G.R. No. L-45425 April 29, 1939 7.

Tomasa Mercado
............................................................................. .08
JOSE GATCHALIAN, ET AL., plaintiffs-appellants, ...................
vs.
THE COLLECTOR OF INTERNAL 8. Julio Gatchalian
REVENUE, defendant-appellee. ............................................................................. .13
......................
Guillermo B. Reyes for appellants.
9. Emiliana Santiago
Office of the Solicitor-General Tuason for appellee.
............................................................................. .13
...................
IMPERIAL, J.:
10. Maria C. Legaspi
The plaintiff brought this action to recover from the defendant ............................................................................. .16
Collector of Internal Revenue the sum of P1,863.44, with legal ..................
interest thereon, which they paid under protest by way of
income tax. They appealed from the decision rendered in the 11. Francisco Cabral
case on October 23, 1936 by the Court of First Instance of the ............................................................................. .13
City of Manila, which dismissed the action with the costs ..................
against them.
12. Gonzalo Javier
............................................................................. .14
The case was submitted for decision upon the following .......................
stipulation of facts:
13. Maria Santiago
Come now the parties to the above-mentioned case, ............................................................................. .17
through their respective undersigned attorneys, and ......................
hereby agree to respectfully submit to this Honorable
14. Buenaventura Guzman
Court the case upon the following statement of facts:
............................................................................. .13
.........
1. That plaintiff are all residents of the municipality of
Pulilan, Bulacan, and that defendant is the Collector of 15. Mariano Santos
Internal Revenue of the Philippines; ............................................................................. .14
....................
2. That prior to December 15, 1934 plaintiffs, in order
to enable them to purchase one sweepstakes ticket Total
valued at two pesos (P2), subscribed and paid therefor ............................................................................. 2.0
the amounts as follows: ........................... 0

1. Jose Gatchalian 3. That immediately thereafter but prior to December

P0. 15, 1934, plaintiffs purchased, in the ordinary course
.............................................................................
18 of business, from one of the duly authorized agents of
.......................
the National Charity Sweepstakes Office one ticket
2. Gregoria Cristobal bearing No. 178637 for the sum of two pesos (P2) and
............................................................................. .18 that the said ticket was registered in the name of Jose
.................. Gatchalian and Company;

3. Saturnina Silva 4. That as a result of the drawing of the sweepstakes

............................................................................. .08 on December 15, 1934, the above-mentioned ticket
....................... bearing No. 178637 won one of the third prizes in the
4. Guillermo Tapia amount of P50,000 and that the corresponding check
covering the above-mentioned prize of P50,000 was
............................................................................. .13
drawn by the National Charity Sweepstakes Office in
......................
favor of Jose Gatchalian & Company against the
5. Jesus Legaspi Philippine National Bank, which check was cashed
............................................................................. .15 during the latter part of December, 1934 by Jose
......................... Gatchalian & Company;

6. Jose Silva 5. That on December 29, 1934, Jose Gatchalian was

............................................................................. .07 required by income tax examiner Alfredo David to file
................................ the corresponding income tax return covering the
prize won by Jose Gatchalian & Company and that on
December 29, 1934, the said return was signed by
Jose Gatchalian, a copy of which return is enclosed as
Exhibit A and made a part hereof;
6. That on January 8, 1935, the defendant made an
assessment against Jose Gatchalian & Company
requesting the payment of the sum of P1,499.94 to the
deputy provincial treasurer of Pulilan, Bulacan, giving
to said Jose Gatchalian & Company until January 20,
1935 within which to pay the said amount of
P1,499.94, a copy of which letter marked Exhibit B is
enclosed and made a part hereof;
7. That on January 20, 1935, the plaintiffs, through
their attorney, sent to defendant a reply, a copy of
which marked Exhibit C is attached and made a part
hereof, requesting exemption from payment of the
income tax to which reply there were enclosed fifteen
(15) separate individual income tax returns filed
separately by each one of the plaintiffs, copies of
which returns are attached and marked Exhibit D-1 to
D-15, respectively, in order of their names listed in the
caption of this case and made parts hereof; a statement
of sale signed by Jose Gatchalian showing the amount
put up by each of the plaintiffs to cover up the
attached and marked as Exhibit E and made a part
hereof; and a copy of the affidavit signed by Jose
Gatchalian dated December 29, 1934 is attached and
marked Exhibit F and made part thereof;
8. That the defendant in his letter dated January 28,
1935, a copy of which marked Exhibit G is enclosed,
denied plaintiffs' request of January 20, 1935, for
exemption from the payment of tax and reiterated his
demand for the payment of the sum of P1,499.94 as
income tax and gave plaintiffs until February 10, 1935
within which to pay the said tax;
9. That in view of the failure of the plaintiffs to pay
the amount of tax demanded by the defendant,
notwithstanding subsequent demand made by
defendant upon the plaintiffs through their attorney on
March 23, 1935, a copy of which marked Exhibit H is
enclosed, defendant on May 13, 1935 issued a warrant
of distraint and levy against the property of the
plaintiffs, a copy of which warrant marked Exhibit I is
enclosed and made a part hereof;
10. That to avoid embarrassment arising from the
embargo of the property of the plaintiffs, the said
plaintiffs on June 15, 1935, through Gregoria
Cristobal, Maria C. Legaspi and Jesus Legaspi, paid
under protest the sum of P601.51 as part of the tax and
penalties to the municipal treasurer of Pulilan,
Bulacan, as evidenced by official receipt No. 7454879
which is attached and marked Exhibit J and made a
part hereof, and requested defendant that plaintiffs be
allowed to pay under protest the balance of the tax and
penalties by monthly installments;
Exhibit E referred to in the stipulation is of the following tenor:
11. That plaintiff's request to pay the balance of the
tax and penalties was granted by defendant subject to
the condition that plaintiffs file the usual bond secured
by two solvent persons to guarantee prompt payment
of each installments as it becomes due;
12. That on July 16, 1935, plaintiff filed a bond, a
copy of which marked Exhibit K is enclosed and made
a part hereof, to guarantee the payment of the balance
of the alleged tax liability by monthly installments at
the rate of P118.70 a month, the first payment under
protest to be effected on or before July 31, 1935;
13. That on July 16, 1935 the said plaintiffs formally
protested against the payment of the sum of P602.51,
a copy of which protest is attached and marked
Exhibit L, but that defendant in his letter dated August
1, 1935 overruled the protest and denied the request
for refund of the plaintiffs;
14. That, in view of the failure of the plaintiffs to pay
the monthly installments in accordance with the terms
and conditions of bond filed by them, the defendant in
his letter dated July 23, 1935, copy of which is
attached and marked Exhibit M, ordered the municipal
treasurer of Pulilan, Bulacan to execute within five
days the warrant of distraint and levy issued against
the plaintiffs on May 13, 1935;
15. That in order to avoid annoyance and
embarrassment arising from the levy of their property,
the plaintiffs on August 28, 1936, through Jose
Gatchalian, Guillermo Tapia, Maria Santiago and
Emiliano Santiago, paid under protest to the municipal
treasurer of Pulilan, Bulacan the sum of P1,260.93
representing the unpaid balance of the income tax and
penalties demanded by defendant as evidenced by
income tax receipt No. 35811 which is attached and
marked Exhibit N and made a part hereof; and that on
September 3, 1936, the plaintiffs formally protested to
the defendant against the payment of said amount and
requested the refund thereof, copy of which is
attached and marked Exhibit O and made part hereof;
but that on September 4, 1936, the defendant
overruled the protest and denied the refund thereof;
copy of which is attached and marked Exhibit P and
made a part hereof; and
16. That plaintiffs demanded upon defendant the
refund of the total sum of one thousand eight hundred
and sixty three pesos and forty-four centavos
(P1,863.44) paid under protest by them but that
defendant refused and still refuses to refund the said
amount notwithstanding the plaintiffs' demands.
17. The parties hereto reserve the right to present other
and additional evidence if necessary.
 To whom it may concern: Pulilan, Bulacan, P.I.

I, Jose Gatchalian, a resident of Pulilan, Bulacan, (Sgd.) JOSE GATCHALIAN

married, of age, hereby certify, that on the 11th day of
August, 1934, I sold parts of my shares on ticket No. And a summary of Exhibits D-1 to D-15 is inserted in the bill
178637 to the persons and for the amount indicated of exceptions as follows:
below and the part of may share remaining is also
shown to wit: RECAPITULATIONS OF 15 INDIVIDUAL
INCOME TAX RETURNS FOR 1934 ALL DATED
Purchaser Amount Address JANUARY 19, 1935 SUBMITTED TO THE
COLLECTOR OF INTERNAL REVENUE.
1. Mariano Santos Pulilan,
P0.14
........................................... Bulacan.
Pri Ne
Exh Purc
2. Buenaventura Guzman ce Expen t
.13 - Do - Name ibit hase
............................... Wo ses pri
No. Price
n ze
3. Maria Santiago
.17 - Do - 1. Jose Gatchalian
............................................ P4, 3,9
.............................. D-1 P0.18 P 480
4. Gonzalo Javier 425 45
.14 - Do - ............
..............................................
2. Gregoria
5. Francisco Cabral Cristobal 4,5 2,5
.13 - Do - D-2 .18 2,000
.......................................... .............................. 75 75
........
6. Maria C. Legaspi
.16 - Do -
.......................................... 3. Saturnina Silva
1,8 1,5
.............................. D-3 .08 360
7. Emiliana Santiago 75 15
.13 - Do - ...............
.........................................
4. Guillermo
8. Julio Gatchalian Tapia 3,3 2,9
.13 - Do - D-4 .13 360
............................................ .............................. 25 65
............
9. Jose Silva
.07 - Do -
...................................................... 5. Jesus Legaspi
3,8 3,1
by Maria D-5 .15 720
10. Tomasa Mercado 25 05
.08 - Do - Cristobal .........
.......................................
6. Jose Silva
11. Jesus Legaspi 1,8 1,5
.15 - Do - .............................. D-6 .08 360
............................................. 75 15
......................
12. Guillermo Tapia
.13 - Do - 7. Tomasa
...........................................
Mercado 1,8 1,5
D-7 .07 360
13. Saturnina Silva .............................. 75 15
.08 - Do - .........
............................................

14. Gregoria Cristobal 8. Julio Gatchalian

.18 - Do - 3,1 2,9
....................................... by Beatriz D-8 .13 240
50 10
Guzman .......
15. Jose Gatchalian
.18 - Do - 9. Emiliana
............................................
Santiago 3,3 2,9
D-9 .13 360
Total .............................. 25 65
cost of ........
2.00
said
10. Maria C.
Legaspi D- 4,1 3,1
.16 960
ticket; and that, therefore, the persons named above .............................. 10 00 40
are entitled to the parts of whatever prize that might be ........
won by said ticket.
11. Francisco D- .13 3,3 360 2,9
 Cabral 11 25 65 Islands, no matter how created or organized, but not
.............................. including duly registered general copartnership
........ (compaias colectivas), a tax of three per centum upon
such income; and a like tax shall be levied, assessed,
12. Gonzalo Javier collected, and paid annually upon the total net income
D- 3,3 2,9 received in the preceding calendar year from all
.............................. .14 360
12 25 65 sources within the Philippine Islands by every
............
corporation, joint-stock company, partnership, joint
13. Maria account (cuenta en participacion), association, or
Santiago D- 4,3 3,9 insurance company organized, authorized, or existing
.17 360
.............................. 13 50 90 under the laws of any foreign country, including
............ interest on bonds, notes, or other interest-bearing
obligations of residents, corporate or
14. Buenaventura otherwise: Provided, however, That nothing in this
D- 3,3 2,9
Guzman .13 360 section shall be construed as permitting the taxation of
14 25 65
........................... the income derived from dividends or net profits on
which the normal tax has been paid.
15. Mariano
Santos D- 3,3 2,9
.14 360 The gain derived or loss sustained from the sale or
.............................. 15 25 65
.......... other disposition by a corporation, joint-stock
company, partnership, joint account (cuenta en
<="" participacion), association, or insurance company, or
td="" property, real, personal, or mixed, shall be ascertained
style= in accordance with subsections (c) and (d) of section
"font- two of Act Numbered Two thousand eight hundred
size: and thirty-three, as amended by Act Numbered
14px; Twenty-nine hundred and twenty-six.
text-
decora The foregoing tax rate shall apply to the net income
tion: received by every taxable corporation, joint-stock
50, none; company, partnership, joint account (cuenta en
2.00
000 color: participacion), association, or insurance company in
rgb(0, the calendar year nineteen hundred and twenty and in
0, each year thereafter.
128);
font- There is no doubt that if the plaintiffs merely formed a
family community of property the latter is exempt from the payment
: arial, of income tax under the law. But according to the stipulation
verdan facts the plaintiffs organized a partnership of a civil nature
a;"> because each of them put up money to buy a sweepstakes ticket
for the sole purpose of dividing equally the prize which they
The legal questions raised in plaintiffs-appellants' five assigned may win, as they did in fact in the amount of P50,000 (article
errors may properly be reduced to the two following: (1) 1665, Civil Code). The partnership was not only formed, but
Whether the plaintiffs formed a partnership, or merely a upon the organization thereof and the winning of the prize, Jose
community of property without a personality of its own; in the Gatchalian personally appeared in the office of the Philippines
first case it is admitted that the partnership thus formed is liable Charity Sweepstakes, in his capacity as co-partner, as such
for the payment of income tax, whereas if there was merely a collection the prize, the office issued the check for P50,000 in
community of property, they are exempt from such payment; favor of Jose Gatchalian and company, and the said partner, in
and (2) whether they should pay the tax collectively or whether the same capacity, collected the said check. All these
the latter should be prorated among them and paid individually. circumstances repel the idea that the plaintiffs organized and
formed a community of property only.
The Collector of Internal Revenue collected the tax under
section 10 of Act No. 2833, as last amended by section 2 of Act Having organized and constituted a partnership of a civil
No. 3761, reading as follows: nature, the said entity is the one bound to pay the income tax
which the defendant collected under the aforesaid section 10
(a) of Act No. 2833, as amended by section 2 of Act No. 3761.
SEC. 10. (a) There shall be levied, assessed, collected,
There is no merit in plaintiff's contention that the tax should be
and paid annually upon the total net income received
prorated among them and paid individually, resulting in their
in the preceding calendar year from all sources by
exemption from the tax.
every corporation, joint-stock company, partnership,
joint account (cuenta en participacion), association or
insurance company, organized in the Philippine
In view of the foregoing, the appealed decision is affirmed,
with the costs of this instance to the plaintiffs appellants. So
ordered.

