CIVIL LAW
13 February 2011 8 A.M. - 12 Noon
INSTRUCTIONS
This questionnaire consists of twenty (20) numbers contained in SEVEN (7) pages. Read each question very carefully. Answer legibly, clearly, and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same page and immediately succeeding pages until completed. Each question is worth 5%. A mere "Yes" or "No" answer without any corresponding discussion will not be given any credit.
HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE
GOOD LUCK!!!
(Sgd.) EUSTOLIA J. MATA
Chairperson
2009 Mock Bar Examination Committee
PLEASE CHECK THE NUMBER OF PAGES IN THIS SET
WARNING: NOT FOR SALE OR UNAUTHORIZED USE
1. Eugenio del Saz Orozco died on February 7, 1922, leaving a will which he had executed on March 5, 1921, and was afterwards duly admitted to probate. The pertinent clause of that will provided that certain properties should be given in life usufruct to his son Jacinto del Saz Orozco y Mortera, with the obligation on his part to preserve said properties in favor of the other heirs who were declared the naked owners thereof. Among these properties were 5,714 shares of stock of the Benguet Consolidated Mining Company and 94 shares of stock of the Manila Electric Company, according to the project of partition executed pursuant to said will and duly approved by the court. On September 11, 1934, the Benguet Consolidated Mining Company declared and distributed stock dividends out of its surplus profits, the plaintiff receiving his proportionate portion of 11,428 shares. On November 17, 1939, said Mining Company again declared stock dividends out of its surplus profits, of which the plaintiff received 17,142 shares, making a total of 28,570 shares.
QUESTION:Whether the stock dividend is part of the capital which should be preserved in favor of the owners or an income or fruits of the capital which should be given to and enjoyed by the life usufructuary, the plaintiff herein, as his own exclusive property.
A dividend, whether in the form of cash or stock, is income and, consequently, should go to the usufructuary, taking into consideration that a stock dividend as well as a cash dividend can be declared only out of profits of the corporation, for if it were declared out of the capital it would be a serious violation of the law. With regard to the sum of P3,428.40 which is alleged to have been received by the plaintiff from the Benguet Consolidated Mining Company, as a result of the reduction of its capital in January, 1926, it appears that it has not been proven that the plaintiff has received said sum; on the contrary, it was denied by him as soon as he arrived in the Philippines from Spain. There is no ground, therefore, for ordering the plaintiff to deliver such sum to the defendants. The stock dividends amounting to 28,570 shares, above mentioned, belongs to Jacinto del Saz Orozco y Mortera exclusively and in absolute ownership.
2. In her complaint the plaintiff alleges that she is a natural child of Juana Narag and the late Jose Cecilio who, at the time of her concepcion, were both free to marry; that in a public instrument entitled "donacion mortis-causa" executed of 26 July 1924 by the late Jose Cecilio he acknowledge her to be his natural child and donated to her two parcels of land, one agricultural and the other residential, together with the improvements thereon; that in the agricultural land coconuts and palay valued P1,760 were harvested yearly, and from the residential an annual rent of P360 was collected, or a total of P12,710 from 1950 to the filing of the complaint; that subsequently the two parcels of land were declared in her name for tax purposes; that upon the demise of Jose Cecilio of 10 February 1950 the defendants Salvador and Antonio surnamed Cecilio, two legitimate children of the deceased, entered upon, took possession of, and claimed ownership over, the parcels of land; and that since then they refused and still refuse to deliver or return to her the two parcels of land. In addition to her two prayers stated at the beginning of this opinion, the plaintiff prayed that jointly and severally the defendants be ordered to pay her the sum of P12,710 representing the value of the natural and civil fruits of the parcels of land. On 24 August 1956 the defendants filed an answer setting up affirmative defenses and counterclaim for P5,000 as actual and moral damages arising from the false and frivolous complaint of the plaintiff and praying for the dismissal of the complaint. On 27 August, the plaintiff answered the counterclaim. Without filing any formal motion to dismiss, on 13 September 1957 the defendants served notice on the plaintiff that they would submit on 14 September 1957 at 8:30 o'clock in the morning, or as soon as they may be heard, their prayer for the dismissal of her complaint. In an order dated 16 September, the Court declared submitted the motion for the dismissal of the complaint and granted each party ten days within which to file a memorandum. On 20 September, the plaintiff filed an objection to the motion for dismissal which may be considered her memorandum. On 24 September the defendants filed their memorandum followed on 25 September by a supplemental memorandum. On 13 November, the Court entered an order dismissing the complaint, from which dismissal, as heretofore stated, the ð 7 3 plaintiff appealed.
