This is a petition for review under Rule 45 of the Rules of Court to set aside the decision rendered by the Court of Appeals in CA-G.R. No. 44707 entitled "Jose Ma. T. Garcia, Plaintiff-Appellee versus Spouses Luisito and Ma. Luisa Magpayo and Sheriff of Makati, Defendants, Philippine Bank of Communications, Defendant-Appellant".^[1]

The facts are as succinctly summarized by the appellate court, viz:

"Atty. Pedro V. Garcia, in whose name TCT No. S-31269 covering a parcel of land identified as Lot 17 situated at Bel Air II Village, Makati, was registered, sold with the consent of his wife Remedios T. Garcia, the same to their daughter Ma. Luisa Magpayo and her husband Luisito Magpayo (the Magpayos).

"On March 5, 1981, the Magpayos mortgaged the land to the Philippine Bank of Communications (PBCom) to secure a loan, Five Hundred Sixty Four Thousand (P564,000.00) Pesos according to them, One Million Two Hundred Thousand (P1,200,000.00) Pesos according to PBCom.

"On March 9, 1981, Atty. Garcia's Title was cancelled and in its stead Transfer Certificate of Title No. S-108412/545 was issued in the name of the Magpayos.

"The Deed of Real Estate Mortgage was registered at the Makati Register of Deeds and annotated on the Magpayos title.

"The Magpayos failed to pay their loan upon its maturity, hence, the mortgage was extrajudicially foreclosed and at the public auction sale, PBCom which was the highest bidder bought the land.

"The redemption period of the foreclosed mortgage expired without the Magpayos redeeming the same, hence, title over the land was consolidated in favor of PBCom which cancelled the Magpayo's title and Transfer Certificate of Title No. 138233 was issued in its name.

"On October 4, 1985, the Magpayos filed at the RTC of Makati a complaint seeking the nullification of the extrajudicial foreclosure of mortgage, public auction sale, and PBCom's title docketed as Civil Case No. 11891. This complaint was dismissed for failure to prosecute.

"On October 15, 1985, PBCom filed at the Regional Trial Court (RTC) of Makati a petition for the issuance of a writ of possession over the land, docketed as LRC Case No. M-731, which Branch 148 thereof granted.

"Upon service of the writ of possession, Mrs. Magpayo's brother, Jose Ma. T. Garcia (Garcia), who was in possession of the land, refused to honor it and filed a motion for Intervention in the above-said PBCom petition, which motion was denied.

"Garcia thereupon filed against PBCom, the Magpayos, and the RTC Sheriff the instant suit for recovery of realty and damages wherein he alleged, inter alia, that he inherited the land as one of the heirs of his mother Remedios T. Garcia, and that PBCom acquired no right thereover.

"In its answer, PBCom averred, inter alia, that Garcia's claim over the land is belied by the fact that it is not among the properties owned by his mother listed in the Inventory of Real Estate filed at the then CFI of Pasay City, Branch 27, in SP Proc. No. 2917-P, "In the Matter of the Intestate Estate of Remedios T. Garcia Petition for Letters of Administration, Pedro V. Garcia Petitioner-Administrator".

"The Magpayos, on the other hand, asserted that title over the land was transferred to them by Mrs. Magpayo's parents to enable them (Magpayos) to borrow from PBCom.

"Garcia filed a Motion for Summary Judgment praying that judgment be rendered in his favor to which PBCom counter-motioned that judgment should be rendered in its favor.

"The court a quo denied the motion for summary judgment on the ground that PBCom raised in its answer both factual and legal issues which could only be ventilated in a full-blown trial.

"The court a quo, however, later issued a summary judgment."^[2]

In its summary judgment, the lower court held that the mortgage executed by the Magpayo spouses in favor of PBCom was void. It found that:

"x x x [A]t the time that the defendants Magpayo spouses executed the mortgage in favor of the defendant PBCom on March 5, 1981, the said spouses were not yet the owners of the property. This finding is evident from the other undisputed fact that a new Torrens title was issued to the defendants Magpayo spouses only on March 9, 1981 x x x. The Magpayo spouses could not have acquired the said property merely by the execution of the Deed of Sale because the property was in the possession of the plaintiff. The vendor, Pedro V. Garcia, was not in possession and hence could not deliver the property merely by the execution of the document (MANALILI V. CESAR, 39 PHIL. 134). The conclusion is therefore inescapable that the said mortgage is null and void for lack of one of the essential elements of a mortgage as required by Art. 2085 of our Civil Code x x x."^[3]

Thus, it invalidated the foreclosure sale and nullified TCT No. 138233 issued to PBCom. Dissatisfied, PBCom appealed. In reversing the trial court, the Court of Appeals held:

"(P)laintiff-appellee's assertion that ownership over the disputed property was not transmitted to his sister and her husband-Magpayo spouses at the time of the execution of the Deed of Sale as he was still in actual and adverse possession thereof does not lie.

