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Oh, is it? was the grim rejoinder.

To-morrow, then, continued Father Regan,Ive made arrangements for you to leave to-morrow at ten.

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Ill go for him myself.

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【拆屋還地】約定土地相互交換使用

一、案例

甲所有之A地與乙所有之B地相毗鄰,因地界不規則,雙方為建屋方便,乃約定將相鄰部分之界址取直,因而逾越原界址之土地,均同意對方建築房屋(未辦理所有權移轉登記手續),嗣乙將B地售與丙,丙乃本於所有權訴請甲將占用B地上之建物拆除並交還土地,是否有理?

二、分析

(一)見解一:

甲、乙相互交換土地使用,無論其性質為互易抑使用借貸,均屬債權契約,其效力僅存在於雙方當事人間,並不及於第三人,乙之後手丙既未承受該債權契約之義務,自不受其拘束(最高法院五十九年度台上字第二四九○號判例參照);至於民法第七百九十六條越界建屋之規定,係指在未經協議之情形始有適用,而甲係本於與乙之契約占用B地,自不得引該法條為對抗,甲既屬無權占有,則丙本於物上請求權訴請其拆屋交地,應有理由。

(二)見解二:

按土地所有人建築房屋逾越疆界者,鄰地所有人如知其越界而不即提出異議,不得請求移去或變更其建築物,為民法第七百九十六條前段所明定,所謂知其越界而不即提出異議,乃無異於默示同意,則在鄰地所有人明示同意之情形,尤無排除適用之理,且此土地所有人越界建屋使用鄰地權之關係,並對嗣後受讓各該不動產而取得所有權者繼續存在(參見本院七十度台上字第八五八號、七十一度台上字第四○九號判決),故丙以無權占有為由,訴請甲拆屋交地為無理由。

(三)見解三:

甲乙間既原有約定,當無民法第七百九十六條越界建築規定之適用,惟關於土地之約定交互使用,並非無償,不能認為使用借貸;既不為土地所有權之移轉,亦不能認為互易,其性質應屬互為租賃之關係,乙如已將B地所有權移轉與丙,甲就B地之占用部分,應有民法第四百二十五條之適用。丙不能主張甲係無權占有而請求拆屋還地。(最高法院75年度第5次民事庭會議決議(一)採此說