SECOND DIVISION

[G.R. No. 179641. February 9, 2011.]

DOLORITA C. BEATINGO, petitioner, vs. LILIA BU GASIS, respondent.

DECISION

FACTS:

Petitioner Dolorita Beatingo filed a Complaint for Annulment and Cancellation of Sale, Reconveyance, Delivery of Title and Damages 4 against respondent Lilia Bu Gasis before the Regional Trial Court (RTC) of Iloilo City.

Petitioner Dolorita alleged that, on May 19, 1998, she bought a piece of land, from Flora G. Gasis (Flora). The subject property was registered in the name of Flora's predecessor-in-interests evidenced by a notarized Deed of Absolute Sale. Subsequently, petitioner went to the Register of Deeds to have the sale registered. However, she failed to obtain registration because she failed to produce the owner's duplicate certificate of title. She filed a petition for the issuance of the owner's duplicate certificate of title but was opposed by respondent, claiming that she was in possession of the Original Certificate of Title (OCT) as she purchased the subject property from Flora on January 27, 1999, as evidenced by a Deed of Sale. This prompted petitioner to file the Complaint, insisting that she is the rightful owner of the subject property.

On the other hand, respondent claimed that she purchased the subject property from Flora without knowledge of the prior sale of the same

subject property to petitioner, which makes her an innocent purchaser for value. Respondent denied having induced Flora to violate her contract with petitioner as she never knew the existence of the alleged first contract. Lastly, respondent declared that, upon payment of the purchase price, she immediately occupied the subject property and enjoyed its produce.

On December 29, 2005, the RTC rendered a decision, dismissing the

complaint filed by the plaintiff (petitioner). The court gave more weight to respondent's evidence showing that she immediately acquired possession of the subject property and enjoyed its produce upon full payment of the purchase price. Since the two sales — that of petitioner and that of respondent — were not registered with the Registry of Property, the RTC held that whoever was in possession had the better right. Hence, it decided in favor of respondent. The CA likewise denied the Motion for Reconsideration filed by the Petitioner.

Issue:

Whether or not the Petitioner has a better right to own the parcel of land as against the respondent.

Held:

No, Respondent has a batter right over the Petitioner.

The controversy is of double sale, where the seller sold one property to different buyers, first to petitioner and later to respondent. In determining who has a better right, the guidelines set forth in Article 1544 of the Civil Code apply. Article 1544 states: DHcEAa

Art. 1544.If the same thing should have been sold to different vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should be movable property.

Should it be immovable property, the ownership shall belong to the person acquiring it who in good faith first recorded it in the Registry of Property.

Should there be no inscription, the ownership shall pertain to the person who in good faith was first in possession; and, in the absence thereof, to the person who presents the oldest title, provided there is good faith.

Admittedly, the two sales were not registered with the Registry of Property. Since there was no inscription, the next question is who, between petitioner and respondent, first took possession of the subject property in good faith. As held by the trial court, it was respondent who took possession of the subject property and, therefore, has a better right.

Petitioner insists that she executed a public instrument. Thus, she already acquired possession thereof., upon the execution of the public instrument (the notarized deed of sale), she already acquired possession thereof, and thus, considering that the execution thereof and so has a better right as against the Respondent.

In this case, though the sale was evidenced by a notarized deed of sale, petitioner admitted that she refused to make full payment on the subject property and take actual possession thereof because of the presence of tenants on the subject property. Clearly, petitioner had not taken possession of the subject property or exercised acts of dominion over it despite her assertion that she was the lawful owner thereof. 27

Respondent, on the other hand, showed that she purchased the subject property without knowledge that it had been earlier sold by Flora to petitioner. She had reason to believe that there was no defect in her title since the owner's duplicate copy of the OCT was delivered to her by the seller upon full payment of the purchase price. She then took possession of the subject property and exercised acts of ownership by collecting rentals from the tenants who were occupying it.

SECOND DIVISION

[G.R. No. 73913. January 31, 1989.]

JERRY T. MOLES, petitioner, vs. INTERMEDIATE APPELLATE COURT and MARIANO M. DIOLOSA, respondents.

Zoilo V. De la Cruz, Jr., Kenneth Barredo, Romeo Sabig and Natalio V. Sitjao for petitioners.

Rolando N. Medalla and Jose G. Guiñez, Jr., for private respondents.

SYLLABUS

1.REMEDIAL LAW; CIVIL PROCEDURE; VENUE; STIPULATION MUST BE INTELLIGENTLY AND DELIBERATELY INTENDED BY THEM; EXCEPTIONS. — It is obvious that a venue stipulation, in order to bind the parties, must have been intelligently and deliberately intended by them to exclude their case from the reglementary rules on venue. Yet, even such intended variance may not necessarily be given judicial approval, as, for instance, where there are no restrictive or qualifying words in the agreement indicating that venue cannot be laid in any place other than that agreed upon by the parties, and in contracts of adhesion.

2.CIVIL LAW; SPECIAL CONTRACTS; SALES; IMPLIED WARRANTY; DOES NOT APPLY TO SECONDHAND ARTICLES SUBJECT TO INSPECTION AT THE TIME OF THE SALE. — It is generally held that in the sale of a designated and specific article sold as secondhand, there is no implied warranty as to its quality or fitness for the purpose intended, at least where it is subject to inspection at the time of the sale. On the other hand, there is also authority to the effect that in a sale of a secondhand articles there may be, under some circumstances, an implied warranty of fitness for the ordinary purpose of the article sold or for the particular purpose of the buyer. In a line of decisions rendered by the United States Supreme Court, it had theretofore been held that there is no implied warranty as to the condition, adaptation, fitness, or suitability for the purpose for which made, or the quality, of an article sold as and for a secondhand article. Thus, in finding for private respondent, the respondent court cited the ruling in Sison vs. Ago, et al. to the effect that unless goods are sold as to raise an implied warranty, as a general rule there is no implied warranty in the sale of secondhand articles.

3.ID.; ID.; ID.; ID.; ID.; EXCEPTIONS. — The general rule, however, is not without exceptions. Article 1562 of our Civil Code, which was taken from the Uniform Sales Act, provides: "Art. 1562. In a sale of goods, there is an implied warranty or condition as to the quality or fitness of the goods, as follows: (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are acquired, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose;" Furthermore, and of a more determinative role in this case, a perusal of past American decisions likewise reveals a uniform pattern

of rulings to the effect that an express warranty can be made by and also be binding on the seller even in the sale of a secondhand article.