"For in his complaint, plaintiff-appellee alleged that he entered into possession of the disputed property only upon the demise of his mother, from whom he alleges to have inherited it but who was not the registered owner of the property, that is, on October 31, 1980 (Certificate of Death, p. 17, Records), by which admission he is bound. Since the execution of the deed of sale by Atty. Pedro V. Garcia in favor of the Magpayos took place earlier or on August 1, 1980, then contrary to his claim, plaintiff-appellee was not in possession of the property at the time of the execution of said public instrument.

"Furthermore, it appearing that the vendor Atty. Garcia had control of the property which was registered in his name and that the deed of sale was likewise registered, then the sale was consummated and the Magpayos were free to exercise the attributes of ownership including the right to mortgage the land.

"`When the land is registered in the vendor's name, and the public instrument of sale is also registered, the sale may be considered consummated and the buyer may exercise the actions of an owner (Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, 1992 Ed., p. 55).'

"That the Magpayos' title, TCT No. S-108412, was issued four (4) days following the execution of the deed of real estate mortgage is of no moment, for registration under the Torrens system does not vest ownership but is intended merely to confirm and register the title which one may already have on the land (Municipality of Victorias v. Court of Appeals, 149 SCRA 32, 44-45 [1987])."

Petitioner Garcia moved for a reconsideration of the above decision which was denied. He now comes before us raising the following errors committed by the Court of Appeals:

I

The respondent Court of Appeals has departed from the accepted and usual course of proceedings when it decided the appeal subject of this case based on issues which were raised neither in the trial court nor in the appellant's brief.

II
The Court of Appeals decided the appeal in a manner not in accord with applicable jurisprudence when it disregarded the admissions of the private respondents and, despite ruling that Summary Judgment was proper, made its own findings of facts which were contrary to the said admissions.

III
The Decision of the respondent Court of Appeals was not in accord with established jurisprudence and even contradicts itself, as far as the issue of the propriety of the Summary Judgment is concerned.

The petition has no merit.

Anent the first assignment of error, petitioner alleged that the Court of Appeals resolved the issues of "ownership" and "possession" though they were not raised by PBCom in its appellant's brief. The allegation is belied by page 17 of PBCom's appellate brief, viz:

"Due to the wrong cited case, the trial court opined erroneously that `Magpayo Spouses could not have acquired the property merely by the execution of the deed of sale because the property was in the possession of the plaintiff' (Order, p. 10).

"Again, the trial court could not distinguish ownership from possession. Ownership and possession are two entirely different legal concepts.

"Plaintiff-appellee's possession as found by the trial court, started only `at the time of the filing of the complaint in this present case up to the present.' (page 2, Summary Judgment).

"Assuming that to be true, plaintiff-appellee's possession which started only in 1986 could not ripen into ownership. He has no valid title thereto. His possession in fact was that of an intruder, one done in bad faith (to defeat PBCom's Writ of Possession). His possession is certainly not in the concept of an owner. This is so because as early as 1981, title thereto was registered in the name of the Magpayo Spouses which title was subsequently cancelled when the property was purchased by PBCom in a public auction sale resulting in the issuance of title in favor of the latter in 1985."

Anent the second assignment of error, petitioner contends that the following facts were admitted by the parties in the trial court:

"1. The petitioner is a compulsory heir of the late spouses Atty. Pedro V. Garcia and Remedios Tablan Garcia;

"2. The property subject of this dispute was previously the conjugal property of the said spouses;

"3. The petitioner and his family have been and are continuously to the present in actual physical possession of the property. At the time of the alleged sale to the Magpayo spouses, petitioner was in possession of the property;

"4. When his mother Remedios Tablan (sic) Garcia died, sometime in October, 1980, he became, by operation of law, a co-owner of the property;

"5. Atty. Pedro V. Garcia, at the time of the execution of the instrument in favor of the Magpayo spouses was not in possession of the subject property."^[4]

We reject the contention of petitioner for a perusal of the records shows that these alleged admitted facts are his own paraphrased portions of the findings of fact listed by the trial court in the summary judgment.^[5] Indeed, petitioner did not cite any page number of the records or refer to any documentary Exhibit to prove how and who admitted the said facts.

Petitioner's third assignment of error that he alone as plaintiff in the trial court is entitled to summary judgment merits scant attention. A summary judgment is one granted by the court, upon motion by either party, for an expeditious settlement of the case, there appearing from the pleadings, depositions, admissions, and affidavits that no important questions or issues of fact are involved (except the determination of the amount of damages) and that therefore the moving party is entitled to a judgment as a matter of law.^[6] Under Rule 34, either party may move for a summary judgment - the claimant by virtue of Section 1 and the defending party by virtue of Section 2, viz:

"Section 1. Summary judgment for claimant. - A party seeking to recover upon a claim, counter-claim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits for a summary judgment in his favor upon all or any part thereof.

"Section 2. Summary judgment for defending party. - A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits for a summary judgment in his favor as to all or any part thereof."

