Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 114151 September 17, 1998 MAURICIA ALEJAN RINO, petitioner, vs. T!E !ONORA"LE COURT O# APPEALS, !ON. "ENIGNO G. GA$IOLA, RTC%9, CE"U CIT&, '() LICERIO P. NI*UE, respondents.

ROMERO, J.: uestioned in this petition for revie! on certiorari is the Decision 1 of the "ourt of #ppeals !hich ruled that the trial court, in an action for $uietin% of title, did not act in e&cess of 'urisdiction !hen it issued an order for the se%re%ation of propert(, after the finalit( of its decision. The facts sho! that the late spouses )acinto #le'andrino and *nrica +abunos left their si& children na,ed Marcelino, -re%orio, "iriaco, Mauricia, +aurencia and #bundio a ./01s$uare1,eter lot in Ma,balin%, "ebu "it( identified as +ot No. .203 and covered b( Transfer "ertificate of Title No. /0453. 6pon the de,ise of the #le'andrino spouses, the propert( should have been divided a,on% their children !ith each child havin% a share of 74.58 s$uare ,eters. Ho!ever, the estate of the #le'andrino spouses !as not settled in accordance !ith the procedure outlined in the Rules of "ourt. Petitioner Mauricia 9one of the children: alle%edl( purchased /../2 s$uare ,eters of -re%orio;s share, 74.58 s$uare ,eters of "iriaco;s share and /../2 s$uare ,eters of #bundio;s share thereb( %ivin% her a total area of 02.<7 s$uare ,eters, includin% her o!n share of 74.58 s$uare ,eters. It turned out, ho!ever, that a third part( na,ed +icerio Ni$ue, the private respondent in this case, also purchased portions of the propert(, to !it= 74.58 s$uare ,eters fro, +aurencia, 36.50 s$uare ,eters fro, -re%orio >throu%h +aurencia,> /../2 s$uare ,eters fro, #bundio also >throu%h +aurencia> and 74.58 s$uare ,eters fro, Marcelino or a total area of +aurencia> and 74.58 s$uare ,eters fro, Marcelino or a total area of /./.42 s$uare ,eters of the #le'andrino propert(. + Ho!ever, +aurencia 9the alle%ed seller of ,ost of the /./.42 s$uare ,eters of the propert(: later $uestioned the sale in an action for $uietin% of title and da,a%es a%ainst private respondent Ni$ue. It !as doc?eted as "ivil "ase No. "*@12873 in the Re%ional Trial "ourt of "ebu "it(, @ranch 0 presided b( )ud%e @eni%no -. -aviola. In due course, the lo!er court rendered a decision on Nove,ber .2, /008 disposin% of the case as follo!s= AH*R*BOR*, the "ourt hereb( renders 'ud%,ent in favor of defendant and a%ainst plaintiff, dis,issin% the co,plaint filed b( plaintiff a%ainst defendant, and on the "ounterclai, and pra(er of defendant in its #ns!er, the "ourt hereb( declares defendant as the o!ner in fee si,ple of the share of plaintiff +aurencia #le'andrino and the shares of Marcelino, -re%orio and #bundio, all surna,ed #le'andrino, of the parcel of land ?no!n as +ot No. .203 and covered b( Transfer "ertificate of Title No. /0453 !hich < shares totals an area of /<4 s$uare ,eters ,ore or lessC and the "ourt further Orders plaintiff to= /. Vacate the pre,ises sub'ect of the co,plaint and surrender the propert( to defendant to the e&tent of the < shares afore,entionedC

