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7/28/2019 Bar Answers

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BAR ANSWERS:

1. By good luck: which is the meaning of by chance, according to the Code

Commission, Yoro found the hidden treasure and therefore, considering that he is

not a trespasser, he shall be entitled to one-half of the value thereof, the other half

pertaining to Xeres. The words by chance do not preclude a finder who purposely

looks for hidden treasure and Yoro is this kind of finder.

2. Whether public or private the following requisites must concur in order that a

private person may summarily abate a nuisance:

(1) It must be specially injurious to him;

(2) No breach of the peace or unnecessary injury must be committed;

(3) Demand must first be made upon the owner or possessor to abate the

nuisance;

(4) The demand has been rejected;

(5) The abatement is approved by the district health officer and executed with the

assistance of the local police; and

(6) The value of the destruction does not exceed P3,000.

3. Tradition may be classifies into:

(1) Real tradition which takes place by the delivery or transfer of a thing from hand

to hand if it is movable, or by certain material and possessory acts of thegrantee performed in the presence and with the consent of the grantor if it is

immovable.

(2) Constructive tradition which takes place by the delivery of a movable or

immovable thing by means of acts or signs indicative thereof. This delivery may

take place in the following ways:

a. Traditio symbolica, which consists in the delivery of a symbol representing

representing the thing which is delivered, such as the kay to a warehouse;

b. Traditio longa manu, which consists in the grantor pointing out to the

grantee the thing which is delivered which at the time must be within sight;

c. Traditio brevi manu, which takes place when the grantee is already in

possession of the thing under a title which is not of ownership, such as when

the lesse purchases from the lessor the object of the lessee; and

d. Traditio constitutum possessorium, which takes place when the grantor

alienates a thing belonging to him, but continues in possession thereof

under a different title, such as that of a lessee, pledgee or depository.

(3) Quasi-tradicion, which is used to indicate the exercise of a right by the grantee

with the acquiescence of the grantor; and

(4) Tradicion por ministerio de la ley, which refers to delivery which takes place by

operation of law.


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4. Tradition is a derivative mode of acquiring ownership and other real rights by virtue

of which they are transmitted from the patrimony of the grantor, in which they had

previously existed, to that of the grantee by means of a just title, there being both

the intention and the capacity on the part of both parties.

Its requisites are:

a. The right to be transmitted should have previously existed in the patrimony of

the grantor;

b. The transmission should be by virtue of a just title;

c. The grantor and the grantee should have the intention and the necessary

capacity to transmit and to acquire; and

d. The transmission should be manifested by some act which may be physical,

symbolical or legal.

5.

a. That the plaintiff is the owner of the land ordered registered in the name of thedefendant, or That the plaintiffs interest in said property in said property does

not appear in the decree or title issued in defendants name

b. That the registration was procured through fraud, or that the omission of the lien

or interest was fraudulent

c. That the value of the property has not been transferred to an innocent

purchases for value

d. That the action is filed within 1 year from the issuance thereof (Apurado vs.

Apurado 26 Phil 581)

6. Yes, the petition for review of a third person who was in default may be given course

even without him having first obtained the lifting of the order of default. It is not

required that he must first secure the lifting of the order of default, because petition

for review is a remedy available only after the finality of the decree of the registration.

One of the essential requisites of the petition is that there was extrinsic fraud

calculated to deprive the interested party of his day in court, thus preventing him from

asserting his right to the property registered in his name. (Bagoyboy vs. Director of

Lands, 37 O.G. 1959)

7. (a) No. under the facts of the case, A may not validly plead prescription of Bscause of action.

The registration of the property in the name of A impresses upon the title

so acquired the character of the constructive trust for B with respect to his

interest in the property as co-owner which would justify an action for

reconveyance. (De Ocampo vs. Zaporteza 53 Phil. 442)

(b) A co-owner may plead acquisitive prescription against another co-owner if it can be

clearly shown that he has repudiated the co-ownership, and that his co-owner had

been appraised of his claim of adverse and exclusive ownership before the

prescriptive period began to run.


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In addition, he must show all the elements of acquisitive prescription, as

follows:

A. For ordinary acquisitive prescription

1. Capacity to acquire by prescription

2. The object is susceptible of prescription

3. The possession must be in the concept of an owner, peaceful and

uninterrupted.

