2nd week property cases

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G.R. No. L-19468 October 30, 1964

SALVADOR PIANSAY and CLAUDIA V. VDA. DE UY KIM, plaintiffs-appellants,vs.CONRADO S. DAVID and MARCOS MANGUBAT, defendants-appellees.

Santiago F. Alidio for plaintiffs-appellants.Marcos Mangubat in his own behalf and for co-defendant-appellee Conrado S. David.

CONCEPCION, J.:

This is an appeal from an order of the Court of First Instance of Manila in Civil Case No. 47664thereof. The pertinent facts are set forth in said order from which we quote:

It appears from the complaint that on December 11, 1948, defendant herein Conrado S.David received a loan of P3,000 with interest at 12% per annum from Claudia B. Vda. de UyKim, one of the plaintiffs, and to secure the payment of the same, Conrado S. Davidexecuted a chattel mortgage on a house situated at 1259 Sande Street, Tondo, Manila; that

the chattel mortgage was registered with the Register of Deeds of Manila on December 19,1948; that on February 10, 1953, the mortgaged house was sold at public auction to satisfythe indebtedness to Claudia B. Vda. de Uy Kim, and the house was sold to Claudia B. Vda.de Uy Kim in the said foreclosure proceedings; that on March 22, 1954, Claudia B. Vda. deUy Kim sold the said house to Marcos Mangubat, and on March 1, 1956. Marcos Mangubatfiled a complaint against Conrado S. David, Civil Case No. 29078, in the Court of FirstInstance of Manila, for the collection of the loan of P2,000; that on March 24, 1956, thecomplaint was amended to include the plaintiffs herein Salvador Piansay and Claudia B.Vda. de Uy Kim as party defendants and praying that auction sale executed by the Sheriff onFebruary 10, 1953, and the deed of absolute sale executed by Claudia B. Vda. de Uy Kim infavor of Salvador Piansay be annulled; that decision was rendered in Civil Case No. 29078ordering Conrado S. David to pay the plaintiff the sum of P2,000, damages and attorney'sfees, and dismissing the complaint with respect to Claudia B. Vda. de Uy Kim, Leonardo UyKim and Salvador Piansay; that upon appeal, the Court of Appeals affirmed the decision butsetting aside the award of damages in favor of Claudia B. Vda. de Uy Kim; that in theexecution of Civil Case No. 29078, which was affirmed by the Court of Appeals in CA-G.R.No. 21797-R, the house, which had been bought by Uy Kim at the foreclosure proceedingsand sold by her to Salvador Piansay, was levied upon at the instance of the defendantMarcos Mangubat; that to prevent the sale at public auction of the house here in question,the plaintiffs herein filed a petition forcertiorariandmandamus with preliminary injunction inthe Court of Appeals, CA-G.R. No. 28974-R, entitled Claudia B. Vda. de Uy Kimand Salvador Piansay versus Hon. Judge Jesus Y. Perez, et al.; that acting upon the saidpetition, the Court of Appeals in its order of April 28, 1961, denied the petition to lift ordischarge the writ of execution.

Thereupon, or on July 31, 1961, Piansay and Mrs. Uy Kim, hereinafter referred to as the plaintiffs,instituted the present action which was docketed as Civil Case No. 47664 of the Court of FirstInstance of Manila, against David and Mangubat, hereinafter referred to as the defendants. In theircomplaint, plaintiffs, after averring the foregoing facts, allege that, in the proceedings for theexecution of the decision in Civil Case No. 29078. David demanded from Piansay the payment ofrentals for the use and occupation of the house aforementioned, which, Piansay claims, is hisproperty, and that the defendants are threatening to cause said house to be levied upon and sold atpublic auction in violation of the alleged rights of the plaintiffs. Accordingly plaintiffs prayed that a writof preliminary injunction to restrain said levy and sale at public auction be issued and that, after


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appropriate proceedings, judgment be rendered declaring that Piansay is the true and lawful ownerof said house sentencing the defendants to pay damages and making the preliminary injunctionpermanent.

Mangubat moved to dismiss said complaint, upon the theory that the same is barred by the principleofres adjudicata and that plaintiffs have no personality to bring this action or to question the levy

upon the house in question, because they have no interest therein. After due hearing the lower courtissued the order appealed from, granting said motion and dismissing the complaint, with costsagainst the plaintiffs. A reconsideration of said order having been denied, plaintiffs interposed thepresent appeal directly to this Court only questions of law being raised in the appeal, namely: (1)applicability of the principle ofres adjudicata; and (2) validity of the chattel mortgage constituted infavor of Mrs. Uy Kim.

With reference to the first question, it should be noted that in case CA-G.R. No. 21797-R, the Courtof Appeals affirmed the decision in Case No. 29078 of the Court of First Instance of Manila stating:

In the case ofLadera, et al., vs. Hodges, et al. (CA-G.R. No. 8027-R, promulgated Sept. 23,1952) this Court, thru Justice J. B. L. Reyes, said, among others:

Since it is a rule in our law that buildings and constructions are regarded as mereaccesories to the land (following the Roman maxim omne quod solo inaedificatursolo credit) it is logical that said accessories should partaked of the nature of theprincipal thing, which is the land forming, as they do, but a single object (res) with itin contemplation of law.

... While it is true that said document was correspondingly registered in the ChattelMortgage Register of Rizal, this Act produced no effect whatsoever for where theinterest conveyed is in the nature of real property, the registration of the document inthe registry of chattels is merely a futile act. Thus the registration of the chattelmortgage of a building of strong materials produced no effect as far as the building isconcerned (Leung Yee vs. Strong Machinery Co., 37 Phil. 644). Nor can we give any

consideration to that contention of the surety that it has acquired ownership over theproperty in question by reason of the sale conducted by the Provincial Sheriff of Rizalfor as this court has aptly pronounced:

A mortgage creditor who purchases real properties at an extra-judicialforeclosure sale thereof by virtue of a chattel mortgage constituted in hisfavor, which mortgage has been declared null and void with respect to saidreal properties acquires no right thereto by virtue of said sale. (De la Riva vs.

Ah Kee, 60 Phil. 899).

Thus, Mrs. Uy Kim had no right to foreclose the alleged chattel mortgage constituted in herfavor, because it was in reality a mere contract of an unsecured loan. It follows that the

Sheriff was not authorized to sell thehouse as a result of the foreclosure of such chattelmortgage. And as Mrs. Uy Kim could not have acquired the house when the Sheriff sold it at

public auction, she could not, in the same token, it validly to Salvador Piansay. Concedingthat the contract of sale between Mrs. Uy Kim and Salvador Piansay was of no effect, wecannot nevertheless set it aside upon instance of Mangubat because, as the court belowopined, he is not a party thereto nor has he any interest in the subject matter therein, as itwas never sold or mortgaged to him (Emphasis supplied);


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that, thereafter, the records of the case were remanded to the Court of First Instance of Manila,which caused the corresponding writ of execution to be issued; that upon the request of Mangubat,the house in question was levied upon; that Piansay filed with the trial court, presided over by Hon.Jesus Y. Perez, Judge, a motion to set aside said levy; that this motion was denied by said court, inan order dated February 4, 1961, upon the following ground:

Considering that the decision rendered by the Court of Appeals in this case when the samewas elevated to said Court recognizes that defendant Claudia B. de Uy Kim did not acquirethe house of defendant Conrado S. Davidand can therefore be executed by the plaintiff tosatisfy the judgmentrendered against said defendant David in favor of the plaintiff. The merefact that the dispositive part of the decision states that the complaint is dismissed withrespect to defendants Claudia B. de Uy Kim, Leonardo Uy Kim and Salvador Piansay is ofno moment because the chattel mortgage executed by David in favor of Claudia B. de UyKim might not be annulled but it did not transmit any right from defendant David to Claudia B.de Uy Kim. The house in question can therefore be levied upon because it had remained the

property of defendant David(Emphasis supplied);

that a reconsideration of this order of February 4, 1961 having been denied by Judge Perez, onFebruary 25, 1961, plaintiffs instituted case CA-G.R. No. 28974-R of the Court of Appeals, for a writofcertiorariand mandamusto annul said orders of Judge Perez and to compel him to release saidhouse from the aforementioned levy; and that on March 3, 1961, the Court of Appeals denied saidpetition forcertiorariand mandamus "insofar as it prays that the order of respondent Judge denyingthe lifting and discharge of the writ of execution be set aside and revoked."

In other words, in Civil Case No. 29078 of the Court of First Instance of Manila, Piansay assailed theright of Mangubat to levy execution upon the house in question alleging that the same belongs tohim, he having bought it from Mrs. Uy Kim, who had acquired it at the auction sale held inconnection with the extrajudicial foreclosure of the chattel mortgage constituted in her favor byDavid. This pretense was, however, overruled by Judge Perez, who presided at said court, in itsorder of February 4, 1961, upon the theory that the chattel mortgage and sale in favor of Mrs. UyKim had been annulled in the original decision in said case, as affirmed by the Court of Appeals in

CA-G.R. No. 21797-R. Regardless of whether this theory is accurate or not, the fact is that saidorder became final and executory upon the denial of the petition for certiorari and mandamus, toannul the same in CA-G.R. No. 28974-R of the Court of Appeals. Hence, plaintiffs are now barredfrom asserting that the aforementioned chattel mortgage and sale are valid.