.. Pa( the defendant the a,ount of P/5,888.88 as liti%ation and necessar( e&pensesC the su, of P/8,888.88 as rei,burse,ent for attorne(;s feesC the su, of P/8,888.88 as ,oral da,a%es and P/8,888.88 as e&e,plar( da,a%esC 7. Plus costs. SO ORD*R*D. , +aurencia appealed the decision to the "ourt of #ppeals under "#1-.R. "V No. 77<77 but later !ithdre! the sa,e. 4 On #pril /7, /00., the "ourt of #ppeals considered the appeal !ithdra!n in accordance !ith Rule 58 of the Rules of "ourt. 5 Mean!hile, herein petitioner Mauricia #le'andrino filed on Ma( 5, /00. before the Re%ional Trial "ourt of "ebu "it(, @ranch VII, a co,plaint for rede,ption and recover( of properties !ith da,a%es a%ainst private respondent Ni$ue that !as doc?eted as "ivil "ase No. "*@1//427. #delino @. Sito(, +aurencia;s counsel in "ivil "ase No. "*@12873, filed "ivil "ase No. "*@1//427 for petitioner Mauricia. The a,ended co,plaint in the latter case dated Ma( /2, /00. alle%ed that private respondent Ni$ue never notified petitioner Mauricia of the purchase of /./.42 s$uare ,eters of the undivided +ot No. .203 nor did he %ive petitioner Mauricia the pree,ptive ri%ht to bu( the area as a co1o!ner of the sa,e lot. #s such co1o!ner, petitioner Mauricia ,anifested her !illin%ness to deposit !ith the court the a,ount of P.0,222.23, the ac$uisition cost of the portion purchased b( private respondent Ni$ue. Petitioner Mauricia also alle%ed that she de,anded fro, private respondent the area of around .<.7< s$uare ,eters that the latter had >undul(, baselessl( and ,aliciousl( clai,ed as his o!n but !hich, as part of +ot No. .203, actuall( belon%s to her.> The a,ended co,plaint pra(ed that petitioner Mauricia be allo!ed to redee, the area of /./.42 s$uare ,eters under the rede,ption price of P.0,222.23 and that private respondent Ni$ue be ordered to e&ecute the necessar( docu,ents for the rede,ption and the eventual transfer of certificate of title to her. The a,ended co,plaint further pra(ed for the return to petitioner Mauricia of the .<.7<1s$uare1,eter portion of the lot and for da,a%es a,ountin% to P//5,888 and attorne(;s fees of P78,888. On #u%ust ., /007, the lo!er court %ranted the ,otion to ad,it the a,ended co,plaint and forth!ith ordered the defendant therein to file an a,ended ans!er. In "ivil "ase No. "*@12873 in the ,eanti,e, private respondent filed a ,otion for the se%re%ation of the /<41 s$uare1,eter portion of the propert( that had been declared b( the trial court as his o!n b( virtue of purchase. On Ma( 4, /007, the trial court issued an order the pertinent portions of !hich read as follo!s= ORD*R Bor resolution is a >Motion to Order Se%re%ation of /<4 S$uare Meters In +ot No. .203> dated )anuar( /5, /007 filed b( defendant and the >Opposition> thereto dated Bebruar( ., /00. b( plaintiff. Movant1defendant also filed a re'oinder dated Bebruar( /5, /007 to the Opposition. #fter %oin% over the alle%ations in the ,otion, the opposition thereto and the re'oinder as !ell as the records of the case, particularl( the decision rendered b( this "ourt and the Order dated October .3, /00., den(in% the ,otion for reconsideration filed b( plaintiffs and allo!in% the issuance of a !rit of e&ecution, the "ourt is inclined to -rant the instant ,otion. &&& &&& &&& In addition thereto, the "ourt ,a?es the follo!in% observation= /. Plaintiff 9oppositor: has a total share of /<4 s$uare ,eters. This is ad,itted b( her in her co,plaint 9par. < thereof:. In the decision rendered b( this "ourt, this