4. Lapse of 4 years if the object is movable or 10 years if immovable

5. The possession must be in good faith and by virtue of a just title

B. For extra- ordinary acquisitive prescription

1. Capacity to acquire by prescription

2. The object is susceptible of prescription

3. The possession must be in the concept of an owner, peaceful anduninterrupted

4. The period of possession must be 8 years if the object is movable, 30

years if it is immovable.

8. No, the new certificates of title were not issued validly. Although A is the owner of

the accredited area under the rule of Alluvium (Art. 457 NCC), it is still necessary for

him to go through a registration proceeding under the Land Registration Act in order

to secure a certificate of title to the same. Without a decree of registration (order of

the court) pursuant to a final judgment in a land registration proceeding, the certificates

of title are null and void.

1970, 1971

9. Bs action of partition mat be categorized, in legal effect as an action of reconveyance

of property based on fraud on As part. Discovery of the fraud was made after 5 years.

A, therefore, has four years from that date to bring an action for reconveyance, as held

in Gerona vs. De Guzman, supra. Since A has not yet possessed the property for therequired ten-year period in implied or constructive trust, his title (actually over of the

property) can be imperilled by Bs timely action to assert his ownership over of the

property.

1946, 1971

10.As contention will not hold water. The law states that the windows, apertures,

balconies and other similar projections affording direct view cannot be made withoutleaving a distance of two meters between the wall in which they are made and the

contiguous property. The failure of X to object to the opening of the window is immaterial

as the law says that the non-observance of the distance of two meters will not give rise to

prescription and moreover, any stipulation permitting a distance less than two meters

would be void.


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1971

11. There is no valid donation (it is void) because by the supervening death of Alfonso, the

offer of donation became ineffective; and by failure to communicate actual acceptance

to the donor (because of the latters death), the donation was not perfected. Moreover,

the required notice to the donor (in authentic form) if the acceptance is made in aseparate instrument under Article 749 of the Civil Code could no longer be complied

with because of the donors death

12.As action will not prosper for the following reasons:

(1) Since the windows were made through a wall on the dominant estate, in order

that A can acquire an easement or servitude of light and view, including the

corollary right of altius non tollendi, by prescription, he should have formallyprohibited B from obstructing his light and view. This requirement which is

stated in the second paragraph of Art. 688 of the NCC merely means that the

prohibition must be made in a public instrument acknowledged before a notary

public pursuant to Art. 621 of said Code. This is as it should be. Easements

constitute a limitation of the dominical right of the owner of the servient estate. It

is clear that A has not complied with this requirement. Therefore, there is no

basis for his assertion that he has acquired a servitude of altius non tollendi.

(2) Besides, and this is equally important, the windows are non-regulatory

windows. In other words, they are one meter distant from the boundary lineseparating the two estates, thus, violating the rule prescribed by Art. 670 of the

NCC that no windows which afford a direct view towards adjoining tenement

can be made without leaving a distance of two meters between the wall on

which they are made and such contiguous property. According to said article,

non-observance of this distance does not give rise to prescription.

13. Even assuming that both the donation and the acceptance are contained in a public

instrument, which the law requires, the donation is not valid for the following reasons:

(1) Under Arr. 749 of the NCC which enunciated the different formalities required in

the execution of donationinter vivos, the law declares that if the acceptance is

made in a separate public instrument, the donor shall be notified thereof in

authentic form, and this step shall be noted in both instruments. It is obvious

that in the instant case the requirement of notification of the donor in authentic

for (constancia authentica) has not been complied with. It is of course axiomatic

under the law on donations that all of the formalities prescribed in Art. 749 of

the Code are essential for validity.

(2) Art. 734 of the NCC declares that s donation is perfected from the moment the

donor knows of the acceptance by the done. It is also obvious that in the instant

case A never came to know of the acceptance could be communicated to him.

Consequently, the contract of the donation was never perfected.


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(3) And finally, Art. 1323 of the NCC is decisive. This article (which is certainly

applicable here considering the provision of Art. 723 of the Code) declares that

an offer becomes ineffective upon the death, civil interdiction, insanity or

insolvency of either party before acceptance is conveyed.

14.

(a) Yes, the author composer, artist or scientist can be considered as the owner of

his creation or product even before it has been copyright or patented. This

explicitly stated in Art. 722 of the NCC. This is also confirmed by the Decree on

Intellectual Property.