Avancea, C.J., Villa-Real, Diaz, Laurel, Concepcion and

Moran, JJ., concur.
G.R. No. L-27933 December 24, 1968
DIVERSIFIED CREDIT CORPORATION, plaintiff-
appellee,
vs.
FELIPE ROSADO and LUZ JAYME
ROSADO, defendants-appellants.
Montalvo and Bernabe for plaintiff-appellee.
Pedro D. Delfin for defendants-appellants.
REYES, J.B.L.:
This appeal from a decision of the Court of First Instance of
Bacolod City, Negros Occidental (Civ. Case No. 7516 of that
Court) was certified to us by the Court of Appeals (Second
Division) because the same involves no questions of fact.
The case had its origin in the Municipal Court of Bacolod City,
when the Diversified Credit Corporation filed an action to
compel the spouses Felipe Rosado and Luz Jayme Rosado to
vacate and restore possession of a parcel of land in the City of
Bacolod (Lot 62-B of Subdivision plan LRC-Psd-33823) that
forms part of Lot No. 62 of the Bacolod Cadastre, and is
covered by Transfer Certificate of Title No. 27083 in the name
of plaintiff. After answer, claiming that the lot was defendants'
conjugal property, the Municipal Court ordered defendants to
surrender and vacate the land in litigation; to pay P100.00 a
month from the filing of the complaint up to the actual vacating
of the premises; to pay P500.00 attorneys' fees and costs. Upon
appeal to the Court of First Instance, the case was submitted on
the following stipulation of facts (Rec. on App., pp. 59-60):
1. That Lot No. 62-B of Bacolod Cadastre belong to
the thirteen co-owners, including the wife of the
defendant herein, who owns 1/13th part pro-indiviso;
2. That on May 11, 1964, Luz Jayme Rosado, wife of
the defendant Felipe Rosado, signed a Deed of Sale
together with the co-owners of the property to the
plaintiff as shown by Exh. "A" for the plaintiff;
3. That on the lot in question the defendant Felipe
Rosado had built a house sometime in 1957 without
the whole property having been previously partitioned
among the thirteen (13) co-owners;
4. That the title of the property has already been
transferred to the plaintiff upon registration of the
Deed of Sale in June, 1964, with the Office of the
Register of Deeds;
5. That demand was made by the plaintiff upon the
defendant Felipe Rosado and his wife Luz Jayme
Rosado on October 19, 1964, but until now the
defendant Felipe Rosado has refused to vacate the
premises or to remove his house thereon as shown by
Exh. "B" for the plaintiff, on the grounds as he alleged
in his answer that he had built on the lot in question a
conjugal house worth P8,000.00 which necessarily
makes the lot on which it stands subject to Article 158
of the Civil Code and on the point of view of equity
that the wife of the defendant Felipe Rosado received
an aliquot share of P2,400.00 only from the share and
if the house were demolished the defendant would
suffer damage in the amount of P8,000.00;
6. That the portion of the lot on which the house
stands, would earn a monthly rental of P50.00;
7. That Felipe Rosado, husband of Luz Jayme, did not
give his conformity to the Deed of Sale, Exh. "A".
8. That on October 31, 1964, the defendant Felipe
Rosado requested the plaintiff in the letter, Exh. "C"
for the plaintiff, for a period of six (6) months within
which to vacate the premises.
9. That the letter was not answered by the plaintiff and
they did not accept the offer, and on November 25,
1964, they filed a complaint before the Municipal
Court which proves that plaintiff neglected the offer;
The Court of First Instance in its decision rejected the claim of
ownership advanced by Rosado, based upon the construction of
a house on the disputed lot by the conjugal partnership of the
Rosado spouses, which allegedly converted the land into
conjugal property under Article 158, paragraph 2 of the present
Civil Code of the Philippines; further held that defendants were
in estoppel to claim title in view of the letter Exhibit C
requesting for six (6) months within which to vacate the
premises, and affirmed the decision of the Inferior Court.
Defendant Felipe Rosado resorted to the Court of Appeals, and
his appeal (CA-G.R. No. 37398-R) is the one now before us.
He assigns four alleged errors:
(a) The lower court erred in not holding that Exhibit
"A" is null and void, since upon the construction of
the conjugal dwelling thereon, the conjugal
partnership of the defendant-appellant Felipe Rosado
and Luz Jayme became the owner of the share of Luz
Jayme in Lot No. 62-B, Bacolod Cadastre;
(b) The trial court erred in ordering the defendant-
appellant to vacate Lot No. 62-B and in not holding
that Exhibit "A" is null and void because as the legal
usufructuary of the share of Luz Jayme Rosado in Lot
62-B, Bacolod Cadastre, the conjugal partnership,
managed and administered by the defendant-appellant
Felipe Rosado can not be deprived of its usufructuary
rights by any contract between Luz Jayme and the
plaintiff-appellee;
(c) The trial court erred in not holding that the
defendant-appellant should be reimbursed the value of
the conjugal house constructed on Lot 62-B; and
(d) The lower court erred in ordering the defendant-
appellant to pay attorneys' fees in the amount of five
hundred (P500.00) pesos.
It can be seen that the key question is whether by the
construction of a house on the lot owned in common by the
Jaymes, and sold by them to the appellant corporation, the land
in question or a 1/13th part of it became conjugal property.
Appellant, husband of vendor Luz Jayme, claims the
affirmative invoking the second paragraph of Article 158 of the
Civil Code of the Philippines, prescribing that:
ART. 158. Improvements, whether for utility or
adornment, made on the separate property of the
spouses through advancements from the partnership or
through the industry of either the husband or the wife,
belong to the conjugal partnership.
Buildings constructed, at the expense of the
partnership, during the marriage on land belonging to
one of the spouses, also pertain to the partnership, but
the value of the land shall be reimbursed to the spouse
who owns the same.
result of the construction must be rejected for lack of factual or
legal basis.
It is the logical consequence of the foregoing ruling that the
lower court did not err in holding that the appellant was bound
to vacate the land without reimbursement, since he knew that
the land occupied by the house did not belong exclusively to
his wife, but to the other owners as well, and there is no proof
on record that the house occupied only 1/13 of the total area.
The construction was not done in good faith.
WHEREFORE, the judgment of the Court of First Instance is
affirmed. Costs against appellant Felipe Rosado.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez,
Castro, Fernando and Capistrano, JJ., concur.

Rosado further contends that as the building of the house at the

expense of the conjugal partnership converted the 1/13
undivided share on his wife in Lot 62-B into property of the
community, the deed of sale of May 11, 1964 in favor of the
appellee corporation was void in so far as said 1/13 share is
concerned, because his wife, Luz Jayme, had ceased to own
such share from and after the building of the house; and
Rosado, as manager of the conjugal partnership, had not
participated in the sale, nor subsequently ratified the same.

We find appellant's thesis legally untenable. For it is a basic

principle in the law of co-ownership, both under the present
Civil Code as in the Code of 1889, that no individual co-owner
can claim title to any definite portion of the land or thing
owned in common until the partition thereof. Prior to that time,
all that the co-owner has is an ideal, or abstract, quota or
proportionate share in the entire thing owned in common by all
the co-owners. The principle is emphasized by the rulings of
this Court. In Lopez vs. Ilustre, 5 Phil. 567, it was held that
while a co-owner has the right to freely sell and dispose of his
undivided interest, he has no right to sell a divided part of the
real estate owned in common. "If he is the owner of an
undivided half of a tract of land, he has the right to sell and
convey an undivided half, but he has no right to divide the lot
into two parts, and convey the whole of one part by metes and
bounds." The doctrine was reiterated in Mercado vs. Liwanag,
L-14429, June 20, 1962, holding that a co-owner may not
convey a physical portion of the land owned in common. And
in Santos vs. Buenconsejo, L-20136, June 23, 1965, it was
ruled that a co-owner may not even adjudicate to himself any
determinate portion of land owned in common.

