlawful detainer suit may be filed against a possessor by
tolerance. Neither is prior physical possession of the property by petitioner an indispensable requisite. The ruling of respondent
Court, therefore, that since the only issue in forcible entry and illegal detainer action is the physical possession of real property
— possession de facto and not possession de jure — whoever has prior possession, no matter in what character, is protected by
law, is erroneous under the factual millieu herein.
4. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; EJECTMENT CASE; ONE-YEAR PERIOD WITHIN WHICH TO FILE
COMMENCES FROM THE TIME OF DEMAND TO VACATE. — A Forcible Entry and Unlawful Detainer action must be brought
within one year from the unlawful deprivation or withholding of possession. The one-year period of limitation commences from the
time of demand to vacate, and when several demands are made, the same is counted from the last letter of demand. Demand
may either be personal or in writing. The demand to vacate having been made by petitioner in January, 1979 and the enjectment
suit having been instituted on February 8, 1979, the 2nd Municipal Circuit Court of Bulusan-Barcelona acted well within its
jurisdiction in taking cognizance of the case.
DECISION
MELENCIO-HERRERA, J p:
The decision of the then Court of First Instance of Sorsogon, Branch II, Gubat, Sorsogon, rendered in the exercise of
its appellate jurisdiction, dismissing Civil Case No. 1277, entitled "Angel P. Peran vs. Encarnacion Evasco, et al.", for Forcible
Entry and Illegal Detainer, is being assailed in this Petition for Review on Certiorari on a question of law. Said Decision reversed
the judgment of the 2nd Municipal Circuit Court of Bulusan-Barcelona, Sorsogon, for Forcible Entry & Illegal Detainer.
The antecedent facts follow:
The property in question, an unregistered residential land, with an area of 1,225 square meters more or less, situated
at Tagdon, Barcelona, Sorsogon, was originally owned by Jose Evasco. On December 29, 1950, Jose Evasco executed a
'Reparticion Extrajudicial' whereby he partitioned his properties among his five heirs. 1 Subject property was one of those alloted
to his son, Alejandro Evasco, who had it surveyed in 1956 (Exhibits "I" and "I-1"), and who had it declared in his name under Tax
Declaration No. 1900. The other heirs received their own shares, one of them, the deceased Anacleto Evasco, one of whose
children was listed as Encarnacion, possibly, the principal private respondent herein.
 Alejandro Evasco sold his property to Jose E. Torella on December 31, 1972, 2 who declared it for taxation purposes
under Tax Declaration No. 5157. 3 On July 10, 1977, Jose E. Torella, in turn, sold the land to Jose Enriquez Sabater, 4 and the
latter also declared the property in his name under Tax Declaration No. 7127. 5 Petitioner Angel P. Peran acquired the land by
purchase from Jose Enriquez Sabater on December 27, 1978, 6 and subsequently declared it, too, in his name under Tax
Declaration No. 7310. 7 The sale was duly recorded in the Register of Deeds' Office of the province of Sorsogon on January 3,
1979 in accordance with the provisions of Sec. 194 of the Revised Administrative Code as amended by Act No. 3344.
Sometime in January 1979, petitioner personally asked private respondents, Encarnacion Evasco and her common-
law husband Ramon Espera, whose house is erected on a 440 square meter portion (44 sq. ms. according to petitioner) of the
lot in question, to remove the same and vacate the premises. Respondents refused, and consequently, a confrontation between
the parties was had before the Municipal Mayor of Barcelona and later before the Municipal Judge of Bulusan-Barcelona to settle
the dispute, but to no avail.
On February 8, 1979, petitioner filed a complaint for Forcible Entry and Illegal Detainer against private respondents
before the 2nd Municipal Circuit Court of Bulusan-Barcelona, seeking the ejectment of the latter from the portion in question
contending that respondents are mere squatters thereon; that they had prevented plaintiff from entering the property and deprived
him of possession; and that they were tolerating persons in getting soil and bringing about a gradual erosion of the land to his
extreme prejudice.
Private respondents answered denying the material allegations of the Complaint, and alleging that they are the lawful
possessors for more than twenty (20) years of the said portion, which formerly belonged to Jose Evasco, grandfather of
Encarnacion Evasco; and that petitioner has no right to eject them therefrom.