share no! belon%s to defendant ,ovant b( !a( of sale. The decision of this "ourt has lon% beco,e final. .. The total area of the land is ./0 s$. ,eters 9par. . of co,plaint:, thus, the share of Mauricia #le'andrino is onl( 27 s$uare ,eters. 7. #s earl( as )une /8, /037, Mauricia #le'andrino and +aurencia #le'andrino had entered into an >*&tra'udicial Settle,ent of *state> !hereb( the( a%reed to divide the land sub'ect of this case !ith +aurencia #le'andrino o!nin% /<4 s$uare ,eters in the frontage and Mauricia #le'andrino o!nin% 25 s$uare ,eters in the bac? portion 9*&h. ;/4;, *&tra'udicial Settle,ent of *state, par. /: 9e,phasis supplied:, and that the parties assure each other and their successor in interest that a ri%ht of !a( of t!o ,eters is %ranted to each part( b( the other per,anentl( 9*&h. ;/4;, par. .:. This partition is si%ned b( the parties and their !itnesses. #lthou%h not notariDed, it is certainl( valid as bet!een the parties, Maurecia 9sic: #le'andrino, bein% an i,,ediate part(, ,a( not rene%e on this. <. Since the share of defendant +icerio P. Ni$ue is specificall( ?no!n to be /<4 s$uare ,eters, and that its location shall be on the >fronta%e> of the propert( !hile the 27 s$uare ,eters of Maurecia 9sic: #le'andrino shall be at the bac? portion, then, the "ourt cannot see its !a( clear, !h( the /<4 s$. ,eters share of defendant ,a( not be se%re%ated. 5. The contention b( oppositor that the >se%re%ation of defendant;s share of /<4 s$. ,eters fro, +ot No. .203 !as not decreed in the 'ud%,ent> is a rather narro! !a( of loo?in% at the 'ud%,ent. Para%raph / of the dispositive portion of the 'ud%,ent b( this "ourt, Orders plaintiff to >vacate the pre,ises sub'ect of the co,plaint and surrender the propert( to defendant to the e&tent of the < shares afore,entioned.> The < shares of +aurencia #le'andrino of /<4 s$. ,eters can be se%re%ated because +aurencia and Maurecia had alread( e&ecuted an e&tra'udicial partition indicatin% !here their respective shares shall be located 9*&h. ;/4;:. To den( the se%re%ation is to ,a?e the decision of this "ourt 'ust about valueless is not alto%ether useless. The ,atter of allo!in% the se%re%ation should be read into the decision. The botto,line is still that plaintiff +aurencia, despite the fact that the decision of this "ourt had lon% beco,e finalC and despite the fact that she even !ithdra! 9sic: her appeal, she still is en'o(in% the fruits of the propert( to the e&clusion of the ri%htful o!ner. AH*R*BOR*, the "ourt hereb( -rants the ,otion. The defendant +icerio Ni$ue ,a( proceed to se%re%ate his ./<4 9sic: s$. ,eters fro, +ot No. .203 covered b( T"T. No. /0453, b( havin% the sa,e surve(ed b( a co,petent -eodetic *n%ineer, at the e&pense of ,ovant1defendant. SO ORD*R*D. Petitioner Mauricia $uestioned this order of the lo!er court in a petition for certiorari and prohibition !ith pra(er for the issuance of a !rit of preli,inar( in'unction filed before the "ourt of #ppeals. In due course, the "ourt of #ppeals dis,issed the petition in a Decision pro,ul%ated on #u%ust .5, /007. The "ourt of #ppeals stated that, in issuin% the $uestioned order of Ma( 4, /007, the respondent court !as ,erel( perfor,in% its 'ob of seein% to it that >e&ecution of a final 'ud%,ent ,ust confor, to that decreed in the dispositive part of the decision.> It ratiocinated thus= . . . . In orderin% the se%re%ation of the /<4 s$uare ,eters, respondent )ud%e correctl( referred to the te&t of the decision to ascertain !hich portion of the land covered b( T"T No. /0453 !as