(b)As action will prosper. While it is very true that A has not yet secured a

copyright of the story under our Copyright Law, nevertheless, under our NCC,

the author with regard to his literary, dramatic, historical, legal, philosophical,

scientific or other work shall have the ownership of his creation even before the

publication of the same. This right of ownership is protected by the law and thiscan be implemented by means of a proper action for damages. Of course, Art.

722 of the NCC expressly provides that once the work is published, the right of

the author is governed by the Copyright Law but then this presupposes that the

publication should have been made by the author himself and not by another

without any authority whatsoever.

1972

15. Assuming that the construction of the commercial building was made by the nakedowners (the vendees in this case) with the express or implied consent of the

usufructuary (the vendor in this case), it is submitted that the latter is not entitled to

the rentals of such commercial building. Under Article 595 of the NCC, the naked

owner is allowed to make any construction or improvement of which the immovable

usufruct is susceptible, provided that such construction does not cause a

diminution in the usufruct or prejudice the right of the usufructuary. Here, it is

evident that the construction of the commercial building has reduced the area of

the land. To that extent has the value of the usufruct been diminished. Hence, in

order not to prejudiced the usufructuary, he should be properly indemnified by the

naked owners. Thus, in Gaboya vs. Cui (27 SCRA 85), where this question wasresolved for the first time by our Supreme Court, it was held that the naked owners

should pay to the usufructuary a monthly rental for the area of the land occupied by

their building, the amount of which shall be determined considering the rental value

of lands in the neighbourhood.

16. Easements for the right of way and of aqueduct are not acquirable by prescription.

An easement for right of way is not acquired by prescription because although itmay be apparent, it is discontinuous in character. Under the NCC, only continuous

and apparent easements can be acquired by prescription after 10 years.

An easement of aqueduct on the other hand, is not acquirable by prescription after

10 years because although it is continuous and apparent in character under the

Water Code of the Philippines, all waters belong to the State; therefore they cannot


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be the subject of acquisitive prescription. Besides, a water right evidenced by a

water permit is now mandatorily required by law for the water appropriator.

1973

17. No, because the proper remedy of Gonzales would be to file a suit for replevin

against Xeres invoking Article 559 of the New Civil Code. Besides, I would have no

jurisdiction over the person of Xeres who is not a party to the case. The mere filing of

the estafa charge does not necessarily mean that Burgos is already guilty of estafa.

18. The motion should be denied. True, from the view point of Civil Law, Art. 5611 of

the NCC is applicable. Since C, the legitimate owner of the diamond ring, had been

unduly deprived thereof by B, who had stolen it from him, he can, therefore, recover it

even from A, who had acquired possession thereof in good faith, without any obligationwhatsoever. But he should avail himself of a proper remedy of replevin. He cannot take

a short cut by merely filing a motion in a criminal case against B. IN the first place, A is

entitled to be respected in his possession until ruled otherwise by a competent court; in

the second place, in the meantime, A is considered the owner of the ring, and therefore,

should not be compelled to surrender it to one who claims it to be the owner; in the third

place, the mere filing of a criminal action against B for theft does not necessarily mean

that theft has in fact been committed, thus, justifying the court in disturbing the

possession of the possessor; and in the fourth place, A is not a party in the criminal

case, and therefore, the court has no jurisdiction over him.

1974

19. In the light of the principle that possession of movable property acquired in good faith

is equivalent to a title as far as the possessor Hospicio is concerned, theoretically, he has

a presumptive title sufficient to serve as a basis for acquisitive prescription. Thus, as

distinguished from prescription of real property, in which the just title must be proved,

because it is deemed to exist when the possession is in good faith. However in the

instance case, this right has become moot and academic, because according to theproblem, the possession of Hospicio was only for a few days.

On the other hand, the legitimate owner of the ring, Gregorio, may recover said ring from

the possessor Hospicio provided that he had lost it or had been unduly deprived thereof.

According to the problem he had lost the ring. Consequently, pursuant to the article cited,

he can now recover the ring from Hospicio without any obligation whatsoever. The fact

that the ring was pledged to Hospicio by Z as security for a loan and that he had received

it from Z in food faith are of no moment. It is evident that the contract of pledge cannot be

the basis of any right of Hospicio, such as the right to demand for a refund of the amount

for which the ring was pledged, because the contract is void since the pledgor is not theowner of the thing which was pledged.


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