At any rate, regardless of the validity of a contract constituting a chattel mortgage on a house, asbetween the parties to said contract(Standard Oil Co. of N. Y. vs. Jaramillo, 44 Phil. 632-633), thesame cannot and does not bind third persons, who are not parties to the aforementioned contract ortheir privies (Leung Yee vs. Strong Machinery Co., 37 Phil. 644; Evangelista vs. Alto Surety, G.R.No. L-11139, April 23, 1958; Navarro vs. Pineda, G.R. No. L-18456, November 30, 1963). As aconsequence, the sale of the house in question in the proceedings for the extrajudicial foreclosure ofsaid chattel mortgage, is null and void insofar as defendant Mangubat is concerned, and did notconfer upon Mrs. Uy Kim, as buyer in said sale, any dominical right in and to said house (De la Rivavs. Ah Yee, 60 Phil. 800), so that she could not have transmitted to her assignee, plaintiff Piansayany such right as against defendant Mangubat. In short plaintiffs have no cause of action against thedefendants herein.

WHEREFORE, the others appealed from are hereby affirmed, with costs against plaintiffs SalvadorPiansay and Claudia B. Vda. de Uy Kim. It is so ordered.


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Bengzon, C.J., Bautista Angelo, Reyes, J.B.L. Barrera, Paredes, Dizon Regala, Makalintal,Bengzon, J.P. and Zaldivar, JJ., concur.

G.R. No. L-26278 August 4, 1927

LEON SIBAL , plaintiff-appellant,vs.EMILIANO J. VALDEZ ET AL., defendants.EMILIANO J. VALDEZ, appellee.

J. E. Blanco for appellant.Felix B. Bautista and Santos and Benitez for appellee.

JOHNSON, J .:

The action was commenced in the Court of First Instance of the Province of Tarlac on the 14th dayof December 1924. The facts are about as conflicting as it is possible for facts to be, in the trialcauses.

As a first cause of action the plaintiff alleged that the defendant Vitaliano Mamawal, deputy sheriff ofthe Province of Tarlac, by virtue of a writ of execution issued by the Court of First Instance ofPampanga, attached and sold to the defendant Emiliano J. Valdez the sugar cane planted by theplaintiff and his tenants on seven parcels of land described in the complaint in the third paragraph ofthe first cause of action; that within one year from the date of the attachment and sale the plaintiffoffered to redeem said sugar cane and tendered to the defendant Valdez the amount sufficient tocover the price paid by the latter, the interest thereon and any assessments or taxes which he may

have paid thereon after the purchase, and the interest corresponding thereto and that Valdezrefused to accept the money and to return the sugar cane to the plaintiff.

As a second cause of action, the plaintiff alleged that the defendant Emiliano J. Valdez wasattempting to harvest the palay planted in four of the seven parcels mentioned in the first cause ofaction; that he had harvested and taken possession of the palay in one of said seven parcels and inanother parcel described in the second cause of action, amounting to 300 cavans; and that all ofsaid palay belonged to the plaintiff.

Plaintiff prayed that a writ of preliminary injunction be issued against the defendant Emiliano J.Valdez his attorneys and agents, restraining them (1) from distributing him in the possession of theparcels of land described in the complaint; (2) from taking possession of, or harvesting the sugar

cane in question; and (3) from taking possession, or harvesting the palay in said parcels of land.Plaintiff also prayed that a judgment be rendered in his favor and against the defendants orderingthem to consent to the redemption of the sugar cane in question, and that the defendant Valdez becondemned to pay to the plaintiff the sum of P1,056 the value of palay harvested by him in the twoparcels above-mentioned ,with interest and costs.

On December 27, 1924, the court, after hearing both parties and upon approval of the bond forP6,000 filed by the plaintiff, issued the writ of preliminary injunction prayed for in the complaint.


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The defendant Emiliano J. Valdez, in his amended answer, denied generally and specifically eachand every allegation of the complaint and step up the following defenses:

(a) That the sugar cane in question had the nature of personal property and was not,therefore, subject to redemption;

(b) That he was the owner of parcels 1, 2 and 7 described in the first cause of action of thecomplaint;

(c) That he was the owner of the palay in parcels 1, 2 and 7; and

(d) That he never attempted to harvest the palay in parcels 4 and 5.

The defendant Emiliano J. Valdez by way of counterclaim, alleged that by reason of the preliminaryinjunction he was unable to gather the sugar cane, sugar-cane shoots (puntas de cana dulce) palayin said parcels of land, representing a loss to him of P8,375.20 and that, in addition thereto, hesuffered damages amounting to P3,458.56. He prayed, for a judgment (1) absolving him from allliability under the complaint; (2) declaring him to be the absolute owner of the sugar cane in question

and of the palay in parcels 1, 2 and 7; and (3) ordering the plaintiff to pay to him the sum ofP11,833.76, representing the value of the sugar cane and palay in question, including damages.

Upon the issues thus presented by the pleadings the cause was brought on for trial. After hearingthe evidence, and on April 28, 1926, the Honorable Cayetano Lukban, judge, rendered a judgmentagainst the plaintiff and in favor of the defendants

(1) Holding that the sugar cane in question was personal property and, as such, was notsubject to redemption;

(2) Absolving the defendants from all liability under the complaint; and

(3) Condemning the plaintiff and his sureties Cenon de la Cruz, Juan Sangalang and MarcosSibal to jointly and severally pay to the defendant Emiliano J. Valdez the sum of P9,439.08as follows:

(a) P6,757.40, the value of the sugar cane;

(b) 1,435.68, the value of the sugar-cane shoots;

(c) 646.00, the value of palay harvested by plaintiff;

(d) 600.00, the value of 150 cavans of palay which the defendant was not able toraise by reason of the injunction, at P4 cavan. 9,439.08 From that judgment the

plaintiff appealed and in his assignments of error contends that the lower court erred:(1) In holding that the sugar cane in question was personal property and, therefore,not subject to redemption;

(2) In holding that parcels 1 and 2 of the complaint belonged to Valdez, as well as parcels 7and 8, and that the palay therein was planted by Valdez;

(3) In holding that Valdez, by reason of the preliminary injunction failed to realized P6,757.40from the sugar cane and P1,435.68 from sugar-cane shoots (puntas de cana dulce);


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(4) In holding that, for failure of plaintiff to gather the sugar cane on time, the defendant wasunable to raise palay on the land, which would have netted him the sum of P600; and.

(5) In condemning the plaintiff and his sureties to pay to the defendant the sum of P9,439.08.

It appears from the record:

(1) That on May 11, 1923, the deputy sheriff of the Province of Tarlac, by virtue of writ ofexecution in civil case No. 20203 of the Court of First Instance of Manila (Macondray & Co.,Inc. vs. Leon Sibal),levied an attachment on eight parcels of land belonging to said LeonSibal, situated in the Province of Tarlac, designated in the second of attachment as parcels1, 2, 3, 4, 5, 6, 7 and 8 (Exhibit B, Exhibit 2-A).

(2) That on July 30, 1923, Macondray & Co., Inc., bought said eight parcels of land, at theauction held by the sheriff of the Province of Tarlac, for the sum to P4,273.93, having paid forthe said parcels separately as follows (Exhibit C, and 2-A):

Parcel

1 ..................................................................... P1.00

2 ..................................................................... 2,000.00

3 ..................................................................... 120.93

4 ..................................................................... 1,000.00

5 ..................................................................... 1.00

6 ..................................................................... 1.00

7 with the house thereon .......................... 150.00

8 ..................................................................... 1,000.00==========

4,273.93

(3) That within one year from the sale of said parcel of land, and on the 24th day ofSeptember, 1923, the judgment debtor, Leon Sibal, paid P2,000 to Macondray & Co., Inc.,for the account of the redemption price of said parcels of land, without specifying theparticular parcels to which said amount was to applied. The redemption price said eightparcels was reduced, by virtue of said transaction, to P2,579.97 including interest (Exhibit Cand 2).

The record further shows:

(1) That on April 29, 1924, the defendant Vitaliano Mamawal, deputy sheriff of the Provinceof Tarlac, by virtue of a writ of execution in civil case No. 1301 of the Province of Pampanga(Emiliano J. Valdez vs. Leon Sibal 1. the same parties in the present case), attached the


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personal property of said Leon Sibal located in Tarlac, among which was included the sugarcane now in question in the seven parcels of land described in the complaint (Exhibit A).

(2) That on May 9 and 10, 1924, said deputy sheriff sold at public auction said personalproperties of Leon Sibal, including the sugar cane in question to Emilio J. Valdez, who paidtherefor the sum of P1,550, of which P600 was for the sugar cane (Exhibit A).

(3) That on April 29,1924, said deputy sheriff, by virtue of said writ of execution, alsoattached the real property of said Leon Sibal in Tarlac, including all of his rights, interest andparticipation therein, which real property consisted of eleven parcels of land and a house andcamarin situated in one of said parcels (Exhibit A).

(4) That on June 25, 1924, eight of said eleven parcels, including the house and the camarin,were bought by Emilio J. Valdez at the auction held by the sheriff for the sum of P12,200.Said eight parcels were designated in the certificate of sale as parcels 1, 3, 4, 5, 6, 7, 10 and11. The house and camarin were situated on parcel 7 (Exhibit A).

(5) That the remaining three parcels, indicated in the certificate of the sheriff as parcels 2, 12,

and 13, were released from the attachment by virtue of claims presented by AgustinCuyugan and Domiciano Tizon (Exhibit A).

