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    332 views11 pages

    Dilag and Co V Merced Full Highlight

    Uploaded by

    Alfonso Miguel Lopez
    full text

    Copyright:

    © All Rights Reserved
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    of 11
    OFFICIAL GAZETTE Vou. 45, No, 12 the Innd within the said period, and to contend that the sale by his brother may be given effect because he had Ie} the vendee to believe that the seller had title thereto, is ty advocate for what would amount to an evasion or indir infringment of the prohibition. As to the question of prescription, we note that while defendant's answer sets forth as a basis for said defen alleged adverse possession by himself and his predecessors in interest for the statutory period, in his appeal he rex. ises his position by declaring in his brief that he does not claim title by prescription. Having become aware that registered land ean not be acquired by prescription (sec. tion 46, Act No. 496), he now takes the position that the present case should, in effect, be taken as an action “to declare null and void Exhibit’ 1, the deed of sale covering the land in question,” an action which, according to section 43 (1) of Act No. 190, preseribes in ten years. Not only is this particular prescription not specifically pleaded in the answer, but defendant seems to overlook that a sale in violation of section 35 of Act No. 926, as amended, is void ab initio and not merely voidable in the sense that it be- comes a nullity only from the time it is so declared by the courts. As the deed was void from the very begin- hing, plaintiff does not have to institute an action for the purpose of having it declared void. Wherefore, the judgment appealed from is aifirmed, with costs against the appellant. Gutierrez David and De ta Rosa, Judgment affirmed. Ditac & Co., INC. plaint ‘MERCED and SIxT0 ZANDUETA, lants; Lim BEN and SY Pua, defendal 1. Bvioence; Wernnss; Exeeer Wirxess; CoMPETENC Sruvy AND TRAINING NoF ALWAYS ESSENTIAL QUAL for Exrver Wrrwess.—Although a witness, in order to be Detent as an expert, must show “1 Yienced in the business or profession to which the subject relates, there is no precise requirement as to the mode in Which skill or experience shall have been acquired. Seientie study and training are not always essential to the competency of witness as an expert. A witness may be competent 1@ testify as an expert although his knowledge was seqired ‘through medium of practical experience rather than scientific study and research. Generally speaking, any person wh by study or experience hax acquired particular knowledge or experience may be allowed to. give in evidence his opinion on matters of technical knowledge and skill relating to #ic ss or employment, Even where the problem presented ich ordinarily requires some scientific knowledge Jong experienced may testify as an expery and appele pellees. OFFICIAL GAZETTE Siete me ee a.Puemrs oF TH VENDEE—Under the Civil Code, the vendor Siena rd aay nade See Ti is a hs Sno crm a a pe re eee Bere gare ery tae eae BeBe decked se i gS et ee eer ee a eaters ema Oe ae a rot Dre Pa Po APPEAL from a judgment of the Court of First Instance of Laguna, Yateo, J. The facts are stated in the opinion of the court. Edwardo P. Ce . Caguion for appellant. ‘Jesus Paredes for appellees Lim Ben and Sy Pua pidntenia M. Moncada and Alfonso Farcon for appellee lag & Co,, Ine, R si » 1988, motor No, HD-232-22265, which it had > ay 5588 OFFICIAL GAZETTE Vou. 45, No, 12 of seizure upon the defendant being later consolidated in Lim Ben whet him. The defendant ‘the complaint and was therefore declared i defendants Jointly and severally, the sum of 75,000 as and the From this judgment, Vicente ‘on August 29, 1945, 7 ier_with Sy Pua, had in turn it from Sixto on April 11, 1945. 1 Je to this vehicle he ‘on that question, on (Exhibit 1), purporting _— pecemBer, 1949 OFFICIAL GAZETTE oo _ to have been issued by the oa June 6, 1944 in favor of Zandueta for an International ruck with motor No. HD-282-22158, said to have been ed from one Marcelino de Leon. on its motor (HD-232-22158) Witness Pablo Dilag could not is say for eertain what the original number was; but it is significant that the first five figures (HD-282-92, . .) coincide with the first five figures of the motor number important of those distinguising features are (1) the general@@BBMBMM®D of the truck, (2) the f the hood, (3) the wooden running board on the left side, (4) the upporting thesglass windshield, (5) the! j (6) the welded! t, (7) the half inch screw on the cylinder head, and (8) the hole in the radiator caused by a blow from the fan belt. With particular reference to features (8), (4), (5) and (6), Pablo Dilag testified that while the truck was in his possession, that is, before it was stolen in December, 1944, its left running board was broken and he had to replace it with a wooden one; that as the framework of the glass windshield was about to be broken, he had it reinforced with supporting iron on each side; that when in 1943 the tie-rod was