ALEJANDRA BUGARIN VDA. DE SARMIENTO, PLAINTIFF AND APPELLEE, VS. JOSEFA R. LESACA, DEFENDANT AND APPELLANT.

On December 31, 1949, plaintiff filed a complaint in the Court of
First Instance of Zambales praying for the rescission of the contract
of sale executed between her and defendant for failure of the latter to
place the former in the actual physical possession of the lands she
bought.

After issues were joined, the parties submitted the case for
decision upon the following stipulation of facts: that on January 18,
1949, plaintiff bought from defendant two parcels of land for P5,000;
that after the sale, plaintiff tried to take actual physical possession
of the lands but was prevented from doing so by one Martin Deloso who
claims to be the owner thereof; that on February 1, 1949, plaintiff
instituted an action before the Tenancy Enforcement Division of the
Department of Justice to oust said Martin Deloso from the possession of
the lands, which action she later abandoned for reasons known only to
her; that on December 12, 1949, plaintiff wrote defendant asking the
latter either to change the lands sold with another of the same kind
and class or to return the purchase price together with the expenses
she had incurred in the execution of the sale, plus 6 per cent
interest; and that since defendant did not agree to this proposition as
evidenced by her letter dated December 21, 1949, plaintiff filed the
present action.

On April 11, 1957, the trial court rendered judgment declaring the
deed of sale entered into between plaintiff and defendant rescinded,
and ordering the latter to pay the former the sum of P5,000,
representing the purchase price of the lands, plus the amount of P50.25
which plaintiff spent for the execution and registration of the deed of
sale, with legal interest on both sums from January 18, 1949.
Defendant, in due time, appealed to the Court of Appeals, but the case
was certified to us on the ground that the questions involved are
purely legal.

The first issue posed by appellant is whether the execution of the
deed of sale in a public document (Exhibit A) is equivalent to delivery
of possession of the lands sold to appellee thus relieving her of the
obligation to place appellee in actual possession thereof.

Articles 1461 and 1462 of the old Civil Code provide:

“Art. 1461. The vendor is bound to deliver and warrant the thing which is the subject-matter of the sale.”

“Art. 1462. The thing sold shall be deemed delivered when the vendee is placed in the control and possession thereof.

“If
the sale should be made by means of a public instrument, the execution
thereof shall be equivalent to the delivery of the thing which is the
subject-matter of the contract unless the contrary appears or is
clearly to be inferred from such instrument.”

From the above it is clear that when a contract of sale is executed
the vendor is bound to deliver to the vendee the thing sold by placing
the vendee in the control and possession of the
subject-matter of the contract. However, if the sale is executed by
means of a public instrument, the mere execution of the instrument is
equivalent to delivery unless the contrary appears or is clearly to be inferred from such instrument.

The question that now arises is: Is there any stipulation in the
sale in question from which we can infer that the vendor did not intend
to deliver outright the possession of the lands to the vendee? We find
none. On the contrary, it can be clearly seen therein that the vendor
intended to place the vendee in actual possession of the lands
immediately as can be inferred from the stipulation that the vendee
“takes actual possession thereof * * * with full rights to dispose,
enjoy and make use thereof in such manner and form as would be most
advantageous to herself.” The possession referred to in the contract
evidently refers to actual possession and not merely symbolical
inferable from the mere execution of the document.

Has the vendor complied with this express commitment? She did not.
As provided in Article 1462, the thing sold shall be deemed, delivered
when the vendee is placed in the control and possession
thereof, which situation does not here obtain because from the
execution of the sale up to the present the vendee was never able to
take possession of the lands due to the insistent refusal of Martin
Deloso to surrender them claiming ownership thereof. And although it is
postulated in the same article that the execution of a public document
is equivalent to delivery, this legal fiction only holds true when
there is no impediment that may prevent the passing of the property
from the hands of the vendor into those of the vendee. This is what we
said in a similar case:

“The Code imposes upon the vendor the obligation to deliver
the thing sold. The thing is considered to be delivered when it is
placed in the hands and possession of the vendee.’ (Civ. Code, art.
1462.) It is true that the same article 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 right of possession. The thing sold must be placed in his control.
When there is no impediment 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
sufficient. 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 fiction yields to reality—the delivery has not been
effected.” (Addison vs. Felix and Tioco, 38 Phil., 404; See also Garchitorena vs. Almeda, 48 Off. Gaz., No. 8, 3432; 3437)

The next question to resolve is: Can plaintiff rescind the contract
of sale in view of defendant’s failure to deliver the possession of the
lands?

We are inclined to uphold the affirmative. While defendant contends
that rescission can be availed of only in the cases enumerated in
Articles 1291 and 1292 of the old civil Code and being: a subsidiary
remedy (Article 1294) it can only be resorted to when no other remedy
is available, yet we agree with plaintiff’s contention that this action
is based on Article 1124 of the same Code, which provides:

“ART. 1124. The right to resolve reciprocal
obligations, in case one of the obligors should fail to comply with
that which is incumbent upon him, is deemed to be implied.

“The
person prejudiced may choose between exacting the fulfillment of the
obligation or its resolution with indemnity for losses and payment of
interest in either case. He may also demand the resolution of the
obligation even after having elected its fulfillment, should the latter
be found impossible.”

Undoubtedly, in a contract of purchase and sale the obligation of
the parties is reciprocal, and, as provided by the law, in case one of
the parties fails to comply with what is incumbent upon him to do, the
person prejudiced may either exact the fulfillment of the obligation or
rescind the sale. Since plaintiff chose the latter alternative, it
cannot be disputed that her action is in accordance with law.

“We agree with the trial court that there was no
fraud in the transaction in question but rather a non-fulfillment by
the plaintiff-appellee C. N. Hodges of his obligation, as vendor, to
deliver the things, which were the subject-matter of the contract, to
the defendant-appellant Albeto Granada, as purchaser thereof (article
1461, Civil Code), and place them in the latter’s control and
possession (article 1462, Civil Code) which was not done. Inasmuch, as
the obligations arising from the contract of purchase and sale, Exhibit
A, which was entered into by the plaintiff-appellee and the
defendant-appellant, are reciprocal, and the former had failed to
comply with that which was incumbent upon him, the latter has the
implied right to resolve them, and he may choose between exacting from
the vendor the fulfillment of the obligation or its resolution with
indemnity for damages and payment of interest in either case (article
1124, Civil Code). Inasmuch as the defendant-appellant had chosen to
rescind the aforesaid contract of purchase and sale in his
cross-complaint, there arose the necessity, on the part of the
plaintiff-appellee, to return the purchase price with interest thereon,
and on the part of the defendant-appellant, to restore the things which
were the subject-matter thereof, in case he had received them (article
1295, Civil Code).” (Hodges vs. Granada, 59 Phil., 429, 482; See also Pabalan vs. Velez, 22 Phil., 29; Addison vs. Felix and Tioco, supra; Rodriguez vs. Flores, 43 Off. Gaz., No. 6, 2247.)

Wherefore, the decision appealed from is affirmed, with costs against defendant-appellant.

Paras, C. J., Bengzon, Padilla, Montemayor, Concepcion, Reyes, J. B. L., Barrera, and Gutierrez David, JJ., concur.
Labrador, J., took no part.