actuall( sold b( +aurencia #le'andrino 9sister of herein petitioner Mauricia: to private respondent Ni$ue. The respondent )ud%e did not err in rel(in% upon *&hibit ;/4;, the Deed of *&tra'udicial Settle,ent, dated )une /8, /037, ,entioned in pa%e 7 of the Decision. Pertinent portion of *&hibit ;4; reads= NOA, TH*R*BOR*, the above1na,ed parties1heirs hereb( stipulates 9sic:, declare and a%ree as follo!s= /. That the parties have a%reed to divide the parcel of land with Laurencia Alejandrino owning 146 square meters in the frontage and Mauricia #le'andrino 27 s$uare ,eters in the bac? portionsC .. That the parties ,utuall( and reciprocall( assure each other and their successor of interest 9sic: that a ri%ht of !a( of t!o ,eters is %ranted to each part( to the other per,anentl(. 9e,phasis supplied, #nne& ;/;, "o,,ent, p. 45, Rollo:. dul( si%ned b( herein petitioner and !itnessed b( private respondent Ni$ue. It readil( reveals that !hen +aurencia subse$uentl( sold her shares to herein private respondent, per the Deed of #bsolute Sale dated October .0, /034 9*&hs. ;@; and ;/8;:, the parties ,ust have referred to the /<4 s$uare ,eters in the fronta%e described in said docu,ent, *&hibit ;/4;. +aurencia had no authorit( to sell ,ore, or, less, than that a%reed upon in the e&tra'udicial settle,ent bet!een her and herein petitioner Mauricia. Insofar as the latter is concerned, she is estopped fro, clai,in% that said e&tra'udicial settle,ent !as a fatall( defective instru,ent because it !as not notariDed nor published. Ahat is i,portant is that private respondent personall( ?ne! about +aurencia and Mauricia;s a%ree,ent because he !as a !itness to said a%ree,ent and he relied upon it !hen he purchased the /<4 s$uare ,eters fro, +aurencia. It cannot be validl( clai,ed b( petitioner that she !as deprived of her propert( !ithout due process of la! considerin% that private respondent is ,erel( se%re%atin% the portion of the land actuall( sold to hi, b( +aurencia #le'andrino and it does not affect the 27 s$uare ,eters that properl( pertain to petitioner. Moreover, the Supre,e "ourt has ruled that !here there is a,bi%uit( caused b( an o,ission or ,ista?e in the dispositive portion of a decision the court ,a( clarif( such a,bi%uit( b( an a,end,ent even after the 'ud%,ent had beco,e final, and for this purpose it ,a( resort to the pleadin%s filed b( the parties, the court;s findin% of facts and conclusions of la! as e&pressed in the bod( of the decision 9Republic Suret( and Insurance "o., Inc., et al., vs. Inter,ediate #ppellate "ourt, et al., /5. S"R# 780:. The assailed order, in effect, clarifies the e&act location of the /<4 s$uare ,eters pursuant to *&hibit ;/4;. Respondent court did not act in e&cess of its 'urisdiction. Hence, !rits of certiorari and prohibition do not lie in this case. 7 Petitioner Mauricia filed a ,otion for the reconsideration of the "ourt of #ppeals; decision. Ho!ever, on Bebruar( /5, /00<, the "ourt of #ppeals denied the sa,e for lac? of ,erit >there bein% no ne! %round or co,pellin% reason that 'ustifies a reconsideration> of its Decision. 8 In the instant petition for revie! on certiorari, petitioner assails the decision of the "ourt of #ppeals, contendin% that the lo!er court acted be(ond its 'urisdiction in orderin% the se%re%ation of the propert( bou%ht b( private respondent as the sa,e !as not decreed in its 'ud%,ent, !hich had lon% beco,e final and e&ecutor(. Petitioner ar%ues that partition of the propert( cannot be effected because private respondent is also a defendant in "ivil "ase No. "*@1//427. She asserts that *&hibit /4, the e&tra'udicial settle,ent of estate referred to in the $uestioned order of the lo!er court, !as not discussed in the decision of the lo!er court and even if it !ere, she could not be bound thereb( considerin% that she !as not a part( liti%ant in "ivil "ase No. "*@12873. She $uestions the validit( of the deed of e&tra'udicial settle,ent because it !as not notariDed or published.