(6) That on the same date, June 25, 1924, Macondray & Co. sold and conveyed to Emilio J.Valdez for P2,579.97 all of its rights and interest in the eight parcels of land acquired by it atpublic auction held by the deputy sheriff of Tarlac in connection with civil case No. 20203 ofthe Court of First Instance of Manila, as stated above. Said amount represented the unpaidbalance of the redemption price of said eight parcels, after payment by Leon Sibal of P2,000on September 24, 1923, fro the account of the redemption price, as stated above. (Exhibit Cand 2).

The foregoing statement of facts shows:

(1) The Emilio J. Valdez bought the sugar cane in question, located in the seven parcels ofland described in the first cause of action of the complaint at public auction on May 9 and 10,1924, for P600.

(2) That on July 30, 1923, Macondray & Co. became the owner of eight parcels of landsituated in the Province of Tarlac belonging to Leon Sibal and that on September 24, 1923,Leon Sibal paid to Macondray & Co. P2,000 for the account of the redemption price of saidparcels.

(3) That on June 25, 1924, Emilio J. Valdez acquired from Macondray & Co. all of its rightsand interest in the said eight parcels of land.

(4) That on June 25, 1924, Emilio J. Valdez also acquired all of the rights and interest whichLeon Sibal had or might have had on said eight parcels by virtue of the P2,000 paid by thelatter to Macondray.

(5) That Emilio J. Valdez became the absolute owner of said eight parcels of land.

The first question raised by the appeal is, whether the sugar cane in question is personal or realproperty. It is contended that sugar cane comes under the classification of real property as


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"ungathered products" in paragraph 2 of article 334 of the Civil Code. Said paragraph 2 of article 334enumerates as real property the following: Trees, plants, and ungathered products, while they areannexed to the land or form an integral part of any immovable property." That article, however, hasreceived in recent years an interpretation by the Tribunal Supremo de Espaa, which holds that,under certain conditions, growing crops may be considered as personal property. (Decision of March18, 1904, vol. 97, Civil Jurisprudence of Spain.)

Manresa, the eminent commentator of the Spanish Civil Code, in discussing section 334 of the CivilCode, in view of the recent decisions of the supreme Court of Spain, admits that growing crops aresometimes considered and treated as personal property. He says:

No creemos, sin embargo, que esto excluya la excepcionque muchos autores hacen tocantea la venta de toda cosecha o de parte de ella cuando aun no esta cogida (cosa frecuentecon la uvay y la naranja), y a la de lenas, considerando ambas como muebles. El TribunalSupremo, en sentencia de 18 de marzo de 1904, al entender sobre un contrato dearrendamiento de un predio rustico, resuelve que su terminacion por desahucio no extinguelos derechos del arrendario, para recolectar o percibir los frutos correspondientes al aoagricola, dentro del que nacieron aquellos derechos, cuando el arrendor ha percibido a suvez el importe de la renta integra correspondiente, aun cuando lo haya sido por preceptolegal durante el curso del juicio, fundandose para ello, no solo en que de otra suerte se dariaal desahucio un alcance que no tiene, sino en que, y esto es lo interesante a nuestroproposito, la consideracion de inmuebles que el articulo 334 del Codigo Civil atribuge a losfrutos pendientes, no les priva del caracter de productos pertenecientes, como tales, aquienes a ellos tenga derecho, Ilegado el momento de su recoleccion.

x x x x x x x x x

Mas actualmente y por virtud de la nueva edicion de la Ley Hipotecaria, publicada en 16 dediciembre de 1909, con las reformas introducidas por la de 21 de abril anterior, la hipoteca,salvo pacto expreso que disponga lo contrario, y cualquiera que sea la naturaleza y formade la obligacion que garantice, no comprende los frutos cualquiera que sea la situacion en

que se encuentre. (3 Manresa, 5. edicion, pags. 22, 23.)

From the foregoing it appears (1) that, under Spanish authorities, pending fruits and ungatheredproducts may be sold and transferred as personal property; (2) that the Supreme Court of Spain, in acase of ejectment of a lessee of an agricultural land, held that the lessee was entitled to gather theproducts corresponding to the agricultural year, because said fruits did not go with the land butbelonged separately to the lessee; and (3) that under the Spanish Mortgage Law of 1909, asamended, the mortgage of a piece of land does not include the fruits and products existing thereon,unless the contract expressly provides otherwise.

An examination of the decisions of the Supreme Court of Louisiana may give us some light on thequestion which we are discussing. Article 465 of the Civil Code of Louisiana, which corresponds to

paragraph 2 of article 334 of our Civil Code, provides: "Standing crops and the fruits of trees notgathered, and trees before they are cut down, are likewise immovable, and are considered as part ofthe land to which they are attached."

The Supreme Court of Louisiana having occasion to interpret that provision, held that in some cases"standing crops" may be considered and dealt with as personal property. In the case ofLumber Co.vs. Sheriff and Tax Collector(106 La., 418) the Supreme Court said: "True, by article 465 of the CivilCode it is provided that 'standing crops and the fruits of trees not gathered and trees before they arecut down . . . are considered as part of the land to which they are attached, but the immovability


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provided for is only one in abstracto and without reference to rights on or to the crop acquired byothers than the owners of the property to which the crop is attached. . . . The existence of a right onthe growing crop is a mobilization by anticipation, a gathering as it were in advance, rendering thecrop movable quoad the right acquired therein. Our jurisprudence recognizes the possiblemobilization of the growing crop." (Citizens' Bank vs. Wiltz, 31 La. Ann., 244; Porche vs. Bodin, 28La., Ann., 761; Sandel vs. Douglass, 27 La. Ann., 629; Lewis vs. Klotz, 39 La. Ann., 267.)

"It is true," as the Supreme Court of Louisiana said in the case of Porche vs. Bodin (28 La. An., 761)that "article 465 of the Revised Code says that standing crops are considered as immovable and aspart of the land to which they are attached, and article 466 declares that the fruits of an immovablegathered or produced while it is under seizure are considered as making part thereof, and incurredto the benefit of the person making the seizure. But the evident meaning of these articles, is wherethe crops belong to the owner of the plantation they form part of the immovable, and where it isseized, the fruits gathered or produced inure to the benefit of the seizing creditor.

A crop raised on leased premises in no sense forms part of the immovable. It belongs to thelessee, and may be sold by him, whether it be gathered or not, and it may be sold by his

judgment creditors. If it necessarily forms part of the leased premises the result would be thatit could not be sold under execution separate and apart from the land. If a lessee obtainsupplies to make his crop, the factor's lien would not attach to the crop as a separate thingbelonging to his debtor, but the land belonging to the lessor would be affected with therecorded privilege. The law cannot be construed so as to result in such absurdconsequences.

In the case ofCitizen's Bank vs. Wiltz(31 La. Ann., 244)the court said:

If the crop quoadthe pledge thereof under the act of 1874 was an immovable, it would bedestructive of the very objects of the act, it would render the pledge of the crop objects of theact, it would render the pledge of the crop impossible, for if the crop was an inseparable partof the realty possession of the latter would be necessary to that of the former; but such is notthe case. True, by article 465 C. C. it is provided that "standing crops and the fruits of trees

not gathered and trees before they are cut down are likewise immovable and are consideredas part of the land to which they are attached;" but the immovability provided for is onlyone in abstracto and without reference to rights on or to the crop acquired by other than theowners of the property to which the crop was attached. The immovability of a growing crop isin the order of things temporary, for the crop passes from the state of a growing to that of agathered one, from an immovable to a movable. The existence of a right on the growing cropis a mobilization by anticipation, a gathering as it were in advance, rendering the cropmovable quoadthe right acquired thereon. The provision of our Code is identical with theNapoleon Code 520, and we may therefore obtain light by an examination of the

jurisprudence of France.

The rule above announced, not only by the Tribunal Supremo de Espaa but by the Supreme Court

of Louisiana, is followed in practically every state of the Union.

From an examination of the reports and codes of the State of California and other states we find thatthe settle doctrine followed in said states in connection with the attachment of property andexecution of judgment is, that growing crops raised by yearly labor and cultivation are consideredpersonal property. (6 Corpuz Juris, p. 197; 17 Corpus Juris, p. 379; 23 Corpus Juris, p. 329:Raventas vs. Green, 57 Cal., 254; Norris vs. Watson, 55 Am. Dec., 161; Whipple vs. Foot, 3 Am.Dec., 442; 1 Benjamin on Sales, sec. 126; McKenzie vs. Lampley, 31 Ala., 526; Crinevs. Tifts and


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Co., 65 Ga., 644; Gillitt vs. Truax, 27 Minn., 528; Preston vs. Ryan, 45 Mich., 174; Freeman onExecution, vol. 1, p. 438; Drake on Attachment, sec. 249; Mechem on Sales, sec. 200 and 763.)

Mr. Mechem says that a valid sale may be made of a thing, which though not yet actually inexistence, is reasonably certain to come into existence as the natural increment or usual incident ofsomething already in existence, and then belonging to the vendor, and then title will vest in the buyer

the moment the thing comes into existence. (Emerson vs. European Railway Co., 67 Me., 387;Cutting vs. Packers Exchange, 21 Am. St. Rep., 63.) Things of this nature are said to have apotential existence. A man may sell property of which he is potentially and not actually possessed.He may make a valid sale of the wine that a vineyard is expected to produce; or the gain a field maygrow in a given time; or the milk a cow may yield during the coming year; or the wool that shallthereafter grow upon sheep; or what may be taken at the next cast of a fisherman's net; or fruits togrow; or young animals not yet in existence; or the good will of a trade and the like. The thing sold,however, must be specific and identified. They must be also owned at the time by the vendor.(Hull vs. Hull, 48 Conn., 250 [40 Am. Rep., 165].)

