Republic of the Philippines
G.R. No. L-11476 March 15, 1917
MAGDALENO AGATEP, plaintiff-appellant,
JUAN TAGUINOD, deputy sheriff of Cagayan, VICENTE DE LEON, sheriff of Cagayan, and MIGUEL LASAM, defendants-appellees.
W. M. Hawkins for appellant.
No appearance for appellees.
This is an appeal from a judgment of the Court of First Instance of Cagayan dismissing the complaint on the merits.
The action is to recover possession of three head of cattle or their value in case delivery cannot be had, which had been seized as property of the plaintiff by the sheriff of the province under an execution issued upon a judgment duly obtained against him. The contention of plaintiff is that the cattle were exempt from levy and sale under execution by virtue of paragraph 3 of section 452 of the Code of Civil Procedure.
With regard to the evidence in the case the trial court said:
The plaintiff himself testified that he had no property other than the three head of cattle sold; that he used these to maintain his family; that the oldest of the three head was a cow four years old and that he milked it and sold the milk thereof; that the second was a heifer less than 2 years old; and that the youngest — a bull calf — was 6 months old. He said further that sometimes the cow gave three and sometimes two small bottles of milk a day and that he sold this milk for thirty and twenty centavos respectively. The heifer of course produced no milk. He did not always sell the milk which he obtained from the oldest cow. He sold this milk to one of three persons whom he named, and these persons only bought this milk when they were about. He said that sometimes they were absent and then purchased no milk from him in which case his family, consisting of a wife and six children, themselves consumed the milk. He said that mostly the people who lived in his neighborhood did not care for the milk. He also testified that during the tobacco season, which was from August to October, he bought tobacco for some Chinese merchants for which services he received P15 per month, and that during the remainder of the year he worked as a laborer or farmer for others. His intention was he said to hold the heifer until she should begin to give milk and to use her milk also for sale in order to apply the proceeds to the maintenance of his family.
Commenting on this evidence the court said:
In this case it appears to the court that the plaintiff has two ordinary occupations at different times of the year. During the tobacco season his ordinary occupation is that of a buyer of tobacco, and during the remainder of the year his ordinary occupation is that of a farm laborer. The occasional sale of milk to one of three people depending upon whether these people are near him or not, and also depending upon whether or not the cow from which the milk is obtained is suckling a calf, cannot be looked upon by the court as constituting an ordinary occupation of this plaintiff even though he does apply the proceeds of such sales of milk, as he may make, to the maintenance of his family.
Section 452, paragraph 3, of the Code of Civil Procedure reads:
The following property shall be exempt from attachment and execution, except as herein otherwise provided:
xxx xxx xxx
3. Two horses, or two cows, or two carabaos, or other beasts of burden, such as the debtor may select, not exceeding one hundred and fifty pesos in value, and necessarily used by him in his ordinary occupation.
Counsel for appellant claims that the property is exempt on the ground that it is necessary for the maintenance of the debtor's family. The obvious reply to this contention is that necessity for the maintenance of the family is not one of the grounds of exemption of cattle. Provisions necessary for the maintenance of the family are dealt with in paragraph 6 of the same section wherein it is said that "provisions actually provided for individual or family use sufficient for three months" are exempt from levy and sale under execution; but different conditions must prevail before cattle are exempt from sale under execution. They must be "necessarily used by him in his ordinary occupation." It is clear from the record in this case that the defendant had no occupation in which the cattle in question were necessarily used by him. Before a debtor can take advantage of the exemption he must bring himself within the terms thereof. The burden of showing his right to the exemption is upon him and he must show himself entitled to it by satisfactory evidence. If he fails to do so the right to exemption does not become effective and the property may be sold.
The judgment appealed from is affirmed, with costs against the appellant. So ordered.
Torres, Carson and Araullo, JJ., concur.
TRENT, J., dissenting:
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