In his co,,ent on the petition, private respondent alle%es that althou%h petitioner !as not a part( liti%ant in "ivil "ase No. "*@12873, she is estopped fro, $uestionin% the decision in that case and filin% the instant petition because she had >?no!led%e of the e&istence of said case> !here res judicata had set in. He adds that the instant petition !as filed in violation of "ircular No. .310/ on foru, shoppin% >in that the Petitioner in the instant petition !hose counsel is also the counsel of plaintiff1appellant +aurencia #le'andrino in "#1-.R. "V No. . . ., had filed a civil action E "ivil "ase No. "*@1//427 . . . for >R*D*MPTION F R*"OV*RG OB PROP*RTI*S AITH D#M#-*S>, !hich is presentl( pendin% before @ranch 2 of the Re%ional Trial "ourt of "ebu "it(.> He asserts that the lo!er court did not e&ceed its 'urisdiction andHor co,,it %rave abuse of discretion in %rantin% his ,otion for se%re%ation of the /<4 s$uare ,eters of the land involved that ri%htfull( belon%ed to hi, in accordance !ith the decision of the lo!er court. He char%es counsel for petitioner !ith e&hibitin% >unethical conduct and practice> in appearin% as counsel for petitioner in "ivil "ase No. "*@1//427 after he had appeared for co,plainant +aurencia in "#1-.R. "V No. 77<77 or "ivil "ase No. "*@12873. 6nder the circu,stances of this case, the ulti,ate issue that needs deter,ination is !hether or not as an heir of the #le'andrino propert(, +aurencia ,a( validl( sell specific portions thereof to a third part(. #rt. /823 of the "ivil "ode provides that !here there are t!o or ,ore heirs, the !hole estate of the decedent is, efore partition, o!ned in co,,on b( such heirs, sub'ect to the pa(,ent of the debts of the deceased. 6nder a co1o!nership, the o!nership of an undivided thin% or ri%ht belon%s to different persons. 9 *ach co1 o!ner of propert( !hich is held pro indi!isoe&ercises his ri%hts over the !hole propert( and ,a( use and en'o( the sa,e !ith no other li,itation than that he shall not in'ure the interests of his co1o!ners. The underl(in% rationale is that until a division is ,ade, the respective share of each cannot be deter,ined and ever( co1 o!ner e&ercises, to%ether !ith his co1participants, 'oint o!nership over the pro indi!isopropert(, in addition to his use and en'o(,ent of the sa,e. 1. #lthou%h the ri%ht of an heir over the propert( of the decedent is inchoate as lon% as the estate has not been full( settled and partitioned, 11 the la! allo!s a co1o!ner to e&ercise ri%hts of o!nership over such inchoate ri%ht. Thus, the "ivil "ode provides= #rt. <07. *ach co1o!ner shall have the full o!nership of his part and of the fruits and benefits pertainin% thereto, and he ,a( therefore alienate, assi%n or ,ort%a%e it, and even substitute another person in its en'o(,ent, e&cept !hen personal ri%hts are involved. @ut the effect of the alienation or the ,ort%a%e, !ith respect to the co1o!ners, shall be li,ited to the portion !hich ,a( be allotted to hi, in the division upon the ter,ination of the co1o!nership. Aith respect to properties shared in co,,on b( virtue of inheritance, alienation of a pro indi!iso portion thereof is specificall( %overned b( #rticle /833 that provides= #rt. /833. Should an( of the heirs sell his hereditar( ri%hts to a stran%er before the partition, an( or all of the co1heirs ,a( be subro%ated to the ri%hts of the purchaser b( rei,bursin% hi, for the price of the sale, provided the( do so !ithin the period of one ,onth fro, the ti,e the( !ere notified in !ritin% of the sale b( the vendor. In the instant case, +aurencia !as !ithin her hereditar( ri%hts in sellin% her pro indi!iso share in +ot No. .203. Ho!ever, because the propert( had not (et been partitioned in accordance !ith the Rules of "ourt, no particular portion of the propert( could be identified as (et and delineated as the ob'ect of the sale. Thus, interpretin% #rticle <07 of the "ivil "ode providin% that an alienation of a co1o!ned propert( >shall be li,ited to the portion !hich ,a( be allotted to 9the seller: in the division upon the ter,ination of the co1o!nership, the "ourt said= . . . 9p:ursuant to this la!, a co1o!ner has the ri%ht to alienate his pro"indi!iso share in the co1o!ned propert( even !ithout the consent of the other co1o!ners. Nevertheless, as a ,ere part o!ner, he cannot alienate the shares of the other co1o!ners. The prohibition is pre,ised on the ele,entar( rule that >no one can %ive !hat he does not have> 9#emo dat quod non ha et:. Thus, !e held in @ailon1"asilao vs. "ourt of #ppeals 9-.R. No. 23/23, #pril /5, /033, /48 S"R# 273, 2<5:, !i$=