4.ID.; ID.; ID.; ID.; WHAT DOES NOT APPEAR ON FACE OF WRITTEN INSTRUMENT SHOULD BE REGARDED AS DEALER'S OR TRADER'S TALK. — Ordinarily, what does not appear on the face of the written instrument should be regarded as dealer's or trader's talk; conversely, what is specifically represented as true in said document, as in the instant case, cannot be considered as mere dealer's talk.

5.ID.; ID.; ID.; REDHIBITORY DEFECT; MUST BE AN IMPERFECTION OR DEFECT OF SUCH NATURE AS TO ENGENDER A CERTAIN DEGREE OF IMPORTANCE. — On the question as to whether the hidden defects in the machine is sufficient to warrant a rescission of the contract between the parties, we have to consider the rule on redhibitory defects contemplated in Article 1561 of the Civil Code. A redhibitory defect must be an imperfection or defect of such nature as to engender a certain degree of importance. An imperfection or defect of little consequence does not come within the category of being redhibitory.

6.REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; FACTUAL FINDING OF TRIAL COURT MUST BE UPHELD, THERE BEING AMPLE EVIDENCE TO SUSTAIN THE SAME. — An expert witness for the petitioner categorically established that the machine required major repairs before it could be used. This, plus the fact that petitioner never made appropriate use of the machine from the time of purchase until an action was filed, attest to the major defects in said machine, by reason of which the rescission of the contract of sale is sought. The factual finding, therefore, of the trial court that the machine is not reasonably fit for the particular purpose for which it was intended must be upheld, there being ample evidence to sustain the same.

7.CIVIL LAW; SPECIAL CONTRACTS; SALES; EXPRESS WARRANTY; PRESCRIPTIVE PERIOD; GENERAL RULE ON RESCISSION OF CONTRACT APPLIES THEREIN. — At a belated stage of this appeal, private respondent came up for the first time with the contention that the action for rescission is barred by prescription. While it is true that Article 1571 of the Civil Code provides for a prescriptive period of six months for a redhibitory action, a cursory reading of the ten preceding articles to which it refers will reveal that said rule may be applied only in case of implied warranties. The present case involves one with and express warranty. Consequently, the general rule on rescission of

contract, which is four years shall apply. Considering that the original case for rescission was filed only one year after the delivery of the subject machine, the same is well within the prescriptive period.

8.REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; DEFENSE OF PRESCRIPTION IS WAIVED AND CANNOT BE CONSIDERED THEREON IF NOT RAISED IN TRIAL COURT. — This is aside from the doctrinal rule that the defense of prescription is waived and cannot be considered on appeal if not raised in the trial court, and this case does not have the features for an exception to said rule.

D E C I S I O N

REGALADO, J p:

This petition for review on certiorari assails the decision of the then Intermediate Appellate Court 1 dismissing the complaint filed by herein petitioner against the herein private respondent in the former Court of First Instance of Negros Occidental in Civil Case No. 13821 thereof. 2

on May 17, 1978, petitioner Jerry T. Moles commenced a suit against private respondent Mariano M. Diolosa for rescission of contract with damages. Private respondent moved to dismiss on the ground of improper venue, invoking therefor Sales Invoice No. 075A executed between petitioner and private respondent on April 23, 1977 which provides that "all judicial actions arising from this contract shall be instituted in the City of Iloilo." 4 This was opposed by petitioner who averred that there is no formal document evidencing the sale which is substantially verbal in character. In an order dated June 23, 1978, the trial court denied the motion to dismiss, holding that the question of venue could not be resolved at said stage of the case. The subsequent motion for reconsideration was likewise denied.

Consequently, private respondent, invoking the aforesaid venue stipulation, preceded to this Court on a petition for prohibition with preliminary injunction in G.R. No. 49078, questioning the validity of the order denying his aforesaid two motions and seeking to enjoin the trial court from further proceeding with the case. This petition was dismissed for lack of merit in a resolution of the Court, dated February

7, 1979, and which became final on March 15, 1979. Thereafter, private respondent filed his answer and proceeded to trial.

The aforecited records establish that sometime in 1977, petitioner needed a linotype printing machine for his printing business, The LM Press at Bacolod City, and applied for an industrial loan with the Development Bank of the Philippines, (hereinafter, DBP) for the purchase thereof. An agent of Smith, Bell and Co. who is a friend of petitioner introduced the latter to private respondent, owner of the Diolosa Publishing House in Iloilo City, who had two available machines. Thereafter, petitioner went to Iloilo City to inspect the two machines offered for sale and was informed that the same were secondhand but functional.

On his second visit to the Diolosa Publishing House, petitioner together with Rogelio Yusay, a letterpress machine operator, decided to buy the linotype machine, Model 14. The transaction was basically verbal in nature but to facilitate the loan application with the DBP, a pro forma invoice, dated April 23, 1977 and reflecting the amount of P50,000.00 as the consideration of the sale, was signed by petitioner with an addendum that payment had not yet been made but that he promised to pay the full amount upon the release of his loan from the aforementioned bank on or before the end of the month 5 Although the agreed selling price was only P40,000.00, the amount on the invoice was increased by P10,000.00, said increase being intended for the purchase of new matrices for said machine. prLL

Sometime between April and May, 1977, the machine was delivered to petitioner's publishing house at Tangub, Bacolod City where it was installed by one Crispino Escurido, an employee of respondent Diolosa. Another employee of the Diolosa Publishing House, Tomas Plondaya, stayed at petitioner's house for almost a month to train the latter's cousin in operating the machine. 6

Under date of August 29, 1977, private respondent issued a certification wherein he warranted that the machine sold was in "A-1 condition", together with other express warranties. 7

Prior to the release of the loan, a representative from the DBP, Bacolod, supposedly inspected the machine but he merely looked at it to see that it was there 8 The inspector's recommendation was favorable and, thereafter, petitioner's loan of P50,000.00 was granted and released. However, before payment was made to private

respondent, petitioner required the former, in a letter dated September 30, 1977, to accomplish the following, with the explanations indicated by him:

 

1)Crossed check for P15,407.10 representing:

a)P10,000.00 — Overprice in the machine;b)P 203.00 — Freight and handling of the machine;c)P 203.00 — Share in the electric repair; andd)P 5,000.00 — Insurance that Crispin will come back and repair the linotype machine at seller's account as provided in the contract; after Crispin has put everything in order when he goes home on Sunday he will return the check of P15,000.00.