Since the share of the wife, Luz Jayme, was at no time

physically determined, it cannot be validly claimed that the
house constructed by her husband was built on land belonging
to her, and Article 158 of the Civil Code can not apply.
Certainly, on her 1/13 ideal or abstract undivided share, no
house could be erected. Necessarily, the claim of conversion of
the wife's share from paraphernal to conjugal in character as a
[G.R. No. 98328. October 9, 1997]
JUAN C. CARVAJAL, petitioner, vs. COURT OF
APPEALS and SOLID HOMES,
INC., respondents.
DECISION
PANGANIBAN, J.:
Is there denial of due process if an applicant for land
registration is unable to testify? May a land registration court,
after it is convinced that the property subject of an application
for registration under the torrens system is already covered by
an existing certificate, dismiss such application and thus ignore
petitioners insistence on submitting further evidence of his
alleged title? What constitutes sufficient evidence to show
identity of the land applied for with the land already titled in
favor of private respondent?
The Case
These are the main questions raised in this petition for
review assailing the November 29, 1990 Decision[1] of the
Court of Appeals[2] in CA-G.R. SP No. 18318, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing, let this petition be, as
it is hereby DISMISSED.[3]
This petition also impugns the April 25, 1991 Court of Appeals
Resolution[4] which denied reconsideration.
The Facts
The facts found by public respondent are as follows:[5]
Petitioner is the applicant in a land registration case filed with
Branch 71, Regional Trial Court of the Fourth Judicial Region
stationed in Antipolo, Rizal. Sought to be brought by petitioner
under the operation of the Land Registration Act (Act No. 496)
is a 96,470 square meter lot denominated as Lots 6846-A,
6846-B, 6846-C and 6846-D. Copies of the application were
ordered by respondent Court to be furnished (to) the National
Land Titles and Deeds Registration Administration (NLTDRA)
which on March 18, 1987 submitted a report recommending
that applicant be order[ed] to amend his petition by including
the names and complete postal addresses of the adjoining
owners and correcting the discrepancy regarding the boundary
lot number along line 2-3 of Lot 6846-D on plan Csd-04-
005516-D. On order of respondent Court [trial court], the
petition was accordingly amended.
After the NLTDRA was notified that the case is [sic] initially
set for hearing on December 7, 1987, the Acting Chief, Docket
Division of the NLRDRA [sic] submitted another report
recommending that petitioner be ordered to refer to the Bureau
of Lands for corrections of the discrepancy existing in the
directional bearing and area of Lot 6846-D, Csd-04-005516-
D. The technical descriptions as corrected by the Bureau of
Lands was [sic] submitted and the application was initially set
for hearing on April 26, 1988. The Notice of Initial Hearing
stating that the application was set forbe [sic] heard on April
26, 1988 was thereafter issued by the NLTDRA.
On June 1, 1988, an order of general default was issued by
respondent Court. Exempted from the order was one Annie
Jimenez who filed an opposition to the application. On June 22,
1988, private respondent Solid Homes, Inc. filed its opposition
stating that a land registered in its name under the Torrens
System and covered by then TCT No. N-7873 is almost
identical to the property subject of the application by
petitioner. The opposition was not admitted considering that no
motion to set aside the order of general default was filed by
private respondent.
On June 28, 1988, private respondent filed a motion to lift the
order of general default and to admit its opposition on the
ground that its right would be adversely affected by the
application. Acting on the motion and in order to avoid
duplicity, the NLTDRA was directed to make the plotting of
the relative position of the property covered by LRC Psd-
245998 and embraced in TCT No. N-7873 and to submit its
plotting to the Court for its guidance. In the same order dated
July 1, 1988, respondent Court in the interest of justice set
aside the order of general default in so far as private respondent
was concerned and admitted private respondents opposition.
On January 10, 1989, petitioner filed a motion praying that the
opposition of private respondent be dismissed for the reason
that the order issued by respondent court directing the
NLRTDA [sic] to make a plotting of the land in question on the
basis of the title submitted by the Registry of Deeds of
Marikina Branch Manila released the private respondent from
the duty and obligation of presenting evidence to prove that the
land applied for is private and that there is apparent lack of
interest on the part of private respondent to pursue its claim on
account of its non-appearance despite the lapse of more than
six months or to introduce evidence that will show that the land
in question is covered by the alleged torrens certificate of title.
During the hearings conducted on September 13, 1988,
September 27, 1988, October 4, 1988, October 11, 1988,
October 18, 1988, November 22, 1988, December 6, 1988,
petitioner presented his evidence on the question as to whether
or not he had a registrable right over the land in question.
Pursuant to the court order dated July 1, 1988 directing the
NLTDRA to make the plotting of the relative position of the
property covered by LRC Psd-245998 and embraced in TCT
No. N-7873, the Land Registration Authority submitted a
report dated December 22, 1986 [should be 1988]
recommending that, after due hearing, the application for
registration of petitioner be dismissed. The application was
thus dismissed by respondent court in an order dated January 2,
1989. Considering, however, that the recommendation is [sic]
for dismissal after due hearing, respondent judge issued an
order dated January 10, 1989 setting for hearing on January 24,
1989 the Report submitted by the Land Registration
Authority. The hearing proceeded on February 8, 1989 with
Engr. Silverio G. Perez, Chief, Department on Registration,
Land Registration Authority being presented in connection
with his Report recommending the dismissal of the application
after due hearing. On February 28, 1989, the petitioner's
application for registration was dismissed.
On March 13, 1989, petitioner filed his motion to reconsider
the February 28, 1989 dismissal of the application for
registration to which private respondent filed an opposition
dated March 20, 1989. The motion for reconsideration was
denied in an order dated March 4, 1989.
On May 2, 1989 petitioner filed a second motion to reconsider
the dismissal of his petition. On May 8, 1989, respondent judge
issued an order requiring the parties as well as the engineers
from the Land Registration Commission and the DENR to
appear before respondent Court on June 5, 1989. The engineer
from the Land Registration Commission was likewise directed
to inform the court whether the property applied for by
petitioner is indeed inside the titled property of private
respondent.
After the Land Registration Authority submitted a report
showing that there was indeed an overlapping of the four (4)
parcels of land applied for by petitioner and the properties of
Solid Homes under TCT 7873 and considering that the
properties applied for are [sic] within the titled property and
could not be the subject of an application for registration, the
second motion to reconsider the dismissal of the application for
registration was denied in an order dated July 5, 1989.
As earlier stated, the Court of Appeals affirmed the
dismissal of the application for registration, and denied the
subsequent motion for reconsideration. Hence, this recourse to
this Court via Rule 45 of the Rules of Court.
The Issues
Petitioner submits the following issues:[6]
1. Whether or not an actual ground verification survey is
required to establish the identity of the two parcels of land or
whether TCT No. 7873 under Plan FP-1540 of Solid Homes
Inc., situated in Barangay Mayamot, Antipolo, Rizal is
identical or similar to Lots 6846-A to 6846-D inclusive Cad.
585, Lungsod Silangan, Cadastre, situated in Mambogan,
Antipolo, Rizal applied for under LRC Case No. 414 (-A),
LRC Record No. N-60084;
2. Whether or not the petitioner was given (the) chance and the
opportunity to be heard or allowed to fully introduce his
evidence in the (proceeding) for Land Registration and (to) rest
(his) case;
3. Whether the decision of the Honorable Court of Appeals is
reversible.
Petitioner alleges that the table survey made by the
Land Registration Authority and the geodetic engineer of the
Land Management Bureau cannot serve as basis for
identifying his land. On the other hand, petitioner was able to
establish the identity of the land he applied for by actual
ground survey which was approved by the Director of Lands
and reprocessed by the Land Registration Authority. He
claims that if said land is covered by private respondents title,
the Director of Lands and/or Regional Director will no(t)
approve the survey. Petitioner also argues that the land in
question is situated in Mambogan, Antipolo, Rizal while that
of private respondent is in Mayamot, Antipolo, Rizal. Survey
Plan FP-1540, which served as basis of private respondents
certificate of title, cannot be found; hence, according to
petitioner, the table survey was anomalous. Petitioner adds
that the matter entirely wanting in this case (is) the identity or
similarity of the realties.[7] Petitioner concludes that the trial
court should have ordered actual ocular inspection and
ground verification survey of the properties involved.
Petitioner further maintains that he was denied due
process when he, as an applicant in a land registration case,
was not able to take the witness stand. According to
petitioner, even his counsel hardly participated in the
proceeding except to propound clarificatory questions during
the examination of Engineer Silverio Perez of the Land
Registration Authority.[8]
Public respondent justified its dismissal of the appeal
in this wise:[9]
Land already decreed and registered in an ordinary registration
proceeding cannot again be subject of adjudication or
settlement in a subsequent conducted proceeding (Land Titles
and Deeds by Noblejas, 1968 Revised Edition, page 96). The
Report submitted by the Land Registration Authority (Annex
B) and the Survey Division of the DENR (Annex RR) both
indicate an overlapping of the lot applied for by petitioner and
the lot covered by TCT N-7873 owned by private respondent
Solid Homes, Inc. Even if petitioner were allowed to continue
with the presentation of his evidence, the end result would still
be the dismissal of his application for registration. Respondent
Judge was therefore justified in cutting short the proceeding as
the time to be spent in hearing petitioners application could be
used disposing the other cases pending with respondent court.
Anent the allegation that private respondent Solid Homes did
not actively participate in the trials conducted to hear his
evidence, suffice it to state that it is counsels prerogative to
determine how he intends to pursue his case.
The Court's Ruling
The petition has no merit.
First Issue: Identity of the Property Applied For
We are not persuaded that the land petitioner applied for
was not identical to private respondents land which was already
covered by a torrens certificate of title. The two reports
prepared by the Land Registration Authority and the DENR
Survey Division clearly showed that there was an overlapping
between the two properties. Because the futility of petitioners
application was apparent, the trial court deemed it unnecessary
to hear further evidence. We agree.
At the outset, we stress that there was nothing irregular in
the order given by the trial court to the Land Registration
Authority and the Survey Division of the DENR to submit
reports on the location of the land covered by petitioners
application and private respondents certificate of title. The
authority of the land registration court to require the filing of
additional papers to aid it in its determination of the propriety
of the application was based on Section 21 of PD 1529: [10]
SEC. 21. Requirement of additional facts and papers; ocular
inspection. -- The court may require facts to be stated in the
application in addition to those prescribed by this Decree not
inconsistent therewith and may require the filing of any
additional papers. It may also conduct an ocular inspection, if
necessary.
From the above provision, it is also clear that ocular
inspection of the property applied for was only discretionary,
not mandatory. Likewise, the land registration court was not
obliged to order the survey of the contested lot, especially
when another government agency had already submitted a
report finding that the contested lot was identical with that
described in private respondents certificate of title and
recommending the dismissal of the application for registration.
Further, the order of the land registration court for the
LRA and DENR to submit reports was in accordance with the
purposes of the Land Registration Law: [11]
The purposes of the land registration law, in general, are: to
ascertain once and for all the absolute title over a given landed
property; to make, so far as it is possible, a certificate of title
issued by the court to the owner of the land absolute proof of
such title; to quiet title to the land and to put a stop forever to
any question of legality to a title; and to decree that land title to
be final, irrevocable and, undisputable. (citing Benen vs.
Tuason, L-26127, June 28, 1974, 57 SCRA 531.)
It is true that a court of first instance acting as a land
registration court has limited and special jurisdiction. It can not
be denied, however, that when the law confers jurisdiction
upon a court, the latter is deemed to have all the necessary
powers to exercise such jurisdiction to make it
effective. (citing Marcelino vs. Antonio, 70 Phil. 388, 391.) The
purpose of the applicant is to prove that he has an absolute or
simple title over the property sought to be registered, otherwise
his application will be denied. An absolute oppositor claims a
dominical right totally adverse to that of the applicant. If
successful, registration will be decreed in favor of the
oppositor. As to whether or not private respondents have
absolute or fee simple title over the property sought to be
registered necessarily requires a resolution of the question as to
whether or not the oppositors had a dominical right totally
adverse to that of the applicants. x x x
Based on the reports submitted, the land registration court
correctly dismissed the application for original land
registration. An application for registration of an already titled
land constitutes a collateral attack on the existing title. It
behooves a land registration court to determine the veracity of
any and all adverse claims, bearing in mind Section 46 of Act
No. 496 which provides that (n)o title to registered land in
derogation to that of the registered owner shall be acquired by
prescription or adverse possession. The trial courts order to the
LRA and DENR was a mere cautionary measure in cognizance
of the well-settled rule that a torrens title cannot be collaterally
attacked. In other words, the title may be challenged only in a
proceeding for that purpose, not in an application for
registration of a land already registered in the name of another
person. After one year from its registration, the title is
incontrovertible and is no longer open to review. The remedy
of the landowner, whose property has been wrongfully or
erroneously registered in anothers name, is to institute an
ordinary action for reconveyance or -- if the property has
passed into the hands of an innocent purchaser for value -- for
damages.[12] In view of the nature of a torrens title, a land
registration court has the duty to determine whether the
issuance of a new certificate alters a valid and existing
certificate of title.
Contrary to petitioners contention, the approval by the
assistant chief of the Bureau of Lands Survey Division of the
survey conducted on the land applied for by petitioner did not
prove that the said land was not covered by any title. It merely
showed that such land has been surveyed and its boundaries
have been determined.
Also noteworthy is the finding of public respondent
that "the same order (issued by the land registration court)
[which set] aside the order (of) general default insofar as
private respondent Solid Homes, Inc. was concerned, directed
the NLTDRA to make the plotting of the relative position of
the property covered by LRC Psd-245998 and [that which
was] embraced in TCT No. N-7873.[13] The intention of the
land registration court was to avoid duplicity,[14] that is, to
rule out the possibility that the land he sought to register was
already covered by a certificate of title. In this case, the land
he applied for was found to be within the land described in
private respondents transfer certificate of title.
Petitioner also alleges that the land he applied for was
located in Barangay Mambogan, while the registered land of
private respondent was in Barangay Mayamot. In his reply
filed with public respondent, however, he himself admitted
that Barangay Mambogan is a part of Barangay Mayamot
[which is] a bigger barrio in Antipolo, Rizal, and Mayamot
covers a big parcel of land running from Antipolo up to
Marikina.[15] In view of petitioners declaration, it was not
impossible for the land owned by private respondent to be
located in Barangay Mayamot and in Barangay
Mambogan. At any rate, whether the two lands are located in
Mambogan or Mayamot or both is a factual question, and its