It is true that petitioner made the initial move for summary judgment. Nonetheless, PBCom likewise moved for a summary judgment with supporting affidavit and documentary exhibits, to wit:

"COUNTER-MOTION FOR SUMMARY JUDGMENT"

"PBCom Is Entitled To A Summary Judgment"

"The procedure for summary judgment may be availed of also by the defending parties who may be the object of unfounded claims as clearly shown in Sections 1 and 2 of Rule 34."

x x x.

"WHEREFORE, it is respectfully prayed of this Honorable Court to render summary judgment in PBCom's favor by DISMISSING plaintiff's Complaint as well as Sps. Magpayo's Cross-Claim for being sham and frivolous."^[7]

Needless to state, there was no error on the part of the appellate court in resorting to summary judgment as prayed for by both parties.

We stress again that possession and ownership are distinct legal concepts. Ownership exists when a thing pertaining to one person is completely subjected to his will in a manner not prohibited by law and consistent with the rights of others.^[8] Ownership confers certain rights to the owner, one of which is the right to dispose of the thing by way of sale.^[9] Atty. Pedro Garcia and his wife Remedios exercised their right to dispose of what they owned when they sold the subject property to the Magpayo spouses. On the other hand, possession is defined as the holding of a thing or the enjoyment of a right.^[10] Literally, to possess means to actually and physically occupy a thing with or without right. Possession may be had in one of two ways: possession in the concept of an owner and possession of a holder.^[11] "A possessor in the concept of an owner may be the owner himself or one who claims to be so."^[12] On the other hand, "one who possesses as a mere holder acknowledges in another a superior right which he believes to be ownership, whether his belief be right or wrong."^[13] The records show that petitioner occupied the property not in the concept of an owner for his stay was merely tolerated by his parents. We held in Caniza v. Court of Appeals^[14] that an owner's act of allowing another to occupy his house, rent-free does not create a permanent and indefeasible right of possession in the latter's favor. Consequently, it is of no moment that petitioner was in possession of the property at the time of the sale to the Magpayo spouses. It was not a hindrance to a valid transfer of ownership. On the other hand, petitioner's subsequent claim of ownership as successor to his mother's share in the conjugal asset is belied by the fact that the property was not included in the inventory of the estate submitted by his father to the intestate court. This buttresses the ruling that indeed the property was no longer considered owned by petitioner's parents. We also uphold the Court of Appeals in holding that the mortgage to PBCom by the Magpayo spouses is valid notwithstanding that the transfer certificate of title over the property was issued to them after the mortgage contract was entered into. Registration does not confer ownership, it is merely evidence of such ownership over a particular property.^[15] The deed of sale operates as a formal or symbolic delivery of the property sold and authorizes the buyer to use the document as proof of ownership.^[16] All said, the Magpayo spouses were already the owners when they mortgaged the property to PBCom.^[17]

IN VIEW WHEREOF, the decision of the Court of Appeals in CA-G.R. No. 44707 is AFFIRMED. Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

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^[1] The decision reversed the summary judgment rendered by Branch 57 of the Regional Trial Court of Makati in favor of petitioner Jose Ma. T. Garcia in Civil Case No. 13607.

^[2] Court of Appeals Decision, pp. 1-4; Rollo, pp. 28-31.

^[3] Summary Judgment, p. 4; Rollo, p. 55.

^[4] Petition, p. 11; Rollo, p. 19.

^[5] Summary Judgment, pp. 2-4; Rollo, pp. 53-55.

^[6] Army and Navy Club of Manila, Inc. v. Court of Appeals 271 SCRA 36 (April 8, 1997); see also Philippine National Bank v. Noah's Ark Sugar Refinery, 226 SCRA 36 (1993); Mercado v. Court of Appeals, 162 SCRA 75 (1988); Vergara, Sr. v. Suelto, 156 SCRA 753 (1987).

^[7] Comment with Counter-Motion for Summary Judgment, p. 5; Original Record, p. 201.

^[8] Arturo Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, p. 45 (Vol. II 1992).

^[9] Other rights pertaining to ownership are the right to enjoy the thing owned; to receive from the thing what it produces; to consume the thing by its use; and the right to exclude other persons from possession thereof, supra.

^[10] Art. 523, New Civil Code.

^[11] Art. 524, New Civil Code.

^[12] See note 7, supra at 245.

^[13] Id.

^[14] 268 SCRA 640 (1997).

^[15] Vda. De Cabrera v. Court of Appeals, 267 SCRA 339 (1997); Halili v. National Labor Relations Commission, 257 SCRA 174 (1996).

^[16] Manuel R. Dulay Enterprises, Inc. vs. Court of Appeals, 225 SCRA 678 (1993).

^[17] The New Civil Code provides:

"Art. 2085. The following requisites are essential to the contracts of pledge and mortgage:

(1) That they be constituted to secure the fulfillment of a principal obligation;

(2) THAT THE PLEDGOR OR MORTGAGOR BE THE ABSOLUTE OWNER OF THE THING PLEDGED OR MORTGAGED;

(3) That the person constituting the pledge or mortgage have the free disposal of their property, and in the absence thereof, that they be legally authorized for the purpose.

Third persons who are not parties to the principal obligation may secure the latter by pledging or mortgaging their own property."