2)Official receipt in the amount of P50,000.00 as full payment of the linotype machine.

These were immediately complied with by private respondent and on the same day, September 30, 1977, he received the DBP check for P50,000,00. 9

It is to be noted that the aforesaid official receipt No. 0451, dated September 30, 1977 and prepared and signed by private respondent, expressly states that he received from the petitioner "the DBP check for P50,000.00 issued in our favor in full payment of one (1) Unit Model 14 Linotype Machine as per Pro forma Invoice dated April 23, 1977." 10

On November 29, 1977, petitioner wrote private respondent that the machine was not functioning properly as it needed a new distributor bar. In the same letter, petitioner unburdened himself of his grievances and sentiments in this wise. LibLex

"We bought this machine in good faith because we trusted you very much being our elder brother in printing and publishing business. We did not hire anybody to look over the machine, much more ask for a rebate in your price of P40,000.00 and believed what your trusted two men, Tomas and Crispin, said although they were hiding the real and actual condition of the machine for your business protection.

"Until last week, we found out the worst ever to happen to us. We have been cheated because the expert of the Linotype machine from Manila says, that the most he will buy your machine is at P5,000.00 only . . ." 11

Private respondent made no reply to said letter, so petitioner engaged the services of other technicians. Later, after several telephone calls regarding the defects in the machine, private respondent sent two technicians to make the necessary repairs but they failed to put the machine in running condition. In fact, since then petitioner was never able to use the machine. 12

On February 18, 1978, not having received from private respondent the action requested in his preceding letter as hereinbefore stated, petitioner again wrote private respondent, this time with the warning that he would be forced to seek legal remedies to protect his interest. 13

Obviously in response to the foregoing letter, private respondent decided to purchase a new distributor bar and, on March 16, 1978, private respondent delivered this spare part to petitioner through one Pedro Candido. However, when thereafter petitioner asked private respondent to pay for the price of the distributor bar, the latter asked petitioner to share the cost with him. Petitioner thus finally decided to indorse the matter to his lawyer.

An expert witness for the petitioner, one Gil Legaspina, declared that he inspected the linotype machine involved in this case at the instance of petitioner. In his inspection thereof, he found the following defects: (1) the vertical automatic stop lever in the casting division was worn out; (2) the justification lever had a slight breach (balan in the dialect); (3) the distributor bar was worn out; (4) the partition at the entrance channel had a tear; (5) there was no "pie stacker" tube entrance; and (6) the slouch arm lever in the driving division was worn out.

It turned out that the said linotype machine was the same machine that witness Legaspina had previously inspected for Sy Brothers, a firm which also wanted to buy a linotype machine for their printing establishment. Having found defects in said machine, the witness informed Sy Brother about his findings, hence the purchase was aborted. In his opinion, major repairs were needed to put the machine back in good running condition. 14

After trial, the court a quo rendered a decision the dispositive portion of which reads:

"IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered as follows:.

(1)Decreeing the rescission of the contract of sale involving one linotype machine No. 14 between the defendant as seller and the plaintiff as buyer;

(2)Ordering the plaintiff to return to the defendant at the latter's place of business in Iloilo City the linotype machine aforementioned together with all accessories that originally were delivered to the plaintiff;

(3)Ordering the defendant to return to the plaintiff the sum of Forty Thousand Pesos (P40,000.00) representing the price of the linotype machine, plus interest at the legal rate counted from May 17, 1978 when this action was instituted, until fully paid;

(4)Ordering the defendant to indemnify the plaintiff the sum of Four Thousand Five Hundred Pesos (P4,500.00) representing unearned income or actual damages;

(5)Ordering the defendant to pay the plaintiff the sum of One Thousand Pesos (P1,000.00) for attorney's fees.

Costs against the defendant." 15

From this decision, private respondent appealed to the Intermediate Appellate Court which reversed the judgment of the lower court and dismissed petitioner's complaint, hence the present petition.

We find merit in petitioner's cause.

On the matter of venue, private respondent relies on the aforementioned Sales Invoice No. 075A which allegedly requires that the proper venue should be Iloilo City and not Bacolod City. We agree with petitioner that said document is not the contract evidencing the sale of the linotype machine, it being merely a preliminary memorandum of a proposal to buy one linotype machine, using for such purpose a printed form used for printing job orders in private respondent's printing business. As hereinbefore explained, this issue on venue was brought to Us by private respondent in a special civil

action for prohibition with preliminary injunction in G.R. No. 49078. After considering the allegations contained, the issues raised and the arguments adduced in said petition, as well as the comments thereto, the Court dismissed the petition for lack of merit. Respondent court erred in reopening the same issue on appeal, with a contrary ruling.  LLpr

Furthermore, it was error for the respondent court, after adopting the factual findings of the lower court, to reverse the latter's holding that the sales invoice is merely a pro forma memorandum. The records do not show that this finding is grounded entirely on speculation, surmises or conjectures as to warrant a reversal thereof. 16 In fact, as hereinbefore stated, private respondent expressly admitted in his official receipt No. 0451, dated September 30, 1977, that the said sales invoice was merely a pro forma invoice. Consequently, the printed provisions therein, especially since the printed form used was for purposes of other types of transactions, could not have been intended by the parties to govern their transaction on the printing machine. It is obvious that a venue stipulation, in order to bind the parties, must have been intelligently and deliberately intended by them to exclude their case from the reglementary rules on venue. Yet, even such intended variance may not necessarily be given judicial approval, as, for instance, where there are no restrictive or qualifying words in the agreement indicating that venue cannot be laid in any place other than that agreed upon by the parties, 17 and in contracts of adhesion. 18