It is contended on the part of the appellee that paragraph 2 of article 334 of the Civil Code has beenmodified by section 450 of the Code of Civil Procedure as well as by Act No. 1508, the ChattelMortgage Law. Said section 450 enumerates the property of a judgment debtor which may besubjected to execution. The pertinent portion of said section reads as follows: "All goods, chattels,moneys, and other property, both real and personal, * * * shall be liable to execution. Said section450 and most of the other sections of the Code of Civil Procedure relating to the execution of

judgment were taken from the Code of Civil Procedure of California. The Supreme Court ofCalifornia, under section 688 of the Code of Civil Procedure of that state (Pomeroy, p. 424) has held,without variation, that growing crops were personal property and subject to execution.

Act No. 1508, the Chattel Mortgage Law, fully recognized that growing crops are personal property.Section 2 of said Act provides: "All personal property shall be subject to mortgage, agreeably to theprovisions of this Act, and a mortgage executed in pursuance thereof shall be termed a chattelmortgage." Section 7 in part provides: "If growing crops be mortgaged the mortgage may contain anagreement stipulating that the mortgagor binds himself properly to tend, care for and protect the crop

while growing.

It is clear from the foregoing provisions that Act No. 1508 was enacted on the assumption that"growing crops" are personal property. This consideration tends to support the conclusionhereinbefore stated, that paragraph 2 of article 334 of the Civil Code has been modified by section450 of Act No. 190 and by Act No. 1508 in the sense that "ungathered products" as mentioned insaid article of the Civil Code have the nature of personal property. In other words, the phrase"personal property" should be understood to include "ungathered products."

At common law, and generally in the United States, all annual crops which are raised byyearly manurance and labor, and essentially owe their annual existence to cultivation byman, . may be levied on as personal property." (23 C. J., p. 329.) On this question Freeman,

in his treatise on the Law of Executions, says: "Crops, whether growing or standing in thefield ready to be harvested, are, when produced by annual cultivation, no part of the realty.They are, therefore, liable to voluntary transfer as chattels. It is equally well settled that theymay be seized and sold under execution. (Freeman on Executions, vol. p. 438.)

We may, therefore, conclude that paragraph 2 of article 334 of the Civil Code has been modified bysection 450 of the Code of Civil Procedure and by Act No. 1508, in the sense that, for the purpose ofattachment and execution, and for the purposes of the Chattel Mortgage Law, "ungathered products"


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have the nature of personal property. The lower court, therefore, committed no error in holding thatthe sugar cane in question was personal property and, as such, was not subject to redemption.

All the other assignments of error made by the appellant, as above stated, relate to questions of factonly. Before entering upon a discussion of said assignments of error, we deem it opportune to takespecial notice of the failure of the plaintiff to appear at the trial during the presentation of evidence by

the defendant. His absence from the trial and his failure to cross-examine the defendant have lentconsiderable weight to the evidence then presented for the defense.

Coming not to the ownership of parcels 1 and 2 described in the first cause of action of thecomplaint, the plaintiff made a futile attempt to show that said two parcels belonged to AgustinCuyugan and were the identical parcel 2 which was excluded from the attachment and sale of realproperty of Sibal to Valdez on June 25, 1924, as stated above. A comparison of the description ofparcel 2 in the certificate of sale by the sheriff (Exhibit A) and the description of parcels 1 and 2 ofthe complaint will readily show that they are not the same.

The description of the parcels in the complaint is as follows:

1. La caa dulce sembrada por los inquilinos del ejecutado Leon Sibal 1. en una parcela deterreno de la pertenencia del citado ejecutado, situada en Libutad, Culubasa, Bamban,Tarlac, de unas dos hectareas poco mas o menos de superficie.

2. La caa dulce sembrada por el inquilino del ejecutado Leon Sibal 1., Ilamado AlejandroPolicarpio, en una parcela de terreno de la pertenencia del ejecutado, situada en Dalayap,Culubasa, Bamban, Tarlac de unas dos hectareas de superficie poco mas o menos." Thedescription of parcel 2 given in the certificate of sale (Exhibit A) is as follows:

2a. Terreno palayero situado en Culubasa, Bamban, Tarlac, de 177,090 metros cuadradosde superficie, linda al N. con Canuto Sibal, Esteban Lazatin and Alejandro Dayrit; al E. conFrancisco Dizon, Felipe Mau and others; al S. con Alejandro Dayrit, Isidro Santos andMelecio Mau; y al O. con Alejandro Dayrit and Paulino Vergara. Tax No. 2854, vadoramillarado P4,200 pesos.

On the other hand the evidence for the defendant purported to show that parcels 1 and 2 of thecomplaint were included among the parcels bought by Valdez from Macondray on June 25, 1924,and corresponded to parcel 4 in the deed of sale (Exhibit B and 2), and were also included amongthe parcels bought by Valdez at the auction of the real property of Leon Sibal on June 25, 1924, andcorresponded to parcel 3 in the certificate of sale made by the sheriff (Exhibit A). The description ofparcel 4 (Exhibit 2) and parcel 3 (Exhibit A) is as follows:

Parcels No. 4. Terreno palayero, ubicado en el barrio de Culubasa,Bamban, Tarlac, I. F.de 145,000 metros cuadrados de superficie, lindante al Norte con Road of the barrio ofCulubasa that goes to Concepcion; al Este con Juan Dizon; al Sur con Lucio Mao y Canuto

Sibal y al Oeste con Esteban Lazatin, su valor amillarado asciende a la suma de P2,990.Tax No. 2856.

As will be noticed, there is hardly any relation between parcels 1 and 2 of the complaint and parcel 4(Exhibit 2 and B) and parcel 3 (Exhibit A). But, inasmuch as the plaintiff did not care to appear at thetrial when the defendant offered his evidence, we are inclined to give more weight to the evidenceadduced by him that to the evidence adduced by the plaintiff, with respect to the ownership ofparcels 1 and 2 of the compliant. We, therefore, conclude that parcels 1 and 2 of the complaint


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belong to the defendant, having acquired the same from Macondray & Co. on June 25, 1924, andfrom the plaintiff Leon Sibal on the same date.

It appears, however, that the plaintiff planted the palay in said parcels and harvested therefrom 190cavans. There being no evidence of bad faith on his part, he is therefore entitled to one-half of thecrop, or 95 cavans. He should therefore be condemned to pay to the defendant for 95 cavans only,

at P3.40 a cavan, or the sum of P323, and not for the total of 190 cavans as held by the lower court.

As to the ownership of parcel 7 of the complaint, the evidence shows that said parcel corresponds toparcel 1 of the deed of sale of Macondray & Co, to Valdez (Exhibit B and 2), and to parcel 4 in thecertificate of sale to Valdez of real property belonging to Sibal, executed by the sheriff as abovestated (Exhibit A). Valdez is therefore the absolute owner of said parcel, having acquired the interestof both Macondray and Sibal in said parcel.

With reference to the parcel of land in Pacalcal, Tarlac, described in paragraph 3 of the secondcause of action, it appears from the testimony of the plaintiff himself that said parcel corresponds toparcel 8 of the deed of sale of Macondray to Valdez (Exhibit B and 2) and to parcel 10 in the deed ofsale executed by the sheriff in favor of Valdez (Exhibit A). Valdez is therefore the absolute owner of

said parcel, having acquired the interest of both Macondray and Sibal therein.

In this connection the following facts are worthy of mention:

Execution in favor of Macondray & Co., May 11, 1923. Eight parcels of land were attached undersaid execution. Said parcels of land were sold to Macondray & Co. on the 30th day of July, 1923.Rice paid P4,273.93. On September 24, 1923, Leon Sibal paid to Macondray & Co. P2,000 on theredemption of said parcels of land. (See Exhibits B and C ).

Attachment, April 29, 1924, in favor of Valdez. Personal property of Sibal was attached, including thesugar cane in question. (Exhibit A) The said personal property so attached, sold at public auctionMay 9 and 10, 1924. April 29, 1924, the real property was attached under the execution in favor ofValdez (Exhibit A). June 25, 1924, said real property was sold and purchased by Valdez (Exhibit A).

June 25, 1924, Macondray & Co. sold all of the land which they had purchased at public auction onthe 30th day of July, 1923, to Valdez.

As to the loss of the defendant in sugar cane by reason of the injunction, the evidence shows thatthe sugar cane in question covered an area of 22 hectares and 60 ares (Exhibits 8, 8-b and 8-c); thatsaid area would have yielded an average crop of 1039 picos and 60 cates; that one-half of thequantity, or 519 picos and 80 cates would have corresponded to the defendant, as owner; thatduring the season the sugar was selling at P13 a pico (Exhibit 5 and 5-A). Therefore, the defendant,as owner, would have netted P 6,757.40 from the sugar cane in question. The evidence also showsthat the defendant could have taken from the sugar cane 1,017,000 sugar-cane shoots (puntas decana) and not 1,170,000 as computed by the lower court. During the season the shoots were selling

at P1.20 a thousand (Exhibits 6 and 7). The defendant therefore would have netted P1,220.40 fromsugar-cane shoots and not P1,435.68 as allowed by the lower court.