. . . since a co1o!ner is entitled to sell his undivided share, a sale of the entire propert( b( one co1o!ner !ithout the consent of the other co1o!ners is not null and void. Ho!ever, onl( the ri%hts of the co1o!ner1seller are transferred, thereb( ,a?in% the bu(er a co1o!ner of the propert(. The proper action in cases li?e this is not for the nullification of the sale or for the recover( of possession of the thin% o!ned in co,,on fro, the third person !ho substituted the co1o!ner or co1o!ners !ho alienated their shares, but the DIVISION of the co,,on propert( of the co1 o!ners !ho possessed and ad,inistered it. + The le%alit( of +aurencia;s alienation of portions of the estate of the #le'andrino spouses !as settled in "ivil "ase No. "*@12873. The decision in that case had beco,e final and e&ecutor( !ith +aurencia;s !ithdra!al of her appeal. Ahen private respondent filed a ,otion for the se%re%ation of the portions of the propert( that !ere ad'ud%ed in his favor, private respondent !as in effect callin% for the partition of the propert(. Ho!ever, under the la!, partition of the estate of a decedent ,a( onl( be effected b( 9/: the heirs the,selves e&tra'udiciall(, 9.: b( the court in an ordinar( action for partition, or in the course of ad,inistration proceedin%s, 97: b( the testator hi,self, and 9<: b( the third person desi%nated b( the testator. 1, The trial court ,a( not, therefore, order partition of an estate in an action for $uietin% of title. #s there is no pendin% ad,inistration proceedin%s, the propert( of the #le'andrino spouses can onl( be partitioned b( the heirs the,selves in an e&tra'udicial settle,ent of estate. Ho!ever, evidence on the e&tra'udicial settle,ent of estate !as offered before the trial court and it beca,e the basis for the order for se%re%ation of the propert( sold to private respondent. Petitioner Mauricia does not den( the fact of the e&ecution of the deed of e&tra'udicial settle,ent of the estate. She onl( $uestions its validit( on account of the absence of notariDation of the docu,ent and the non1publication thereof. On e&tra'udicial settle,ent of estate, Section / of Rule 2< of the Rules of "ourt provides= If the decedent left no !ill and no debts and the heirs are all of a%e, or the ,inors are represented b( their 'udicial or le%al representatives dul( authoriDed for the purpose, the parties ,a(, !ithout securin% letters of ad,inistration, divide the estate a,on% the,selves as the( see fit b( ,eans of a public instru,ent filed in the office of the re%ister of deeds, and should the( disa%ree, the( ,a( do so in an ordinar( action for partition. . . . . The fact of the e&tra'udicial settle,ent or ad,inistration shall be published in a ne!spaper of %eneral circulation in the ,anner provided in the ne&t succeedin% sectionC but no e&tra'udicial settle,ent shall be bindin% upon an( person !ho has not participated therein or had no notice thereof. NotariDation of the deed of e&tra'udicial settle,ent has the effect of ,a?in% it a public docu,ent 14 that can bind third parties. Ho!ever, this for,al re$uire,ent appears to be superseded b( the substantive provision of the "ivil "ode that states= #rt. /83.. *ver( act !hich is intended to put an end to indivision a,on% co1heirs and le%atees or devisees is dee,ed to be a partition, althou%h it should purport to be a sale, an e&chan%e, a co,pro,ise, or an( other transaction. @( this provision, it appears that !hen a co1o!ner sells his inchoate ri%ht in the co1o!nership, he e&presses his intention to >put an end to indivision a,on% 9his: co1heirs.> Partition a,on% co1o!ners ,a( thus be evidenced b( the overt act of a co1o!ner of renouncin% his ri%ht over the propert( re%ardless of the for, it ta?es. In effect, +aurencia e&pressed her intention to ter,inate the co1o!ner b( sellin% her share to private respondent. Moreover, the e&ecution of the deed of e&tra'udicial settle,ent of the estate reflected the intention of both +aurencia and petitioner Mauricia to ph(sicall( divide the propert(. @oth of the, had ac$uired the shares of