Now, when an article is sold as a secondhand item, a question arises as to whether there is an implied warranty of its quality or fitness. It is generally held that in the sale of a designated and specific article sold as secondhand, there is no implied warranty as to its quality or fitness for the purpose intended, at least where it is subject to inspection at the time of the sale. On the other hand, there is also authority to the effect that in a sale of a secondhand articles there may be, under some circumstances, an implied warranty of fitness for the ordinary purpose of the article sold or for the particular purpose of the buyer. 19

In a line of decisions rendered by the United States Supreme Court, it had theretofore been held that there is no implied warranty as to the condition, adaptation, fitness, or suitability for the purpose for which made, or the quality, of an article sold as and for a secondhand article. 20

Thus, in finding for private respondent, the respondent court cited the ruling in Sison vs. Ago, et al. 21 to the effect that unless goods are sold

as to raise an implied warranty, as a general rule there is no implied warranty in the sale of secondhand articles. 22

Said general rule, however, is not without exceptions. Article 1562 of our Civil Code, which was taken from the Uniform Sales Act, provides:

"Art. 1562.In a sale of goods, there is an implied warranty or condition as to the quality or fitness of the goods, as follows:

(1)Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are acquired, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose;"

xxx xxx xxx

In Drumar Mining Co. vs. Morris Ravine Mining Co., 23 the District Court of Appeals, 3rd District, California, in applying a similar provision of law, ruled:

"There is nothing in the Uniform Sales Act declaring there is no implied warranty in the sale of secondhand goods. Section 1735 of the Civil Code declares there is no implied warranty or condition as to the quality or fitness for any particular purpose, of goods supplied under a contract to sell or a sale, except (this general statement is followed by an enumeration of several exceptions). It would seem that the legislature intended this section to apply to all sales of goods, whether new or secondhand. In subdivision 1 of this section, this language is used: 'Where the buyer . . . makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment . . . there is an implied warranty that the goods shall be reasonably fit for such purpose.' "

 

Furthermore, and of a more determinative role in this case, a perusal of past American decisions 24 likewise reveals a uniform pattern of rulings to the effect that an express warranty can be made by and also be binding on the seller even in the sale of a secondhand article.  prcd

In the aforecited case of Markman vs. Hallbeck, while holding that there was an express warranty in the sale of a secondhand engine, the court said that it was not error to refuse an instruction that upon the sale of secondhand goods no warranty was implied, since secondhand goods might be sold under such circumstances as to raise an implied warranty.

To repeat, in the case before Us, a certification to the effect that the linotype machine bought by petitioner was in A-1 condition was issued by private respondent in favor of the former. This cannot but be considered as an express warranty. However, it is private respondent's submission, that the same is not binding on him, not being a part of the contract of sale between them. This contention is bereft of substance.

It must be remembered that the certification was a condition sine qua non for the release of petitioner's loan which was to be used as payment for the purchase price of the machine. Private respondent failed to refute this material fact. Neither does he explain why he made that express warranty on the condition of the machine if he had not intended to be bound by it. In fact, the respondent court, in declaring that petitioner should have availed of the remedy of requiring repairs as provided for in said certification, thereby considered the same as part and parcel of the verbal contract between the parties.

On the basis of the foregoing circumstances, the inescapable conclusion is that private respondent is indeed bound by the express warranty he executed in favor of herein petitioner.

We disagree with respondent court that private respondent's express warranty as to the A-1 condition of the machine was merely "dealer's talk". Private respondent was not a dealer of printing or linotype machines to whom could be ascribed the supposed resort to the usual exaggerations of trade in said items. His certification as to the condition of the machine was not made to induce petitioner to purchase it but to confirm in writing for purposes of the financing aspect of the transaction his representations thereon. Ordinarily, what does not appear on the face of the written instrument should be regarded as dealer's or trader's talk; 25 conversely, what is specifically represented as true in said document, as in the instant case, cannot be considered as mere dealer's talk.

On the question as to whether the hidden defects in the machine is sufficient to warrant a rescission of the contract between the parties, we have to consider the rule on redhibitory defects contemplated in Article 1561 of the Civil Code. A redhibitory defect must be an imperfection or defect of such nature as to engender a certain degree of importance. An imperfection or defect of little consequence does not come within the category of being redhibitory. 26

As already narrated, an expert witness for the petitioner categorically established that the machine required major repairs before it could be used. This, plus the fact that petitioner never made appropriate use of the machine from the time of purchase until an action was filed, attest to the major defects in said machine, by reason of which the rescission of the contract of sale is sought. The factual finding, therefore, of the trial court that the machine is not reasonably fit for the particular purpose for which it was intended must be upheld, there being ample evidence to sustain the same.

At a belated stage of this appeal, private respondent came up for the first time with the contention that the action for rescission is barred by prescription. While it is true that Article 1571 of the Civil Code provides for a prescriptive period of six months for a redhibitory action, a cursory reading of the ten preceding articles to which it refers will reveal that said rule may be applied only in case of implied warranties. The present case involves one with and express warranty. Consequently, the general rule on rescission of contract, which is four years 27 shall apply. Considering that the original case for rescission was filed only one year after the delivery of the subject machine, the same is well within the prescriptive period. This is aside from the doctrinal rule that the defense of prescription is waived and cannot be considered on appeal if not raised in the trial court, 28 and this case does not have the features for an exception to said rule.

WHEREFORE, the judgment of dismissal of the respondent court is hereby REVERSED and SET ASIDE, and the decision of the court a quo is hereby REINSTATED.

SO ORDERED.

Melencio-Herrera (Chairman), Paras, Padilla and Sarmiento, JJ., concur.

Footnotes

SECOND DIVISION

[G.R. No. 172036. April 23, 2010.]

SPOUSES FAUSTINO AND JOSEFINA GARCIA, SPOUSES MELITON GALVEZ AND HELEN GALVEZ, and CONSTANCIA ARCAIRA represented by their Attorney-in-Fact JULIANA O. MOTAS, petitioners, vs. COURT OF APPEALS, EMERLITA DE LA CRUZ, and DIOGENES G. BARTOLOME, respondents.