resolution by the trial and the appellate courts is binding on
this Court. Petitioner failed to provide a reason, let alone an
adequate one, to justify the reversal of such finding of the
lower courts.
Petitioner also argues that the plotting made by NLTDRA
was anomalous because Survey Plan FP-1540, on which
private respondents title was based, could not be located. This
argument lacks merit. The law does not require resorting to a
survey plan to prove the true boundaries of a land covered by a
valid certificate of title; the title itself is the conclusive proof of
the realtys metes and bounds. Section 47 of the Land
Registration Act, or Act No. 496, provides that (t)he original
certificates in the registration book, any copy thereof duly
certified under the signature of the clerk, or of the register of
deeds of the province or city where the land is situated, and the
seal of the court, and also the owners duplicate certificate, shall
be received as evidence in all the courts of the Philippine
Islands and shall be conclusive as to all matters contained
therein except so far as otherwise provided in this Act. It has
been held that a certificate of title is conclusive evidence with
respect to the ownership of the land described therein and other
matters which can be litigated and decided in land registration
proceedings.[16]Thus, this Court in Odsigue vs. Court of
Appeals[17] ruled:
x x x. Petitioner contends that private respondents have not
identified the property sought to be recovered as required by
Art. 434 of the Civil Code. He alleges that Sitio Aduas, where
the land in question is located, is at the boundary of Barangay
May-Iba, Teresa, Rizal, and Barangay Lagundi, Morong,
Rizal. On the other hand, petitioner maintains, the parcel of
land he is occupying is located in Barangay May-Iba. He
claims that the technical description in the title does not
sufficiently identify the property of private respondent and that
a geodetic survey to determine which of his improvements
should be demolished should first have been conducted by the
private respondent. x x x.
But private respondents title (OCT No. 4050) indicates that the
property is located in Barangay Lagundi. Likewise, the
certification issued by the Municipal Agrarian Reform Officer
at Morong, Rizal stated that petitioner was occupying a
landholding at Barangay Lagundi.
For our purposes, a survey is not necessary. A certificate of
title is conclusive evidence not only of ownership of the land
referred but also its location. The subject of these proceedings
is the land covered by OCT No. 4050. Accordingly, petitioners
required to demolish only whatever is constructed within its
boundaries. (Underscoring supplied.)
The old case of Legarda and Prieto vs.
Saleeby[18] explains the nature of a torrens certificate of title, as
follows:
x x x. The registration, under the torrens system, does not give
the owner any better title than he had. If he does not already
have a perfect title, he can not have it registered. Fee simple
titles only may be registered. The certificate of registration
accumulates in one document a precise and correct statement of
the exact status of the fee held by its owner. The certificate, in
the absence of fraud, is the evidence of title and shows exactly
the real interest of its owner. The title once registered, with
very few exceptions, should not thereafter be impugned,
altered, changed, modified, enlarged, or diminished, except in
some direct proceeding permitted by law. Otherwise all
security in registered titles would be lost. A registered title can
not be altered, modified, enlarged, or diminished in
a collateral proceeding and not even by a direct proceeding,
after the lapse of the period prescribed by law.
All in all, the land registration court did not err in relying
on the certificate of title instead of the survey plan; likewise,
the appellate court did not commit any reversible error in
affirming the trial courts decision.
Second Issue: Denial of Due Process
Petitioner claims that he was denied due process because
he was unable to take the witness stand. We disagree. The
essence of due process is the opportunity to be heard. It is the
denial of this opportunity that is repugnant to due process. [19] In
this case, petitioner was afforded an opportunity to present
witnesses, and he did present three. However, petitioner did not
invoke his right to take the witness stand even when the trial
court ordered the submission of the parties memoranda which
signified the termination of the proceedings. Because he
acquiesced to the termination of the case, he forfeited his right
to take the witness stand.
Likewise, we are not persuaded by his allegation that his
own counsel hardly participated in the proceedings. The
records show that said counsel did cross-examine Engineer
Silverio Perez by propounding clarificatory questions to the
latter. In any event, the client is generally bound by the acts of
his counsel. Petitioner has not shown at all that his previous
counsel had acted in such grossly negligent manner as to
deprive him of effective representation, or of due process. [20]
In support of his contention, petitioner cites Tirona vs.
Naawa[21] which held:
We hold the view, however that respondent Judge erred when
he ordered the dismissal of the registration case over the
objection of the oppositors; and when he refused to reconsider
the order of dismissal and reinstate the case he had neglected to
perform an act which the law enjoins as a duty resulting from
an office, and had thereby deprived the oppositors of a right to
which they are entitled.
Such ruling finds no application to the present case,
because neither Respondent Mariano Raymundo (the applicant
in the land registration case) nor Petitioner Constantino Tirona
(the oppositor in the cited case) was a holder of any certificate
of title over the land intended for registration. Such being the
case, the land registration court was ordered to act in
accordance with Section 37 of Act No. 496[22] either by
dismissing the application if none of the litigants succeeded in
showing a proper title, or by entering a decree awarding the
land applied for to the person entitled thereto.
 WHEREFORE, premises considered, the petition is
hereby DENIED and the assailed Decision and Resolution
are AFFIRMED. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero,
Melo, and Francisco, JJ., concur.
G.R. No. L-4656 November 18, 1912
RICARDO PARDELL Y CRUZ and
VICENTA ORTIZ Y FELIN DE PARDELL, plaintiffs-
appellees,
vs.
GASPAR DE BARTOLOME Y ESCRIBANO and
MATILDE ORTIZ Y FELIN DE
BARTOLOME, defendants-appellants.
Gaspar de Bartolome, in his own behalf.
B. Gimenez Zoboli, for appellees.
TORRES, J.:
This is an appeal by bill of exceptions, from the judgment of
October 5, 1907, whereby the Honorable Dionisio Chanco,
judge, absolved the defendants from the complaint, and the
plaintiff from a counterclaim, without special finding as to
costs.
Counsel for the spouses Ricardo y Cruz and Vicente Ortiz y
Felin de Pardell, the first of whom, absent in Spain by reason of
his employment, conferred upon the second sufficient and
ample powers to appear before the courts of justice, on June 8,
1905, in his written complaint, alleged that the plaintiff,
Vicente Ortiz, and the defendant, Matilde Ortiz, are the duly
recognized natural daughters of the spouses Miguel Ortiz and
Calixta Felin y Paula who died in Vigan, Ilocos Sur, in 1875
and 1882, respectively; that Calixta Felin, prior to her death,
executed on August 17, 1876, a nuncupative will in Vigan
whereby she made her four children, named Manuel, Francisca,
Vicenta, and Matilde, surnamed Ortiz y Felin, her sole and
universal heirs of all her property; that, of the persons
enumerated, Manuel died before his mother and Francisca a
few years after her death, leaving no heirs by force of law, and
therefore the only existing heirs of the said testatrix are the
plaintiff Vicenta Ortiz and the defendant Matilde Ortiz; that,
aside from some personal property and jewelry already divided
among the heirs, the testatrix possessed, at the time of the
execution of her will, and left at her death the real properties
which, with their respective cash values, are as follows:
1. A house of strong material, with the lot
on which it is built, situated on Escolta P6,000.00
Street, Vigan, and valued at
2. A house of mixed material, with the lot
on which it stands, at No. 88 Washington 1,500.00
Street, Vigan; valued at
3. A lot on Magallanes Street, Vigan;
100.00
valued at
4. A parcel of rice land, situated in the
60.00
barrio of San Julian, Vigan; valued at
5. A parcel of rice land in the pueblo of 86.00
Santa Lucia; valued at
6. Three parcels of land in the pueblo of
150.00
Candon; valued at
Total 7,896.00
That, on or about the first months of the year 1888, the
defendants, without judicial authorization, nor friendly or
extrajudicial agreement, took upon themselves the
administration and enjoyment of the said properties and
collected the rents, fruits, and products thereof, to the serious
detriment of the plaintiffs' interest; that, notwithstanding the
different and repeated demands extrajudicially made upon
Matilde Ortiz to divide the aforementioned properties with the
plaintiff Vicente and to deliver to the latter the one-half thereof,
together with one-half of the fruits and rents collected
therefrom, the said defendant and her husband, the self-styled
administrator of the properties mentioned, had been delaying
the partition and delivery of the said properties by means of
unkept promises and other excuses; and that the plaintiffs, on
account of the extraordinary delay in the delivery of one-half of
said properties, or their value in cash, as the case might be, had
suffered losses and damages in the sum of P8,000. Said counsel
for the plaintiffs therefore asked that judgment be rendered by
sentencing the defendants, Gaspar de Bartolome, and Matilde
Ortiz Felin de Bartolome, to restore and deliver to the plaintiffs
one-half of the total value in cash, according to appraisal, of the
undivided property specified, which one-half amounted
approximately to P3,948, or if deemed proper, to recognize the
plaintiff Vicenta Ortiz to be vested with the full and absolute
right of ownership to the said undivided one-half of the
properties in question, as universal testamentary heir thereof
together with the defendant Matilde Ortiz, to indemnify the
plaintiffs in the sum of P8,000, for losses and damages, and to
pay the costs.
Counsel for the defendants, in his answer denied the facts
alleged in paragraphs 1, 4, 6, 7, and 8 thereof, inasmuch as,
upon the death of the litigating sister's brother Manuel, their
mother, who was still living, was his heir by force of law, and
the defendants had never refused to give to the plaintiff Vicente
Ortiz her share of the said properties; and stated that he
admitted the facts alleged in paragraph 2, provided it be
understood, however, that the surname of the defendant's
mother was Felin, and not Feliu, and that Miguel Ortiz died in
Spain, and not in Vigan; that he also admitted paragraph 3 of
the complaint, with the difference that the said surname should
be Felin, and likewise paragraph 5, except the part thereof
relating to the personal property and the jewelry, since the
latter had not yet been divided; that the said jewelry was in the
possession of the plaintiffs and consisted of: one Lozada gold
chronometer watch with a chain in the form of a bridle curb
and a watch charm consisting of the engraving of a postage
stamp on a stone mounted in gold and bearing the initials M.
O., a pair of cuff buttons made of gold coins, four small gold
buttons, two finger rings, another with the initials M. O., and a
gold bracelet; and that the defendants were willing to deliver to
the plaintiffs, in conformity with their petitions, one-half of the
total value in cash, according to appraisement, of the undivided
real properties specified in paragraph 5, which half amounted
to P3,948.
In a special defense said counsel alleged that the defendants
had never refused to divide the said property and had in fact
several years before solicited the partition of the same; that,
from 1886 to 1901, inclusive, there was collected from the
property on Calle Escolta the sum of 288 pesos, besides a few
other small amounts derived from other sources, which were
delivered to the plaintiffs with other larger amounts, in 1891,
and from the property on Calle Washington, called La Quinta,
990.95 pesos, which proceeds, added together, made a total of
1,278.95 pesos, saving error or omission; that, between the
years abovementioned, Escolta, and that on Calle
Washington, La Quinta, 376.33, which made a total of
1,141.71, saving error or omission; that, in 1897, the work of
reconstruction was begun of the house on Calle Escolta, which
been destroyed by an earthquake, which work was not finished
until 1903 and required an expenditure on the part of the
defendant Matilde Ortiz, of 5,091.52 pesos; that all the
collections made up to August 1, 1905, including the rent from
the stores, amounted to only P3,654.15, and the expenses, to
P6,252.32, there being, consequently, a balance of P2,598.17,
which divided between the sisters, the plaintiff and the
defendant, would make the latter's share P1,299.08; that, as
shown by the papers kept by the plaintiffs, in the year 1891 the
defendant Bartolome presented to the plaintiffs a statement in
settlements of accounts, and delivered to the person duly
authorized by the latter for the purpose, the sum of P2,606.29,
which the said settlement showed was owing his principals,
from various sources; that, the defendant Bartolome having
been the administrator of the undivided property claimed by the
plaintiffs, the latter were owing the former legal remuneration
of the percentage allowed by law for administration; and that
the defendants were willing to pay the sum of P3,948, one-half
of the total value of the said properties, deducting therefrom the
amount found to be owing them by the plaintiffs, and asked
that judgment be rendered in their favor to enable them to
recover from the latter that amount, together with the costs and
expenses of the suit.
The defendants, in their counter claim, repeated each and all of
the allegations contained in each of the paragraphs of section
10 of their answer; that the plaintiffs were obliged to pay to the
administrator of the said property the remuneration allowed
him by law; that, as the revenues collected by the defendants
amounted to no more than P3,654.15 and the expenditures
incurred by them, to P6,252.32, it followed that the plaintiffs
owed the defendants P1,299.08, that is one-half of the
difference between the amount collected from and that
extended on the properties, and asked that judgment be
therefore rendered in their behalf to enable them to collect this
sum from the plaintiffs, Ricardo Pardell and Vicenta Ortiz,
with legal interest thereon from December 7, 1904, the date
when the accounts were rendered, together with the sums to
which the defendant Bartolome was entitled for the
administration of the undivided properties in question.
By a written motion of August 21, 1905, counsel for the
plaintiffs requested permission to amend the complaint by
inserting immediately after the words "or respective appraisal,"
fifth line of paragraph 5, the phrase "in cash in accordance with
the assessed value," and likewise further to amend the same, in
paragraph 6 thereof, by substituting the following word in lieu
of the petition for the remedy sought: "By reason of all the
foregoing, I beg the court to be pleased to render the judgment
by sentencing the defendants, Gaspar de Bartolome and
Matilde Ortiz Felin de Bartolome, to restore and deliver to the
plaintiffs an exact one-half of the total vale of the undivided
properties described in the complaint, such value to be
ascertained by the expert appraisal of two competent persons,
one of whom shall be appointed by the plaintiffs and the other
by the defendants, and, in case of disagreement between these
two appointees such value shall be determined by a third expert
appraiser appointed by the court, or, in a proper case, by the
price offered at public auction; or, in lieu thereof, it is
requested that the court recognize the plaintiff, Vicenta Ortiz,
to be vested with a full and absolute right to an undivided one-
half of the said properties; furthermore, it is prayed that the
plaintiffs be awarded an indemnity of P8,000 for losses and
damages, and the costs." Notwithstanding the opposition of the
defendants, the said amendment was admitted by the court and
counsel for the defendants were allowed to a period of three
days within which to present a new answer. An exception was
taken to this ruling.
The proper proceedings were had with reference to the
valuation of the properties concerned in the division sought and
incidental issues were raised relative to the partition of some of
them and their award to one or the other of the parties. Due
consideration was taken of the averments and statements of
both parties who agreed between themselves, before the court,
that any of them might at any time acquire, at the valuation
fixed by the expert judicial appraiser, any of the properties in
question, there being none in existence excluded by the
litigants. The court, therefore, by order of December 28, 1905,
ruled that the plaintiffs were entitled to acquire, at the valuation
determined by the said expert appraiser, the building known
as La Quinta, the lot on which it stands and the warehouses and
other improvements comprised within the inclosed land, and
the seeds lands situated in the pueblos of Vigan and Santa
Lucia; and that the defendants were likewise entitled to acquire
