*

No. L-69970. November 28, 1988.

FELIX DANGUILAN, petitioner,  vs.  INTERMEDIATE APPELLATE COURT, APOLONIA

MELAD, assisted by her husband, JOSE TAGACAY, respondents.

Civil Law; Donations; The conveyances in the case at bar being onerous donations are not covered by the
rule in Article 749 of the Civil Code requiring donations of real properties to be effected through a public
instrument.—It is our view, considering the language of the two instruments, that Domingo Melad did
intend to donate the properties to the petitioner, as the private respondent contends. We do not think,
however, that the donee was moved by pure liberality. While truly donations, the conveyances were onerous
donations as the properties were given to the petitioner in exchange for his obligation to take care of the
donee for the rest of his life and provide for his burial. Hence, it was not covered by the rule in Article 749 of
the Civil Code requiring donations of real properties to be effected through a public instrument.

Same; Same; Same; Contrary to the arguments of private respondent, there was a fair exchange between
the donor and the donee that made the transaction an onerous donation.—The private respondent argues
that as there was no equivalence between the value of the lands donated and the services for which they
were being exchanged, the two transactions should be considered pure or gratuitous donations of real rights,
hence, they should have been effected through a public instrument and not mere private writings. However,
no evidence has been adduced to support her contention that the values exchanged were disproportionate or
unequal. On the other hand, both the trial court and the respondent court have affirmed the factual
allegation that the petitioner did take care of Domingo Melad and later arranged for his burial in accordance
with the condition imposed by the donor. It is alleged and not denied that he died when he was almost one
hundred years old, which would mean that the petitioner farmed the land practically by himself and so
provided for the donee (and his wife) during the latter part of Domingo Melad’s life. We may assume that
there was a fair exchange between the donor and the donee that made the transaction an onerous donation.

_______________

* FIRST DIVISION.

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VOL. 168, NOVEMBER 28, 1988 23

Danguilan vs. Intermediate Appellate Court

Same; Sale; Presumption of due execution of a public instrument is disputable and will yield to contrary
evidence.—The deed of sale was allegedly executed when the respondent was only three years old and the
consideration was supposedly paid by her mother, Maria Yedan, from her earnings as a wage worker in a
factory. This was itself a suspicious circumstance one may well wonder why the transfer was not made to
the mother herself, who was after all the one paying for the lands. The sale was made out in favor of
Apolonia Melad although she had been using the surname Yedan, her mother’s surname, before that
instrument was signed and in fact even after she got married. The averment was also made that the
contract was simulated and prepared after Domingo Melad’s death in 1945. It was also alleged that even
after the supposed execution of the said contract, the respondent considered Domingo Melad the owner of
the properties and that she had never occupied the same. Considering these serious challenges, the
appellate court could have devoted a little more time to examining Exhibit “E” and the circumstances
surrounding its execution before pronouncing its validity in the manner described above. While it is true
that the due execution of a public instrument is presumed, the presumption is disputable and will yield to
contradictory evidence, which in this case was not refuted.
 Same; Same; Delivery; Private respondent failed to show that she consummated the contract of sale by
actual delivery of the properties to her.—At any rate, even assuming the validity of the deed of sale, the
record shows that the private respondent did not take possession of the disputed properties and indeed
waited until 1962 to file this action for recovery of the lands from the petitioner. If she did have possession,
she transferred the same to the petitioner in 1946, by her own sworn admission, and moved out to another
lot belonging to her step-brother. Her claim that the petitioner was her tenant (later changed to
administrator) was disbelieved by the trial court, and properly so, for its inconsistency. In short, she failed to
show that she consummated the contract of sale by actual delivery of the properties to her and her actual
possession thereof in concept of purchaser-owner.

