Levy on execution - Manuel R. Riguera

"While leafing through Professor Antonio R. Bautista’s Remedial Law Quizzer (2004 ed.), I came across Question No. 252 (at p. 116), which reads as follows:

“The sheriff, levying a writ of execution, harvested bangus from the judgment defendant’s fishpond. Is this levy proper?”

Without dwelling too much on the question, I answered in my mind that the levy is proper. After all, what could be wrong with a sheriff harvesting bangus from a fishpond pursuant to a levy on execution?

Professor Bautista’s answer to the question however took me by surprise:

“No. Levy on execution should have been by merely filing with the proper register of deeds the notice of levy because fish in a fishpond is real property. (Civil Code, Art. 415[6]; Rule 39, Sec. 9[b] last par. in relation to Rule 57, Sec. 7)”

The above answer made me realize that although the question appears deceptively easy because of its brevity, it is actually quite difficult because the reader has to unlock the core issue to come up with a credible answer. Professor Bautista’s question is an issue-spotter. The question does not present to the reader the immediate issue in a silver platter. The reader must extract the core issue himself relying upon his knowledge of the rules that may come into play.

Nonetheless, my intuition told me that the suggested answer is susceptible to challenge. I looked at the provisions cited by Professor Bautista (I supplied the emphases).

Article 415, Civil Code

“Art. 415. The following are immovable property:

…

“(6) Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it: the animals in these places are included;”

Section 9(b), last paragraph, Rule 39 (Execution of Judgments), Rules of Court

“Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment.”

Section 7, Rule 57 (Preliminary Attachment), Rules of Court

“SEC. 7. Attachment of real and personal property; recording thereof. – Real and personal property shall be attached by the sheriff executing the writ in the following manner:

“(a) Real property, or growing crops thereon, or any interest therein … by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached ….”

The core issue presented by the problem may be stated as follows: Are the bangus real or personal property? If the bangus were real property, then levy on execution should be made, as in Professor Bautista’s answer, by filing with the register of deeds the notice of levy pursuant to Section 9(b) last paragraph of Rule 39 in relation to Section 7(a), Rule 57 of the Rules of Court. On the other hand, if the bangus were personal property, levy on execution is made by the sheriff by taking the bangus pursuant to Section 9(b) last paragraph of Rule 39 in relation to Section 7(b), Rule 57 of the Rules of Court.

To my mind the bangus are personal property and hence, the levy on execution would be proper. This is because of a thematic concept in Property Law which I recollected from my years of teaching the subject in law school.

Doctrine of mobilization by anticipation

The doctrine of mobilization by anticipation provides that if the implementation or consummation of a contract or transaction will require the removal of the real property from the land or immovable to which it is attached, then such real property is considered as personal property for purposes of that contract or transaction. In Sibal v. Valdez, 50 Phil. 512, 520-521 (1927), it was held that for purposes of execution, growing crops are considered as personal property; thus, the judgment debtor would have no right of redemption over the seized growing crops. The reason is that the growing crops would have to be harvested in order to sell them at execution.

Obviously, the bangus would have to be taken from the fishpond to sell them at public auction. Thus, the bangus are mobilized in anticipation of the forthcoming execution sale.

My suggested answer to the question would then be as follows:

“Yes, the levy on execution on the bangus from the defendant’s fishpond is proper.

“Under the Rules of Civil Procedure, the sheriff may levy on execution upon personal property by taking the same and keeping it in his custody preparatory to the execution sale. [S9(b) R39]

“Here, the bangus is considered as personal property as the same will be mobilized in anticipation of the forthcoming execution sale. Hence, the levy is proper.”

Assumption vs Presumption

A reader may answer that the levy is not proper since there was no showing that the sheriff first demanded payment from the judgment obligor before levying upon the bangus.

My criticism of this answer is that the reader is making an assumption not warranted by the question. I have emphasized to my bar exam coachees that while they can presume facts, they cannot assume them.

One cannot assume that the sheriff did not make a prior demand for payment on the judgment obligor. On the other hand, one can presume that he did because of the presumption that official duty has been regularly performed (Section 3[m], Rule 131, Rules of Court)."

Source:

https://legisperit.com/2022/07/10/a-fishy-levy/