broken, he and the mechanic, Feliciano Kasilag, made a trip to Manila to look for replacement, but not finding one of the right dimensions, they had to impro- vise a substitute by cutting a length from a shorter tie-rod and another piece from the broken one and then welding the two pieces together; that when the propeller shaft was broken, the same mechanic fixed it by cutting off the broken part and replacing it with a galvanized iron pipe which was inserted and welded into that portion one the shaft from which suggest- ike ‘Operation which consumed about one hour And ty further appears that Dilag’s declaration is 5510 OFFICIAL GAZETTE i on the w stand deseribed in detail how they were effected is nothing to the suggestion that the mechan memory of those repairs should excite suspicion, repairs would appear to be of the kind likely a lasting impression on the ons itness tor the to leave em, tr swith, the had before the court, the to the disputed truck; QB i oo w of note that this key bears the inscription “Corbin-Nex ea athaa th for it. That key is not now before us, ind it described in Exhibit AA, the minutes of the trial of the criminal case for theft.” It is evident from the description that this key was originally one for a eabinst This also a by Zandueta, yy that the “5” is at a lower level than the “1” and the “8" and this I lower part. Q. Did you investigate the motor number of the truck in «™ tion? A. Yes, sir. a DECEMBER, 1949 OFFICIAL GazETTE $$$ q. What investi con of the wotor nitber. (Te, megs What was your purpose in taking the stencll of the motor number of the truck in question’—A, The purpose was to at! rine whether oF not there has been any change made fn the hes, comprising the motor number. (T. &. ny pp. 99-04) “Q. To attain this purpose, did you "have any basis patison?—A. Yes, sir. MQ. What?—A. First the appearance, that is as to i appearance of the number, I noticed’ that there: wese lecause the color of the background of the place where the numer appear is rather dark green, but on the scratches the color ie ‘onze. On the other hand, on the other spaces immediatley: cated after the right end of the plate where the motor numbers are inseribe, T noticed that the same is rather raised (alzade) snl that there were also scratches, “Q. In other words, the purpose of the investigation that yoo nade of the motor of the truck in question was to find out whether oe not there vas any tampering of the motor number of the truck is that right?—A, Yes, sit. “Q. Can you tell the court what is the appearance of an un- ‘tampered motor number of an International truek, like the truck now in question?—A. My first idea on any make of motor vehicle, Including International trucks, is that when the motor numbers are senuine, they appear to be of the same types; usually there. are five or six figures of the same types, That is my first idea, “"Q, Please give to the court all your knowledge or all that you know about the appearance ginal motor pupber, if you ae sae a for com. "Q. You me Your Honor. (7. 8. m, pp. 94-96.) . Please try to remember other features, if there are any thst you have seen?—A. By looking through the naked eyes, one ean inding?—A. Yes, fee that vehicles which are original rave a (7. sm, p. 96) "Q. What did you truck i at the smal Yo" appears ander mean to say that number “8 is composed of two Yo and ‘the way the figure “8” appears to have been inseribed in the of fhe truck in question, iis written upside down, Q What else aid yow find? What other charac : are", “5” “> duaimmmanreeeraaanas 's.'yp.-75 “Q. You stated that the last three fgures—t, 6 and § ae Bier than the two it figures "22." Pease examine the nombre. Wh sprear on top and which reads—282" coming after the letters {BHD" jm those to Exhibits and E-1, and please tell the court “said numbers are oF have the same di oa have the umbers “22"T A Aw Tae them all the number ~ OFFICIAL GAZETTE Vou. 45, No, 4 » No ay sane denention, the same position and stroke, mening, 2m the figures "282" ae the aie as the Sra ony in mumbers 2168: -Q, Please ase also the lat three numbers “166 22168" in thee two Exhibits E and E-1 and tll the ot the figures “158” are in the_ same. potion “S2"—-A. The last three figures "1, "5" and ogres the tame postion at the, Arst two. Aguren “Sart of ppenre tha the Sgure “5” is placed Mile bit twee Ieee. tne bp 97-88) that the =m in the figures ‘court whether the fist 20 at in 75 alae than position of chief of the regi an lastly, from 1968 to the date of the trial (excladig th period of the Japanese occupation), ie imate division of motor vehicles, charged wit luty number appearing on the motor of a particular vehicle is genuine or not. “Although a witness, in order to be competent as an expert, ‘must show himself to be skilled or experienced in the business of profession to which the subject relates, there is no precise neque ‘ment as to the mode in which skill or experience shall have been Acquired. Scientific study nd training are not alWays essential to the competency of a witness as an expert. A witness may be competent to testify