FACTS: S sold to B a parcel of land, 2/3 of which was in the possession of T who claimed to be the owner of said 2/3. The deed of sale between S and B was in a public instrument. Because B could not get control of the 2/3 of the land in the possession of T, B sued for the cancellation of the sale.
HELD: Cancellation is proper because the property was not delivered. It is true that ordinarily, the execu- tion of a public instrument is equivalent to the delivery of the thing which is the object of the contract, but in order that this delivery may have the effect of tradition, it is essential that the vendor shall have had such control over the thing sold, that is, it could have been possible that at the moment of the sale its material delivery could have been made. It is not enough to confer upon the purchaser the ownership and the right of posses- sion. It is also imperative that the thing sold must be
placed under his control. When there is no impediment whatever to prevent the thing sold from passing into the actual possession of the purchaser by the sole will of the vendor, symbolic delivery through the execution of a public instrument is suffi cient. But if, notwithstanding the execution of the instrument, the purchaser cannot have the enjoyment and material tenancy of the thing and make use of it himself or through another in his name, because such tenancy and enjoyment are opposed by the interposition of another will, then fi ction yields to reality — the delivery has not been effected. (See also
Garchitorena v. Almeda, 48 O.G. No. 8, 3432 and Vda. de Sarmiento v. Lesaca, L-15386, Jun. 30, 1960).
Roque v. Lapuz L-32811, Mar. 31, 1980
If in a purported sale, a deed of conveyance is not executed, this can mean that the parties did not intend to immediately transfer the ownership of the real property involved.
Vda. de Sarmiento v. Lesaca L-15385, Jun. 30, 1960
FACTS: A buyer in a public instrument of two pareels of land could not take actual physical possession thereof because a certain Deloso claimed to be the real if owner thereof. Under the terms of the document, the buyer was being given the actual possession of the lands so that he could use them in a manner most advantageous to him. Since, however, he could not take possession, he alleged that there was NO delivery. Hence, he asked for rescission or resolution of the sale.
HELD: Considering the facts of the case, there re- ally was NO delivery and, therefore, he can either ask for resolution with a return to him of the purchase price with interest and damages) or for specifi c fulfi llment of the obligation. Indeed, the legal fi ction that the execution of a public document is equivalent to delivery, holds true
only when there is no impediment that may prevent the turning over of the property.
Asuncion, et al. v. Hon. Plan GR 52359, Feb. 24, 1981
In an action for partition, defendants agreed to deliver to plaintiff 24 hectares of land. Plaintiff’s heirs then executed lease contracts involving said 24 hectares with certain persons, not parties in the partition case. When the lessees failed to pay the rent, the plaintiff’s heirs moved for the issuance of an alias writ of execution in the partition case, asking in effect for the delivery to them of the 24 hectares. The motion cannot be granted, for by the execution of the lease contracts, the judgment in the partition case had already been executed. A new action is needed to out the lessees, since they were not parties in the partition case.
(b) There can be no constructive delivery by means of a public instrument if there is a stipulation to that effect. Hence, the Supreme Court has held that if there is a clause to the effect that the buyer “will take possession after four months,” at the end of 4 months it cannot be said that there is an automatic delivery. At said time, there must still be a delivery. The same is true in a case of a sale by installment, where it is stipulated that title should not be transferred till after the payment of the last installment; or where the vendor reserves the right to use and enjoy their property until the gathering of the crops still growing. (Aviles, et al. v. Arcega, et al.,
44 Phil. 924, citing 10 Manresa, p. 129).
(c) The Civil Code does not provide that the execution of the deed is a conclusive presumption of the delivery of possession. What it says is that the execution thereof shall be equivalent to delivery which means that the disputable presumption established can be rebutted by clear and convincing evidence, such as evidence of the fact that the buyer did not really obtain the material possession of the building. Hence, it may be said that the execution of the contract is only presumptive delivery.
Norkis Distributors, Inc. v. CA GR 91029, Feb. 7, 1990
It is true that Art. 1498 declares that the execution of a public instrument is equivalent to the delivery of the thing which is the object of the contract, but, in order that this symbolic delivery may produce the effect of tradition, it is necessary that the vendor shall have had such control over the thing sold that at the moment of the sale, its material delivery could have been made. It is not enough to confer upon the purchaser the ownership and the right of possession. The thing sold must be placed in his control. When there is no impendiment whatever to prevent the thing sold passing into the tenancy of the purchaser by the sole will of the vendor, symbolic delivery through the execution of a public instrument is suffi cient.
But if, notwithstanding the execution of the instru- ment, the purchaser cannot have the enjoyment and material tenancy of the thing and make use of it himself or through another in his name, because such tenancy and enjoyment are opposed by the interposition of an- other will, then fi ction yields to reality — the delivery has not been effected.
(3) Effect of Non-Payment of Price
Execution of the deed of sale, in the absence of any defect, transfers delivery, even if the selling price, in whole or in part has not yet been paid, for it is not payment that transfers ownership. (Puatu v. Mendoza and David, 64 Phil.
457).
Puatu v. Mendoza and David