The five errors assigned by the appellant claimed to have been committed by the trial court narrow down to main issues, namely: (1) has the action of the plaintiff Dolores Narag to be declared natural child of daughter of the late Jose Cecilio already prescribed? and (2) is the donation mortis causa executed not in accordance with the formalities of a will invalid?Resolve the two issues.
Answer:There is no doubt that the plaintiff's action to be declared natural child of the late Jose Cecilio has already prescribed, because it was not brought during the lifetime of the putative or presumed father. And her case does not fall within the exceptions provided for in article 137 of the old Civil Code, now article 285 of the new Civil Code, which allows the filling of such action even after the death of the alleged parents, to wit:
1. If the father or mother died during the minority of the child, in which case the latter may be commence the action within the four years next following the attainment of its majority.
2. If, after the death of the father or mother, some document, before unknown, should be discovered in which the child is expressly acknowledged.
In this case the action must be commenced within six months next following the discovery of such document.1
When the presumed or putative father Jose Cecilio died on 10 February 1950, the plaintiff was already far above the age of majority, it appearing in her baptismal certificate issued on 12 April 1953 by the parish priest of Saint John the Evangelist of Naga City that she was born on 5 January 1899. The document entitled "donacion mortis-causa" was known to, and in possession of, the appellant since 26 July 1924, the date of its execution, because on that date she signed the document. Counted from 26 July 1924 to the filing of the complaint on 6 August 1956, about 32 years had elapsed. It is, therefore, clear that whether under the provisions of the old or of the new Civil Code the appellant's action fro acknowledgment as natural child of the late Jose Cecilio is barred by the statute.
The donation of the two parcels of land is a donation mortis causa as admitted by the appellant herself. Nevertheless, she contends that while article 620 of the old Civil Code, now article 728 of the new, provides that donation mortis causa is governed by the rules established for testamentary succession, yet such provision refers to property disposition as governed by the law on succession and not to solemnities or formalities of a will — to substance, not to form. The contention cannot be accepted. In the case of Cariño vs. Abaya, 70 Phil., 182, this Court had that donations mortis causa can only be made with the formalities of a will. And as to the donation mortis causa in the present case appears not to have the formal requisites of a will such as the attestation clause, the signatures of three instrumental witnesses and that of the donor, which must appear on every page of the document, the donation is invalid.
The contention that the complaint may not be dismissed upon the grounds pleaded as affirmative defenses in the answer without any formal or separate motion to dismiss is untenable, for the reason that section 5, Rule 8, allows such dismissal.
3. In the deed of donation it was stated that the same was made in consideration of the services rendered to the donor by the donee; that "title" to the donated properties would not pass to the donee during the donor's lifetime, and that it would be only upon the donor's death that the donee would become the "true owner" of the donated properties. However, there was the stipulation that the donor bound herself to answer to the donee for the property donated and that she warranted that nobody would disturb or question the donee's right.
(a) Is this a donation inter vivos or mortis causa? Explain.
(b) Cite at least five distinctions between a donation mortis causa and a donation inter vivos.
Answer.. In the Balaqui case, it was provided in the deed that the donation was made in consideration of the services rendered to the donor by the donee; that "title" to the donated properties would not pass to the donee during the donor's lifetime, and that it would be only upon the donor's death that the donee would become the "true owner" of the donated properties. However, there was the stipulation that the donor bound herself to answer to the donee for the property donated and that she warranted that nobody would disturb or question the donee's right.
Notwithstanding the provision in the deed that it was only after the donor's death when the 'title' to the donated properties would pass to the donee and when the donee would become the owner thereof, it was held in the Balaqui case that the donation was inter vivos.
It was noted in that case that the donor, in making a warranty, implied that the title had already been conveyed to the donee upon the execution of the deed and that the donor merely reserved to herself the "possesion and usufruct" of the donated properties.
