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AL., plaintiffs-appellant,
GATMAITAN, defendants-appellees.
G.R. No. L-14242, September 20, 1920, EN BANC
NATURE: Action for partition
FACTS: The plaintiffs alleged that they and the defendants were
the descendants of the owner of said parcel of land, Leon Alfaro,
who died long ago; that upon his death, one of his daughter, Felipa
Alfaro, now deceased, mother of the defendants, succeeded him in
the possession thereof; and that said land was still undivided
property of the heirs. It was also alleged in the complaint that the
other defendant, Amando Gatmaitan, was made a party because
he was in possession of said land, claiming a supposed interest
adverse to that to the plaintiffs.
To the complaint a demurrer was presented by the defendant
Amando Gatmaitan on the grounds of misjoinder of parties in that
he was made a party defendant and that the facts alleged did not
constitute a cause of action as to him. After hearing, the court
sustained the demurrer, to which order the plaintiff excepted.
The plaintiffs not having amended their complaint within the time
fixed by the rules of court, the court dismissed the case as to
Amando Gatmaitan, to which action of the lower court the plaintiffs
also excepted and brought the case to this court on appeal by bill
of exceptions.
ISSUE: Whether the defendant Amando Gatmaitan, who is neither
a descendant of the deceased Leon Alfaro, nor a coheir or coowner
of the plaintiffs and the other two defendant, as to the land
described in the complaint, may be made a party to the suit for
partition instituted by the plaintiffs, or, in other words, whether his
joinder as a party defendant was proper.
HELD: The demurrer filed by said defendant to the complaint was
correctly sustained and the plaintiffs not having amended it within
the time fixed by the rules of court, the dismissal thereof as to said
defendant was proper.

RATIO: An action for partition of real property, as the name itself

clearly suggests, is a judicial controversy between persons, who,
being coowners or coparceners thereof, seek to secure a division or
partition among them of the common property, giving to each one
the part corresponding to him.
The right to bring such action or to ask at any time for the division
of the common property belongs solely to a coowner or coparcener
(art. 400, Civil Code, and section 181, Code of Civil Procedure). The
action for partition of real property cannot therefore be instituted
except by the coowners or coparceners of said property, and
cannot be maintained against persons who are not such, because
in an action for partition of such property it is an indispensable
requisite that there should be common ownership of the thing and
that the parties, plaintiffs and defendants, should be coowners of
The appellants admit in their brief that it is not alleged in the
complaint that the defendant Amando Gatmaitan is made a party
for the reason that he is owner or possessor of the property in that
capacity; and they state that, as it has been alleged therein that he
is possession of the land and claims a supposed interest opposed
to that of the plaintiff, these facts are matters of proof, the burden
of which is upon the plaintiffs.
Had it been alleged that the possession of the defendant was in
the capacity of coowner with the plaintiffs or that his interest
opposed to that of the latter consists in his having been
subrogated by assignment, sale, or other mode of transferring
ownership, to the proprietary right which any of the other
defendants had in the property in question, then the joinder of the
defendant Gatmaitan as such would have been proper, inasmuch
as every coowner has the absolute right to his part and
consequently may alienate, assign, or mortgage it and even
substitute another in its enjoyment, the effect of the alienation
being of course limited to the part which may be adjudicated to
him upon the division of the thing in common (art. 399, Civ. Code).
Said defendant, as coowner and coparcener, as to a part of the
property, would have the right to be a party to the partition
proceeding, and, in such case, if he is not joined as defendant, he
could intervene. This is the reason why it is provided in section 183
of the Code of Civil Procedure that the complaint in partition
proceedings should, besides stating the nature of the title of the
plaintiff and describing the real property sought to be partitioned,
also name as defendant every tenant in common, coheir or other

person interested in said property. But he could by no means be

joined in the complaint as defendant, with the right to prove his
common ownership with the plaintiffs and the other two
defendants or his corresponding right to the property, because this
would amount to converting the partition proceeding into another
proceeding for ejectment or unlawful entry against said defendant;
and it would serve as a means by which the plaintiffs could
investigate the right or interest which the defendant Gatmaitan
claim to possess in the property which is the subject-matter of the
complaint for partition.
Nevertheless it is indisputable that when the property which is yet
undivided among various coowners has been usurped or is in the
possession of a third person who claims a title opposed to that of

the former, the common owners thereof may recover it in a proper

proceeding, for, as the supreme court of Spain has held in its
decision of April 6, 1896 (79 Jur. Civ., 641), "Any coowner of an
undivided property may bring an action to recover it for the benefit
of all." This once more shows that a person cannot be joined as
defendant, who does not a possess the property as coowner or
joint owner, but by virtue of a title the nature of which is unknown
but opposed to those seeking partition thereof as coowners, or who
possesses the same under a claim of interest opposed to the latter.
A person who like the defendant, Amando Gatmaitan, is in this
situation, may be sued in another proceeding, but not in a
proceeding for partition.