DECISION

FACTS:

On May 28, 1993, plaintiffs spouses Faustino and Josefina Garcia and spouses Meliton and Helen Galvez (herein appellees) and defendant Emerlita dela Cruz (herein appellant) entered into a Contract to Sell wherein the latter agreed to sell to the former five (5) parcels of land situated at Tanza, Cavite .At the time of the execution of the said contract, three of the subject lots were registered in the name of one Angel Abelida from whom defendant allegedly acquired said properties by virtue of a Deed of Absolute Sale dated March 31, 1989. aHSCcE

As agreed upon, plaintiffs shall make a down payment of Five Hundred Thousand (P500,000.00) Pesos upon signing of the contract. The balance shall be paid in three installments.

On its due date, December 31, 1993, plaintiffs failed to pay the last installment .Sometime in July 1995, plaintiffs offered to pay the unpaid balance, which had already been delayed by one and [a] half year, which defendant refused to accept. On September 23, 1995, defendant sold the same parcels of land to intervenor Diogenes G. Bartolome.

In order to compel defendant to accept plaintiffs' payment in full satisfaction of the purchase price and, thereafter, execute the necessary document of transfer in their favor, plaintiffs filed before the RTC a complaint for specific performance.

In their complaint, plaintiffs alleged that they discovered the infirmity of the Deed of Absolute Sale between their former owner Angel Abelida and defendant, the same being spurious because the signature of Angel Abelida and his wife were falsified;that due to their apprehension regarding the authenticity of the document, they withheld payment of the last installment; that they tendered payment of the unpaid balance sometime in July 1995, after Angel Abelida ratified the sale made in favor [of] defendant, but defendant refused to accept their payment for no jusitifiable * reason.

In her answer, defendant denied the allegation that the Deed of Absolute Sale was spurious and argued that plaintiffs failed to pay in full the agreed purchase price on its due date despite repeated demands; that the Contract to Sell contains a proviso that failure of plaintiffs to pay the purchase price in full shall cause the rescission of the contract and forfeiture of one-half (1/2%) percent of the total amount paid to defendant; that a notarized letter stating the indended *rescission of the contract to sell and forfeiture of payments was sent to plaintiffs at their last known address but it was returned with a notation "insufficient address." ACTEHI

In its Decision dated 15 April 1999, the trial court ruled that Dela Cruz's rescission of the contract was not valid. Dela Cruz and Bartolome (Intervenor) appealed from the judgment of the trial court. The appellate court reversed the trial court's decision. Hence, this petition.

Issues

Whether or not the contract to sell between the petitioner and respondent can be rescinded due to the failure of the petitioner to pay the subject land or the last installment on the stipulated and

which gives the respondent a right to sell the land to another person.

The Court's Ruling

Yes

Both parties admit the following: (1) the contract between petitioners and Dela Cruz was a contract to sell; (2) petitioners failed to pay in full the agreed purchase price of the subject property on the stipulated date; and (3) Dela Cruz did not want to accept petitioners' offer of payment and did not want to execute a document of transfer in petitioners' favor.

The pertinent provisions of the contract, denominated Contract to Sell, between the parties read: DEHaAS

“Failure on the part of the vendees to comply with the herein stipulation as to the terms of payment shall cause the rescission of this contract and the payments made shall be returned to the vendees subject however, to forfeiture in favor of the Vendor equivalent to 1/2% of the total amount paid. “

“It is hereby agreed and covenanted that possession shall be retained by the VENDOR until a Deed of Absolute Sale shall be executed by her in favor of the Vendees. Violation of this provision shall authorize/empower the VENDOR [to] demolish any construction/improvement without need of judicial action or court order.”

Contracts are law between the parties, and they are bound by its stipulations. It is clear from the above-quoted provisions that the parties intended their agreement to be a Contract to Sell: Dela Cruz retains ownership of the subject lands and does not have the obligation to execute a Deed of Absolute Sale until petitioners' payment of the full purchase price. Payment of the price is a positive suspensive condition, failure of which is not a breach but an event that prevents the obligation of the vendor to convey title from becoming effective. There can be no rescission or resolution of an obligation that is still non-existent due to the non-happening of the suspensive condition. 10 Dela Cruz is thus not obliged to execute a Deed of Absolute Sale in petitioners' favor because of petitioners' failure to make full payment on the stipulated date.

Petitioners justify the delay in payment by stating that they had notice that Dela Cruz is not the owner of the subject land, and that they took pains to rectify the alleged defect in Dela Cruz's title. Be that as it may, Angel Abelida's (Abelida) affidavit 12 confirming the sale to Dela Cruz only serves to strengthen Dela Cruz's claim that she is the absolute owner of the subject lands at the time the Contract to Sell between herself and petitioners was executed. Dela Cruz did not conceal from petitioners that the title to Lot Nos. 2776, 2767 and 2769 still remained under Abelida's name, and the Contract to Sell 13 even provided that petitioners should shoulder the attendant expenses for the transfer of ownership from Abelida to Dela Cruz.

It is undeniable that petitioners failed to pay the balance of the purchase price on the stipulated date of the Contract to Sell. Thus, Dela Cruz is within her rights to sell the subject lands to Bartolome. Neither Dela Cruz nor Bartolome can be said to be in bad faith.

The Supreme Court denied the petition.SEHaDI

FIRST DIVISION

[G.R. No. 136221. June 25, 2001.]

EQUATORIAL REALTY DEVELOPMENT, INC., petitioner, vs. MAYFAIR THEATER, INC., respondent.

Estelito P. Mendoza for petitioner.

De Borja Medialdea Bello Guevarra & Gerodias for private respondent.dr

SYNOPSIS

FACTS:

On November 21, 1996, the Supreme Court in G.R. No. 106063 ordered the (1) rescission of sale of parcels of land between Carmelo & Bauermann and Equatorial Realty Development, Inc., herein petitioner, and (2) thereafter, the sale by Carmelo & Bauermann of the property to respondent Mayfair Theater, Inc.

However, the said decision cannot be executed because Carmelo & Bauermann, the landowner and supposed vendor of the property, could no longer be located. Hence, the respondent deposited with the trial court the amount of the purchase price. Thereafter, the Clerk of Court, as sheriff, executed the deed of sale, and on the basis of which the Registry of Deeds issued new certificates of title in favor of respondent.