4. In the trial the following facts were admitted without contradiction:
(1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has certain windows therein, through which it receives light and air, said windows opening on the adjacent house, No. 63 of the same street; (2) that these windows have been in the existence since the year 1843 and (3) that the defendant, the tenant of the said house No. 63, has commenced certain work with the view to raising the roof of the house in such a manner that one-half of the windows in said house No. 65 has been covered, thus depriving the building of a large part of the air and light formerly received through the window. In its decision the court below practically finds the preceding facts, and further finds that the plaintiff has not proven that he has, by any formal act, prohibited the owner of house No. 63, from making improvements of any kind therein at any time prior to the complaint.
The contention of the plaintiff is that by the constant and uninterrupted use of the windows referred to above during a period of fifty-nine years he acquired from prescription an easement of light in favor of the house No. 65, and as a servitude upon house No. 63, and, consequently, has acquired the right to restrain the making of any improvements in the latter house which might in any manner be prejudicial to the enjoyment of the said easement. He contends that the easement of light is positive; and that therefore the period of possession for the purposes of the acquisition of a prescriptive title is to begin from the date on which the enjoyment of the same commenced, or, in other words, applying the doctrine to this case, from the time that said windows were opened with the knowledge of the owner of the house No. 63, and without opposition on this part.
The defendant, on the contrary, contends that the easement is negative, and that therefore the time for the prescriptive acquisition thereof must begin from the date on which the owner of the dominant estate may have prohibited, by a formal act, the owner of the servient estate from doing something which would be lawful but for the existence of the easement.
The court below in its decision held in the easement of light is negative, and this ruling has been assigned by the plaintiff as error to be corrected by this court.
Question: Is the easement negative or positive? Explain.
Answer: As a result of the opinion above expressed, we hold:
1. That the easement of light which is the object of this litigation is of a negative character, and therefore pertains to the class which can not be acquired by prescription as provided by article 538 of the Civil Code, except by counting the time of possession from the date on which the owner of the dominant estate has, in a formal manner, forbidden the owner of the servient estate to do an act which would be lawful were it not for the easement.
2. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to the right of the owner of the house No. 63 Calle Rosario (of which the defendant is tenant), to make therein improvements which might obstruct the light of the house No. 65 of the same street, the property of the wife of the appellant, at any time prior to the complaint, as found by the court below in the judgment assigned as error, he has not acquired, nor could he acquire by prescription, such easement of light, no matter how long a time have elapsed since the windows were opened in the wall of the said house No. 65, because the period which the law demands for such prescriptive acquisition could not have commenced to run, the act with which it must necessarily commence not having been performed.
MAXIMO CORTES, plaintiff-appellant, vs.JOSE PALANCA YU-TIBO, defendant-appellant. G.R. No. 911 March 12, 1903
5. Petitioners herein filed a case for recovery of property and damages against the defendant and herein private respondent, Celestino Afable.
Rosalia Bailon and Gaudencio Bailon sold a portion of the said land consisting of 16,283 square meters to Donato Delgado. On May 13, 1949, Rosalia Bailon alone sold the remainder of the land consisting of 32,566 square meters to Ponciana V. Aresgado de Lanuza. On the same date, Lanuza acquired from Delgado the 16,283 square meters of land which the latter had earlier acquired from Rosalia and gaudencio. On December 3, 1975, John Lanuza, acting under a special power of attorney given by his wife, Ponciana V. Aresgado de Lanuza, sold the two parcels of land to Celestino Afable, Sr. In all these transfers, it was stated in the deeds of sale that the land was not registered.
Afable claimed that he had acquired the land in question through prescription and contended that the petitioners were guilty of laches.
QUESTIONS:
(1)What is the effect of a sale by one or more co-owners of the entire property held in common without the consent of all the co-owners and of the appropriate remedy of the aggrieved co-owners?
(2) In a case like this, what should be the proper case to be filed?
(3) Is an action to demand partition imprescriptible? If prescriptible, how many years counted from what?
Answer:
The Court has ruled that even if a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other co-owners who did not consent to the sale. The sale or other disposition affects only what would correspond to his grantor in the partition of the thing owned in common. Consequently, by virtue of the sales made by Rosalia and Gaudencio Bailon which are valid with respect to their proportionate shares, and the subsequent transfers which culminated in the sale to private respondent Celestino Afable thereby became a co-owner of the disputed parcel of land as correctly held by the lower court since the sales produced the effect of substituting the buyers in the enjoyment thereof.
It may be deduced that since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owner is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.
The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property as if it continued to remain in the possession of the co-owners who possessed and administered it.
