ANGELA MONTENEGRO, PLAINTIFF AND APPELLEE, VS. CONSUELO ROXAS DE GOMEZ ET AL., DEFENDANTS AND APPELLANTS.

The plaintiff herein brought this action against the defendants to
rescind a contract of lease entered into by them, to have both parties
render an accounting of the monies each party might have collected,
received and spent in connection with the contract of lease in
question, mutually reimbursing what is due to each other, and to obtain
an indemnity for damages amounting to P10,000 from the aforesaid
defendants.

The defendants herein appealed from the judgment
rendered by the Court of First Instance of Manila declaring the
contract in question rescinded, and ordering the plaintiff herein to
render an accounting of all the rentals she might have collected from
the tenants and of all the expenses incurred by her in the upkeep of
the building, fifteen days after the date the judgment became final,
with the costs against the aforesaid defendants.

The
defendant Consuelo Roxas de Gomez was and is the present owner of the
property known as the “Paris Building” situated at Nos. 26 to 36
Escolta, Manila. It was leased by B. A. Green but his contract of lease
expired on May 31, 1930. On June 5th of the same year, the plaintiff
and the defendant, represented by her attorney in fact Manuel Martinez
Llanos, executed the deed, Exhibit B whereby the defendant leased the
building in question to the plaintiff for the period of three (3) years
from June 1, 1930, at a monthly rental of P4,000, payable at the end of
every calendar month. At that time the building was being occupied by
various tenants among whom were B. A. Green, G. C. Sellner and Sta. Ana
Subdivision of the Manila Improvement Co., Inc., of which said B. A.
Green was the president, who, for a long time had leased and occupied
the rooms of the upper floor facing the Escolta, and a small room
between the lavatory and the main stairway. The defendant’s attorney in
fact should have delivered the possession of the whole building to the
plaintiff herein on June 5th, the date of the execution of the
contract, but due to certain oppositions on the part of various
tenants, the greater portion of the building was not delivered to the
said lessee until the 20th of the said month. On this last date,
however, the whole building was not delivered to the plaintiff herein
because B. A. Green, G. C. Sellner and Manila Improvement Co., Inc.,
stubbornly opposed the delivery of the rooms they were then occupying.
The lessee informed the defendant’s attorney in fact of this
difficulty, who, addressed communications to B. A. Green requiring him
to deliver the rooms which, he, Sellner and Manila Improvement Co.,
Inc., were detaining. Green remained firm in his opposition thereto on
the ground that he was the former lessee and that he had applied by
letter for a renewal of his contract of lease, which was denied him.
Considering Green’s attitude as a disturbing factor, the plaintiff
herein instituted ejectment proceedings against him in the municipal
court of the City of Manila. She likewise instituted similar actions
against ether tenants thereof. Notwithstanding all these difficulties,
the plaintiff herein, desiring perhaps not to violate the terms of her
contract of lease, continued paying the monthly rental of P4,000
corresponding to the months of June, 1930, to October, 1931, inclusive,
to the defendant’s attorney in fact. Not until the complaint against
the defendants herein was filed did she fail to pay the rent
corresponding to the months of November and December, 1931, amounting
to P8,000. The defendant herein, or rather her attorney in fact, also
instituted judicial proceedings against the plaintiff herein for the
purpose of ejecting her from the building in question and recovering
the rents due and unpaid.

The trial court rendered judgment
in favor of the plaintiff based on the ground that inasmuch as the
whole building was not delivered to her, the contract should be
rescinded.

In their brief, the appellants assign the following alleged errors, to wit:

“I.
The trial court erred in not giving the public instrument of lease,
Exhibit B, conclusive probatory value evidencing delivery of the
property in question from the date of the execution thereof.

“II. The trial court erred in holding that the lessors did not deliver
the possession of the property, which is the subject matter of the
lease, to the lessee.

“III. The trial court erred in
holding that the plaintiff is not estopped from asking the rescission
of her contract of lease with the defendants.

“IV. The trial court erred in declaring the contract of lease, Exhibit B, rescinded.

“V. The trial court erred in denying the defendants’ motion for a new
trial and in not dismissing the instant complaint, with the costs
against the plaintiff.”

We are of the
opinion that the resolution of the present case depends particularly
upon whether or not the whole building under lease was delivered to the
lessee in order that she might have the full enjoyment thereof to which
she was entitled. The records show that the greater portion of the
building in question was delivered to and received by the lessee not
later than June 20, 1930, but that the rooms or offices occupied by B.
A. Green, G. C. Sellner and Manila Improvement Co., Inc., have never
been placed in the possession of the said lessee. If this is true, it
is evident that the plaintiff herein has the right to the remedy of
rescission prayed for in her complaint in accordance with the express
provisions of article 1556 of the Civil Code which grants to the
lessee, among other things, the right to rescind the contract of lease
when he is not placed in the material possession of the property which
is the subject matter of the lease. The appellants, however, contend
that the execution of the contract is equivalent to delivery of the
possession thereof. This would be true if the records did not show that
in reality the lessee did not obtain the material possession of the
whole building. It should be noted that the Civil Code does not provide
that the execution of the deed is a conclusive presumption of the
delivery of possession, but confines itself to providing that the
execution thereof shall be equivalent to delivery, which means that the
disputable presumption established therein can be rebutted by means of
clear and convincing evidence, as in the case under consideration.

The other point raised by the assignments of error is that referring to
the alleged estoppel attributed to the lessee herein. It is contended
that she cannot consistently question the fact of the consummation of
the contract of lease nor ask for the rescission thereof on the ground
that, even granting that she had not been placed in the material
possession of the whole building in question, she had been paying the
stipulated rent until November 1, 1931. Without indulging in a lengthy
discussion of the merits of such contention, we are of the opinion that
such acts do not constitute the defense invoked. A preponderance of the
evidence shows that if the lessee continued paying the rent as she in
fact did, it was only for the sole purpose of not violating any of the
terms of the contract affecting her. However, her acts cannot, in
justice, be construed as a waiver of her right to ask for the
rescission of the contract on the grounds hereinbefore stated.

Wherefore, all the important questions raised in the present appeal are
deemed definitely settled, and finding that the judgment appealed from
is in accordance with the law and the findings of the court, it is
hereby affirmed, with the costs against the appellants. So ordered.

Malcolm, Villa-Real, Abad Santos, and Hull, JJ., concur.