As to the palay harvested by the plaintiff in parcels 1 and 2 of the complaint, amounting to 190cavans, one-half of said quantity should belong to the plaintiff, as stated above, and the other half tothe defendant. The court erred in awarding the whole crop to the defendant. The plaintiff shouldtherefore pay the defendant for 95 cavans only, at P3.40 a cavan, or P323 instead of P646 asallowed by the lower court.


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The evidence also shows that the defendant was prevented by the acts of the plaintiff fromcultivating about 10 hectares of the land involved in the litigation. He expected to have raised about600 cavans of palay, 300 cavans of which would have corresponded to him as owner. The lowercourt has wisely reduced his share to 150 cavans only. At P4 a cavan, the palay would have nettedhim P600.

In view of the foregoing, the judgment appealed from is hereby modified. The plaintiff and hissureties Cenon de la Cruz, Juan Sangalang and Marcos Sibal are hereby ordered to pay to thedefendant jointly and severally the sum of P8,900.80, instead of P9,439.08 allowed by the lowercourt, as follows:

P6,757.40 for the sugar cane;

1,220.40 for the sugar cane shoots;

323.00 for the palay harvested by plaintiff in parcels 1 and 2;

600.00 for the palay which defendant could have raised.

8,900.80============

In all other respects, the judgment appealed from is hereby affirmed, with costs. So ordered.

Street, Malcolm, Villamor, Romualdez and Villa-Real., JJ., concur.

G.R. No. L-11407 October 30, 1917

FAUSTO RUBISO and BONIFACIO GELITO, plaintiff-appellee,vs.FLORENTINO E. RIVERA, defendant-appellant.

Francisco Sevilla for appellant.Salvador Q. Araullo for appellee.

TORRES, J .:

This appeal by bill of exceptions was filed by counsel for Florentino E. Rivera against thejudgment of September 6, 1915, in which the defendant and appellant was ordered to place at thedisposal of the plaintiff Fausto Rubiso the pilot boat in litigation. No special finding was made forcosts.


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On April 10, 1915, counsel for plaintiff brought suit in the Court of the First Instance of this cityand alleged in the complaint that his clients were the owners of the pilot boat named Valentina,which had been in bad condition since the year 1914 and, on the date of the complaint, wasstranded in the place called Tingloy, of the municipality of Bauan, Batangas; that the defendantFlorentino E. Rivera took charge or possession of said vessel without the knowledge or consent ofthe plaintiff and refused to deliver it to them, under claim that he was the owner thereof; and that

such procedure on the defendant's part caused the plaintiffs to suffer damages, not only becausethey could not proceed to repair the vessel, but also because they were unable to derive profit fromthe voyages for which said pilot boat was customarily used; and that the net amount of suchuncollected profit was P1,750. The complaint terminated with a petition that judgment be renderedby ordering the defendant to deliver said pilot boat to the plaintiffs and indemnify them in the amountaforementioned or in such amount as should be proven at trial, and to pay the costs.

Counsel for the defendant entered a general and specific denial of all the facts set forth in thecomplaint, with the exception of those admitted in the special defense and consisting in that saidpilot boat belonged to the concern named "Gelito and Co.," Bonifacio Gelito being a copartnerthereof to the extent of two-thirds, and the Chinaman Sy Qui, to that of the one-third, of the value ofsaid vessel; the subsequently Bonifacio Gelito sold his share to his copartner Sy Qui, as attested bythe instrument Exhibit A, registered in the office of the Collector of Customs and made a part of hisanswer; that later said Chinaman, the absolute owner of the vessel, sold it in turn to the defendantRivera, according to the public instrument, also attached to his answer as Exhibit B; and that, for thereason, Rivera took possession of said pilot boat Valentina, as its sole owner. He thereforepetitioned that the defendant be absolved from the complaint, with the costs against the plaintiff.

After the hearing of the case and introduction of documentary evidence, the judgment ofSeptember 6, 1915, was rendered, from which counsel for the defendant appealed and moved for anew trial. This motion was denied and the appellant excepted.

The record shows it to have been fully proven that Bonifacio Gelito sold his share in the pilotboat Valentina, consisting of a two-thirds interest therein, to the Chinaman Sy Qui, the coowner ofthe other one-third interest in said vessel; wherefore this vendor is no longer entitled to exercise any

action whatever in respect to the boat in question. Gelito was one of the partnership owners ofthe Valentina, as in fact his name appears in the certificate of protection issued by the Bureau ofCustoms, and the rights he held are evidenced by the articles of partnership; but, the wholeownership in the vessel having been consolidated in behalf of the Chinaman Sy Qui, this latter, inthe use of his right as the sole owner of the Valentina, sold this boat to Florentino E. Rivera forP2,500, on January 4, 1915, which facts, are set forth in a deed ratified on the same date before anotary. This document was registered in the Bureau of Customs on March 17th of the same year.

On the 23d of January of that year, that is, after the sale of the boat to the defendant Rivera,suit having been brought in the justice of the peace court against the Chinaman Sy Qui to enforcepayment of a certain sum of money, the latter's creditor Fausto Rubiso, the herein plaintiff, acquiredsaid vessel at a public auction sale and for the sum of P55.45. The certificate of sale andadjudication of the boat in question was issued by the sheriff on behalf of Fausto Rubiso, in theoffice of the Collector of Customs, on January 27 of the same year and was also entered in thecommercial registry on the 14th of March, following.

So that the pilot boat Valentina was twice sold: first privately by its owner Sy Qui to thedefendant Florentino E. Rivera, on January 4, 1915, and afterwards by the sheriff at public auction inconformity with the order contained in the judgment rendered by the justice of the peace, court, onJanuary 23 of the same year, against the Chinaman Sy Qui and in behalf of the plaintiff, FaustoRubiso.


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It is undeniable that the defendant Rivera acquired by purchase the pilot boat Valentina on adate prior to that of the purchase and adjudication made at public auction, by and on behalf of theplaintiff Rubiso; but it is no less true that the sale of the vessel by Sy Qui to Florentino E. Rivera, onJanuary 4, 1915, was entered in the customs registry only on March 17, 1915, while its sale at publicauction to Fausto Rubiso on the 23d of January of the same year, 1915, was recorded in the officeof the Collector of Customs on the 27th of the same month, and in the commercial registry on the 4th

of March, following; that is, the sale on behalf of the defendant Rivera was prior to that made atpublic auction to Rubiso, but the registration of this latter sale was prior by many days to the salemade to the defendant.

Article 573 of the Code of Commerce provides, in its first paragraph:

Merchant vessels constitute property which may be acquired and transferred by any ofthe means recognized by law. The acquisition of a vessel must be included in a writteninstrument, which shall not produce any effect with regard to third persons if not recorded inthe commercial registry.

So that, pursuany to the above-quoted article, inscription in the commercial registry was

indispensable, in order that said acquisition might affect, and produce consequences with respect tothird persons.

However, since the enactment of Act No. 1900, on May 18, 1909, said article of the Code ofCommerce was amended, as appears by section 2 of that Act, here below transcribed.

The documenting, registering, enrolling, and licensing of vessels in accordance withthe Customs Administrative Act and customs rules and regulations shall be deemed to be aregistry of vessels within the meaning of the title two of the Code of Commerce, unlessotherwise provided in said Customs Administrative Act or in said customs rules andregulations, and the Insular Collector of Customs shall perform the duties of commercialregister concerning the registering of vessels, as defined in title two of the Code ofCommerce.

The requisite of registration in the registry, of the purchase of a vessel, is necessary andindispensable in order that the purchaser's rights may be maintained against a claim filed by a thirdperson. Such registration is required both by the Code of Commerce and by Act No. 1900. Theamendment solely consisted in charging the Insular Collector of Customs, as at present, with thefulfillment of the duties of the commercial register concerning the registering of vessels; so that theregistration of a bill of sale of a vessel shall be made in the office of the insular Collector of Customs,who, since May 18, 1909, has been performing the duties of the commercial register in place of thislatter official.

In view of said legal provisions, it is undeniable that the defendant Florentino E. Rivera's rightscannot prevail over those acquired by Fausto Rubiso in the ownership of the pilot boat Valentina,

inasmuch as, though the latter's acquisition of the vessel at public auction, on January 23, 1915, wassubsequent to its purchase by the defendant Rivera, nevertheless said sale at public auction wasantecedently recorded in the office of the Collector of Customs, on January 27, and entered in thecommercial registry an unnecessary proceeding on March 4th; while the private and voluntarypurchase made by Rivera on a prior date was not recorded in the office of the Collector of Customsuntil many days afterwards, that is, not until March 17, 1915.

The legal rule set down in the Mercantile Code subsists, inasmuch as the amendment solelyrefers to the official who shall make the entry; but, with respect to the rights of the two purchasers,


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whichever of them first registered his acquisition of the vessel is the one entitled to enjoy theprotection of the law, which considers him the absolute owner of the purchased boat, and this latterto be free of all encumbrance and all claims by strangers for, pursuant to article 582 of the saidcode, after the bill of the judicial sale at auction has been executed and recorded in the commercialregistry, all the other liabilities of the vessel in favor of the creditors shall be considered canceled. 1awphil.net

The purchaser at public auction, Fausto Rubiso, who was careful to record his acquisition,opportunely and on a prior date, has, according to the law, a better right than the defendant Riverawho subsequently recorded his purchase. The latter is a third person, who was directly affected bythe registration which the plaintiff made of his acquisition.

