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NILO MERCADO vs.

CA and AUREA MERCADO
G.R. No. 108952 January 26, 199
FACTS
Aurea seeks partition and reconveyance to her of one-half of a real property in QC,
registered in the name of Nilo. Aurea is legitimate sister. Before she left for US in 1964
she gave her brother money to buy this lot but she was not given any receipt. Nilo
testified that the lot was bought out of his money and a portion borrowed from Aurea
which he used to pay the downpayment. The rest was through SSS. It was however
foreclosed by SSS. Then he redeemed the property, got a certificate of redemption after
the cancellation of the mortgage with SSS.As proof of his ownership, he has the tax
declaration, TCT and real property tax bill receipts.
ISSUES
Who owns the property?

Whether the mortgage of the subject property to the SSS, its foreclosure and subsequent
redemption by the petitioner extinguished private respondent's co-ownership.
HELD
The subject property is co-owned by Nilo and Aurea. This finding is based on the
admission made by petitioner himself in his Affidavit: “xxx That I am the co-owner of
the land, with my sister Aurea.”
This affidavit is high quality evidence.

Second ISSUE: Pursuant to Art. 493, a co-owner has the right to alienate his pro-
indiviso share in the co-owned property even without the consent of the other co-owners.
Nevertheless, as a mere part owner, he cannot alienate the shares of the other co-
owners. The prohibition is premised on the elementary rule that "no one can give that
he does not have.” (Nemo dat quod non habet). Thus, in Bailon-Casilao vs CA:
“. . . since a co-owner is entitled to sell his undivided share, a sale of the entire property
by one-co-owner without the consent of the other co-owners is not null and void.
However, only the rights of the co-owner-seller are transferred, thereby making the
buyer a co-owner of the property.”
The proper action in cases like this is not for the nullification of the sale or for the
recovery of possession of the thing owned in common from the third person who
substituted the co-owner or co-owners who alienated their shares, but the DIVISION of
the common property of the co-owners who possessed and administered it.
In the case at bench, the petitioner borrowed money from SSS and mortgaged the
subject property without the knowledge and consent of his co-owner. Necessarily, Aurea
could not have helped in the payment of loan nor could she have redeemed it. In other
words, Aurea did not voluntary relinquish at any period of time her pro-indiviso share
in the subject property. Petition denied.