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G.R. No. L-36083.

September 5, 1975
GAUDELIA VEGA, Petitioners,

Lot 3505 situated in La Paz, IloIlo was originally registered in the name of Justice Antonio Horilleno.
Before he died, he executed a last and testament attesting that the said property was co-owned by him, his brothers
and sisters. Esperanza, one of the siblings of Justice Antonio, died and was succeeded by her only daughter herein
respondent, Filomena Javellana.
The co-owners of the property, led by Carlos, in the proportion of 1/7 undivided ownership each, wanted to sell
their shares, or if respondent Filomena would agree, to sell the entire property, and they hired acquaintance
Cresencia to look for buyers and the latter came to the interest petitioners. In preparation for the execution of the
sale, since the brothers and sisters Horilleno were scattered in various parts of country, they all executed various
powers of attorney in favor of their niece, Mary H. Jimenez, they also caused the preparation of a power of
attorney of identical tenor for signature by respondent Filomena.
Carlos informed the respondent that the price was 4.00 per square meter, although it turns out that as early as
October 22, 1967, Carlos had received in check as earnest money from petitioner Ramon Doromal Jr., the sum of
5,000 and the price agreed upon was 5.00 per square meter.
Carlos only informed respondent Filomena with regard to the earnest money he received from the petitioners and
the price they agreed upon only on November 5, 1967. Respondent Filomena did not agree and did not sign the
power of attorney.
The rest of the co-owners went ahead with their sale of their 6/7 portion of the property. Carlos assured that the
deed of sale by their common attorney in fact, Mary H. Jimenez be ratified and and signed in Candon, Ilocos Sur.
The Register of Deeds of Iloilo refused to register right away, since the original registered owner, Justice Antonio
was already dead.
Carlos hired Atty. Teotimo Arandela to file a petition within the cadastral case.
The petition was approved.
Carlos went back in Iloilo to register the order of cadastral court approving the issuance of new title in the name
of the co-owners as well as the deed of sale to the Doromals.
A new title was issued in the name of the Horillenos to 6/7 and respondent Filomena to 1/7. Another title was
subsequently issued in the names of vendees Doromals for 6/7.
The Doromals paid to Carlos by check the sum of 97,000 of Chartered Bank which was later substituted by check
of Phil. National Bank. Beside the said amount, the Doromals, according to their evidence, paid an additional
amount in cash of 18, 250 since the agreed price was 5.00 per square meter.
Atty. Arturo Villanueva, respondent Filomena’s lawyer went to the residence of Doromals and gave a letter which
stated that respondent, through her newphew, Atty. Arturo, made a formal offer to repurchase or redeem from the
Doromals the 6/7 undivided share in the amount of 30,000. Respondent also assured the Doromals that the said
amount of money would be delivered to Doromals as soon as they execute the contract of sale in her favor. The
Doromals refused to sell the same.
Respondent Filoma filed the case and alleged that as co-owner, she had the right to redeem at the price stated in
the deed of sale namely 30,000. Petitioners claimed that respondent had no more right to redeem and that if ever
she should have, she must redeem the same in the true and real price paid by them (115,250).
The Trial Court ruled in favor of Doromals for the simple reason that consideration in the deed of sale is the sum
of 30,000 only instread of 115, 250 which was actually paid by the Doromals, Filomena merely wanted to enrich
herself at the expense of her own blood relatives.
The Court of appeals reversed the trial court’s decision and ruled that although respondent was informed of her
co-owners’ proposal to sell the land, she was never notified. Respondent’s right to redeem had not yet expired at
the she made her offer to the Doromals. The redemption price to be paid by respondent should be that stated in
Deed of sale.
The consideration of P30,000.00 only was placed in the deed of sale to minimize the payment of the registration
fees, stamps, and sales tax.
1. Whether or not letters aforementioned sufficed to comply with the requirement of notice of a sale by co-
owners under Article 1623 of the Civil Code
2. Whether or not assuming, arguendo, that private respondent has the right to redeem, the redemption price
should be that stated in the Deed of Sale.