Ships or vessels, whether moved by steam or by sail, partake, to a certain extent, of thenature and conditions of real property, on account of their value and importance in the worldcommerce; and for this reason the provisions of article 573 of the Code of Commerce are nearlyidentical with those of article 1473 of the Civil Code.

With respect to the indemnity for losses and damages, requested by the plaintiff, aside fromthe fact, as shown by the evidence, that, subsequent to the date when the judgment appealed from

was rendered, the vessel in question emerged unharmed from the place where it was stranded, andwas, at the time of the trial, anchored in the port of Maricaban, the record certainly does not furnishany positive evidence of the losses and damages alleged to have been occasioned. On the otherhand, it cannot be affirmed that the defendant acted in bad faith specifically because he acquired thevessel on a date prior to that of its acquisition at public auction by the plaintiff Rubiso, who, for thereason aforestated, is the true and sole owner of said pilot boat.

For the foregoing considerations, whereby the errors assigned to the judgment appealed fromare deemed to have been refuted, it is our opinion that said judgment should be, as it is hereby,affirmed, with costs against the appellant. So ordered.

Arellano, C. J., Johnson, Carson, Street and Malcolm, JJ., concur.Araullo, J., took no part.

March 25, 1935

G.R. No. L-41506

PHILIPPINE REFINING CO., INC., plaintiff-appellant,

vs.

FRANCISCO JARQUE, JOSE COROMINAS, and ABOITIZ & CO., defendants. JOSE COROMINAS, in his capacity

as assignee of the estate of the insolvent Francisco Jarque, appellee.

Thos. G. Ingalls, Vicente Pelaez and DeWitt, Perkins and Brady for appellant.

D.G. McVean and Vicente L. Faelnar for appellee.

, J.:

First of all the reason why the case has been decided by the court in banc needs explanation. A motion was presented by counsel

for the appellant in which it was asked that the case be heard and determined by the court sitting in banc because the admiralty


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jurisdiction of the court was involved, and this motion was granted in regular course. On further investigation it appears that this

was error. The mere mortgage of a ship is a contract entered into by the parties to it without reference to navigation or perils of

the sea, and does not, therefore, confer admiralty jurisdiction. (Bogart vs. Steamboat John Jay [1854], 17 How., 399.)

Coming now to the merits, it appears that on varying dates the Philippine Refining Co., Inc., and Francisco Jarque executed three

mortgages on the motor vessels Pandan and Zaragoza. These documents were recorded in the record of transfers and

incumbrances of vessels for the port of Cebu and each was therein denominated a chattel mortgage. Neither of the first two

mortgages had appended an affidavit of good faith. The third mortgage contained such an affidavit, but this mortgage was not

registered in the customs house until May 17, 1932, or within the period of thirty days prior to the commencement of insolvency

proceedings against Francisco Jarque; also, while the last mentioned mortgage was subscribed by Francisco Jarque and M. N.

Brink, there was nothing to disclose in what capacity the said M. N. Brink signed. A fourth mortgage was executed by Francisco

Jarque and Ramon Aboitiz on the motorship Zaragoza and was entered in the chattel mortgage registry of the register of deeds on

May 12, 1932, or again within the thirty-day period before the institution of insolvency proceedings. These proceedings were

begun on June 2, 1932, when a petition was filed with the Court of First Instance of Cebu in which it was prayed that Francisco

Jarque be declared an insolvent debtor, which soon thereafter was granted, with the result that an assignment of all the properties

of the insolvent was executed in favor of Jose Corominas.

On these facts, Judge Jose M. Hontiveros declined to order the foreclosure of the mortgages, but on the contrary sustained the

special defenses of fatal defectiveness of the mortgages. In so doing we believe that the trial judge acted advisedly.

Vessels are considered personal property under the civil law. (Code of Commerce, article 585.) Similarly under the common law,

vessels are personal property although occasionally referred to as a peculiar kind of personal property. (Reynolds vs. Nielson

[1903], 96 Am. Rep., 1000; Atlantic Maritime Co vs. City of Gloucester [1917], 117 N. E., 924.) Since the term personal

property includes vessels, they are subject to mortgage agreeably to the provisions of the Chattel Mortgage Law. (Act No. 1508,

section 2.) Indeed, it has heretofore been accepted without discussion that a mortgage on a vessel is in nature a chattel mortgage.

(McMicking vs. Banco Espaol-Filipino [1909], 13 Phil. 429; Arroyo vs. Yu de Sane [1930], 54 Phil. 511.) The only differencebetween a chattel mortgage of a vessel and a chattel mortgage of other personalty is that it is not now necessary for a chattel

mortgage of a vessel to be noted n the registry of the register of deeds, but it is essential that a record of documents affecting the

title to a vessel be entered in the record of the Collector of Customs at the port of entry. (Rubiso and Gelito vs. Rivera [1917], 37

Phil. 72; Arroyo vs. Yu de Sane,supra.) Otherwise a mortgage on a vessel is generally like other chattel mortgages as to its

requisites and validity. (58 C.J., 92.)

The Chattell Mortgage Law in its section 5, in describing what shall be deemed sufficient to constitute a good chattel mortgage,

includes the requirement of an affidavit of good faith appended to the mortgage and recorded therewith. The absence of the

affidavit vitiates a mortgage as against creditors and subsequent encumbrancers. (Giberson vs. A. N. Jureidini Bros. [1922], 44

Phil. 216; Benedicto de Tarrosa vs. F. M. Yap Tico & Co. and Provincial Sheriff of Occidental Negros [1923], 46 Phil. 753.) As

a consequence a chattel mortgage of a vessel wherein the affidavit of good faith required by the Chattel Mortgage Law is lacking,

is unenforceable against third persons.

In effect appellant asks us to find that the documents appearing in the record do not constitute chattel mortgages or at least to

gloss over the failure to include the affidavit of good faith made a requisite for a good chattel mortgage by the Chattel Mortgage

Law. Counsel would further have us disregard article 585 of the Code of Commerce, but no reason is shown for holding this

article not in force. Counsel would further have us revise doctrines heretofore announced in a series of cases, which it is not

desirable to do since those principles were confirmed after due liberation and constitute a part of the commercial law of the


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Philippines. And finally counsel would have us make rulings on points entirely foreign to the issues of the case. As neither the

facts nor the law remains in doubt, the seven assigned errors will be overruled.

Judgment affirmed, the costs of this instance to be paid by the appellant.

Avancea, C.J., Street, Villa-Real, Abad Santos, Hull, Vickers, Imperial, Butte, and Goddard, JJ., concur.

G.R. No. 6295 September 1, 1911

THE UNITED STATES, plaintiff-appellee,vs.IGNACIO CARLOS,

defendant-appellant.

A. D. Gibbs for appellant.Acting Attorney-General Harvey for appellee.

PER CURIAM:

The information filed in this case is as follows:

The undersigned accuses Ignacio Carlos of the crime of theft, committed as follows:

That on, during, and between the 13th day of February, 1909, and the 3d day of March,

1910, in the city of Manila, Philippine Islands, the said Ignacio Carlos, with intent of gain andwithout violence or intimidation against the person or force against the thing, did then andthere, willfully, unlawfully, and feloniously, take, steal , and carry away two thousand twohundred and seventy-three (2,273) kilowatts of electric current, of the value of nine hundredand nine (909) pesos and twenty (20) cents Philippine currency, the property of the ManilaElectric Railroad and Light Company, a corporation doing business in the Philippine Islands,without the consent of the owner thereof; to the damage and prejudice of the said ManilaElectric Railroad and Light Company in the said sum of nine hundred and nine (909) pesosand twenty (20) cents Philippine currency, equal to and equivalent of 4,546 pesetasPhilippine currency. All contrary to law.

(Sgd.) L. M. SOUTWORTH,Prosecuting Attorney.

Subscribed and sworn to before me this 4th day of March, 1910, in the city of Manila,Philippine Islands, by L. M. Southworth, prosecuting attorney for the city of Manila.

(Sgd.) CHARLES S. LOBINGIER,Judge, First Instance.


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A preliminary investigation has heretofore been conducted in this case, under my direction,having examined the witness under oath, in accordance with the provisions of section 39 of

Act No. 183 of the Philippine Commission, as amended by section 2 of Act No. 612 of thePhilippine Commission.

(Sgd) L. M. SOUTHWORTH,

Prosecuting Attorney.

Subscribed and sworn to before me this 4th day of March, 1910, in the city of Manila,Philippine Islands, by L. M. Southworth, prosecuting attorney for the city of Manila.

(Sgd.) CHARLES LOBINGIER,Judge, First Instance.

A warrant for the arrest of the defendant was issued by the Honorable J. C. Jenkins on the 4th ofMarch and placed in the hands of the sheriff. The sheriff's return shows that the defendant gavebond for his appearance. On the 14th of the same month counsel for the defendant demurrer to thecomplaint on the following grounds:

1 That the court has no jurisdiction over the person of the accused nor of the offensecharged because the accused has not been accorded a preliminary investigation orexamination as required by law and no court, magistrate, or other competent authority hasdetermined from a sworn complaint or evidence adduced that there is probable cause tobelieve that a crime has been committed, or that this defendant has committed any crime.

2 That the facts charged do not constitute a public offense.

The demurrer was overruled on the same day and the defendant having refused to plead, a plea ofnot guilty was entered by direction of the court for him and the trial proceeded.