as an expert although his knowledge was acquired through the medium of practical experience rather than Seientife study and research, Generally speaking, any person ‘who. by study or experience has acquired particular knowledse tr experience may be allowed to give in evidence his opinion upon matters of technical knowledge and skill relating to such bosines: ‘or employment. Even where tho problems presented is one which ordinarily requires some scientific knowledge or training, ove le ‘experienced may testify as an expert, although he has pursue! no apecal study of the matter. Knowledge sequired by doing it no Jess valuable than that aequived by study.” (20 Am Jur» 784 DECEMBER, 1949 OFFICIAL GAZETTE 5643, this cave arose as may be inferred from the press reports troduced in evidence, In other ver’, Prrequate disguise M passport or other document: of identification, viow of the foregoing, iti ‘fusion we have T ‘above. as a matter of fact does not, damages, which the court however, invites attention to the seeming inconsistency of the trial court in holding him liable from the time of the filing of the complaint, (October 21, 1945), but ap- parently assessing damages “from the time of loss of the truck on December 31, 1944.” But the inconsistency is of no moment. ‘There is no question that, after the filing of the complaint against him which put in doubt his ttl, appellant's possession of the truck should be regarded as in bad faith (Ortiz vs, Fuentebella, 27 Phil, 687). ‘And even if the damages should be computed from that date, the award made by the lower court eannot be eon- sidered excessive in view of the income which, according to appellant, the truck was earning. ‘Lastly, appellant contends that the lower court erred in not holding the defendant Lim Ben liable on his im plied warranty against evietion and in absolving him from Gamages. ‘The point seams to be well taken. Under the Civil Code, the vendor is bound to deliver and warrant the thing sold (artiele 1461) and by this obligation he is answerable to the purchaser for its legal and peaceful possession (Article 1474), and if, by final judgment and by virtue of a right previous to the purchase, the vendee i deprived of the thing bought, the vendee shall have the right (article 1478) to demand of the vendor— |. The restitution of the price which the thing sold bad at ye thet, wher 1b eter of than Gn 2 the feu or lone, sf he hua bon adjudicated to, dies ack Di fra ec a eat hi f. The cou of the sult whieh caued the eviction, and) tn a bropor ease, those of the alt brought araint the vendor for the srarnty 5544 | OFFICIAL GAZETTE Vou 45, Ng a 4. Tha exe ofthe ea ti vw gp "5. The damages and interest and ornamental expe Counsel for Lim Ben contends that an tion does not lie in this ease because (1) the vena not notified of the present suit at the inc vendee, (2) there is as yet no final judgment it the vendee the voluntary id then, if the sale was made in ce has i or reereat Dad taithe Action for rs tance of the ta vendee Vicente Merced depriving him of the tut the bought, of said truck as he still has it in his possession, As to the first requisite pointed out by truck he and (3) the said vendee has not been ona Y cou stould be noted that his client, Lim Ben, has been nad” 4 party to the action, not only by the complarst plaintiff Dilag & Co., but also by against him by the appellant Vicente Merced, in said cross-complaint that in the event he of the ownership of the truck, Lim Ben be of the the eross-complaint te | who prays fs deprived ordered to pay him the selling priee thereof together with 4, and costs. Lim Ben was thus sufficiently the warranty claim against him and his obli informed of igation to de. fend Merced's title. In the circumstances, notiee in the precise form preseribed in article 1481 of the Civil Code would be superfluous. Having appeared in the case ani taken part in the defense, Lim Ben cannot now be heard to say that the absence of this formal notice has prejudiced him, Considering the second and the third requisites together, ‘the question presented is whether the warranty against eviction may be enforeed before the judgment by which the vendeo is to be deprived of the thing sold has be- come final, Our attention has not been called to any Philippine case that is squarely in point, but the Supreme Court of Spain, in its decision of April 27, 1906, has apparently taken the affirmative view. And in accordance with that decision, Manresa seems to be inclined to the opinion that the vendee, after notice to the vendor, may ask in the same action that in case the eviction is realized the said vendor be held liable to him on the warranty against evietion, as may be seen from the following por- tion of his comments on articles 1481 and 1482 of the Civil Code: ® “Pos Ie de 20 de febrero de 1904, se declara que el comrade lemandado, no puede a su ver demandar en el mismo juico aneamiento al vendedor, sino solo requeritle para que lo def al ser privado de la eosa es cuando puede pedir la reparacién,

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