their brothers and therefore it !as onl( the t!o of the, that needed to settle the estate. The fact that the docu,ent !as not notariDed is no hindrance to its effectivit( as re%ards the t!o of the,. The partition of inherited propert( need not be e,bodied in a public docu,ent. In this re%ard, Tolentino subscribes to that opinion !hen he states as follo!s= . . . . Ae believe, ho!ever, that the public instru,ent is not essential to the validit( of the partition. This is not one of those contracts in !hich for, is of the essence. The public instru,ent is necessar( onl( for the re%istration of the contract, but not for its validit(. The validit( of an oral contract a,on% the heirs, ter,inatin% the co1o!nership, has been reco%niDed b( the Supre,e "ourt in a decision . . . 9!here: that tribunal said= >#n a%ree,ent a,on% the heirs that a certain lot should be sold and its proceeds paid to one of the, is a valid oral contract, and the sa,e has the force of la! bet!een the parties fro, and after the ori%inal assent thereto, and no one of the, ,a( !ithdra! or oppose its e&ecution !ithout the consent of all>. In a still later case, the Supre,e "ourt held that >partition a,on% heirs or renunciation of an inheritance b( so,e of the, is not e&actl( a conve(ance for the reason that it does not involve transfer of propert( fro, one to the other, but rather a confir,ation or ratification of title or ri%ht to propert( b( the heir renouncin% in favor of another heir acceptin% and receivin% the inheritance.> Hence, the court concluded, >it is co,petent for the heirs of an estate to enter into an oral a%ree,ent for distribution of the estate a,on% the,selves.> 15 The deed of e&tra'udicial settle,ent e&ecuted b( Mauricia and +aurencia evidence their intention to partition the propert(. It delineates !hat portion of the propert( belon%s to each other. That it !as not notariDed is i,,aterial in vie! of Mauricia;s ad,ission that she did e&ecute the deed of e&tra'udicial settle,ent. Neither is the fact that the trial court onl( ,entioned the e&istence of such docu,ent in its decision in "ivil "ase No. "*@128.3. That docu,ent !as for,all( offered in evidence and the court is dee,ed to have dul( considered 1- it in decidin% the case. the case. The court has in its favor the presu,ption of re%ularit( of the perfor,ance of its tas? that has not been rebutted b( petitioner Mauricia. Neither ,a( the fact that the other heirs of the #le'andrino spouses, na,ed Marcelino, -re%orio, "iriaco and #bundio did not participate in the e&tra'udicial settle,ent of estate affect its validit(. In her a,ended co,plaint in "ivil "ase No. "*@1//427, petitioner Mauricia herself ad,itted havin% ac$uired b( purchase the ri%hts over the shares of her brothers. On the part of +aurencia, the court found that she had trans,itted her ri%hts over portions she had ac$uired fro, her brothers to private respondent Ni$ue. The sale !as ,ade after the e&ecution of the deed of e&tra'udicial settle,ent of the estate that private respondent hi,self !itnessed. The e&tra'udicial settle,ent of estate havin% constituted a partition of the propert(, +aurencia validl( transferred o!nership over the specific front portion of the propert( !ith an area of /<4 s$uare ,eters. The trial court, therefore, did not abuse its discretion in issuin% the order for the se%re%ation of the propert(. In so doin%, it !as ,erel( reiteratin% the partition of the propert( b( petitioner Mauricia and her sister +aurencia that !as e,bodied in the deed of e&tra'udicial settle,ent of estate. The order ,a( li?e!ise be dee,ed as a clarification of its decision that had beco,e final and e&ecutor(. Such clarification !as needed lest proper e&ecution of the decision be rendered futile. The "ourt finds no ,erit in the issue of foru, shoppin% raised b( private respondent. Boru, shoppin% e&ists !here the ele,ents of litis pendentia are present or !here a final 'ud%,ent in one case !ill a,ount to res judicata in the other. 17@ecause the 'ud%,ent in "ivil "ase No. "*@128.3 is alread( final and e&ecutor(, the e&istence of res judicata is deter,inative of !hether or not petitioner is %uilt( of foru, shoppin%. Bor the principle of res judicata to appl(, the follo!in% ,ust be present= 9/: a decision on the ,eritsC 9.: b( a court of co,petent 'urisdictionC 97: the decision is finalC and 9<: the t!o actions involve identical parties, sub'ect ,atter and causes of action. 18 The fourth ele,ent is not present in this case. The parties are not identical because petitioner !as not i,pleaded in "ivil "ase No. "*@128.3. Ahile the sub'ect ,atter ,a( be the sa,e propert(, of the #le'andrino spouses, the causes of action are different. "ivil. "ase No. "*@128.3 is an action for $uietin% of title and da,a%es !hile "ivil "ase No. "*@1//427 is for rede,ption and recover( of properties.