the house on Calle Escolta, the lot on Calle Magallanes, and the
three parcels of land situated in the pueblo of Candon.
After this partition had been made counsel for the defendants,
by a writing of March 8, 1906, set forth: That, having
petitioned for the appraisement of the properties in question for
the purpose of their partition, it was not to be understood that
he desired from the exception duly entered to the ruling made
in the matter of the amendment to the complaint; that the
properties retained by the defendants were valued at P9,310,
and those retained by the plaintiffs, at P2,885, one-half of
which amounts each party had to deliver to the other, as they
were pro indiviso properties; that, therefore, the defendants had
to pay the plaintiffs the sum of P3,212.50, after deducting the
amount which the plaintiffs were obliged to deliver to the
defendants, as one-half of the price of the properties retained
by the former; that, notwithstanding that the amount of the
counterclaim for the expenses incurred in the reconstruction of
the pro indiviso property should be deducted from the sum
which the defendants had to pay the plaintiffs, the former, for
the purpose of bringing the matter of the partition to a close,
would deliver to the latter, immediately upon the signing of the
instrument of purchase and sale, the sum of P3,212.50, which
was one-half of the value of the properties alloted to the
defendants; such delivery, however, was not to be understood
as a renouncement of the said counterclaim, but only as a
means for the final termination of the pro indiviso status of the
property.
The case having been heard, the court on October 5, 1907,
rendered judgment holding that the revenues and the expenses
were compensated by the residence enjoyed by the defendant
party, that no losses or damages were either caused or suffered,
nor likewise any other expense besides those aforementioned,
and absolved the defendants from the complaint and the
plaintiffs from the counterclaim, with no special finding as to
costs. An exception was taken to this judgment by counsel for
the defendants who moved for a new trial on the grounds that
the evidence presented did not warrant the judgment rendered
and that the latter was contrary to law. This motion was denied,
exception whereto was taken by said counsel, who filed the
proper bill of exceptions, and the same was approved and
forwarded to the clerk of this court, with a transcript of the
evidence.
Both of the litigating sisters assented to a partition by halves of
the property left in her will by their mother at her death; in fact,
during the course of this suit, proceedings were had, in
accordance with the agreement made, for the division between
them of the said hereditary property of common ownership,
which division was recognized and approved in the findings of
the trial court, as shown by the judgment appealed from.
The issues raised by the parties, aside from said division made
during the trial, and which have been submitted to this court for
decision, concern: (1) The indemnity claimed for losses and
damages, which the plaintiffs allege amount to P8,000, in
addition to the rents which should have been derived from the
house on Calle Escolta, Vigan; (2) the payment by the plaintiffs
to the defendants of the sum of P1,299.08, demanded by way of
counterclaim, together with legal interest thereon from
December 7, 1904; (3) the payment to the husband of the
defendant Matilde Ortiz, of a percentage claimed to be due him
as the administrator of the property of common ownership; (4)
the division of certain jewelry in the possession of the plaintiff
Vicenta Ortiz; and (5) the petition that the amendment be held
to have been improperly admitted, which was made by the
plaintiffs in their written motion of August 21, 1905, against
the opposition of the defendants, through which admission the
latter were obliged to pay the former P910.50.lawphil.net
Before entering upon an explanation of the propriety or
impropriety of the claims made by both parties, it is
indispensable to state that the trial judge, in absolving the
defendants from the complaint, held that they had not caused
losses and damages to the plaintiffs, and that the revenues and
the expenses were compensated, in view of the fact that the
defendants had been living for several years in the Calle
Escolta house, which was pro indiviso property of joint
ownership.
By this finding absolving the defendants from the complaint,
and which was acquiesced in by the plaintiffs who made no
appeal therefrom, the first issue has been decided which was
raised by the plaintiffs, concerning the indemnity for losses and
damages, wherein are comprised the rents which should have
been obtained from the upper story of the said house during the
time it was occupied by the defendants, Matilde Ortiz and her
husband, Gaspar de Bartolome.
Notwithstanding the acquiescence on the part of the plaintiffs,
assenting to the said finding whereby the defendants were
absolved from the complaint, yet, as such absolution is based
on the compensation established in the judgment of the trial
court, between the amounts which each party is entitled to
claim from the other, it is imperative to determine whether the
defendant Matilde Ortiz, as coowner of the house on Calle
Escolta, was entitled, with her husband, to reside therein,
without paying to her coowner, Vicenta Ortiz, who, during the
greater part of the time, lived with her husband abroad, one-
half of the rents which the upper story would have produced,
had it been rented to a stranger.
Article 394 of the Civil Code prescribes:
Each coowner may use the things owned in common,
provided he uses them in accordance with their object
and in such manner as not to injure the interests of the
community nor prevent the coowners from utilizing
them according to their rights.
Matilde Ortiz and her husband occupied the upper story,
designed for use as a dwelling, in the house of joint ownership;
but the record shows no proof that, by so doing, the said
Matilde occasioned any detriment to the interest of the
community property, nor that she prevented her sister Vicenta
from utilizing the said upper story according to her rights. It is
to be noted that the stores of the lower floor were rented and
accounting of the rents was duly made to the plaintiffs.
Each coowner of realty held pro indiviso exercises his rights
over the whole property and may use and enjoy the same with
no other limitation than that he shall not injure the interests of
his coowners, for the reason that, until a division be made, the
respective part of each holder can not be determined and every
one of the coowners exercises, together with his other
coparticipants, joint ownership over the pro indiviso property,
in addition to his use and enjoyment of the same.
As the hereditary properties of the joint ownership of the two
sisters, Vicenta Ortiz, plaintiff, and Matilde Ortiz, defendant,
were situated in the Province of Ilocos Sur, and were in the
care of the last named, assisted by her husband, while the
plaintiff Vicenta with her husband was residing outside of the
said province the greater part of the time between 1885 and
1905, when she left these Islands for Spain, it is not at all
strange that delays and difficulties should have attended the
efforts made to collect the rents and proceeds from the property
held in common and to obtain a partition of the latter,
especially during several years when, owing to the insurrection,
the country was in a turmoil; and for this reason, aside from
that founded on the right of coownership of the defendants,
who took upon themselves the administration and care of the
properties of joint tenancy for purposes of their preservation
and improvement, these latter are not obliged to pay to the
plaintiff Vicenta one-half of the rents which might have been
derived from the upper of the story of the said house on Calle
Escolta, and, much less, because one of the living rooms and
the storeroom thereof were used for the storage of some
belongings and effects of common ownership between the
litigants. The defendant Matilde, therefore, in occupying with
her husband the upper floor of the said house, did not injure the
interests of her coowner, her sister Vicenta, nor did she prevent
the latter from living therein, but merely exercised a legitimate
right pertaining to her as coowner of the property.
Notwithstanding the above statements relative to the joint-
ownership rights which entitled the defendants to live in the
upper story of the said house, yet in view of the fact that the
record shows it to have been proved that the defendant
Matilde's husband, Gaspar de Bartolome, occupied for four
years a room or a part of the lower floor of the same house on
Calle Escolta, using it as an office for the justice of the peace, a
position which he held in the capital of that province, strict
justice, requires that he pay his sister-in-law, the plaintiff, one
half of the monthly rent which the said quarters could have
produced, had they been leased to another person. The amount
of such monthly rental is fixed at P16 in accordance with the
evidence shown in the record. This conclusion as to
Bartolome's liability results from the fact that, even as the
husband of the defendant coowner of the property, he had no
right to occupy and use gratuitously the said part of the lower
floor of the house in question, where he lived with his wife, to
the detriment of the plaintiff Vicenta who did not receive one-
half of the rent which those quarters could and should have
produced, had they been occupied by a stranger, in the same
manner that rent was obtained from the rooms on the lower
floor that were used as stores. Therefore, the defendant
Bartolome must pay to the plaintiff Vicenta P384, that is, one-
half of P768, the total amount of the rents which should have
been obtained during four years from the quarters occupied as
an office by the justice of the peace of Vigan.
With respect to the second question submitted for decision to
this court, relative to the payment of the sum demanded as a
counterclaim, it was admitted and proved in the present case
that, as a result of a serious earthquake on August 15, 1897, the
said house on Calle Escolta was left in ruins and uninhabitable,
and that, for its reconstruction or repair, the defendants had to
expend the sum of P6,252.32. This expenditure,
notwithstanding that it was impugned, during the trial, by the
plaintiffs, was duly proved by the evidence presented by the
defendants. Evidence, unsuccessfully rebutted, was also
introduced which proved that the rents produced by all the rural
and urban properties of common ownership amounted, up to
August 1, 1905, to the sum of P3,654.15 which, being applied
toward the cost of the repair work on the said house, leaves a
balance of P2,598.17, the amount actually advanced by the
defendants, for the rents collected by them were not sufficient
for the termination of all the work undertaken on the said
building, necessary for its complete repair and to replace it in a
habitable condition. It is therefore lawful and just that the
plaintiff Vicenta Ortiz, who was willing to sell to her sister
Matilde for P1,500, her share in the house in question, when it
was in a ruinous state, should pay the defendants one-half of
the amount expanded in the said repair work, since the building
after reconstruction was worth P9,000, according to expert
appraisal. Consequently, the counterclaim made by the
defendants for the payment to them of the sum of P1,299.08, is
a proper demand, though from this sum a reduction must be
made of P384, the amount of one-half of the rents which should
have been collected for the use of the quarters occupied by the
justice of the peace, the payment of which is incumbent upon
the husband of the defendant Matilde, as aforesaid, and the
balance remaining, P915.08, is the amount which the plaintiff
Vicenta must pay to the defendants.
The defendants claim to be entitled to the collection of legal
interest on the amount of the counterclaim, from December 7,
1904. This contention can not be sustained, inasmuch as, until
this suit is finally decided, it could not be known whether the
plaintiffs would or would not be obliged to pay the sum
whatever in reimbursement of expenses incurred by the
plaintiffs in the repair work on the said house on Calle Escolta,
whether or not the defendants, in turn, were entitled to collect
any such amount, and, finally, what the net sum would be
which the plaintiff's might have to pay as reimbursement for
one-half of the expenditure made by the defendants. Until final
disposal of the case, no such net sum can be determined, nor
until then can the debtor be deemed to be in arrears. In order
that there be an obligation to pay legal interest in connection
with a matter at issue between the parties, it must be declared
in a judicial decision from what date the interest will be due on
the principal concerned in the suit. This rule has been
established by the decisions of the supreme court of Spain, in
reference to articles 1108, 1109, and 1110 of the Civil Code,
reference on April 24, 1867, November 19, 1869, and February
22, 1901.
With regard to the percentage, as remuneration claimed by the
husband of the defendant Matilde for his administration of the
property of common ownership, inasmuch as no stipulation
whatever was made in the matter by and between him and his
sister-in-law, the said defendant, the claimant is not entitled to
the payment of any remuneration whatsoever. Of his own
accord and as an officious manager, he administered the
said pro indiviso property, one-half of which belonged to his
wife who held it in joint tenancy, with his sister-in-law, and the
law does not allow him any compensation as such voluntary
administrator. He is merely entitled to a reimbursement for
such actual and necessary expenditures as he may have made
on the undivided properties and an indemnity for the damages
he may have suffered while acting in that capacity, since at all
events it was his duty to care for and preserve the said property,
half of which belonged to his wife; and in exchange for the
trouble occasioned him by the administration of his sister-in-
law's half of the said property, he with his wife resided in the
upper story of the house aforementioned, without payment of
one-half of the rents said quarters might have produced had
they been leased to another person.
With respect to the division of certain jewelry, petitioned for by
the defendants and appellants only in their brief in this appeal,
the record of the proceedings in the lower court does not show
that the allegation made by the plaintiff Vicenta is not true, to
the effect that the deceased mother of the litigant sisters defendant Matilde Ortiz is not entitled to any remuneration for
disposed of this jewelry during her lifetime, because, had she the administration of the pro indiviso property belonging to
not done so, the will made by the said deceased would have both parties; (4) that, neither is he entitled to collect from the
been exhibited in which the said jewelry would have been plaintiffs the sum of P910.50, the difference between the
mentioned, at least it would have been proved that the articles assessed valuation and the price set by the expert appraisal
in question came into the possession of the plaintiff Vicenta solicited by the plaintiffs in their amendment to the complaint;
without the expressed desire and the consent of the deceased and, (5) that no participation shall be made of jewelry
mother of the said sisters, for the gift of this jewelry was aforementioned now in the possession of the plaintiff Vicenta
previously assailed in the courts, without success; therefore, Ortiz. The said judgment, as relates to the points appealed, is
and in view of its inconsiderable value, there is no reason for affirmed, in so far as its findings agree with those of this
holding that the said gift was not made. decision, and is reversed, in so far as they do not. No special
finding is made regarding the costs of both instances. So
As regards the collection of the sum of P910.50, which is the ordered.
difference between the assessed value of the undivided real
properties and the price of the same as determined by the Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur.
judicial expert appraiser, it is shown by the record that the
ruling of the trial judge admitting the amendment to the
original complaint, is in accord with the law and principles of
justice, for the reason that any of the coowners of a pro
indiviso property, subject to division or sale, is entitled to
petition for its valuation by competent expert appraisers. Such
valuation is not prejudicial to any of the joint owners, but is
beneficial to their interests, considering that, as a general rule,
the assessed value of a building or a parcel of realty is less than
the actual real value of the property, and this being appraiser to
determine, in conjunction with the one selected by the
plaintiffs, the value of the properties of joint ownership. These
two experts took part in the latter proceedings of the suit until
finally, and during the course of the latter, the litigating parties
agreed to an amicable division of the pro indiviso hereditary
property, in accordance with the price fixed by the judicial
expert appraiser appointed as a third party, in view of the
disagreement between and nonconformity of the appraisers
chosen by the litigants. Therefore it is improper now to claim a
right to the collection of the said sum, the difference between
the assessed value and that fixed by the judicial expert
appraiser, for the reason that the increase in price, as
determined by this latter appraisal, redounded to the benefit of
both parties.