The action to demand partition is imprescriptible or cannot be barred by laches, absent a clear repudiation of the co-ownership by a co-owner clearly communicated to the other co-owners.
6. The plaintiff, Juan Pichay, in April, 1905, conveyed to the defendants an undivided one-third interest in twenty- five parcels of land situated in the Province of Ilocos Sur, as payment of a debt of P1,500 which she owed them. The defendants and appellants claim that their agreement gave plaintiff no right of usufruct in the land, saying that it appears that she only asked for this right and it does not appear that the defendants gave it to her. On the 10th of August, 1905, the owners of the twenty- five parcels of land made a partition thereof among themselves, in which the plaintiff took no part, and in this partition certain specific tracts of land were assigned to the defendants as the third to which they were entitled by reason of the conveyance from the plaintiff to them. They have been in possession of the tracts so assigned to them in partition since the date thereof, and are now in such possession, and have refused to recognized in the plaintiff any right of usufruct therein.
QUESTION:Is the usufructuary bound by the partition made by the owners of the undivided property although he took no part therein? What is the effect of the partition on his rights?
ANSWER:Juana Pichay v. Eulalo QuerolG.R. No. L-4452, October 1, 1908The usufructuary shall be bound by the partition made by the owners of the undivided property although he took no part in the partition but the naked owner to whom the part held in usufruct has been alloted must respect the usufruct. The right of the usufructuary is not affected by the division but is limited to the fruits of said part allotted to the co-owner.
7. Mr. X is an owner of a land fronting the Sulu Sea. By the action of the waves of the sea, sand and silt were deposited, increasing his land area to about 2,000 square meters. Mr. X then planted coconut trees on said land, and applied for registration of said land before the DENR. Questions: (1) What law shall govern this accretion caused by the action of the sea? (2) Per jurisprudence, what kind of “owner” is Mr. X with respect to the alluvial deposit? (3) Shall you consider X as the owner ipso facto of the accretion? (4) In essence, who owns the accretion? (5) Is there a possibility for X to own the accretion? Explain.
ANSWERS:
1. The Spanish Law Of Waters of 1866 shall govern the accretion caused by the actions of the sea.
2. Per jurisprudence, Mr. X is considered as a littoral owner .
3. X cannot be considered as ipso facto owner of the accretion.
4. The accretion in this case is owned by the state because land added to the shores by accretions and alluvial deposits caused by the action of the sea form part of the public domain.
5. Yes, there could be a possibility for X to own the accretion. When the accretion are not necessary for purposes of public utility, or for establishment of special industries, or for coastguard service, the government shall declare them to be property of the owners of the estates adjacent thereto and as increment thereof.
8. Mr. B owns a property adjacent to the river. He is engaged in the sawmill business. He dumped some of his unused wood and saw dust in the river. Gradually, the area of his land increased. To further improve the land, he planted bakawan trees, for which after 10 years, the accretion increased to six hectares.Questions: (1) Who owns the accretion of six hectares? (2) Can this accretion be registered in his own name considering that he is a riparian owner? Explain.
ANSWERS:
1. The land is considered as a public land since the accretion because it was the direct result of the dumping of sawdust. The accretion was man-made or artificial, not a result of the actions of the waters of the river.
Since the land is a public land, it cannot be registered on Mr. B’s name
9. Miss Y worked in the U.S. for 20 years. She is very generous to her relatives in Davao City. She bought a city property worth 5 million with an area of 6,000 sq. m., and accommodated her cousin Mr. X to build his house thereon.
Mr. X built a house worth 300t. Before the house was built, Miss Y, had them agree in writing that any relative can use the land for free, build whatever structure they can afford and that they must maintain a good relationship, otherwise, they shall all be evicted from the land.
When Miss Y retired, she returned to the Philippines and lived in the house of Mr. X. Soon, disagreements arose, to an extent that their relationship turned sour and irreconciliable.
Miss Y then demanded that Mr. X vacate her land. Mr. X refused and will vacate only if he is reimbursed the present market value of his house which had already been assessed at 500t.
Questions: (1) In essence, what law governs their relationship? (2) Will you consider Mr. X as a builder in good faith? (3) Is Miss Y correct in evicting Mr. X from her land? (4) Is Mr. X correct in demanding that he will not vacate unless he is reimbursed the value of his house? Explain.