Same; Same; Same; Same; It is a fundamental and elementary principle that ownership does not pass by
mere stipulation but only by delivery.—“Since in this jurisdiction it is a fundamental and elementary
principle that ownership does not pass by mere stipulation but only by delivery (Civil Code, Art. 1095;
Fidelity and Surety Co. v. Wilson, 8 Phil. 51), and the execution of a public document does not

24

24 SUPREME COURT REPORTS

ANNOTATED

Danguilan vs. Intermediate Appellate Court

constitute sufficient delivery where the property involved is in the actual and adverse possession of
third persons (Addison vs. Felix, 38 Phil. 404; Masallo vs. Cesar, 39 Phil. 134), it becomes incontestable that
even if included in the contract, the ownership of the property in dispute did not pass thereby to Mariano
Garchitorena. Not having become the owner for lack of delivery, Mariano Garchitorena cannot presume to
recover the property from its present possessors. His action, therefore, is not one of revindicacion, but one
against his vendor for specific performance of the sale to him.”

Same; Same; Same; Same; Same; In order that symbolic delivery may produce the effect of tradition, it is
necessary that the vendor shall have control over the thing sold that, at the moment of the sale, its material
delivery could have been made.—As for the argument that symbolic delivery was affected through the deed
of sale, which was a public instrument, the Court has held: “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.’ (Civil 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 the 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.”

Same;  Possession;  Rule where respective claims of the parties were both to be discarded as being
inherently weak.—There is no dispute that it is the petitioner and not the private respondent who is in
actual possession of the litigated properties. Even if the respective claims of the parties were both to be
discarded as being inherently weak, the decision should still incline in favor of the petitioner pursuant to the
doctrine announced in Santos & Espinosa v. Estejada, where the Court announced: “If the claim of both the
plaintiff and the
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VOL. 168, NOVEMBER 28, 1988 25

Danguilan vs. Intermediate Appellate Court

defendant are weak, judgment must be for the defendant, for the latter being in possession is presumed
to be the owner, and cannot be obliged to show or prove a better right.”

PETITION to review the decision of the then Intermediate Appellate Court.

The facts are stated in the opinion of the Court.

     Pedro R. Perez, Jr. for petitioner.
     Teodoro B. Mallonga for private respondent.

CRUZ, J.:

The subject of this dispute is the two lots owned by Domingo Melad which is claimed by both the
petitioner and the respondent. The trial court believed the petitioner but the respondent court, on
appeal, upheld the respondent. The case is now before us for a resolution of the issues once and
for all.
On January 29, 1962, the respondent filed a complaint against the petitioner in the then Court
of First Instance of Cagayan for recovery of a farm lot and a residential lot which she claimed she
had purchased
1
from Domingo Melad in 1943 and were now being unlawfully withheld by the
defendant.  In his answer, the petitioner denied the allegation and averred that he was the owner
of the said lots of which he had been in open, 2continuous and adverse possession, having acquired
them from Domingo3 Melad in 1941 and 1943.  The case was dismissed for failure to prosecute but
was refiled in 1967.
At the trial, the plaintiff presented a deed of sale dated December 4, 1943, purportedly signed
by Domingo
4
Melad and duly notarized, which conveyed the said properties to her for the sum of
P80.00.  She said the amount was earned by her mother as a worker at the Tabacalera factory.
She claimed to be the illegitimate daughter of Domingo Melad, with whom she and her mother
were living when he died in 1945. She moved out of the farm only when in 1946 Felix Danguilan

_______________
1 Exh. “I” (Orig. Records, p. 11).
2 Exh. “G” (Orig. Records, p. 7).
3 Exh. “J” (Orig. Records, p. 13).
4 Exh. “E” (Orig. Records, p. 5).

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26 SUPREME COURT REPORTS ANNOTATED

Danguilan vs. Intermediate Appellate Court

approached her and asked permission to cultivate the land and to stay therein. She had agreed
on condition that he would deliver part of the harvest from the farm to her, which he did from
that year to 1958. The deliveries having stopped, she then consulted the municipal judge who
advised her to file the complaint against
5
Danguilan. The plaintiff’s mother, her only other
witness, corroborated this testimony.
For his part, the defendant testified that he was the husband of Isidra Melad, Domingo’s niece,
whom he and his wife Juana Malupang had taken into their home as their ward as they had no
children of their own. He and his wife lived with the couple in their house on the residential lot
and helped Domingo with the cultivation of the farm. Domingo Melad signed in 1941 a private
instrument in which he gave the defendant the farm and in 1943 another private instrument in
which he also gave him the residential lot, on the understanding
6
that the latter would take care
of the grantor
7
and would bury him upon his death.   Danguilan presented three other
witnesses  to corroborate his statements and to prove that he had been living in the land since his
marriage to Isidra and had remained in possession thereof after Domingo Melad’s death in 1945.
Two of said witnesses
8
declared that neither the plaintiff nor her mother lived in the land with
Domingo Melad.
The decision of the trial court was based9 mainly on the issue of possession. Weighing the
evidence presented by the parties, the judge   held that the defendant was more believable and
that the plaintiff’s evidence was “unpersuasive and unconvincing.” It was held that the plaintiff’s
own declaration that she moved out of the property in 1946 and left it in the possession of the
defendant was contradictory to her claim of ownership. She was also inconsistent when she
testified first that the defendant was her tenant and later in rebuttal that he was her
administrator. The decision concluded that where there was