In consideration of the foregoing, whereby the errors assigned

to the lower court have been duly refuted, it is our opinion that,
with a partial reversal of the judgment appealed from, in so far
as it absolves the plaintiffs from the counterclaim presented by
the defendants, we should and hereby do sentence the plaintiffs
to the payment of the sum of P915.08, the balance of the sum
claimed by the defendants as a balance of the one-half of the
amount which the defendants advanced for the reconstruction
or repair of the Calle Escolta house, after deducting from the
total of such sum claimed by the latter the amount of P384
which Gaspar de Bartolome, the husband of the defendant
Matilde, should have paid as one-half of the rents due for his
occupation of the quarters on the lower floor of the said house
as an office for the justice of the peace court of Vigan; and we
further find: (1) That the defendants are not obliged to pay one-
half of the rents which could have been obtained from the
upper story of the said house; (2) that the plaintiffs can not be
compelled to pay the legal interest from December 7, 1904, on
the sum expanded in the reconstruction of the aforementioned
house, but only the interest fixed by law, at the rate of 6 per
cent per annum, from the date of the judgment to be rendered
in accordance with this decision; (3) that the husband of the
G.R. No. L-32047 November 1, 1930
MANUEL MELENCIO, MARIANO MELENCIO, PURA
MELENCIO, and CARIDAD MELENCIO, plaintiffs-
appellants,
vs.
DY TIAO LAY, defendant-appellee.
Jose V. Valladolid, Jose P. Melencio and Camus and Delgado
for appellants.
Araneta and Zaragoza for appellee.
OSTRAND, J.:
On August 1,1927, the plaintiffs, Manuel, Mariano, Pura and
Caridad Melencio, brought the present action against the
defendant-appellee, Dy Tiao Lay for the recovery of the
possession of a parcel of land situated in the town of
Cabanatuan, Nueva Ecija, and containing an area of 4,628.25
square meters. The plaintiffs further demand a monthly rental
of P300 for the use and occupation of the parcel from May,
1926, until the date of the surrender to them of the possession
thereof; and that if it is found that the said appellee was
occupying the said parcel of land by virtue of a contract of
lease, such contract should be declared null and void for lack of
consent, concurrence, and ratification by the owners thereof.
In his answer, the defendant pleaded the general issue, and as
special defenses, he alleged in substance that he was occupying
the said tract of land by virtue of a contract of lease executed
on July 24,1905, in favor of his predecessor in interest, by
Ruperta Garcia, Pedro Melencio, Juliana Melencio, and
Ruperta Melencio under the terms specified therein, and which
contract is still in force; that Liberata Macapagal, the mother of
the plaintiffs, in her capacity as judicial administratrix of the
estate of Ramon Melencio, one of the original coowners of the
parcel of land in question, actually recognized and ratified the
existence and validity of the contract aforesaid by virtue of the
execution of a public document by her on or about November
27,1920, and by collecting from the assignees of the original
lessee the monthly rent for the premises until April 30, 1926;
and that said defendant deposits with the clerk of court the sum
of P20.20 every month as rent thereof and that as a
counterclaim, he seeks the recovery of P272 for goods and
money delivered by him to the plaintiffs.
The plaintiffs filed a reply to the answer alleging, among other
things, that Ruperta Garcia was not one of the coowners of the
land in question; that the person who signed the alleged
contract of lease never represented themselves as being the sole
and exclusive owners of the land subject to the lease as alleged
by the defendant in his answer; that the said contract of lease of
July 24,1905, is null and void for being executed without the
intervention and consent of two coowners, Ramon Melencio
and Jose P. Melencio, and without the marital consent of the
husbands of Juliana and Ruperta Melencio; that the lessee has
repeatedly violated the terms and conditions of the said
contract; and that Liberata Macapagal, in her capacity as
administratrix of the property of her deceased husband, could
not lawfully and legally execute a contract of lease with the
conditions and terms similar to that of the one under
consideration, and that from this it follows that she could not
ratify the said lease as claimed by the defendant.
On January 21,1928, Liberata Macapagal Viuda de Melencio,
duly appointed and qualified as administratrix of the estate of
her deceased husband, Ramon Melencio, filed a petition
praying to be allowed to join the plaintiffs as party to the
present case, which petition was granted in open court on
January 31,1928. Her amended complaint of intervention of
February 14,1928, contains allegations similar to those alleged
in the complaint of the original plaintiffs, and she further
alleges that the defendant-appellee has occupied the land in
question ever since November, 1920, under and by virtue of a
verbal contract of lease for a term from month to month. To
this complaint of intervention, the defendant-appellee filed an
answer reproducing the allegations contained in his answer
reproducing the allegations contained in his answer to the
complaint of the original plaintiffs and setting up prescription
as a further special defense.
It appears from the evidence that the land in question was
originally owned by one Julian Melencio. He died prior to the
year 1905 leaving his widow, Ruperta Garcia, and his five
children, Juliana, Ramon, Ruperta, Pedro R., and Emilio
Melencio. Emilio Melencio also died before 1905, his son Jose
P. Melencio, then a minor, succeeding to his interest in the said
parcel of land by representation. A question has been raised as
to whether the land was community property of the marriage of
Julian Melencio and Ruperta Garcia, but the evidence is
practically undisputed that Ruperta Garcia in reality held
nothing but a widow's usufruct in the land.
On July 24,1905, Ruperta Garcia, Pedro R. Melencio, Juliana
Melencio, and Ruperta Melencio executed a contract of lease of
the land in favor of one Yap Kui Chin, but neither Jose P.
Melencio nor Ramon Melencio were mentioned in the lease.
The term of the lease was for twenty years, extendible for a like
period at the option of the lessee. The purpose of the lessee was
to establish a rice mill on the land, with the necessary buildings
for warehouses and for quarters for the employees, and it was
further stipulated that at the termination of the original period
of the lease, or the extension therof, the lessors might purchase
all the buildings and improvements on the land at a price to be
fixed by experts appointed by the parties, but that if the lessors
should fail to take advantage of that privilege, the lease would
continue for another and further period of twenty years. The
document was duly acknowledged but was never recorded with
the register of deeds. The original rent agreed upon was P25
per month, but by reason of the construction of a street through
the land, the monthly rent was reduced of P20.20.
Shortly after the execution of the lease, the lessee took
possession of the parcel in question and erected the mill as well
as the necessary buildings, and it appears that in matters
pertaining to the lease, he dealt with Pedro R. Melencio, who
from 1905 until his death in 1920, acted as manager of the
property held in common by the heirs of Julian Melencio and
Ruperta Garcia. The original lessee, Yap Kui Chin, died in
1912, and the lease, as well as the other property, was
transferred to Uy Eng Jui who again transferred it to Uy Eng
Jui & Co., an unregistered partnership. Finally the lease came
into the hands of Dy Tiao Lay, the herein defendant-appellee.
Ramon Melencio died in 1914, and his widow, Liberata
Macapagal, was appointed administratrix of his estate. In 1913
the land which includes the parcel in question was registered
under the Torrens system. The lease was not mentioned in the
certificate of title, but it was stated that one house and three
warehouses on the land were the property of Yap Kui Chin.
In 1920 the heirs of Julian Melencio made an extrajudicial
partition of parts of the inheritance, and among other things, the
land here in question fell to the share of the children of Ramon
Melencio, who are the original plaintiffs in the present case.
Their mother, Liberata Macapagal, as administratrix of the
estate of her deceased husband, Ramon, collected the rent for
the lease at the rate of P20.20 per month until the month of
May,1926, when she demanded of the lessee that the rent
should be increased to P300 per month, and she was then
informed by the defendant that a written lease existed and that
according to the terms thereof, the defendant was entitled to an
extension of the lease at the original rental. The plaintiffs
insisted that they never had any knowledge of the existence of
such a contract of lease and maintained that in such case the
lease was executed without their consent and was void. It may
be noted that upon careful search, a copy of the contract of
lease was found among the papers of the deceased Pedro R,
Melencio. Thereafter the present action was brought to set
aside the lease and to recover possession of the land. Upon
trial, the court below rendered judgment in favor of the
defendant declaring the lease valid and ordering the plaintiffs
to pay the P272 demanded by the defendant in his
counterclaim. From this judgment the plaintiffs appealed.
The contention of the appellants is that the aforesaid contract of
lease (Exhibit C) is null and void for the following reasons:
1. That Exhibit C calls for an alteration of the property
in question and therefore ought to have been signed by
all the coowners as by law required in the premises.
2. That the validity and fulfillment of the said
agreement of lease were made to depend upon the will
of the lessee exclusively.
3. That the said contract of lease being for a term of
over six years, the same is null and void pursuant to
the provision of article 1548 of the Civil Code.
4. That the duration of the same is unreasonably long,
thus being against public policy.
5. That the defendant-appellee and his predecessors in
interest repeatedly violated the provisions of the
agreement.
The first proposition is based on article 397 of the Civil Code
which provides that "none of the owners shall, without the
consent of the others, make any alterations in the common
property even though such alterations might be advantageous to
all." We do not think that the alterations are of sufficient
importance to nullify the lease, especially so since none of the
coowners objected to such alterations until over twenty years
after the execution of the contract of lease. The decision of this
court in the case of Enriquez vs. A. S. Watson and Co. (22
Phil., 623), contains a full discussion of the effect of alterations
of leased community property, and no further discussion upon
the point need here be considered.
The second proposition is likewise of little merit. Under the
circumstances, the provision in the contract that the lessee, at
any time before he erected any building on the land, might
rescind the lease, can hardly be regarded as a violation of
article 1256 of the Civil Code.
The third and fourth proposition are, in our opinion,
determinative of the controversy. The court below based its
decision principally on the case of Enriquez vs. A.S. Watson &
Co. (22 Phil., 623), and on the resolution of the Direccion
General de los Registros dated April 26,1907. (Jurisprudencia
Civil, vol.107, p. 222.) An examination of the Enriquez case
will show that it differs materially from the present. In that case
all of the coowners of a lot and building executed a contract of
lease of the property for the term of eighteen years in favor of
A. S. Watson & Co.; one of the owners was minor, but he was
represented by his legally appointed guardian, and the action of
the latter in signing the lease on behalf of the minor was
formally approved by the Court of First Instance. In the present
case only a small majority of the coowners executed the lease
here in question, and according to the terms of the contract the
lease might be given a duration of sixty years; that is widely
different from a lease granted by all of the coowners for a term
of only eighteen years.
The resolution of April 26,1907, is more in point. It relates to
the inscription or registration of a contract of lease of some
pasture grounds. The majority of the coowners of the property
executed the lease for the term of twelve years but when the
lessees presented the lease for inscription in the registry of
property, the registrar denied the inscription on the ground that
the term of the lease exceeded six years and that therefore the
majority of the coowners lacked authority to grant the lease.
The Direccion General de los Registros held that the contract
of lease for a period exceeding six years, constitutes a real right
subject to registry and that the lease in question was valid.
The conclusions reached by the Direccion General led to
considerable criticism and have been overruled by a decision of
the Supreme Court of Spain dated June 1,1909. In that decision
the court made the following statement of the case
(translation):
The joint owners of 511 out of 1,000 parts of the
realty denominated El Mortero, leased out the whole
property for twelve years to Doa Josefa de la Rosa;
whereupon the Count and Countess Trespalacios
together with other coowners brought this suit to annul
the lease and, in view of the fact that the land was
indivisible, prayed for its sale by public auction and
 the distribution of the price so obtained; they alleged
that they neither took part nor consented to the lease;
that the decision of the majority of part owners
referred to in article 398 of the Code, implies a
common deliberation on the step to be taken , for to do
without it, would, even more than to do without the
minority, be nothing less than plunder; and that, even
if this deliberation were not absolutely necessary, the
power of the majority would still be confined to
decisions touching the management and enjoyment of
the common property, and would not include acts of
ownership, such as a lease for twelve years, which
according to the Mortgage Law gives rise to a real
right, which must be recorded, and which can be
performed only by the owners of the property leased.
The part owners who had executed the contract prayed
in reconvention that it held valid for all the owners in
common, and if this could not be, then for all those
who had signed it, and for the rest, for the period of
six years; and the Audiencia of Caceres having
rendered judgment holding the contract null and void,
and ordering the sale of the realty and the distribution
of the price, the defendants appealed alleging under
the third and fourth assignments of error, that the
judgment was a violation of article 398 of the Civil
Code, which is absolute and sets no limit of time for
the efficacy of the decisions arrived at by the majority
of the part owners for the enjoyment of the common
property, citing the decisions of June 30th, 1897, of
July 8th,1902, and of October 30th, 1907; under the
fifth assignments of error the appellants contended
that in including joint owners among those referred to
in said article, which sets certain limits to the power of
leasing, in the course of the management of another's
property, the court applied article 1548 unduly; and by
the seventh assignments of error, they maintained the
judgment appealed from also violated article 1727,
providing that the principal is not bound where his
agent has acted beyond his authority; whence it may
be inferred that if in order to hold the contract null and
void, the majority of the part owners are looked upon
as managers or agents exercising limited powers, it
must at least be conceded that in so far as the act in
question lies within the scope of their powers, it is
valid; the contract cannot be annulled in toto.
The Supreme Court held that the appeal from the decision of
the Audiencia of Caceres was not well taken and expressed the
following consideranda:
Considering that, although as a rule the contract of
lease constitutes an act of management, as this court
has several times held, cases may yet arise, either
owing to the nature of the subject matter, or to the
period of duration, which may render it imperative to
record the contract in the registry of property, in
pursuance of the Mortgage Law, where the contract of
lease may give rise to a real right in favor of the
lessee, and it would then constitute such a sundering
of the ownership as transcends mere management; in
such cases it must of necessity be recognized that the
part owners representing the greater portion of the
property held in common have no power to lease said
property for a longer period than six years without the
consent of all the coowners, whose propriety rights,
expressly recognized by the law, would by contracts
of long duration be restricted or annulled; and as
under article 1548 of the Civil Code such contracts
cannot be entered into by the husband with respect to
his wife's property, by the parent or guardian with
respect to that of the child or ward, and by the
manager in default of special power, since the contract
of lease only produces personal obligations, and
cannot without the consent of all persons interested or
express authority from the owner, be extended to
include stipulations which may alter its character,
changing it into a contract of partial alienation of the
property leased;
Considering that, applying this doctrine to the case
before us, one of the grounds upon which the
judgment appealed from, denying the validity of the
lease made by the majority of the part owners of the
pasture land El Mortero is based, must be upheld; to
wit, that the period of duration is twelve years and the
consent of all the coowners has not been obtained;
hence, the third, fourth. and fifth assignments of error
are without merit; firstly, because article 398 of the
Civil Code, alleged to have been violated, refers to
acts decided upon by the majority of the part owners,
touching the management and enjoyment of the
common property, and does not contradict what we
have stated in the foregoing paragraph; secondly
because although the cases cited were such as arose
upon leases for more than six years, yet this point was
not raised on appeal, and could not therefore be passed
upon; and thirdly, because it cannot be denied that
there is an analogy between a manager without special
authority, who is forbidden by article 1548 of the
Code to give a lease for a period of over six years, and
the joint owners constituting a legal majority, who
may decide to lease out the indivisible property, with
respect to the shares of the other coowners; and
having come to the conclusion that the contract is null
and void, there is no need to discuss the first two
assignments of error which refer to another of the
bases adopted, however erroneously, by the trial court;
Considering that the sixth assignment of error is
without merit, inasmuch as the joint ownership of
property is not a sort of agency and cannot be
governed by the provisions relating to the latter
contract; whence, article 1727 of the Code alleged to
have been violated, can no more be applied, than, the
question of the validity or nullity of the lease being
raise, upon the contract as celebrated, it would be
allowable to modify a posteriorisome one or other of
the main conditions stipulated, like that regarding the
duration of the lease, for this would amount to a
novation; still less allowable would it be to authorize
diverse periods for the different persons unequally
interested in the fulfillment.
Taking into consideration articles 398,1548, and 1713 of the
Civil Code and following the aforesaid decision of June
1,1909, we hold that the contract of lease here in question is
null and void.
It has been suggested that by reason of prescription and by
acceptance of benefits under the lease, the plaintiffs are
estopped to question the authority for making the lease.To this
we may answer that the burden of proof of prescription
devolved upon the defendant and that as far as we can find,
there is no proof that Ramon Melencio and his successors ever
had knowledge of the existence of the lease in question prior to
1926. We cannot by mere suspicion conclude that they were
informed of the existence of the document and its terms; it
must be remembered that under a strict interpretation of the
terms of the lease, the lessees could remain indefinitely in their
tenancy unless the lessors could purchase the mill and the
buildings on the land. In such circumstances, better evidence
than that presented by the defendant in regard to the plaintiff's
knowledge of the lease must be required.
The fact that Ramon during his lifetime received his share of
the products of land owned in common with his coheirs is not
sufficient proof of knowledge of the existence of the contract of
lease when it is considered that the land in question was only a
small portion of a large tract which Pedro R. Melencio was
administering in connection with other community property.
The appealed judgment as to the validity of the lease is
therefore reversed, and it is ordered that the possession of the
land in controversy be delivered to the intervenor Liberata
Macapagal in her capacity as administratrix of the estate of the
deceased Ramon Melencio. It is further ordered that the
defendant pay to said administratrix a monthly rent of P50 for
the occupation of the land from May 1st, 1926, until the land is
delivered to the administratrix. The sum of P272 demanded by
the defendant in his counterclaim may be deducted from the
total amount of the rent due and unpaid. The building erected
on the land by the defendant and his predecessors in interest
may be removed by him, or otherwise disposed of, within six
months from the promulgation of this decision. Without costs.
So ordered.
Avancea, C.J., , Malcolm, Johns, Romualdez, and Villa-Real,
JJ., concur.
Jonhson, J., I reserve my vote.
Separate Opinions
STREET and VILLAMOR, JJ., dissenting:
Although the name of Ramon Melencio, father of the plaintiffs
in this action, was not in fact signed to the lease in question,
and the lease did not even so much as mentioned him as one of
the coowners, the undersigned are nevertheless of the opinion
that Ramon Melencio, and his children after him, are estopped
from questioning said lease, for the reason that, from 1905 to
the time of his death in 1914, Ramon Melencio enjoyed the
benefits of the lease, as did his widow and children after him
until May,1926, when the widow repudiated the lease, as a
preliminary to the bringing of this action by the plaintiffs. By
their acceptance of the benefits of the lease over so long a
period, the persons now questioning the lease and their father,
their predecessor in interest, are estopped to question the
authority for making the lease. This estopped cures the want of
the special power contemplated in article 1548 of the Civil
Code.
In addition to the estopped arising from the acceptance of
benefits under the lease, an estoppel further arises from the fact
that Ramon Melecio, during the years following the execution
of the lease, stood by and saw the lessees place upon the
property improvements of a value of more than P100,000, for
which reason, also, equity will not permit the lease to be
disturbed to the prejudice of the lessee.
To exhibit the foregoing proposition fully, it is necessary to
understand the facts relative to the controversy. These are
substantially as follows:
The land covered by the original lease, having an area of some
6,000 square meters, is located in the town of Cabanatuan and
was formerly the property of one Julian Melencio, married to
Ruperta Garcia. After the death of Julian Melencio, his widow,
Ruperta Garcia, united in 1905, with three of their children,
namely, Pedro R., Juliana, and Ruperta, in executing, in favor
of Yap Kui Chin, as lessee, the lease which is the subject of
this controversy. The consideration mentioned in the lease was
the sum P25 per month. On August 2,1907, at the request of
Pedro R. Melencio, another document was drawn changing the
superficial configuration of the leased land but preserving its
original extension of 6,000 square meters. This change was
made for the purpose of giving Pedro R. Melencio space upon
which to construct a house on the part segragated from the
original mass. In 1915 a new street, passing through the leased
property, was opened in Cabanatuan; and Pedro R. Melencio,
acting for the lessors, reduced the monthly rent from P25 to
P20, to correspond with the reduction in the area of the leased
land resulting from the occupation of part of it by the
street.lawphil.net
At the time the lease was made there was living one Ramon
Melencio, son of Julian Melencio and Ruperta Garcia and
brother of the heirs who signed the lease. Also before this time
there had been another brother named Emilio Melencio. But
Emilio was dead and his only surviving son, Jose P. Melencio,
was a small boy then under the tutelage of his uncle Pedro R.
Melencio. The lease referred to is not and never has been
questioned by any of the persons, or descendants of the
persons, who signed the instrument. Neither has it been
questioned by Jose P. Melecio, son of Emilio. Nor was the
lease questioned in life by Ramon Melencio, who died in 1914;
and the only persons raising a question as to its validity are four
of the five children of Ramon, the same being the plaintiffs in
this case.
By series of changes, not, necessary to be here recounted, the
rights of the original lessee became vested in the defendant, Dy
Tiao Lay. At the time of the institution of the present action the
defendant, Dy Tia lay, had a rice mill, consisting of valuable
buildings and improvements, constructed on the land, and
valued, it is alleged, at P160,000; but during the time of the
pendency of this action a fire occurred which seems to have
destroyed the mill and improvements with the exception of
a camarin valued at some P15,000.
In November, 1920, the children of Julian Melencio and
Ruperta Garcia executed a partial extra-judicial partition of the
properties belonging to their father's estate; and the land
covered by this lease was assigned to Liberata Macapagal,
widow of Ramon Melencio, in right of her deceased husband
Ramon and as representative of the children. It will be noted
that the land encumbered by the lease was thus assigned
precisely to the family of the deceased brother, Ramon
Melencio, who at the same time was the sole living brother
whose name was not signed to the lease.
At the time the lease was executed, Pedro R. Melencio was in
fact the manager of the common ancestral estate belonging to
himself and his brothers and sisters; and he continued as such
until 1920. After the partition, or partial partition, of the
fraternal estate in 1920, Liberata Macapagal Viuda de Ramon
Melencio succeeded to the office of manager, or guardian, of
the estate of her children, at least with respect to the parcel now
in question.
It will be noted as an important fact that every dollar due as
rent from the leased land was paid by the lessee, from the time
when rent first became due, and these payments were made
first to Pedro R. Melencio as manager of the common estate
pertaining to himself and his brothers and sisters, until 1920,
when the rents began to be paid to Liberata Macapagal in the
right to herself and children. In April, 1926, Liberata ceased to
collect the rent, and in May, thereafter, she refused to accept
payment of the monthly instalment of rent then due. For this
reason the defendant has been making a consignation of the
corresponding rent for the benefit of the lessors in the office of
the provincial treasurer. No question is made that during the
life of Ramon Melencio he received his share of the monthly
rental from the property in question; nor is there any question
that thereafter his widow and children received their share of
the same until the property was assigned in partition to Liberata
Macapagal and her children, after which they received all of
the rent, until Liberata refused longer to accept it.
The undersigned concur in the proposition that the lease signed
in 1905 was not per se binding on Ramon Melencio, first,
because he was not a party to that lease; and, secondly, because
the making of a lease for twenty years, extendible under certain
circumstances for a second and third period of equal duration,
was an act of rigorous alienation and not a mere act of
management and enjoyment such as is contemplated in article
398 of the Civil Code. (Sentencia, June 1,1909; Ruiz, Cod.
Civ., vol. 4. p. 502) Neither do we pause to argue that the
contract might have been considered valid under the doctrine of
this court stated in Eleizegui vs. Manila Lawn Tennis Club (2
Phil., 309). At any rate the lease did not purport to bind Ramon,
and he was not even mentioned therein as one of the coowners.
But it is to be noted that none of the parties signatory to the
lease have at any time sought to abrogate the contract; and
some of the children of Ramon Melencio only are before the
court as actors in this case seeking to set the contract aside.
Under these circumstances the undersigned are of the opinion
that Ramon Melencio was at the time of his death bound by the
lease, from his having participated for years in the benefits
derived from the contract, and that his children, who derive
their rights from him, are likewise bound.
It is well established that an estate in land may be virtually
transferred from one man to another without a writing, by the
failure of the owner to give notice of his title to the purchaser
under circumstances where the omission to do so would
operate as a fraud (Kirk vs. Hamilton, 102 U. S., 68,77; 26
Law. ed., 79). This doctrine is so universally accepted that a
bare reference to general treatises on the subject of estopped is
necessary (10 R.C. L., p.694; 21 C. J., pp.1154, 1160, 1206,
1207, 1209); and the estoppel is as effective with respect to a
lease as it is with respect to a deed of absolute conveyance (21
C.J., 1213).
In the case before us Ramon Melencio lived in the town where
the land covered by this lease was located, and every time he
went abroad he must have seen the valuable improvements
which the original lessee, or his successors in interest, were
erecting and had erected upon part of the common ancestral
estate. But from the date the lease was executed until his death
Ramon Melencio did nothing except to receive such portion of
the rent as pertained to him. Under these circumstances, even if
his brother Pedro R. Melencio had conveyed the property away
by deed of absolute alienation, Ramon would have been legally
bound. It is but natural that so long as he lived after the lease
was made, no complaint was ever registered by him against its
validity.
And if Ramon Melencio was estoppel, of course his children
are estopped, for their rights are of a purely derivative
character. In the case before us a period of more than twenty-
one years elapsed between the time the lease was made and the
date when it was first called in question by the widow.
But Manuel Melencio, the oldest of the heirs who are suing in
this case, says that he did not know the terms of the lease until
a short while before this action was instituted, when he called
upon the widow of his uncle Pedro and found a copy of the
lease after searching among his uncle's papers. It is not
surprising that this plaintiff, who was hardly more than a baby
when the lease was made, should not have known about the
terms of the contract. But it was all the time safely kept among
the papers of his uncle Pedro, who, as already stated, was
manager of the common estate of the brothers and sisters.
Ramon Melencio is now dead and of course cannot speak as to
whether he knew the terms of the agreement. But he should be
presumed to have known its terms, because he was enjoying
benefits from month to month under it, and he had the means of
knowledge immediately at hand, namely by recourse to a
trusted brother in whose custody the contract was preserved. In
addition to this, we note that when partition was effected about
the year 1920 the fact that the property in question was subject
to a lease in favor of the defendant was noted in the document
by which the property was assigned to Liberata Macapagal and
her children. The suggestion that the terms of the lease were
unknown to the plaintiffs is of little weight and of no legal
merit. We note that the lease was never registered, but this fact
makes no difference in a lawsuit between the parties to the
lease, or their successors in interest.