ANSWERS:
1. The Law on Usufruct particularly Article 579 of the NCC shall govern the relationship Miss Y and Mr. X.
“ Art. 579. The usufructuary may make on the property held in usufruct such useful improvements or expenses for mere pleasure as he may deem proper, provided he does not alter its form or substance; but he shall have no right to be indemnified therefor. He may, however, remove such improvements, should it be possible to do so without damage to the property. (487) “
2. Mr. X cannot be considered a builder in good faith because he knew that has no title of ownership over the land where he built the house.
3. Yes, Miss Y is correct in evicting Mr. X because he violated the conditions of the usufruct.
4. No, Mr. X cannot demand for reimbursement of the value of the house because he is not a builder in good faith. Pursuant to Article 579 of the New Civil Code. The usufructuary shall have no right to be indemnified on the improvements on the property held in usufruct. He may however remove such improvements, should it be possible to do so without damage to the property.
10. Tuatis bought a 300 square meter land from Tuatis for P10,000 on installment basis. She paid only P4,000. The condition of the sale is that she will pay a down payment of P3,000 and the balance shall be paid on monthly installment until the whole consideration is paid.
Meanwhile, Tuatis built a P500,000 worth of house on said strip.
As Tuatis did not pay the whole amount, Visminda the owner of the lot, demanded that Tuatis should vacate the land, and remove her concrete house thereon.
Tuatis on the other hand, demanded that she will pay the balance price of P6,000 but Visminda refused to receive the amount, as another buyer is willing to buy the land at P300,000.
Accordingly, Vizminda has two options. What are these two options under the law? Discuss each option.
ANSWER:
Taking into consideration the provisions of the Deed of Sale by Installment and Article 448 of the Civil Code, Visminda has the following options:
Under the first option, Visminda may appropriate for herself the building on the subject property after indemnifying Tuatis for the necessary and useful expenses the latter incurred for said building, as provided in Article 546 of the Civil Code.
Under the second option, Visminda may choose not to appropriate the building and, instead, oblige Tuatis to pay the present or current fair value of the land. The P10,000.00 price of the subject property, as stated in the Deed of Sale on Installment , shall no longer apply, since Visminda will be obliging Tuatis to pay for the price of the land in the exercise of Visminda’s rights under Article 448 of the Civil Code, and not under the said Deed. Tuatis’ obligation will then be statutory, and not contractual, arising only when Visminda has chosen her option under Article 448 of the Civil Code.
Still under the second option, if the present or current value of the land, the subject property herein, turns out to be considerably more than that of the building built thereon, Tuatis cannot be obliged to pay for the subject property, but she must pay Visminda reasonable rent for the same. Visminda and Tuatis must agree on the terms of the lease; otherwise, the court will fix the terms.
11. In their Complaint, [respondents] claim that they are the owners of the various parcels of real property that form part of Lot No. 666, (plan II-5121 Amd.2) situated in Mandaue City, Cebu, which lot allegedly belonged originally to Claudio Ermac. Upon the latter’s death, the said Lot No. 666 was inherited and partitioned by his children, namely, Esteban, Pedro and Balbina. Siblings Pedro and Balbina requested their brother Esteban to have their title over the property registered. Esteban, however, was unable to do so, and the task of registration fell to his son, Clemente. Clemente applied for registration of the title, but did so in his own name, and did not include his father’s brother and sister, nor his cousins. Despite having registered the lot in his name, Clemente did not disturb or claim ownership over those portions occupied by his uncle, aunt and cousins even up to the time of his death.
Questions: (1) Is the registration of the lot in Clemente’s name make him the sole owner of the property? (2) Clemente posit that pursuant to Section 32 of PD 1529 (the Property Registration Decree), the certificate of title issued in his favor, became incontrovertible after the lapse of one year from its issuance, hence, it can no longer be challenged.Is he correct? (3) He further asserts that the ownership claimed by his cousins is barred by prescription and laches, because it took the latter 57 years to bring the present action. Is he correct ?
ANSWERS:
1. No, the registration of the lot under Clemente’s name did not make him the sole owner of the property. He has no right of ownership over the entire property.
2. Clemente is not correct in claiming that the certificate of title in his favor has became incontrovertible after the lapse of one year from its issuance under Sec 32 of PD 1529 ( the Property Registration Decree ).