_______________
5 TSN, April 25, 1972, pp. 57-58,70.
6 TSN, Dec. 7, 1943, pp. 1-9.
7 Juanito Marallag, Narciso Fuggan and Abelardo Calebag.
8 TSN, March 29, 1973 (J. Marallag), pp. 76, 78, 80; Oct. 26, 1973, p. 35 (N. Fuggan).
9 Hon. Bonifacio A. Cacdac.

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Danguilan vs. Intermediate Appellate Court

doubt as to the ownership of the property, the presumption10

was in favor of the one actually
occupying the same, which in this case was
11
the defendant.
The review by the respondent court  of this decision was manifestly less than thorough. For
the most part it merely affirmed the factual findings of the trial court except for an irrelevant
modification, and it was only toward the end that it went to and resolved what it considered the
lone decisive issue. The respondent court held that Exhibits 2-b and 3-a, by virtue of which
Domingo Melad had conveyed the two parcels of land to the petitioner, were null and void. The
reason was that they were donations of real property and as such should have been effected
through a public instrument. It then set aside the appealed decision and declared the
respondents the true and lawful owners of the disputed property.
The said exhibits read as follows:
12
“EXHIBIT 2-b is quoted as follows:
I, DOMINGO MELAD, of legal age, married, do hereby declare in this receipt the truth of my giving to
Felix Danguilan, my agricultural land located at Barrio Fugu-Macusi, Penablanca, Province of Cagayan,
Philippine Islands; that this land is registered under my name; that I hereby declare and bind myself that
there is no one to whom I will deliver this land except to him as he will be the one responsible for me in the
event that I will die and also for all other things needed and necessary for me, he will be responsible because
of this land I am giving to him; that it is true that I have nieces and nephews but they are not living with us
and there is no one to whom I will give my land except to Felix Danguilan for he lives with me and this is
the length—175 m. and the width is 150 m.
‘IN WITNESS WHEREOF, I hereby sign my name below and also those present in the execution of this
receipt this 14th day of September 1941.
‘Penablanca, Cagayan, September 14, 1941.
(SGD.) DOMINGO MELAD          

_______________
10 Trial Court’s Decision, pp. 9-11 (Orig. Records, pp. 140-142).
11 Through Justice Marcelino R. Veloso, with the concurrence of Justices Porfirio V. Sison, Abdulwahid A. Bidin and
Desiderio P. Jurado.
12 Orig. Records, p. 17.

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28 SUPREME COURT REPORTS ANNOTATED

Danguilan vs. Intermediate Appellate Court

‘WITNESSES:
1. (T.M.) ISIDRO MELAD
2. (SGD.) FELIX DANGUILAN
3. (T.M.) ILLEGIBLE’ ” 13
EXHIBIT 3-a is quoted as follows:
‘I, DOMINGO MELAD, a resident of Centro, Penablanca, Province of Cagayan, do hereby swear and
declare the truth that I have delivered my residential lot at Centro, Penablanca, Cagayan, to Felix
Danguilan, my son-in-law because I have no child; that I have thought of giving him my land because he will
be the one to take care of SHELTERING me or bury me when I die and this is why I have thought of
executing this document; that the boundaries of this lot is—on the east, Cresencio Danguilan; on the north,
Arellano Street; on the south by Pastor Lagundi and on the west, Pablo Pelagio and the area of this lot is 35
meters going south; width and length beginning west to east is 40 meters.
‘IN WITNESS HEREOF, I hereby sign this receipt this 18th day of December 1943.
(SGD.) DOMINGO MELAD          