We are of the opinion that the judgment should be affirmed.

G.R. No. L-3404 April 2, 1951
ANGELA I. TUASON, plaintiff-appellant,
vs.
ANTONIO TUASON, JR., and GREGORIO ARANETA,
INC., defendants-appellees.
Alcuaz & Eiguren for appellant.
Araneta & Araneta for appellees.
MONTEMAYOR, J.:
In 1941 the sisters Angela I. Tuason and Nieves Tuason de
Barreto and their brother Antonio Tuason Jr., held a parcel of
land with an area of 64,928.6 sq. m. covered by Certificate of
Title No. 60911 in Sampaloc, Manila, in common, each owning
an undivided 1/3 portion. Nieves wanted and asked for a
partition of the common property, but failing in this, she
offered to sell her 1/3 portion. The share of Nieves was offered
for sale to her sister and her brother but both declined to buy it.
The offer was later made to their mother but the old lady also
declined to buy, saying that if the property later increased in
value, she might be suspected of having taken advantage of her
daughter. Finally, the share of Nieves was sold to Gregorio
Araneta Inc., a domestic corporation, and a new Certificate of
Title No. 61721 was issued in lieu of the old title No. 60911
covering the same property. The three co-owners agreed to
have the whole parcel subdivided into small lots and then sold,
the proceeds of the sale to be later divided among them. This
agreement is embodied in a document (Exh. 6) entitled
"Memorandum of Agreement" consisting of ten pages, dated
June 30, 1941.
Before, during and after the execution of this contract (Exh. 6),
Atty. J. Antonio Araneta was acting as the attorney-in-fact and
lawyer of the two co-owners, Angela I. Tuason and her brother
Antonio Tuason Jr. At the same time he was a member of the
Board of Director of the third co-owner, Araneta, Inc.
The pertinent terms of the contract (Exh. 6) may be briefly
stated as follows: The three co-owners agreed to improve the
property by filling it and constructing roads and curbs on the
same and then subdivide it into small lots for sale. Araneta Inc.
was to finance the whole development and subdivision; it was
prepare a schedule of prices and conditions of sale, subject to
the subject to the approval of the two other co-owners; it was
invested with authority to sell the lots into which the property
was to be subdivided, and execute the corresponding contracts
and deeds of sale; it was also to pay the real estate taxes due on
the property or of any portion thereof that remained unsold, the
expenses of surveying, improvements, etc., all advertising
expenses, salaries of personnel, commissions, office and legal
expenses, including expenses in instituting all actions to eject
all tenants or occupants on the property; and it undertook the
duty to furnish each of the two co-owners, Angela and Antonio
Tuason, copies of the subdivision plans and the monthly sales
and rents and collections made thereon. In return for all this
undertaking and obligation assumed by Araneta Inc.,
particularly the financial burden, it was to receive 50 per cent
of the gross selling price of the lots, and any rents that may be
collected from the property, while in the process of sale, the
remaining 50 per cent to be divided in equal portions among
the three co-owners so that each will receive 16.33 per cent of
the gross receipts.
Because of the importance of paragraphs 9, 11 and 15 of the
contract (Exh. 6), for purposes of reference we are reproducing
them below:
(9) This contract shall remain in full force and effect
during all the time that it may be necessary for the
PARTY OF THE SECOND PART to fully sell the
said property in small and subdivided lots and to fully
collect the purchase prices due thereon; it being
understood and agreed that said lots may be rented
while there are no purchasers thereof;
(11) The PARTY OF THE SECOND PART (meaning
Araneta Inc.) is hereby given full power and authority
to sign for and in behalf of all the said co-owners of
said property all contracts of sale and deeds of sale of
the lots into which this property might be subdivided;
the powers herein vested to the PARTY OF THE
SECOND PART may, under its own responsibility
and risk, delegate any of its powers under this contract
to any of its officers, employees or to third persons;
(15) No co-owner of the property subject-matter of
this contract shall sell, alienate or dispose of his
ownership, interest or participation therein without
first giving preference to the other co-owners to
purchase and acquire the same under the same terms
and conditions as those offered by any other
prospective purchaser. Should none of the co-owners
of the property subject-matter of this contract exercise
the said preference to acquire or purchase the same,
then such sale to a third party shall be made subject to
all the conditions, terms, and dispositions of this
contract; provided, the PARTIES OF THE FIRST
PART (meaning Angela and Antonio) shall be bound
by this contract as long as the PARTY OF THE
SECOND PART, namely, the GREGORIO
ARANETA, INC. is controlled by the members of the
Araneta family, who are stockholders of the said
corporation at the time of the signing of this contract
and/or their lawful heirs;
On September 16, 1944, Angela I. Tuason revoked the powers
conferred on her attorney-in-fact and lawyer, J. Antonio
Araneta. Then in a letter dated October 19, 1946, Angela
notified Araneta, Inc. that because of alleged breach of the
terms of the "Memorandum of Agreement" (Exh. 6) and abuse
of powers granted to it in the document, she had decided to
rescind said contract and she asked that the property held in
common be partitioned. Later, on November 20, 1946, Angela
filed a complaint in the Court of First Instance of Manila
asking the court to order the partition of the property in
question and that she be given 1/3 of the same including rents
collected during the time that the same including rents
collected during the time that Araneta Inc., administered said
property.
The suit was administered principally against Araneta, Inc.
Plaintiff's brother, Antonio Tuason Jr., one of the co-owners
evidently did not agree to the suit and its purpose, for he
evidently did not agree to the suit and its purpose, for he joined
Araneta, Inc. as a co-defendant. After hearing and after
considering the extensive evidence introduce, oral and
documentary, the trial court presided over by Judge Emilio
Pea in a long and considered decision dismissed the complaint
without pronouncement as to costs. The plaintiff appealed from
that decision, and because the property is valued at more than
P50,000, the appeal came directly to this Court.
Some of the reasons advanced by appellant to have the
memorandum contract (Exh. 6) declared null and void or
rescinded are that she had been tricked into signing it; that she
was given to understand by Antonio Araneta acting as her
attorney-in-fact and legal adviser that said contract would be
similar to another contract of subdivision of a parcel into lots
and the sale thereof entered into by Gregorio Araneta Inc., and
the heirs of D. Tuason, Exhibit "L", but it turned out that the
two contracts widely differed from each other, the terms of
contract Exh. "L" being relatively much more favorable to the
owners therein the less favorable to Araneta Inc.; that Atty.
Antonio Araneta was more or less disqualified to act as her
legal adviser as he did because he was one of the officials of
Araneta Inc., and finally, that the defendant company has
violated the terms of the contract (Exh. 6) by not previously
showing her the plans of the subdivision, the schedule of prices
and conditions of the sale, in not introducing the necessary
improvements into the land and in not delivering to her her
share of the proceeds of the rents and sales.
We have examined Exh. "L" and compared the same with the
contract (Exh. 6) and we agree with the trial court that in the
main the terms of both contracts are similar and practically the
same. Moreover, as correctly found by the trial court, the
copies of both contracts were shown to the plaintiff Angela and
her husband, a broker, and both had every opportunity to go
over and compare them and decide on the advisability of or
disadvantage in entering into the contract (Exh. 6); that
although Atty. Antonio Araneta was an official of the Araneta
Inc.; being a member of the Board of Directors of the Company
at the time that Exhibit "6" was executed, he was not the party
with which Angela contracted, and that he committed no
breach of trust. According to the evidence Araneta, the
pertinent papers, and sent to her checks covering her receive
the same; and that as a matter of fact, at the time of the trial,
Araneta Inc., had spent about P117,000 in improvement and
had received as proceeds on the sale of the lots the respectable
sum of P1,265,538.48. We quote with approval that portion of
the decision appealed from on these points:
The evidence in this case points to the fact that the
actuations of J. Antonio Araneta in connection with
the execution of exhibit 6 by the parties, are above
board. He committed nothing that is violative of the
fiduciary relationship existing between him and the
plaintiff. The act of J. Antonio Araneta in giving the
plaintiff a copy of exhibit 6 before the same was
executed, constitutes a full disclosure of the facts, for
said copy contains all that appears now in exhibit 6.
Plaintiff charges the defendant Gregorio Araneta, Inc.
with infringing the terms of the contract in that the
defendant corporation has failed (1) to make the
necessary improvements on the property as required
by paragraphs 1 and 3 of the contract; (2) to submit to
the plaintiff from time to time schedule of prices and
conditions under which the subdivided lots are to be
sold; and to furnish the plaintiff a copy of the
subdivision plans, a copy of the monthly gross
collections from the sale of the property.
The Court finds from the evidence that he defendant
Gregorio Araneta, Incorporated has substantially
complied with obligation imposed by the contract
exhibit 6 in its paragraph 1, and that for improvements
alone, it has disbursed the amount of P117,167.09. It
has likewise paid taxes, commissions and other
expenses incidental to its obligations as denied in the
agreement.
With respect to the charged that Gregorio Araneta,
Incorporated has failed to submit to plaintiff a copy of
the subdivision plains, list of prices and the conditions
governing the sale of subdivided lots, and monthly
statement of collections form the sale of the lots, the
Court is of the opinion that it has no basis. The
evidence shows that the defendant corporation
submitted to the plaintiff periodically all the data
relative to prices and conditions of the sale of the
subdivided lots, together with the amount
corresponding to her. But without any justifiable
reason, she refused to accept them. With the
indifferent attitude adopted by the plaintiff, it was
thought useless for Gregorio Araneta, Incorporated to
continue sending her statement of accounts, checks
and other things. She had shown on various occasions
that she did not want to have any further dealings with
the said corporation. So, if the defendant corporation
proceeded with the sale of the subdivided lots without
the approval of the plaintiff, it was because it was
under the correct impression that under the contract
exhibit 6 the decision of the majority co-owners is
binding upon all the three.
The Court feels that recission of the contract exhibit 6
is not minor violations of the terms of the agreement,
the general rule is that "recission will not be permitted
for a slight or casual breach of the contract, but only
for such breaches as are so substantial and
fundamental as to defeat the object of the parties in
making the agreement" (Song Fo & Co. vs. Hawaiian-
Philippine Co., 47 Phil. 821).
As regards improvements, the evidence shows that during the
Japanese occupation from 1942 and up to 1946, the Araneta
Inc. although willing to fill the land, was unable to obtain the
equipment and gasoline necessary for filling the low places
within the parcel. As to sales, the evidence shows that Araneta
Inc. purposely stopped selling the lots during the Japanese
occupantion, knowing that the purchase price would be paid in
Japanese military notes; and Atty. Araneta claims that for this,
plaintiff should be thankfull because otherwise she would have
received these notes as her share of the receipts, which
currency later became valueles.
But the main contention of the appellant is that the contract
(Exh. 6) should be declared null and void because its terms,
particularly paragraphs 9, 11 and 15 which we have
reproduced, violate the provisions of Art. 400 of the Civil
Code, which for the purposes of reference we quote below:
ART. 400. No co-owner shall be obliged to remain a
party to the community. Each may, at any time,
demand the partition of the thing held in common.
Nevertheless, an agreement to keep the thing
undivided for a specified length of time, not exceeding
ten years, shall be valid. This period may be a new
agreement.
We deem it unnecessary to discuss and pass upon the other
points raised in the appeal and which counsel for appellant has
extensively and ably discussed, citing numerous authorities. As
we have already said, we have viewed the case from a practical
standpoint, brushing aside technicalities and disregarding any
minor violations of the contract, and in deciding the case as we
do, we are fully convinced that the trial court and this Tribunal
are carrying out in a practical and expeditious way the
intentions and the agreement of the parties contained in the
contract (Exh. 6), namely, to dissolve the community and co-
ownership, in a manner most profitable to the said parties.
In view of the foregoing, the decision appealed from is hereby
affirmed. There is no pronouncement as to costs.
So ordered.