In serving the ends of justice, the Court sets guidelines in the execution of its decision. If any of the parties employ means to prevent the execution of the final decision, the Court must see to it that the ends of the litigation would be attained. Litigation must at some time be terminated, for public policy dictates that once a judgment becomes final, executory and unappealable, the prevailing party shall not be deprived of the fruits of victory by some subterfuge devised by the losing party. Courts must guard against any scheme calculated to bring about that result. Constituted, as they are to put an end to controversies, courts frown upon any attempt to prolong them.

Ruling:

Accordingly, the Court remanded the case to the trial court and directed it to validate the acts of the Sheriff of Manila and the titles issued in the name of the respondent and to authorize the Clerk of Court to release the amount deposited with the court for the account of Carmelo & Bauermann to petitioner. ITAaHc

SYLLABUS

1.REMEDIAL LAW; EVIDENCE; DISPUTABLE PRESUMPTION; PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY. — In serving the ends of justice, we set guidelines in the execution of our decision in G.R. No. 106063. If any of the parties employ means to prevent the execution of the final decision, we must see to it that the ends of the litigation would be attained. After all, this is the commission of the courts of the land. Thus, with respect to the transfer certificates of title issued in the name of Mayfair, the presumption of regularity of the issuance applies, that is, the Registry of Deeds complied with his duty to see that all taxes and registration fees have been paid and that the titles were issued after compliance with all the legal requirements.

2.ID.; JUDGMENT; FINAL AND EXECUTORY; COURT MUST EXERCISE POWER OF EXECUTION TO PUT AN END TO DISPUTE THAT WAS SETTLED YEARS AGO. — Considering the present situation of Mayfair Theater, Inc., it is the duty of the lower court in the execution of the decision to effectuate the ultimate result of the suit, with Mayfair Theater, Inc. as the prevailing party. Thus, the titles issued in favor of

Mayfair Theater shall have to be validated. The question is, "How will the execution of the decision be carried out when the supposed vendor of the property (Carmelo & Bauermann) can no longer be located?" To allow this stratagem would make a travesty of a duly promulgated decision of the Supreme Court that has become final and executory. This is where the courts must again exercise its power of execution in order to put an end to the dispute that was settled years ago.

3.ID.; ID.; ID.; PREVAILING PARTY SHOULD NOT BE DEPRIVED OF THE FRUITS OF VICTORY BY SOME SUBTERFUGE DEVISED BY LOSING PARTY. — Litigation must at some time be terminated, for public policy dictates that once a judgment becomes final, executory and unappealable, the prevailing party shall not be deprived of the fruits of victory by some subterfuge devised by the losing party. Courts must guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts frown upon any attempt to prolong them.

R E S O L U T I O N

PARDO, J p:

This is a promethean case involving the execution of a Supreme Court decision, 1 which has been long final, ordering the (1) rescission of sale of parcels of land between Carmelo & Bauermann and Equatorial Realty Development, Inc., and (2) thereafter, the sale by Carmelo & Bauermann of the property to Mayfair Theater, Inc., the party with the right of first refusal to acquire the same.

However, the landowner (Carmelo & Bauermann) could no longer be located. Hence, there was literally no one to restitute the amount of the purchase price. And so no one could "sell" the property to Mayfair Theater, Inc. Thus, Mayfair Theater, Inc. deposited the amount of the purchase price with the trial court.

Nevertheless, in view of the absence of the vendor Carmelo & Bauermann, the Clerk of Court, as sheriff, executed the deed of sale, on the basis of which the Registry of Deeds issued new certificates of title 2 in favor of respondent Mayfair Theater, Inc.

RULING:

In serving the ends of justice, we set guidelines in the execution of our decision in G.R. No. 106063. If any of the parties employ means to prevent the execution of the final decision, we must see to it that the ends of the litigation would be attained. After all, this is the commission of the courts of the land.

Thus, with respect to the transfer certificates of title issued in the name of Mayfair, the presumption of regularity of the issuance applies, 3 that is, the Registry of Deeds complied with his duty to see that all taxes and registration fees have been paid and that the titles were issued after compliance with all the legal requirements.

Considering the present situation of Mayfair Theater, Inc., it is the duty of the lower court in the execution of the decision to effectuate the ultimate result of the suit, with Mayfair Theater, Inc. as the prevailing party. Thus, the titles issued in favor of Mayfair Theater shall have to be validated. The question is, "How will the execution of the decision be carried out when the supposed vendor of the property (Carmelo & Bauermann) can no longer be located?"

To allow this stratagem would make a travesty of a duly promulgated decision of the Supreme Court that has become final and executory. 4

This is where the courts must again exercise its power of execution in order to put an end to the dispute that was settled years ago.

Litigation must at some time be terminated, for public policy dictates that once a judgment becomes final, executory and unappealable, the prevailing party shall not be deprived of the fruits of victory by some subterfuge devised by the losing party. 5 Courts must guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts frown upon any attempt to prolong them. 6

WHEREFORE, the Court hereby remands the case to the trial court with instructions:

1.To execute the Court's decision strictly in accordance with the ruling in G.R. No. 106063 by validating the acts of the Sheriff of Manila and the titles in the

name of Mayfair Theater, Inc. issued by the Register of Deeds of Manila consistent therewith;

2.In case of failure of Carmelo & Bauermann to accept the amount of P11,300,000.00 deposited by Mayfair Theater, Inc. with the Clerk of Court, Regional Trial Court, Manila, to authorize the Clerk of Court to RELEASE the amount of P11,300,000.00 deposited with the Court for the account of Carmelo & Bauermann, Inc. to petitioner;

3.To devolve upon the trial court the determination of other issues that may remain unresolved among the parties relating to the execution of the Court's final decision in G.R. No. 106063.

FIRST DIVISION

[G.R. No. 80298. April 26, 1990.]

EDCA PUBLISHING & DISTRIBUTING CORP., petitioner, vs. THE SPOUSES LEONOR and GERARDO SANTOS, doing business under the name and style of "SANTOS BOOKSTORE," and THE COURT OF APPEALS, respondents.

Emiliano S. Samson, R. Balderrama-Samson, Mary Anne B. Samson for petitioner.

Cendaña, Santos, Delmundo & Cendaña for private respondents.

D E C I S I O N

CRUZ, J p:

The case before us calls for the interpretation of Article 559 of the Civil Code and raises the particular question of when a person may be deemed to have been "unlawfully deprived" of movable property in the hands of another. The article runs in full as follows:

ART. 559.The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same.