3. Clemente is not correct in asserting that the ownership claimed by his cousins is barred by prescription and laches. If the plaintiffs are in possession of the property, the action to quiet title does not prescribe because the owner is given the continuing aid by the court to ascertain and determine the nature of such claim and its effect on their title. They can wait until their possession is disturbed and attacked before taking steps to vindicate their right. Possession is a continuing right as is the right to defend such possession.
12. Define the following terms: (1) tort (2) crime (3) breach of contract (4) distinguish tort from breach of contract (5) distinguish crime from tort.
ANSWER: Definition of “tort”
The earlier written defined “tort” as “an unlawful violation of a private legal right, not created by contract, which gives rise to a common-law action for damages.”6 Cooley, Burdick, Salmond and others also defined tort in substantially the same manner7. Later writers have, however, found this definition unsatisfactory and proposed other definitions. Winfield proposed the following definition:
“Tortuous liability arise[s] from the breach of a duty primarily fixed by the laws: such duty is toward persons generally, and its breach is redressible by an action for unliquidated damages.”8
Clerk and Lindsell agree with this definition.9
Prosser did not attempt to define tort. Instead, he tried to describe tort as follows:
“Tort is a term applied to a miscellaneous and more or less unconnected group of civil wrongs, other than breach of contract, for which a court of law will afford a remedy in the form of an action for damages. The law of torts is concerned with the compensation of losses suffered by private individuals in their legally protected interests, through conduct of others which is regarded as socially unreasonable.”10
However, as already pointed out, there is a general agreement among writers on the subject that a satisfactory definition of tort has yet to be found. That is the reason why some writers on torts do not attempt to define the term.11
Tort distinguished from crime
A torte is not the same thing as a crime, although the two sometimes have many features in common. The distinction between them lies in the interests affected and the remedy afforded by the law. A crime is an offense against the public at large, for which the state, as the representative of the public, will bring proceedings in the form of a criminal prosecution. The purpose of such a proceeding is to protect and vindicate the interests of the public as a whole, by punishing the offender or eliminating him from society, either permanently or for a limited time, by reforming him or teaching him not to repeat the offense, and by deterring others imitating him.
The civil action for a tort, on the other hand, is commenced and maintained by the injured person himself, and its purpose is to compensate him for the damage he has suffered, at the expense of the wrongdoer. If he is successful, he receives a judgment for a sum of money, which he may enforce by collecting it from the defendant.
The same act may be both a crime against the state and a tort against an individual. In such a case, since the interests invaded are not the same, and the objects to be accomplished by the two suits are different, there may be both a civil tort action and a criminal prosecution for the same offense.
Tort distinguished from breach of contract
A tort consists in the violation of a right given or the omission to perform a duty imposed by law; while in a breach of contract the right is granted and the obligation is assumed by agreement of the parties. Hence, to determine the form in which the redress must be sought, it is necessary to ascertain the source or origin. It if be found that the right or duty was created independently of the consent of the parties concerned, the action is in tort; if because of such consent, it is on contract. However, the existence of a contractual relation between the parties does not necessarily imply that all obligations that may arise between them will be contractual. The obligor may break the contract under such conditions that the same act which constitutes a breach of contract would constitute a tort if no contract existed between the parties, in which case an action in tort will lie. Again, the breach of contract may give rise to a tort, as for example, one who wrongfully induces a party to a contract to break such contract will be liable for interference of a contractual relation.12
The rule as to parties to an action on the contract and on the tort varies materially. Parties to a contract are determined by its terms. Contract rights are in personam. Parties to a tort are indeterminate. Many persons may be held liable for tort who cannot bind themselves by contract. Rights of contribution between defendants and judgment debtors are different in the two classes of action.
Finally, the remedy in an action on a tort is the award of damages only. On the other hand, while damages may be awarded in an action ex contractu, the contract may also be reformed and specifically enforced. There is a material difference as to the measure of damage and the extent to which liability for consequences can be carried.13
13. State the legitimes of the following surviving heirs (a) one legitimate child and surviving spouse (b) two or more legitimate children and a surviving spouse (c) legitimate parents alone (d) legitimate parents and surviving spouse (e) illegitimate children alone
Answers (a) leg. Child ½ , spouse ¼ (b) ½, surviving spouse 1/4 (c) ½ (d) ½ ; ¼ (e) 1/2
14. Compute the shares of the following heirs in intestate succession: (a) one legitimate child and surviving spouse (b) surviving spouse and a brother (c) legitimate child alone (d) one illegitimate children, surviving spouse and legitimate parent (e) illegitimate children and surviving spouse
Answers: (a) ½; ½ (b) ½; ½ (c) all (d) ¼; ¼ ; ½ (d) ½; ½
15. May a holographic will which does not comply with the requirement that in case of insertion, cancellation, erasure and alteration, the testator must authenticate the same by his full signature, be admitted to probate?