1. No. ART. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty
days from the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed
of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor
that he has given written notice thereof to all possible redemptioners.
Although the letters sent by Carlos to respondent constituted the required notice in writing from which the
30-day period fixed in said provision should be computed, there was no proof that the said letters were in
fact received by respondent. Neither of the said letters referred to consummated sale.
While the letters relied upon by petitioners could convey the idea that more or less some kind of consensus
had been arrived at among the other co-owners to sell the property in dispute to petitioners, it cannot be
said definitely that such a sale had even been actually perfected. The fact alone that in the later letter of
January 18, 1968 the price indicated was P4.00 per square meter while in that of November 5, 1967, what
was stated was P5.00 per square meter negatives the possibility that a "price definite" had already been
agreed upon.
While P5,000 might have indeed been paid to Carlos in October, 1967, there is nothing to show that the
same was in the concept of the earnest money contemplated in Article 1482 of the Civil Code, invoked by
petitioner, as signifying perfection of the sale.
The Court was more inclined to believe that the said P5,000 were paid as a guarantee that the buyer would
not back out, considering that it was not clear that there was already a definite agreement as to the price
then and that petitioners were decided to buy 6/7 only of the property should respondent Javellana refuse
to agree to part with her 1/7 share.
2. According to Art. 1620, ‘A co-owner of a thing may exercise the right of redemption in case the share of
all the other co-owners or any of them, are sold to a third person. If the price of the alienation is grossly
excessive, the redemptioner shall pay only a reasonable one.” From this must follow that notice must have
been intended to state the truth and if vendor and vendee should have instead, decided to state an untruth
therein, it is they who should bear the consequences of having thereby misled the redemptioner who had
the right to rely and act thereon and on nothing else.
If it be argued that foregoing solution would mean unjust enrichment for plaintiff, it need only be
remembered that plaintiff’s right is not contractual, but a mere legal one, the exercise of a right granted
by the law, and the law is definite that she can subrogate herself in place of the buyer.
G.R. No. 126812 November 24, 1998
GOLDENROD, INC., petitioner,
INC. and ANTHONY QUE, respondents.

Pio Barreto and Sons owned 43 parcels of registered land located at Quiapo, Manila which were mortgaged with
United Coconut Planters Bank. The obligation of the corporation with UCPB remained unpaid making foreclosure
of the mortgage imminent.
Goldenrod offered to buy the property from Barreto and Sons. Goldenrod sent a letter to respondent Pio Barreto
and Sons which stated their proposal to amend the manner of paying the interest which should be done monthly
instead of semi-annually as well as the period to remove the trusses which should be 180 days instead of 90 days.
The petitioner also stated on its letter their request to make the lots reconsolidated back to its mother titles. The
said letter also contained the earnest money of 1 million which shall form part of the purchase price.
When the term of existence of Barreto and Sons expired, all its assets and liabilities including the disputed
property were transferred to respondent Pio Barreto Realty Development Inc.
Petitioner and respondent Barreto Realty had an agreement that the former would buy the said property with the
condition that it would pay 24.5 million representing the outstanding balance of the latter with UPCB; and 20
million which was the balance of the purchase price to be paid in installment within a 3-year period.
Petitioner did not pay UPCB on the deadline set for payment, instead it asked for an extension of one month. The
said extension was granted by UPCB. Thereafter, petitioner requested another extension of 60 days to pay the
loan which UPCB denied.
Respondent Barreto Realty was able to cause the reconsolidation of the 43 titles covering the disputed property
into two titles covering Lots 1 and 2. Respondent spent 250,000 for the said reconsolidation.
Petitioner sought reconsideration of the denial of its request by asking for a shorter period of 30 days which was
again denied by the Bank.
Alicia Logarta, president of Logarta Realty and Development Corporation which acted as agent of petitioner,
wrote private respondent Que informing him of the withdrawal of the petitioner to purchase the property die to
the circumstance beyond its fault (denial of UPCB for extension of time to pay). She also demanded the refund
of the earnest money given.
Respondent Barreto Realty sold to Asiaworld Trade Center Lot 2 for the price of 23 million. Thereafter, it
executed a deed transferring by way of “dacion” the Lot 1 in favor of UCPB which in turn sold the property to
Asiaworld for 24 Million.
Logarta wrote a letter again to respondent demanding the return of earnest money to petitioner.
Petitioner filed a complaint with the RTC against private respondents for the return of the amount of 1 million
and the payment of damages.
Respondent alleged that the said earnest money would be forfeited to answer for losses and damages that might
be suffered by them due to failure of petitioner to comply with the terms of their agreement.
The trial court ordered the respondent to pay petitioner 1 Million with legal interest and attorney’s fees. It ruled
that there was no written agreement by the parties with regard to the forfeiture of the earnest money if the sale
did not push through which was against unjust enrichment.
Private respondent appealed to CA which ordered the dismissal of the complaint.

Issue: Whether or not the earnest money given by petitioner to the respondent should be returned by the former.