After due consideration of all the proofs presented and the arguments of counsel the trial court foundthe defendant guilty of the crime charged and sentenced him to one year eight months and twenty-one days' presidio correccional, to indemnify the offended party, The Manila Electric Railroad andLight Company, in the sum of P865.26, to the corresponding subsidiary imprisonment in case ofinsolvency and to the payment of the costs. From this judgment the defendant appealed and makesthe following assignments of error:

I.

The court erred in overruling the objection of the accused to the jurisdiction of the court,because he was not given a preliminary investigation as required by law, and in overrulinghis demurrer for the same reason.

II.

The court erred in declaring the accused to be guilty, in view of the evidence submitted.

III.

The court erred in declaring that electrical energy may be stolen.


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IV.

The court erred in not declaring that the plaintiff consented to the taking of the current.

V.

The court erred in finding the accused guilty of more than one offense.

VI.

The court erred in condemning the accused to pay P865.26 to the electric company asdamages.

Exactly the same question as that raised in the first assignment of error, was after a throughexamination and due consideration, decided adversely to appellant's contention in the case of U.S. vs. Grant and Kennedy (18 Phil. Rep., 122). No sufficient reason is presented why we should notfollow the doctrine enunciated in that case.

The question raised in the second assignment of error is purely one fact. Upon this point the trialcourt said:

For considerably more than a year previous to the filing of this complaint the accused hadbeen a consumer of electricity furnished by the Manila Electric Railroad and Light Companyfor a building containing the residence of the accused and three other residences, and whichwas equipped, according to the defendant's testimony, with thirty electric lights. On March15, 1909, the representatives of the company, believing that more light was being used thantheir meter showed, installed an additional meter (Exhibit A) on a pole outside of defendant'shouse, and both it and the meter (Exhibit B) which had been previously installed in the housewere read on said date. Exhibit A read 218 kilowatt hours; Exhibit B, 745 kilowatt hours. OnMarch 3, 1910 each was read again, Exhibit A showing 2,718 kilowatt hours and Exhibit B,

968. It is undisputed that the current which supplied the house passed through both metersand the city electrician testifies that each meter was tested on the date of the last readingand was "in good condition." The result of this registration therefore is that while the outsidermeter (Exhibit A) showed a consumption in defendant's building of 2,500 kilowatt hours ofelectricity, this inside meter (Exhibit B) showed but 223 kilowatt hours. In other words theactual consumption, according to the outside meter, was more than ten times as great asthat registered by the one inside. Obviously this difference could not be due to normalcauses, for while the electrician called by the defense (Lanusa) testifies to the possibility of adifference between two such meters, he places the extreme limit of such difference betweenthem 5 per cent. Here, as we have seen, the difference is more than 900 per cent. Besides,according to the defendant's electrician, the outside meter should normally run faster, whileaccording to the test made in this case the inside meter (Exhibit B) ran the faster. The cityelectrician also testifies that the electric current could have been deflected from the inside

meter by placing thereon a device known as a "jumper" connecting the two outside wires,and there is other testimony that there were marks on the insulation of the meter Exhibit Bwhich showed the use of such a device. There is a further evidence that the consumption of223 kilowatt hours, registered by the inside meter would not be a reasonable amount for thenumber of lights installed in defendant's building during the period in question, and theaccused fails to explain why he should have had thirty lights installed if he needed but four orfive.


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On the strength of this showing a search warrant was issued for the examination ofdefendant's premises and was duly served by a police officer (Hartpence). He wasaccompanied at the time by three employees of the Manila Electric Railroad and LightCompany, and he found there the accused, his wife and son, and perhaps one or two others.There is a sharp conflict between the several spectators on some points but on one there isno dispute. All agree that the "jumper" (Exhibit C) was found in a drawer of a small cabinet in

the room of defendant's house where the meter was installed and not more than 20 feettherefrom. In the absence of a satisfactory explanation this constituted possession ondefendant's part, and such possession, under the Code of Civil Procedure, section 334 (10),raises the presumption that the accused was the owner of a device whose only use was todeflect the current from the meter.

Is there any other "satisfactory explanation" of the "jumper's" presence? The only one soughtto be offered is the statement by the son of the accused, a boy of twelve years, that he sawthe "jumper" placed there by the witness Porter, an employee of the Light Company. The boyis the only witness who so testifies and Porter himself squarely denies it. We can not agreewith counsel for the defense that the boy's interest in the outcome of this case is less thanthat of the witness for the prosecution. It seems to us that his natural desire to shield hisfather would far outweight any interest such an employee like Porter would have and which,at most, would be merely pecuniary.

There is, however, one witness whom so far as appears, has no interest in the matterwhatsoever. This is officer Hartpence, who executed the search warrant. He testifies thatafter inspecting other articles and places in the building as he and the other spectators,including the accused, approached the cabinet in which the "jumper" was found, the officer'sattention was called to the defendant's appearance and the former noticed that the latter wasbecoming nervous. Where the only two witnesses who are supposed to know anything of thematter thus contradict each other this item of testimony by the officer is of more than ordinarysignificance; for if, as the accused claims, the "jumper" was placed in the cabinet for the firsttime by Porter there would be no occasion for any change of demeanor on the part of theaccused. We do not think that the officer's declination to wait until defendant should secure a

notary public shows bias. The presence of such an official was neither required norauthorized by law and the very efficacy of a search depends upon its swiftness.

We must also agree with the prosecuting attorney that the attending circumstances do notstrengthen the story told by the boy; that the latter would have been likely to call out at thetime he saw the "jumper" being placed in the drawer, or at least directed his father's attentionto it immediately instead of waiting, as he says, until the latter was called by the officer.Finally, to accept the boy's story we must believe that this company or its representativesdeliberately conspired not merely to lure the defendant into the commission of a crime but tofasten upon him a crime which he did not commit and thus convict an innocent man byperjured evidence. This is a much more serious charge than that contained in the complaintand should be supported by very strong corroborating circumstances which we do not findhere. We are, accordingly, unable to consider as satisfactory defendant's explanation of the"jumper's" presence.

The only alternative is the conclusion that the "jumper" was placed there by the accused orby some one acting for him and that it was the instrument by which the current was deflectedfrom the matter Exhibit B and the Light Company deprived of its lawful compensation.

After a careful examination of the entire record we are satisfied beyond peradventure of a doubt thatthe proofs presented fully support the facts as set forth in the foregoing finding.


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Counsel for the appellant insists that the only corporeal property can be the subject of the crime oflarceny, and in the support of this proposition cites several authorities for the purpose of showingthat the only subjects of larceny are tangible, movable, chattels, something which could be taken inpossession and carried away, and which had some, although trifling, intrinsic value, and also toshow that electricity is an unknown force and can not be a subject of larceny.

In the U. S. vs. Genato (15 Phi. Rep., 170) the defendant, the owner of the store situated at No. 154Escolta, Manila, was using a contrivance known as a "jumper" on the electric meter installed by theManila Electric Railroad and the Light Company. As a result of the use of this "jumper" the meter,instead of making one revolution in every four seconds, registered one in seventy-seven seconds,thereby reducing the current approximately 95 per cent. Genato was charged in the municipal courtwith a violation of a certain ordinance of the city of Manila, and was sentenced to pay a fine of P200.He appealed to the Court of First Instance, was again tried and sentenced to pay the same fine. Anappeal was taken from the judgment of the Court of First Instance to the Supreme Court on theground that the ordinance in question was null and void. It is true that the only question directlypresented was of the validity of the city ordinance. The court, after holding that said ordinance wasvalid, said:

Even without them (ordinances), the right of ownership of electric current is secured byarticles 517 and 518 of the Penal Code; the application of these articles in case ofsubtraction of gas, a fluid used for lighting, and in some respects resembling electricity, isconfirmed by the rule laid down in the decisions of the supreme court of Spain January 20,1887, and April 1, 1897, construing and enforcing the provisions of articles 530 and 531 ofthe penal code of that country, articles identical with articles 517 and 518 of the code in forcein these Islands.

Article 517 of the Penal Code above referred to reads as follows:

The following are guilty of larceny:

(1) Those who with intent of gain and without violence or intimidation against the person, or

force against things, shall take another's personal property without the owner's consent.

And article 518 fixes the penalty for larceny in proportion to the value of the personal property stolen.

It is true that electricity is no longer, as formerly, regarded by electricians as a fluid, but itsmanifestation and effects, like those of gas, may be seen and felt. The true test of what is a propersubject of larceny seems to be not whether the subject is corporeal, but whether it is capable ofappropriation by another than the owner.

It is well-settled that illuminating gas may be the subject of larceny, even in the absence of a statuteso providing. (Decisions of supreme court of Spain, January 20, 1887, and April 1, 1897, supra; also(England) Queen vs. Firth, L. R. 1 C. C., 172, 11 Cox C. C., 234; Queen vs. White, 3 C. & K., 363, 6

Cox C. C., 213; Woods vs. People, 222 III., 293, 7 L. R. A., 520; Commonwealth vs. Shaw, 4 Allen(Mass), 308; State vs. Wellman, 34 Minn., 221, N. W. Rep., 385, and 25 Cyc., p. 12, note 10.)

In the case of Commonwealth vs. Shaw, supra, the court, speaking through Chief Justice Bigelow,said:

There is nothing in the nature of gas used for illuminating purposes which renders itincapable of being feloniously taken and carried away. It is a valuable article of merchandise,bought and sold like other personal property, susceptible of being severed from a mass or


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larger quantity, and of being transported from place to place. In the present case it appearsthat it was the property of the Boston Gas Light Company; that it was in their possession bybeing confined in conduits and tubes which belonged to them, and that the defendantsevered a portion of that which was in the pipes of the company by taking it into her houseand there consuming it. All this being proved to have been done by her secretly and withintent to deprive the company of their property and to appropriate it to her own use, clearly

constitutes the crime of larceny.