‘WITNESSES:

(SGD.) ILLEGIBLE
(SGD.) DANIEL ARAO’ ”

It is our view, considering the language of the two instruments, that Domingo Melad did intend
to donate the properties to the petitioner, as the private respondent contends. We do not think,
however, that the donee was moved by pure liberality. While truly donations, the conveyances
were onerous donations as the properties were given to the petitioner in exchange for his
obligation to take care of the donee for the rest of his life and provide for his burial. Hence, it was
not covered by the rule in Article 749 of the Civil Code requiring donations of real properties to be
effected through a public instrument.
14
The case at bar comes squarely under the doctrine laid
down in Manalo v. De Mesa,  where the Court held:

_______________
13 Ibid., p. 19.
14 29 Phil. 495.

29
 VOL. 168, NOVEMBER 28, 1988 29
Danguilan vs. Intermediate Appellate Court

“There can be no doubt that the donation in question was made for a valuable consideration, since the
donors made it conditional upon the donees’ bearing the expenses that might be occasioned by the death and
burial of the donor Placida Manalo, a condition and obligation which the donee Gregorio de Mesa carried out
in his own behalf and for his wife Leoncia Manalo; therefore, in order to determine whether or not said
donation is valid and effective it should be sufficient to demonstrate that, as a contract, it embraces the
conditions the law requires and is valid and effective, although not recorded in a public instrument.”

The private respondent argues that as there was no equivalence between the value of the lands
donated and the services for which they were being exchanged, the two transactions should be
considered pure or gratuitous donations of real rights, hence, they should have been effected
through a public instrument and not mere private writings. However, no evidence has been
adduced to support her contention that the values exchanged were disproportionate or unequal.
On the other hand, both the trial court and the respondent court have affirmed the factual
allegation that the petitioner did take care of Domingo Melad and later arranged for his burial in
accordance with the condition imposed by the 15
donor. It is alleged and not denied that he died
when he was almost one hundred years old,  which would mean that the petitioner farmed the
land practically by himself and so provided for the donee (and his wife) during the latter part of
Domingo Melad’s life. We may assume that there was a fair exchange between the donor and the
donee that made the transaction an onerous donation.
Regarding the private respondent’s claim that she had purchased the properties by virtue of a
deed of sale, the respondent court had only the following to say: “Exhibit ‘E’ taken together with
the documentary and oral evidence shows that the preponderance of evidence is in favor of the
appellants.” This was, we think, a rather superficial way of resolving such a basic and important
issue.

_______________
15 TSN, Nov. 29, 1973 (J. Marallag), p. 78; Sept. 13, 1974 (A. Calebag), p. 4.

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30 SUPREME COURT REPORTS ANNOTATED

Danguilan vs. Intermediate Appellate Court

The deed of sale was allegedly executed when the respondent was only three years old and the
consideration was supposedly
16
paid by her mother, Maria Yedan, from her earnings as a wage
worker in a factory.   This was itself a suspicious circumstance, one may well wonder why the
transfer was not made to the mother herself, who was after all the one paying for the lands. The
sale was made out in favor of Apolonia Melad although she had been using the surname Yedan,
her mother’s
17
surname, before that instrument was signed and in fact even after she got
married.   The averment was also 18
made that the contract was simulated and prepared after
Domingo Melad’s death in 1945.  It was also alleged that even after the supposed execution of
the said contract, the respondent 19considered Domingo Melad the owner of the properties and that
she had never occupied the same.
Considering these serious challenges, the appellate court could have devoted a little more time
to examining Exhibit “E” and the circumstances surrounding its execution before pronouncing its
validity in the manner described above. While it is true that the due execution of a public
instrument is presumed, the presumption is disputable and will yield to contradictory evidence,
which in this case was not refuted.
At any rate, even assuming the validity of the deed of sale, the record shows that the private
respondent did not take possession of the disputed properties and indeed waited until 1962 to file
this action for recovery of the lands from the petitioner. If she did have possession, she
transferred the same to the petitioner in 201946, by her own sworn admission, and moved out to
another lot belonging to her step-brother.   Her claim that the petitioner was her tenant (later
changed to administrator) was disbelieved by the trial court, and properly so, for its
inconsistency. In short, she failed to show that she consummated the contract of sale by actual
delivery of the properties to her and her actual possession thereof in concept of pur-

______________
16 TSN, April 6, 1972, pp. 18 & 20.
17 Ibid., pp. 15-16.
18 Memorandum of Petitioner, p. 18.
19 Ibid., pp. 18-22.
20 TSN, April 6, 1972, p. 47.