Ruling: Yes. Under Art. 1482 of the Civil Code, whenever earnest money is given in a contract of sale, it shall
be considered as part of the purchase price and as proof of the perfection of the contract. Petitioner clearly stated
without any objection from private respondents that the earnest money was intended to form part of the purchase
price. It was an advance payment which must be deducted from the total price. Hence, the parties could not have
intended that the earnest money or advance payment would be forfeited when the buyer should fail to pay the
balance of the price, especially in the absence of a clear and express agreement thereon. By reason of its failure
to make payment petitioner, through its agent, informed private respondents that it would no longer push through
with the sale. In other words, petitioner resorted to extrajudicial rescission of its agreement with private
Private respondents did not interpose any objection to the rescission by petitioner of the agreement. They even
sold and mortgaged the two lots to another party.
Art. 1385 of the Civil Code provides that rescission creates the obligation to return the things which were the
object of the contract together with their fruits and interest. The vendor is therefore obliged to return the purchase
price paid to him by the buyer if the latter rescinds the sale, or when the transaction was called off and the subject
property had already been sold to a third person, as what obtained in this case.
The decision of the trial court was affirmed.
G.R. No. 78903 February 28, 1990

A parcel of land located at Southern Leyte declared in the name of Segundo Dalion under a Tax Declaration.
Sabasaje sued to recover ownership of the said land, based on a private document of absolute sale executed by
Dalion. The latter denied the fact of sale, alleged that the document was fictitious because his signature was
forged, and claimed that the disputed land was a conjugal property as evidenced by a document presented by him.
The petitioner spouses also denied the claims of respondent Sabesaje that after executing the deed of sale, the
former pleaded with later to be allowed to administer the land because Dalion did not have any means of
livelihood. The petitioners only admitted administering five parcel of lands belonging to grandfather of the
respondent. They claimed that they never received the agreed commission on the sales and the reason why
Sabesaje filed a complaint for recovery of property was to forestall their threat to sue for those unpaid commission.
The trial court ruled in favor of Sabesaje and ordered the Dalions to execute a formal deed of conveyance in
public instrument in favor of the former.
The Court of Appeals affirmed the said decision of the trial court.

Issue: Whether or not the sale was not valid on the ground that the same was embodied in a private document,
and did not thus convey title or right to the lot in question since "acts and contracts which have for their object
the creation, transmission, modification or extinction of real rights over immovable property must appear in a
public instrument.

Ruling: No. The sale was valid. The provision of Art. 1358 on the necessity of a public document is only for
convenience, not for validity or enforceability. It is not a requirement for the validity of a contract of sale of a
parcel of land that this be embodied in a public instrument.
A contract of sale is a consensual contract, which means that the sale is perfected by mere consent. No particular
form is required for its validity. Upon perfection of the contract, the parties may reciprocally demand performance
(Art. 1475, NCC), i.e., the vendee may compel transfer of ownership of the object of the sale, and the vendor may
require the vendee to pay the thing sold (Art. 1458, NCC).
A sale of a real property may be in a private instrument but that contract is valid and binding between the parties
upon its perfection. And a party may compel the other party to execute a public instrument embodying their
contract affecting real rights once the contract appearing in a private instrument have been perfected (Art. 1357).
G.R. No. L-55048 May 27, 1981
HOC CHUAN and MANUEL DY, respondents.

Petitioners, through Pedro Gamboa, sent a letter to respondents which expressed their willingness to sell to latter
the subject property for 6,500,000 provided that the respondents would inform them of their decision to buy not
later that July 31, 1971. The respondents reply that they agreed was not absolute. There was variance between the
terms of payment stipulated in the prepared document and what respondents had in mind when the petitioners’
representative went to Cebu City. Respondent Pedro Gamboa brought the prepared contract to purchase and sell
which had changes in the mode of payment with respect to the balance of 4,500,000 to be paid within 30 days
from execution of the contract instead of 90 days. 2 Milllion should be paid in full on the date of execution of the

Issue: Whether or not there was perfected contract of sale.