Answer: Yes, as held in Kalaw v. Relova 132 SCRA 237.
16. A and B entered into a contract of lease over a parcel of land or a building.The lessee placed a “galingan” for the use of his rice milling business on the land belonging to the lessor.The galingan was duly cemented on the land seemingly as a solid structure. How do you classify the “galingan”? Is the “galingan” considered an immovable property?
ANSWER: The galingan is a movable property since it was placed by the tenant, not by the owner of the land (Davao Sawmill v. Castillo, 61 Phil. 709).
17. A is the acknowledged natural child of B who died when he was already 22 years old. When B’s full brother C died, he ( C ) was survived by his widow and four children of this other brother, D. A brought this suit to obtain his share in the estate of C. Will his action prosper?
ANSWER: No, because as an illegitimate child, he is not entitled to inherit from the legitimate relatives of his father (Art. 992). This is due to the barrier between legitimates and illegitimates (Diaz v. IAC 150 SCRA 645; Pascual v. Bautista G.R. No. 84240, 1992).
18.What are the elements of a valid contract?
Answer: (a) consent of the contracting parties (b) object certain which is the subject matter of the contract and cause of the obligation which is established.
19. X and Y secured a loan from ABC Bank secured by a real estate mortgage over a parcel of land covered by a title. They failed to pay their taxes during the existence of the loan, hence, the city treasurer levied on the land and scheduled it for auction sale. The city treasurer did not send a notice to the bank. At the scheduled auction sale, it was sold to the highest bidder. X and Y did not redeem the land after one year so the treasurer executed a final deed of sale. When the bidder (buyer) filed a petition to require X and Y or the bank to surrender the title so that a new title can be issued, the bank learned of the levy and asked the court to annul the tax sale, especially so that it was scandalously sold for only P2,871 compared to the mortgage of P290,000. Had the bank been notified, it could have easily paid the tax delinquency. Questions: (A) Is the bank (mortgagee) entitled to the right of personal service of notice. Why? (b) Will the inadequacy of the price of sale vitiate the same? Why? (c) Is the lien of the mortgage lost upon the sale of the said property? Explain.
Answer: The bank is not correct. The mortgagee is not entitled as a matter of right to personal service of notice to the delinquent taxpayer otherwise it would vitiate the sale. This is because the sale does not operate to cancel or extinguish the pre-existing lien. The new title to be issued must have an annotation of such mortgage lien. Neither will the inadequacy of the price vitiate the sale. While in ordinary sales, for reasons of equity, the transaction may be invalidated due to inadequacy of price as to shock one’s conscience, such does not follow when the law gives the owner the right to redeem, as when a sale is made at public auction upon the theory that the lesser price, the easier it is for the owner to effect redemption. SO while the bank is not entitled to notice as to give it a chance to pay the delinquent taxes, it does not lose its lien on the property as to give it a chance to get back what it has lent, together with interest. (Tiongco v. PVB, 212 SCRA 176)
20. Mr. Bandisher is an American citizen. He owns shares of stocks and some real and personal properties in the Philippines which he acquired legally in 1932. Subsequently, or on July 8, 1958, he died a resident of San Antonio, Texas, U.S.A. He executed two wills one that disposes his properties in the Philippines and the other one disposes his properties in Texas. His Philippine will was admitted to probate in the Court of Manila on September 15, 1958. There is a provision in his will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law.
Questions; (a) What is the applicable provision in our civil code concerning the said matter? (b) As a general rule, what law is applicable concerning his personal and real properties? (c) What law applies with respect to the testamentary provisions of his will? (e) Is a provision in a foreigner’s will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law valid? Why?
ART. 16 of the Civil Code provides that ; Real property as well as personal property is subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Appellants would also point out that the decedent executed two wills — one to govern his Texas estate and the other his Philippine estate — arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 — now Article 16 — of the Civil Code states said national law should govern.
END OF THE EXAMINATION
NOTHING FOLLOWS
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