Electricity, the same as gas, is a valuable article of merchandise, bought and sold like other personalproperty and is capable of appropriation by another. So no error was committed by the trial court inholding that electricity is a subject of larceny.

It is urged in support of the fourth assignment of error that if it be true that the appellant didappropriate to his own use the electricity as charged he can not be held guilty of larceny for any partof the electricity thus appropriated, after the first month, for the reason that the complaining party,the Manila Electric Road and Light Company, knew of this misappropriation and consented thereto.

The outside meter was installed on March 15, 1909, and read 218 kilowatt hours. On the same day

the inside meter was read and showed 745 kilowatt hours. Both meters were again read on March 3,1910, and the outside one showed 2,718 kilowatt hours while the one on the inside only showed968, the difference in consumption during this time being 2,277 kilowatt hours. The taking of thiscurrent continued over a period of one year, less twelve days. Assuming that the company read bothmeters at the end of each month; that it knew the defendant was misappropriating the current to thatextent; and that t continued to furnish the current, thereby giving the defendant an opportunity tocontinue the misppropriation, still, we think, that the defendant is criminally responsible for the takingof the whole amount, 2,277 kilowatt hours. The company had a contract with the defendant to furnishhim with current for lighting purposes. It could not stop the misappropriation without cutting off thecurrent entirely. It could not reduce the current so as to just furnish sufficient for the lighting of two,three, or five lights, as claimed by the defendant that he used during the most of this time, but thecurrent must always be sufficiently strong to furnish current for the thirty lights, at any time thedefendant desired to use them.

There is no pretense that the accused was solicited by the company or any one else to commit theacts charged. At most there was a mere passive submission on the part of the company that thecurrent should be taken and no indication that it wished it to be taken, and no knowledge by thedefendant that the company wished him to take the current, and no mutual understanding betweenthe company and the defendant, and no measures of inducement of any kind were employed by thecompany for the purpose of leading the defendant into temptation, and no preconcert whateverbetween him and company. The original design to misappropriate this current was formed by thedefendant absolutely independent of any acts on the part of the company or its agents. It is true, nodoubt, as a general proposition, that larceny is not committed when the property is taken with theconsent of its owner. It may be difficult in some instances to determine whether certain actsconstitute, in law, such "consent." But under the facts in the case at bar it is not difficult to reach aconclusion that the acts performed by the plaintiff company did not constitute a consent on its partthe defendant take its property. We have been unable to find a well considered case holdingcontrary opinion under similar facts, but, there are numerous cases holding that such acts do notconstitute such consent as would relieve the taker of criminal responsibility. The fourth assignmentof error is, therefore, not well founded.

It is also contended that since the "jumper" was not used continuously, the defendant committed nota single offense but a series of offenses. It is, no doubt, true that the defendant did not allow the"jumper" to remain in place continuously for any number of days as the company inspected monthly


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the inside meter. So the "jumper" was put on and taken off at least monthly, if not daily, in order toavoid detection, and while the "jumper" was off the defendant was not misappropriating the current.The complaint alleged that the defendant did on, during, and between the 13th day of February,1909, and the 3d of March, 1910. willfully, unlawfully, and feloniously take, steal, and carry away2,277 kilowatts of electric current of the value of P909. No demurrer was presented against thiscomplaint on the ground that more than one crime was charged. The Government had no

opportunity to amend or correct this error, if error at all. In the case of U. S. vs. Macaspac (12 Phil.Rep., 26), the defendant received from one Joquina Punu the sum of P31.50, with the request todeliver it to Marcelina Dy-Oco. The defendant called upon Marcelina, but instead of delivering thesaid amount she asked Marcelina for P30 in the name of Joaquina who had in no way authorizedher to do so. Marcelina gave her P30, believing that Joaquina had sent for it. Counsel for thedefendant insisted that the complaint charged his client with two different crimes ofestafa in violationof section 11 of General Orders, No. 58. In disposing of this question this court said:

The said defect constitutes one of the dilatory pleas indicated by section 21, and the accusedought to have raised the point before the trial began. Had this been done, the complaintmight have been amended in time, because it is merely a defect of form easily remedied. . . .Inasmuch as in the first instance the accused did not make the corresponding dilatory plea tothe irregularity of the complaint, it must be understood that has waived such objection, and isnot now entitled to raise for the first time any question in reference thereto when submittingto this court her assignment of errors. Apart from the fact that the defense does not pretendthat any of the essential rights of the accused have been injured, the allegation of the defectabove alluded to, which in any case would only affect form of the complaint, can not justify areversal of the judgment appealed from, according to the provisions of section 10 of GeneralOrders, No. 58.

In the case at bar it is not pointed out wherein any of the essential rights of the defendant have beenprejudiced by reason of the fact that the complaint covered the entire period. If twelve distinct andseparate complaints had been filed against the defendant, one for each month, the sum total of thepenalties imposed might have been very much greater than that imposed by the court in this case.The covering of the entire period by one charge has been beneficial, if anything, and not prejudicial

to the rights of the defendant. The prosecuting attorney elected to cover the entire period with onecharge and the accused having been convicted for this offense, he can not again be prosecuted forthe stealing of the current at any time within that period. Then, again, we are of the opinion that thecharge was properly laid. The electricity was stolen from the same person, in the same manner, andin the same place. It was substantially one continuous act, although the "jumper" might have beenremoved and replaced daily or monthly. The defendant was moved by one impulse to appropriate tohis own use the current, and the means adopted by him for the taking of the current were in theexecution of a general fraudulent plan.

A person stole gas for the use of a manufactory by means of pipe, which drew off the gasfrom the main without allowing it to pass through the meter. The gas from this pipe was burntevery day, and turned off at night. The pipe was never closed at this junction with the main,and consequently always remained full of gas. It was held, that if the pipe always remainedfull, there was, in fact, a continuous taking of the gas and not a series of separate talkings. Itwas held also that even if the pipe had not been kept full, the taking would have beencontinuous, as it was substantially all one transaction. (Regina vs. Firth, L. R., 1 C. C., 172;11 Cox C. C., 234. Cited on p. 758 of Wharton's Criminal Law, vol. 1, 10th ed.)

The value of the electricity taken by the defendant was found by the trial court to be P865.26. Thisfinding is fully in accordance with the evidence presented. So no error was committed in sentencingthe defendant to indemnify the company in this amount, or to suffer the corresponding subsidiaryimprisonment in case of insolvency.


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The judgment being strictly in accordance with the law and the merits of the case, same is herebyaffirmed, with costs against the appellant.

Arellano, C.J., Torres, Mapa and Carson, JJ.

G.R. No. L-16513 January 18, 1921

THE UNITED STATES, plaintiff-appellee,vs.MANUEL TAMBUNTING, defendant-appellant.

Manuel Garcia Goyena for appellant.Acting Attorney-General Feria for appellee.

STREET, J.:

This appeal was instituted for the purpose of reversing a judgment of the Court of First Instance ofthe city of Manila, finding the accused, Manuel Tambunting, guilty of stealing a quantity of gasbelonging to the Manila Gas Corporation, and sentencing him to undergo imprisonment for twomonths and one day, ofarresto mayor, with the accessories prescribed by law; to indemnify the saidcorporation in the sum of P2, with subsidiary imprisonment in case of insolvency; and to pay thecosts.

The evidence submitted in behalf of the prosecution shows that in January of the year 1918, the

accused and his wife became occupants of the upper floor of the house situated at No. 443, CalleEvangelista, in the city of Manila. In this house the Manila Gas Corporation had previously installedapparatus for the delivery of gas on both the upper and lower floors, consisting of the necessarypiping and a gas meter, which last mentioned apparatus was installed below. When the occupants atwhose request this installation had been made vacated the premises, the gas companydisconnected the gas pipe and removed the meter, thus cutting off the supply of gas from saidpremises.

Upon June 2, 1919, one of the inspectors of the gas company visited the house in question andfound that gas was being used, without the knowledge and consent of the gas company, for cookingin the quarters occupied by the defendant and his wife: to effect which a short piece of iron pipe hadbeen inserted in the gap where the gas meter had formerly been placed, and piece of rubber tubing

had been used to connect the gas pipe of rubber tubing had been used to connect the gas pipe inkitchen with the gas stove, or plate, used for cooking.

At the time this discovery was made, the accused, Manuel Tambunting, was not at home, but hepresently arrived and admitted to the agent to the gas company that he had made the connectionwith the rubber tubing between the gas pipe and the stove, though he denied making the connectionbelow. He also admitted that he knew he was using gas without the knowledge of the company andthat he had been so using it for probably two or three months.


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The clandestine use of gas by the accused in the manner stated is thus established in our opinionbeyond a doubt; and inasmuch as the animo lucrandiis obvious, it only remains to consider, first,whether gas can be the subject to larceny and, secondly, whether the quantity of gas appropriated inthe two months, during which the accused admitted having used the same, has been establishedwith sufficient certainty to enable the court to fix an appropriate penalty.

Some legal minds, perhaps more academic than practical, have entertained doubt upon the questionwhether gas can be the subject of larceny; but no judicial decision has been called to our attentionwherein any respectable court has refused to treat it as such. In U.S. vs. Genato

2nd week property cases

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