Held: No. There was no perfected contract of sale. The court took note of the telegram of respondents instructing
Atty. Gamboa to "proceed to Tacloban to negotiate details." They emphasized the word "negotiate because such
word negates to hold that respondent accepted the petitioners' offer.
Negotiate means "to communicate or confer with another so as to arrive at the settlement of some matter; or meet
with another so as to arrive through discussion at some kind of agreement or compromise about something. Instead
of "absolutely" accepting the "certain" offer of the petitioners, the respondents still insisted on further negotiation
of details.
ART. 1319. Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause
which are constitute the contract. The offer must be certain the acceptance absolute. A qualified acceptance
constitute a counter-offer.
Acceptance made by letter or telegram does not bind offerer except from the time it came to his knowledge. The
contract, in a case, is presumed to have been entered into in the place where the offer was made.
G.R. No. 115849 January 24, 1996
FIRST PHILIPPINE INTERNATIONAL BANK (Formerly Producers Bank of the Philippines) and
MERCURIO RIVERA, petitioners,
JOSE JANOLO, respondents.

In the course of its banking operations, the defendant Producer Bank of the Philippines acquired six parcels of
land. The property used to be owned by BYME Investment and Development Corporation which had them
mortgaged with the bank as collateral for a loan. The original plaintiffs, Demetrio Demetria and Jose O. Janolo,
wanted to purchase the property and thus initiated negotiations for that purpose.
Said plaintiffs, upon the suggestion of BYME Investments legal counsel, Jose Fajardo, met with defendant
Mercurio Rivera, Manager of the Property Management Department of the defendant bank. The meeting was held
pursuant to plaintiffs plan to buy the property After the meeting, plaintiff Janolo, following the advice of
defendant Rivera, made a formal purchase offer to the bank through a letter dated August 30, 1987.
It is not disputed that the petitioner Bank was under a conservator placed by the Central Bank of the Philippines
during the time that the negotiation and perfection of the contract of sale took place.
Petitioners energetically contended that the conservator has the power to revoke or overrule actions of the
management or the board of directors of a bank, under Section 28-A of Republic Act No. 265 (otherwise known
as the Central Bank Act) as follows:
Whenever, on the basis of a report submitted by the appropriate supervising or examining department, the
Monetary Board finds that a bank or a non-bank financial intermediary performing quasi - banking functions is
in a state of continuing inability or unwillingness to maintain a state of liquidity deemed adequate to protect the
interest of depositors and creditors, the Monetary Board may appoint a conservator to take charge of the assets,
liabilities, and the management of that institution, collect all monies and debts due said institution and exercise
all powers necessary to preserve the assets of the institution, reorganize the management thereof, and restore its
viability. He shall have the power to overrule or revoke the actions of the previous management and board of
directors of the bank or non-bank financial intermediary performing quasi-banking functions, any provision of
law to the contrary notwithstanding, and such other powers as the Monetary Board shall deem necessary.

Whether or not the Conservators has authority to revoke or repudiate the perfected contract of sale.

In the first place, this issue of the Conservators alleged authority to revoke or repudiate the perfected contract of
sale was raised for the first time in this Petition - as this was not litigated in the trial court or Court of Appeals.
As already stated earlier, issues not raised and/or ventilated in the trial court, let alone in the Court of Appeals,
cannot be raised for the first time on appeal as it would be offensive to the basic rules of fair play, justice and due
In the second place, there is absolutely no evidence that the Conservator, at the time the contract was perfected,
actually repudiated or overruled said contract of sale. The Banks acting conservator at the time, Rodolfo Romey,
never objected to the sale of the property to Demetria and Janolo. What petitioners are really referring to is the
letter of Conservator Encarnacion, who took over from Romey after the sale was perfected on September 30,
1987 (Annex V, petition) which unilaterally repudiated - not the contract - but the authority of Rivera to make a
binding offer - and which unarguably came months after the perfection of the contract.
In the third place, while admittedly, the Central Bank law gives vast and far-reaching powers to the conservator
of a bank, it must be pointed out that such powers must be related to the (preservation of) the assets of the bank,
(the reorganization of) the management thereof and (the restoration of) its viability. Such powers, enormous and
extensive as they are, cannot extend to the post-facto repudiation of perfected transactions, otherwise they would
infringe against the non-impairment clause of the Constitution. If the legislature itself cannot revoke an existing
valid contract, how can it delegate such non-existent powers to the conservator under Section 28-A of said law?
Obviously, therefore, Section 28-A merely gives the conservator power to revoke contracts that are, under existing
law, deemed to be defective - i.e., void, voidable, unenforceable or rescissible. Hence, the conservator merely
takes the place of a banks board of directors. What the said board cannot do - such as repudiating a contract validly
entered into under the doctrine of implied authority - the conservator cannot do either. Ineluctably, his power is
not unilateral and he cannot simply repudiate valid obligations of the Bank. His authority would be only to bring
court actions to assail such contracts - as he has already done so in the instant case. A contrary understanding of
the law would simply not be permitted by the Constitution. Neither by common sense. To rule otherwise would
be to enable a failing bank to become solvent, at the expense of third parties, by simply getting the conservator to
unilaterally revoke all previous dealings which had one way or another come to be considered unfavorable to the
Bank, yielding nothing to perfected contractual rights nor vested interests of the third parties who had dealt with
the Bank.
G.R. No. 92871 August 2, 1991
MARIA P. VDA. DE JOMOC, ET AL., petitioners,
Region, Br. 25,respondents.