If the possessor of a movable lost or of which the owner has been unlawfully deprived has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor.

The movable property in this case consists of books, which were bought from the petitioner by an impostor who sold it to the private respondents. Ownership of the books was recognized in the private respondents by the Municipal Trial Court, 1 which was sustained by the Regional Trial Court, 2 which was in turn sustained by the Court of Appeals. 3 The petitioner asks us to declare that all these courts have erred and should be reversed.

This case arose when on October 5, 1981, a person identifying himself as Professor Jose Cruz placed an order by telephone with the petitioner company for 406 books, payable on delivery. 4 EDCA prepared the corresponding invoice and delivered the books as ordered, for which Cruz issued a personal check covering the purchase price of P8,995.65. 5 On October 7, 1981, Cruz sold 120 of the books to private respondent Leonor Santos who, after verifying the seller's ownership from the invoice he showed her, paid him P1,700.00. 6

Meanwhile, EDCA having become suspicious over a second order placed by Cruz even before clearing of his first check, made inquiries with the De la Salle College where he had claimed to be a dean and was informed that there was no such person in its employ. Further verification revealed that Cruz had no more account or deposit with the Philippine Amanah Bank, against which he had drawn the payment check. 7 EDCA then went to the police, which set a trap and arrested Cruz on October 7, 1981. Investigation disclosed his real name as Tomas de la Peña and his sale of 120 of the books he had ordered from EDCA to the private respondents. 8

On the night of the same date, EDCA sought the assistance of the police in Precinct 5 at the UN Avenue, which forced their way into the store of the private respondents and threatened Leonor Santos with prosecution for buying stolen property. They seized the 120 books

without warrant, loading them in a van belonging to EDCA, and thereafter turned them over to the petitioner. 9

Protesting this high-handed action, the private respondents sued for recovery of the books after demand for their return was rejected by EDCA. A writ of preliminary attachment was issued and the petitioner, after initial refusal, finally surrendered the books to the private respondents. 10 As previously stated, the petitioner was successively rebuffed in the three courts below and now hopes to secure relief from us.

To begin with, the Court expresses its disapproval of the arbitrary action of the petitioner in taking the law into its own hands and forcibly recovering the disputed books from the private respondents. The circumstance that it did so with the assistance of the police, which should have been the first to uphold legal and peaceful processes, has compounded the wrong even more deplorably. Questions like the one at bar are decided not by policemen but by judges and with the use not of brute force but of lawful writs.

Now to the merits.

It is the contention of the petitioner that the private respondents have not established their ownership of the disputed books because they have not even produced a receipt to prove they had bought the stock. This is unacceptable. Precisely, the first sentence of Article 559 provides that "the possession of movable property acquired in good faith is equivalent to a title," thus dispensing with further proof.

The argument that the private respondents did not acquire the books in good faith has been dismissed by the lower courts, and we agree. Leonor Santos first ascertained the ownership of the books from the EDCA invoice showing that they had been sold to Cruz, who said he was selling them for a discount because he was in financial need. Private respondents are in the business of buying and selling books and often deal with hard-up sellers who urgently have to part with their books at reduced prices. To Leonor Santos, Cruz must have been only one of the many such sellers she was accustomed to dealing with. It is hardly bad faith for any one in the business of buying and selling books to buy them at a discount and resell them for a profit.

But the real issue here is whether the petitioner has been unlawfully deprived of the books because the check issued by the impostor in payment therefor was dishonored.

In its extended memorandum, EDCA cites numerous cases holding that the owner who has been unlawfully deprived of personal property is entitled to its recovery except only where the property was purchased at a public sale, in which event its return is subject to reimbursement of the purchase price. The petitioner is begging the question. It is putting the cart before the horse. Unlike in the cases invoked, it has yet to be established in the case at bar that EDCA has been unlawfully deprived of the books.

The petitioner argues that it was, because the impostor acquired no title to the books that he could have validly transferred to the private respondents. Its reason is that as the payment check bounced for lack of funds, there was a failure of consideration that nullified the contract of sale between it and Cruz.

The contract of sale is consensual and is perfected once agreement is reached between the parties on the subject matter and the consideration. According to the Civil Code: cdll

ART. 1475.The contract of sale is perfected at the moment there is a meeting of minds upon the thing which is the object of the contract and upon the price.

From that moment, the parties may reciprocally demand performance, subject to the provisions of the law governing the form of contracts.

xxx xxx xxx

ART. 1477.The owner ship of the thing sold shall be transferred to the vendee upon the actual or constructive delivery thereof.

ART. 1478.The parties may stipulate that ownership in the thing shall not pass to the purchaser until he has fully paid the price.

It is clear from the above provisions, particularly the last one quoted, that ownership in the thing sold shall not pass to the buyer until full payment of the purchase price only if there is a stipulation to that effect. Otherwise, the rule is that such ownership shall pass from the

vendor to the vendee upon the actual or constructive delivery of the thing sold even if the purchase price has not yet been paid.

Non-payment only creates a right to demand payment or to rescind the contract, or to criminal prosecution in the case of bouncing checks. But absent the stipulation above noted, delivery of the thing sold will effectively transfer ownership to the buyer who can in turn transfer it to another.

In Asiatic Commercial Corporation v. Ang, 11 the plaintiff sold some cosmetics to Francisco Ang, who in turn sold them to Tan Sit Bin. Asiatic not having been paid by Ang, it sued for the recovery of the articles from Tan, who claimed he had validly bought them from Ang, paying for the same in cash. Finding that there was no conspiracy between Tan and Ang to deceive Asiatic, the Court of Appeals declared:

Yet the defendant invoked Article 464 12 of the Civil Code providing, among other things that "one who has been unlawfully deprived of personal property may recover it from any person possessing it." We do not believe that the plaintiff has been unlawfully deprived of the cartons of Gloco Tonic within the scope of this legal provision. It has voluntarily parted with them pursuant to a contract of purchase and sale. The circumstance that the price was not subsequently paid did not render illegal a transaction which was valid and legal at the beginning. LLjur