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Danguilan vs. Intermediate Appellate Court

chaser-owner. 21
As was held in Garchitorena v. Almeda:
“Since in this jurisdiction it is a fundamental and elementary principle that ownership does not pass by
mere stipulation but only by delivery (Civil Code, Art. 1095; Fidelity and Surety Co. v. Wilson, 8 Phil. 51),
and the execution of a public document does not constitute sufficient delivery where the property involved is
in the actual and adverse possession of third persons (Addison vs. Felix, 38 Phil. 404; Masallo vs. Cesar, 39
Phil. 134), it becomes incontestable that even if included in the contract, the ownership of the property in
dispute did not pass thereby to Mariano Garchitorena. Not having become the owner for lack of delivery,
Mariano Garchitorena cannot presume to recover the property from its present possessors. His action,
therefore, is not one of revindicacion, but one against his vendor for specific performance of the sale to him.”
22
In the aforecited case of Fidelity and Deposit Co. v. Wilson,  Justice Mapa declared for the Court:
“Therefore, in our Civil Code it is a fundamental principle in all matters of contracts and a well-known
doctrine of law that ‘non mudis pactis, sed traditione dominia rerum transferuntur’. In conformity with said
doctrine as established in paragraph 2 of article 609 of said code, that ‘the ownership and other property
rights are acquired and transmitted by law, by gift, by testate or intestate succession, and, in consequence of
certain contracts, by tradition’. And as the logical application of this disposition article 1095 prescribes the
following: ‘A creditor has the rights to the fruits of a thing from the time the obligation to deliver it arises.
However, he shall not acquire a real right’ (and the ownership is surely such) ‘until the property has been
delivered to him.’
“In accordance with such disposition and provisions the delivery of a thing constitutes a necessary and
indispensable requisite for the purpose of acquiring the ownership of the same by virtue of a contract. As
Manresa states in his Commentaries on the Civil Code, volume 10, pages 339 and 340: ‘Our law does not
admit the doctrine of the transfer of property by mere consent but limits the effect of the agreement to the
due execution of the contract. x x x . The ownership, the property right, is only derived from the delivery of a
thing x x x.”

_______________
 21 48 O.G. 3432.
22 8 Phil. 51.

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32 SUPREME COURT REPORTS ANNOTATED

Danguilan vs. Intermediate Appellate Court

As for the argument that symbolic delivery was effected through the deed of sale, which was a
public instrument, the Court has held:
“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.’ (Civil 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 the 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
23
by the interposition of another will, then fiction yields to reality—the delivery has
not been effected.”

There is no dispute that it is the petitioner and not the private respondent who is in actual
possession of the litigated properties. Even if the respective claims of the parties were both to be
discarded as being inherently weak, the decision should still incline in favor 24
of the petitioner
pursuant to the doctrine announced in Santos & Espinosa v. Estejada,   where the Court
announced:
“If the claim of both the plaintiff and the defendant are weak, judgment must be for the defendant, for the
latter being in possession is presumed to be the owner, and cannot be obliged to show or prove a better
right.”

_______________
23 Addison v. Felix and Tioco, 38 Phil. 404.
24 26 Phil. 399.

33

VOL. 168, NOVEMBER 28, 1988 33

People vs. Mejias

WHEREFORE, the decision of the respondent court is SET ASIDE and that of the trial court
REINSTATED, with costs against the private respondent. It is so ordered.

     Narvasa, (Chairman), Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Decision set aside.

 Note.—A thing sold is understood as delivered when it is placed in the control and possession
of the vendee. Delivery produces its natural effects in law one of which being the conveyance of
ownership. (Municipality of Victorias vs. Court of Appeals, 149 SCRA 32).