G.R. No. 92860 August 2, 1991

MAURA SO & HON. COURT OF APPEALS (Eleventh Division), respondents

The subject lot forms part of the estate of late Pantaleon Jomoc which was fictitiously sold to third persons. As a
result, petitioner Maria Vda Jomoc filed suit to recover the property. The case was decided in favor of her. The
same was appealed by Mariano So, husband of Maria So and Gaw Sur Cheng. Pending appeal, Jomoc executed
a Deed of Extrajudicial Settlement and Sale of Land with private respondent Maura So for 300,000. The document
was not yet signed by all the parties, but respondent made partial payment amounting to 49,000.
Mariano So agreed to settle the case by executing a Deed of Reconveyance of the land in favor of the heirs of
Pantaleon Jomoc. The heirs of Jomoc executed another extra-judicial settlement with absolute sale in favor of
Lim Leong Kang and Lim Pue Filing.
Maura So demanded from Jomocs to execute the final deed of conveyance. She thereafter filed a complaint for
specific performance to compel them to execute the same. Jomocs believed that Maura So had backed out from
the transaction so another extrajudicial settlement with sale of registered land in favor of spouses Lim was
executed for a consideration 200,000. Part of the said amount would be given to Maura So as reimbursement. The
spouses lim thereafter registered the said sale.
Jomocs and the spouses lim alleged that Maura expressed her intention to back out during the conference because
of her frustration in evicting squatters who demanded large sums as condition for vacating.
The trial court ruled that there was no proof that Maura backed out from the sale and that there was a double sale
to Maura and Spouses lim.
The Court of Appeals affirmed the decision of the trial court.
1. Whether or not the contract of sale between Maria Jomoc and Maura So was unenforceable under the
Statute of Frauds.
2. Whether or not Maura So subsequently abandoned her intention of purchasing the subject lot.
3. Whether or not Spouses lim have the better right over the disputed property.
1. No. The meeting of the minds and the delivery of sums as partial payment was clear and this is admitted
by both parties to the agreement. Hence, there was already a valid and existing contract which was partly
executed. The Statute of Fraud was applicable because of partial payment of the vendee's obligation and
its acceptance by the vendors-heirs. The contract of sale of real property even if not complete in form, so
long as the essential requisites of consent of the contracting parties, object, and cause of the obligation
concur and they were clearly established to be present, is valid and effective as between the parties.
2. No. even if the sums paid by Maura So were allegedly intended to expedite the dismissal of the appeal of
Mariano So, such payment only indicates interest in acquiring the subject lot. The claim by the defendants-
petitioners that the payments were for the gathering of the several heirs from far places to sign Exhibit
"A" confirms respondent Maura So's continuing interest
3. No. spouses Lim do not have a better right. They purchased the land with full knowledge of a previous
sale to private respondent and without requiring from the vendors-heirs any proof' of the prior vendee's
revocation of her purchase. They should have exercised extra caution in their purchase especially if at the
time of the sale, the land was still covered by TCT No. 19648 bearing the name of Mariano So and was
not yet registered in the name of petitioners- heirs of Pantaleon Jomoc, although it had been reconveyed
to said heirs.
G.R. No. L-10265 March 3, 1916
EUTIQUIANO CUYUGAN, plaintiff-appellant,
ISIDORO SANTOS, defendant-appellee

Eutiquiyano Cuyugan filed an action to compel Santos to enforce his right to repurchase in the deed of sale entered
into by his late mother, Guillerma, with the defendant. Allegedly, a deed of sale of the subject land was entered
into by Guillerma and Santos with a right to repurchase the land in a stipulated period of time, although this deed
of sale was executed as a security for a loan that Guillerma had with Santos.
In the deed of sale, it further stated that Guillerma should continue to have possession of the land, and pay an
annual rental of Php 420 per annum which was the amount equal to the loan’s interest. Thereafter, Guillerma paid
1,000 pesos on the loan, which then reduced the amount of the annual rental from 400 to 320 php.
When Guillerma died, Santos sent Cuyugan a notice to comply with the 420 php rental, which was agreed upon
prior to the payment of 1000php or he will eject Cuyugan from the land. Cuyugan then offered to pay the balance
that his mother owes Santos by virtue of the right to repurchase agreed upon on the deed of sale, but Santos
refused to do so.