In Tagatac v. Jimenez, 13 the plaintiff sold her car to Feist, who sold it to Sanchez, who sold it to Jimenez. When the payment check issued to Tagatac by Feist was dishonored, the plaintiff sued to recover the vehicle from Jimenez on the ground that she had been unlawfully deprived of it by reason of Feist's deception. In ruling for Jimenez, the Court of Appeals held:

The point of inquiry is whether plaintiff-appellant Trinidad C. Tagatac has been unlawfully deprived of her car. At first blush, it would seem that she was unlawfully deprived thereof, considering that she was induced to part with it by reason of the chicanery practiced on her by Warner L. Feist. Certainly, swindling, like robbery, is an illegal method of deprivation of property. In a manner of speaking, plaintiff-appellant was "illegally deprived" of her car, for the way by which Warner L. Feist induced her to part with it is illegal and is punished by

law. But does this "unlawful deprivation" come within the scope of Article 559 of the New Civil Code?

xxx xxx xxx

. . . The fraud and deceit practiced by Warner L. Feist earmarks this sale as a voidable contract (Article 1390 N.C.C.). Being a voidable contract, it is susceptible of either ratification or annulment. If the contract is ratified, the action to annul it is extinguished (Article 1392, N.C.C.) and the contract is cleansed from all its defects (Article 1396, N.C.C.); if the contract is annulled, the contracting parties are restored to their respective situations before the contract and mutual restitution follows as a consequence (Article 1398, N.C.C.).

 

However, as long as no action is taken by the party entitled, either that of annulment or of ratification, the contract of sale remains valid and binding. When plaintiff-appellant Trinidad C. Tagatac delivered the car to Feist by virtue of said voidable contract of sale, the title to the car passed to Feist. Of course, the title that Feist acquired was defective and voidable. Nevertheless, at the time he sold the car to Felix Sanchez, his title thereto had not been avoided and he therefore conferred a good title on the latter, provided he bought the car in good faith, for value and without notice of the defect in Feist's title (Article 1506, N.C.C.). There being no proof on record that Felix Sanchez acted in bad faith, it is safe to assume that he acted in good faith.

The above rulings are sound doctrine and reflect our own interpretation of Article 559 as applied to the case before us.

Actual delivery of the books having been made, Cruz acquired ownership over the books which he could then validly transfer to the private respondents. The fact that he had not yet paid for them to EDCA was a matter between him and EDCA and did not impair the title acquired by the private respondents to the books.

One may well imagine the adverse consequences if the phrase "unlawfully deprived" were to be interpreted in the manner suggested by the petitioner. A person relying on the seller's title who buys a movable property from him would have to surrender it to another person claiming to be the original owner who had not yet been paid

the purchase price therefor. The buyer in the second sale would be left holding the bag, so to speak, and would be compelled to return the thing bought by him in good faith without even the right to reimbursement of the amount he had paid for it.

It bears repeating that in the case before us, Leonor Santos took care to ascertain first that the books belonged to Cruz before she agreed to purchase them. The EDCA invoice Cruz showed her assured her that the books had been paid for on delivery. By contrast, EDCA was less than cautious — in fact, too trusting — in dealing with the impostor. Although it had never transacted with him before, it readily delivered the books he had ordered (by telephone) and as readily accepted his personal check in payment. It did not verify his identity although it was easy enough to do this. It did not wait to clear the check of this unknown drawer. Worse, it indicated in the sales invoice issued to him, by the printed terms thereon, that the books had been paid for on delivery, thereby vesting ownership in the buyer.  Cdpr

Surely, the private respondent did not have to go beyond that invoice to satisfy herself that the books being offered for sale by Cruz belonged to him; yet she did. Although the title of Cruz was presumed under Article 559 by his mere possession of the books, these being movable property, Leonor Santos nevertheless demanded more proof before deciding to buy them.

It would certainly be unfair now to make the private respondents bear the prejudice sustained by EDCA as a result of its own negligence. We cannot see the justice in transferring EDCA's loss to the Santoses who had acted in good faith, and with proper care, when they bought the books from Cruz.

While we sympathize with the petitioner for its plight, it is clear that its remedy is not against the private respondents but against Tomas de la Peña, who has apparently caused all this trouble. The private respondents have themselves been unduly inconvenienced, and for merely transacting a customary deal not really unusual in their kind of business. It is they and not EDCA who have a right to complain.

WHEREFORE, the challenged decision is AFFIRMED and the petition is DENIED, with costs against the petitioner.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

EDCA PUBLISHING & DISTRIBUTING CORP. vs. THE SPOUSES LEONOR and GERARDO SANTOS, doing business under the name and style of "SANTOS BOOKSTORE," and THE COURT OF APPEALSG.R. No. 80298 April 26, 1990

FACTS:

Petitioner EDCA prapared 406 books amounting P8,995.65 for delivery to one Professor Jose Cruz.

Subsequently, the latter sold 120 of the said books to the respondent.

Petitioner became suspicious when Professor Cruz, placed another order without settling his previous account. EDCA find out that the check released by the same does not have funds and that no Professor under the name of Jose Cruz works for De La Salle College.

Over investigation it was made known that Jose Cruz's real name is Tomas de la Peña. Petitioners with the assistance of authority, seized without warrant the books sold to the respondent Leonor Santos and delivered it to the petitioners.

ISSUE:

Whether or not the petitioner may seize the books from private respondent because it has been unlawfully deprived of the books due to the dishonored check issued by the impostor.

HELD:

NO

In its extended memorandum, EDCA cites numerous cases holding that the owner who has been unlawfully deprived of personal property is entitled to its recovery except only where the property was purchased at a public sale, in which event its return is subject to reimbursement of the purchase price. The petitioner is begging the question. It is putting the cart before the horse. Unlike in the cases invoked, it has yet to be established in the case at bar that EDCA has been unlawfully deprived of the books.

Actual delivery of the books having been made, Cruz acquired ownership over the books which he could then validly transfer to the private respondents. The fact that he had not yet paid for them toEDCA was a matter between him and EDCA and did not impair the title acquired by the private respondents to the books. 

It would certainly be unfair now to make the private respondents bear the prejudice sustained by EDCA as a result of its own negligence. We cannot see the justice in transferring EDCA's loss to the Santoses who had acted in good faith, and with proper care, when they bought the books from Cruz.