It appears ,oreover, that private respondent;s ar%u,ent on foru, shoppin% is anchored on the fact that counsel for both plaintiffs in those t!o cases is one and the sa,e, thereb( i,pl(in% that the sa,e counsel ,erel( !anted to prevail in the second case after havin% failed to do so in the first. The records sho!, ho!ever, that +aurencia e&ecuted an affidavit 19consentin% to the appearance of her counsel in an( case that petitioner Mauricia ,i%ht file a%ainst private respondent. She affir,ed in that affidavit that she could be included even as a defendant in an( case that petitioner Mauricia !ould file because she >full( a%ree9d:> !ith !hatever cause of action Mauricia !ould have a%ainst private respondent. Such a state,ent can hardl( constitute a proper basis for a findin% of foru, shoppin%, ,uch less evidence of ,isconduct on the part of counsel. #s noted earlier, the t!o cases have different causes of action and the t!o plaintiffs !ho !ould have conflictin% clai,s under the facts of the case actuall( presented a united stand a%ainst private respondent. If there is an( char%e that could be leveled a%ainst counsel, it is his lac? of thorou%hness in pursuin% the action for $uietin% of title. #s counsel for plaintiff therein, he could have i,pleaded petitioner Mauricia ?no!in% full( !ell her interest in the propert( involved in order to avoid ,ultiplicit( of suits. Ho!ever, such an o,ission is not a sufficient %round for ad,inistrative sanction. AH*R*BOR*, the instant petition for revie! on certiorari is hereb( D*NI*D for lac? of ,erit. "osts a%ainst petitioner. SO ORD*R*D. #ar!asa% &.'.% (apunan and )urisima% ''.% concur. #oot(ote/ / Penned b( #ssociate )ustice Ma. #licia #ustria1MartineD and concurred in b( #ssociate )ustices Santia%o M. Iapunan and #lfredo +. @enipa(o. . Rollo, pp. 5<155. 7 * id., p. .5. < * id., p. 58. 5 * id., p. 5/. 4 * id., pp. //1/., .51.2. 2 "# Decision. pp. 512. 3 Rollo, p. 7.. 0 #rt. <3<, "ivil "ode. /8 #%uilar v. "ourt of #ppeals. -.R. No. 2475/, October .0, /007. ..2 S"R# <2., <38. // The *state of RuiD v. "ourt of #ppeals, 7.. Phil. 508, 487 9/004:. /. Mercado v. "ourt of #ppeals, 7/8 Phil. 43<, 408 9/005:. /7 TO+*NTINO, "IVI+ "OD* OB TH* PHI+IPPIN*S. Vol. III, /00. ed., p. 50<. /< # public docu,ent is >an( instru,ent authoriDed b( a notar( public or a co,petent public official. !ith the sole,nit( re$uired b( la!> 9MOR*NO, PHI+IPPIN* +#A DI"TION#RG, 7rd ed., p. 247 citing"acnio v. @aens. 5 Phil. 2<. 9/084:.

/5 TO+*NTINO, supra, at p. 505 citing @elen v. @elen, <0 O.-. 002 9).@.+. Re(es, ).: and @arcelona v. @arcelona, 57 O.-. 727 9Monte,a(or, '.:. /4 Sec. 75, Rule /7., Rules of "ourt. /2 Birst Philippine International @an? v. "ourt of #ppeals, 7.. Phil. .38, 784 9/004: cited in Bortich v. "orona, -.R. No. /7/<52. #pril .<, /003. /3 @ernardo v. N+R", 7.5 Phil. 72/, 73<1735 9/004:. /0 Rollo, p. 4..