On September 1, 1979, the 2nd Municipal Circuit Court of Bulusan-Barcelona rendered its Decision ordering private
respondents to vacate the lot in question, return its possession to petitioner, reimburse him attorney's fees of P300.00 and litigation
expenses, and to pay the costs. Reconsideration of the said decision filed by private respondents was denied by said Court on
November 12, 1979. Private respondents appealed to respondent Court of First Instance of Sorsogon, Branch II. llcd
Respondent Court reversed the Municipal Circuit Court and dismissed the case on March 28, 1980, ruling that said
Court had no jurisdiction over the case as the same was filed only on February 4, (8), 1979, which was well beyond the one-year-
period of limitation, the cause of action having accrued from the sale of the property by Alejandro Evasco to Jose E. Torella on
December 31, 1972; and that since the only issue in an illegal detainer case is physical possession, "whoever has prior
possession, no matter in what character, is protected by law." Reconsideration of the said Decision sought by petitioner was
denied by respondent Court.
Petitioner appealed said judgment directly to this Tribunal on a question of law, raising as the lone issue:
. . . "whether the respondent court was in error when for purposes of determining the jurisdiction
of the 2nd Municipal Circuit Court of Bulusan-Barcelona, to try Civil Case No. 1227, for Illegal Detainer:
(a) it reckoned the counting of one-year period within which to file the action from the sale of the
property in question by Alejandro Evasco to Jose Torella on December 31, 1972 and not from the date of
demand made by the petitioner upon the respondents; and
(b) by assuming that `prior possession in whatever character is protected by law'."
We rule for petitioner.
Private respondents admit that the land in question was originally owned by Jose Evasco. The tax declarations
covering their house clearly state "house built on land owned by Jose Evasco under Tax No. 1599", 8 Since the land had been
partitioned to Alejandro Evasco by his father, Jose Evasco, respondent Encarnacion can lay no claim to the property even as a
grand-daughter of Jose Evasco. Respondents may have been in possession of the portion they occupy prior to petitioner but they
have not proved their title thereto, nor their right to possess the same. As the 2nd Municipal Circuit Court of Bulusan-Barcelona
found, no concrete evidence was introduced by respondents on this point. Moreover, it is noteworthy that the validity of the
`Reparticion Extrajudicial" whereby said lot was adjudicated to Alejandro Evasco by his father Jose Evasco, predecessors-in-
interest of petitioner, had never been challenged.
If at all, private respondents' possession of their portion of the property was by mere tolerance of petitioner's
predecessors-in-interest, which, however, does not vest in them a right which they can assert against petitioner. Possession by
tolerance is lawful, but this becomes illegal when, upon demand to vacate by the owner, the possessor refuses to comply with
such demand. 9 A possessor by tolerance is necessarily bound by an implied promise to vacate upon demand, failing which a
summary action for ejectment is the proper remedy against him. 10 It is not necessary that there be a formal agreement or contract
of lease before an unlawful detainer suit may be filed against a possessor by tolerance. 11 Neither is prior physical possession
of the property by petitioner an indispensable requisite. 12 The ruling of respondent Court, therefore, that "since the only issue in
forcible entry and illegal detainer action is the physical possession of real property — possession de facto and not possession de
jure — whoever has prior possession, no matter in what character, is protected by law," is erroneous under the factual milieu
herein.
A Forcible Entry and Unlawful Detainer action must be brought within one year from the unlawful deprivation or
withholding of possession. 13 The one-year-period of limitation commences from the time of demand to vacate, and when several
demands are made, the same is counted from the last letter of demand. 14 Demand may either be personal or in writing. 15 The
demand to vacate having been made by petitioner in January 1979, and the ejectment suit having been instituted on February 8,
1979, the 2nd Municipal Circuit Court of Bulusan-Barcelona acted well within its jurisdiction in taking cognizance of the case. prLL
WHEREFORE, the assailed Decision of respondent Court of First Instance of Sorsogon, Branch II, in Civil Case No.
1227, is SET ASIDE, and the Decision of the 2nd Municipal Circuit Court of Bulusan-Barcelona is hereby reinstated.
Costs against private respondents.
SO ORDERED.
Abad Santos, ** Plana, Escolin ** and Relova, JJ., concur.

||| (Peran v. Presiding Judge, Branch II, Court of First Instance of Sorsogon, G.R. No. L-57259, [October 13, 1983], 210 PHIL 60-66)