Whether or not there is a valid sale.

No. The Supreme Court held that what should be given force is the intention of the parties, and not the provisions
of the instrument on its face. Under the provisions of contracts, for a valid contract to exist, there should be:
consent, object, and consideration.
Thus, in the present case, what is consented by both parties is that this deed of sale is only in consideration for a
loan, or by a nature of a contract of mortgage. Moreover, by way of evidence it was established by the court that
the parties indeed treat such as a contract of loan rather than a deed of sale when Santos, when given by Guillerma
1000 php in favor of such contract, lowered the payment of the rental from 400-320 php. Since the agreement
was the 400 be equal to the interest per annum, when the loan was reduced, the interest as well reduced. This
transaction proved that the treatment and the intention of the parties was indeed as a security for the loan, and not
as a deed of sale appearing before the face of the contract.
G.R. No. L-12342 August 3, 1918
A. A. ADDISON, plaintiff-appellant,
MARCIANA FELIX and BALBINO TIOCO, defendants-appellees.

Four (4) parcels of land as described in a public instrument was subject of a contract of sale between the petitioner
and the defendant. Defendant paid 3000 upon the execution of deed
and promised to pay 2000 on July 15, 1914 and another 5000 (30) days after the issuance of her certificate of
title. The contract was stipulated as follows:
That the defendant would pay P10 within ten years for trees in bearing and P5 for trees not in bearing with the
condition that it would not exceed the amount of P85,000.
That the purchaser should deliver 25% of the value of the products "from the moment she takes possession of
them until the Torrens certificate of title be issued in her favor."
Further stipulated was that "within one year from the date of the certificate of title in favor of Marciana Felix, this
latter may rescind the present contract of purchase and sale, in which case Marciana Felix shall be obliged to
return to me, A. A. Addison, the net value of all the products of the four parcels sold, and I shall obliged to return
to her, Marciana Felix, all the sums that she may have paid me, together with interest at the rate of 10 per cent
per annum."
In 1915, Addison filed a suit to compel the defendant to pay him the P2000 with interest as in the accordance of
the terms of the contract. However, in a form of special defense, Felix alleges that the petitioner failed to do his
obligation of the contract by failing to deliver the parcels of land.
That out of the 4 parcels of land only 2 of it where delivered and that 2/3 of the other half were in the possession
of a third person. She then filed for a declaration of the rescission of the contract, whereby she prayed that
petitioner return her P3000 plus interest and indemnity.

Whether delivery of the public instrument is equivalent to the delivery of the subject matter of the sale.

No. The Code imposes upon the vendor the obligation to deliver the thing sold. The thing isconsidered to be
delivered when it is placed "in the hands and possession of the vendee." (art. 1462.) It is true that the same article
declares that the execution of a public instruments is equivalent to the delivery of the thing which is the object of
the contract, but, in order that this symbolic delivery may produce the effect of tradition, it is necessary that the
vendor shall have had such control over the thing sold that, at the moment of the sale, its material delivery could
have been made. It is not enough to confer upon the purchaser the ownership and the right of possession. The
thing sold must be placed in his control. When there is no impediment whatever to prevent the thing sold passing
into the tenancy of the purchaser by the sole will of the vendor symbolic delivery through the execution of a
public instrument is sufficient. But if, notwithstanding the execution of the instrument, the purchaser cannot have
the enjoyment and material tenancy of the thing and make use of it himself or through another in his name,
because such tenancy and enjoyment are opposed by the interposition of another will, then fiction yields to reality
— the delivery has not been effected. The execution of a public instrument is sufficient for the purposes of the
abandonment made by the vendor; but it is not always sufficient to permit of the apprehension of the thing by the
purchaser. It is evident, then, in the case at bar, that the mere execution of the instrument was not a fulfillment of
the vendors' obligation to deliver the thing sold, and that from such non-fulfillment arises the purchaser's right to
demand, as she has demanded, the rescission of the sale and the return of the price. (Civ. Code, arts. 1506 and
1124.) Inasmuch as the rescission is made by virtue of the provisions of law and not by contractual agreement, it
is not the conventional but the legal interest that is demandable.