We agree with the trial court that the provisions of Art. 400 of
the Civil Code are not applicable. The contract (Exh., 6) far
from violating the legal provision that forbids a co-owner being
obliged to remain a party to the community, precisely has for
its purpose and object the dissolution of the co-ownership and
of the community by selling the parcel held in common and
dividing the proceeds of the sale among the co-owners. The
obligation imposed in the contract to preserve the co-ownership
until all the lots shall have been sold, is a mere incident to the
main object of dissolving the co-owners. By virtue of the
document Exh. 6, the parties thereto practically and
substantially entered into a contract of partnership as the best
and most expedient means of eventually dissolving the co-
ownership, the life of said partnership to end when the object of
its creation shall have been attained.

This aspect of the contract is very similar to and was perhaps

based on the other agreement or contract (Exh. "L") referred to
by appellant where the parties thereto in express terms entered
into partnership, although this object is not expressed in so
many words in Exh. 6. We repeat that we see no violation of
Art. 400 of the Civil Code in the parties entering into the
contract (Exh. 6) for the very reason that Art. 400 is not
applicable.

Looking at the case from a practical standpoint as did the trial

court, we find no valid ground for the partition insisted upon
the appellant. We find from the evidence as was done by the
trial court that of the 64,928.6 sq. m. which is the total area of
the parcel held in common, only 1,600 sq. m. or 2.5 per cent of
the entire area remained unsold at the time of the trial in the
year 1947, while the great bulk of 97.5 per cent had already
been sold. As well observed by the court below, the partnership
is in the process of being dissolved and is about to be
dissolved, and even assuming that Art. 400 of the Civil Code
were applicable, under which the parties by agreement may
agree to keep the thing undivided for a period not exceeding 10
years, there should be no fear that the remaining 1,600 sq. m.
could not be disposed of within the four years left of the ten-
years period fixed by Art. 400.
G.R. No. 101522 May 28, 1993
LEONARDO MARIANO, AVELINA TIGUE, LAZARO
MARIANO, MERCEDES SAN PEDRO, DIONISIA M.
AQUINO, and JOSE N.T. AQUINO, petitioners,
vs.
HON. COURT OF APPEALS, (Sixteenth Division),
GRACE GOSIENGFIAO, assisted by her husband
GERMAN GALCOS; ESTER GOSIENGFIAO, assisted by
her husband AMADOR BITONA; FRANCISCO
GOSIENGFIAO, JR., NORMA GOSIENGFIAO, and
PINKY ROSE GUENO, respondents.
The Baristers Law Office for petitioners.
Simeon T. Agustin for private respondents.
NOCON, J.:
Before Us is a petition foe review of the decision, dated May
13, 1991 of the Court of Appeals in CA-G.R. CV No. 13122,
entitled Grace Gosiengfiao, et al. v. Leonardo Mariano
v. Amparo Gosiengfiao 1 raising as issue the distinction
between Article 10882 and Article 16203 of the Civil Code.
The Court of Appeals summarized the facts as follows:
It appears on record that the decedent
Francisco Gosiengfiao is the registered owner
of a residential lot located at Ugac Sur,
Tuguegarao, Cagayan, particularly described
as follows, to wit:
"The eastern portion of Lot
1351, Tuguegarao
Cadastre, and after its
segregation now designated
as Lot 1351-A, Plan PSD-
67391, with an area of
1,1346 square meters."
and covered by Transfer Certificate of Title
No. T-2416 recorded in the Register of Deeds
of Cagayan.
The lot in question was mortgaged by the
decedent to the Rural Bank of Tuguegarao
(designated as Mortgagee bank, for brevity)
on several occasions before the last, being on
March 9, 1956 and 29, 1958.
On August 15, 1958, Francisco Gosiengfiao
died intestate survived by his heirs, namely:
Third-Party Defendants: wife Antonia and
Children Amparo, Carlos, Severino and
herein plaintiffs-appellants Grace, Emma,
Ester, Francisco, Jr., Norma, Lina
(represented by daughter Pinky Rose), and
Jacinto.
The loan being unpaid, the lot in dispute was
foreclosed by the mortgagee bank and in the
foreclosure sale held on December 27, 1963,
the same was awarded to the mortgagee bank
as the highest bidder.
On February 7, 1964, third-party defendant
Amparo Gosiengfiao-Ibarra redeemed the
property by paying the amount of P1,347.89
and the balance of P423.35 was paid on
December 28, 1964 to the mortgagee bank.
On September 10, 1965, Antonia Gosiengfiao
on her behalf and that of her minor children
Emma, Lina, Norma together with Carlos and
Severino executed a "Deed of Assignment of
the Right of Redemption" in favor of Amparo
G. Ibarra appearing in the notarial register of
Pedro (Laggui) as Doc. No. 257, Page No. 6,
Book No. 8, Series of 1965.
On August 15, 1966, Amparo Gosiengfiao
sold the entire property to defendant
Leonardo Mariano who subsequently
established residence on the lot subject of this
controversy. It appears in the Deed of Sale
dated August 15, 1966 that Amparo, Antonia,
Carlos and Severino were signatories thereto.
Sometime in 1982, plaintiff-appellant Grace
Gosiengfiao learned of the sale of said
property by the third-party defendants. She
went to the Barangay Captain and asked for a
confrontation with defendants Leonardo and
Avelina Mariano to present her claim to said
property.
On November 27, 1982, no settlement having
been reached by the parties, the Barangay
captain issued a certificate to file action.
On December 8, 1982, defendant Leonardo
Mariano sold the same property to his
children Lazaro F. Mariano and Dionicia M.
Aquino as evidenced by a Deed of Sale
notarized by Hilarion L. Aquino as Doc. No.
143, Page No. 19, Book No. V, Series of
1982.
On December 21, 1982, plaintiffs Grace
Gosiengfiao, et al. filed a complaint for
"recovery of possession and legal redemption
with damages" against defendants Leonardo
and Avelina Mariano. Plaintiffs alleged in
their complaint that as co-heirs and co-
owners of the lot in question, they have the
right to recover their respective shares in the
 same, and property as they did not sell the
same, and the right of redemption with regard
to the shares of other co-owners sold to the
defendants.
Defendants in their answer alleged that the
plaintiffs has (sic) no cause of action against
them as the money used to redeem lot in
question was solely from the personal funds
of third-party defendant Amparo
Gosiengfiao-Ibarra, who consequently
became the sole owner of the said property
and thus validly sold the entire property to
the defendants, and the fact that defendants
had already sold the said property to the
children, Lazaro Mariano and Dionicia M.
Aquino. Defendants further contend that even
granting that the plaintiffs are co-owners with
the third-party defendants, their right of
redemption had already been barred by the
Statute of Limitations under Article 1144 of
the Civil Code, if not by laches.4
After trial on the merits, the Regional Trial Court of Cagayan,
Branch I, rendered a decision dated September 16, 1986,
dismissing the complaint and stating that respondents have no
right of ownership or possession over the lot in question. The
trial court further said that when the subject property foreclosed
and sold at public auction, the rights of the heirs were reduced
to a mere right of redemption. And when Amparo G. Ibarra
redeemed the lot from the Rural Bank on her own behalf and
with her own money she became the sole owner of the
property. Respondents' having failed to redeem the property
from the bank or from Amparo G. Ibarra, lost whatever rights
the might have on the property.5
The Court of Appeals in its questioned decision reversed and
set aside the ruling of the trial court and declared herein
respondents as co-owners of the property in the question. The
Court of Appeals said:
The whole controversy in the case at bar
revolves on the question of "whether or not a
co-owner who redeems the whole property
with her own personal funds becomes the
sole owner of said property and terminates
the existing state of co-ownership."
Admittedly, as the property in question was
mortgaged by the decedent, a co-ownership
existed among the heirs during the period
given by law to redeem the foreclosed
property. Redemption of the whole property
by a co-owner does not vest in him sole
ownership over said property but will inure to
the benefit of all co-owners. In other words,
it will not end to the existing state of co-
ownership. Redemption is not a mode of
terminating a co-ownership.
xxx xxx xxx
In the case at bar, it is undisputed and
supported by records, that third-party
defendant Amparo G. Ibarra redeemed the
propety in dispute within the one year
redemption period. Her redemption of the
property, even granting that the money used
was from her own personal funds did not
make her the exclusive owner of the
mortgaged property owned in common but
inured to the benefit of all co-owners. It
would have been otherwise if third-party
defendant Amparo G. Ibarra purchased the
said property from the mortgagee bank
(highest, bidder in the foreclosure sale) after
the redemption period had already expired
and after the mortgagee bank had
consolidated it title in which case there would
no longer be any co-ownership to speak of .6
The decision of the Court of Appeals is supported by a long
line of case law which states that a redemption by a co-owner
within the period prescribed by law inures to the benefit of all
the other co-owners.7
The main argument of petitioners in the case at bar is that the
Court of Appeals incorrectly applied Article 1620 of the Civil
Code, instead of Article 1088 of the same code which governs
legal redemption by co-heirs since the lot in question, which
forms part of the intestate estate of the late Francisco
Gosiengfiao, was never the subject of partition or distribution
among the heirs, thus, private respondents and third-party
defendants had not ceased to be co-heirs.
On that premise, petitioners further contend that the right of
legal redemption was not timely exercised by the private
respondents, since Article 1088 prescribes that the same must
be done within the period of one month from the time they
were notified in writing of the sale by the vendor.
According to Tolentino, the fine distinction between Article
1088 and Article 1620 is that when the sale consists of an
interest in some particular property or properties of the
inheritance, the right redemption that arises in favor of the
other co-heirs is that recognized in Article 1620. On the other
hand, if the sale is the hereditary right itself, fully or in part, in
the abstract sense, without specifying any particular object, the
right recognized in Article 1088 exists.8
Petitioners allege that upon the facts and circumstances of the
present case, respondents failed to exercise their right of legal
redemption during the period provided by law, citing as
authority the case of Conejero, et al., v. Court of Appeals, et
al.9 wherein the Court adopted the principle that the giving of a
copy of a deed is equivalent to the notice as required by law in
legal redemption.
We do not dispute the principle laid down in the Conejero case.
However, the facts in the said case are not four square with the
facts of the present case. In Conejero, redemptioner Enrique
Conejero was shown and given a copy of the deed of sale of the
subject property. The Court in that case stated that the
furnishing of a copy of the deed was equivalent to the giving of
a written notice required by law. 11
The records of the present petition, however, show no written
notice of the sale being given whatsoever to private
respondents. Although, petitioners allege that sometime on
October 31, 1982 private respondent, Grace Gosiengfiao was
given a copy of the questioned deed of sale and shown a copy
of the document at the Office of the Barangay Captain
sometime November 18, 1982, this was not supported by the
evidence presented. On the contrary, respondent, Grace
Gosiengfiao, in her testimony, declared as follows:
Q. When you went back to
the residence of Atty.
Pedro Laggui were you
able to see him?
A. Yes, I did.
Q. When you saw him,
what did you tell?
A. I asked him about the
Deed of Sale which Mrs.
Aquino had told me and he
also showed me a Deed of
Sale. I went over the Deed
of Sale and I asked Atty.
Laggui about this and he
mentioned here about the
names of the legal heirs. I
asked why my name is not
included and I was never
informed in writing
because I would like to
claim and he told me to
better consult my own
attorney.
Q. And did you go?
A. Yes, I did.
Q. What kind of copy or
document is that?
A. It is a deed of sale
signed by my mother, sister
Amparo and my brothers.
Q. If shown to you the
copy of the Deed of Sale
will you be able to identify
it?
A. Yes, sir.11
Thereafter, Grace Gosiengfiao explicitly stated that she was
never given a copy of the said Deed of Sale.
Q. Where did Don
Mariano, Dr. Mariano and
you see each other?
A. In the house of Brgy.
Captain Antonio Bassig.
Q. What transpired in the
house of the Brgy. Captain
when you saw each other
there?
A. Brgy. Captain Bassig
informed my intention of
claiming the lot and I also
informed him about the
Deed of Sale that was not
signed by me since it is
mine it is already sold and I
was informed in writing
about it. I am a legal heir
and I have also the right to
claim.
Q. And what was the reply
of Don Mariano and Dr.
Mariano to the information
given to them by Brgy.
Captain Bassig regarding
your claim?
A. He insisted that the lot is
already his because of the
Deed of Sale. I asked for
the exact copy so that I
could show to him that I
did not sign and he said he
does not have a copy. 12
The above testimony was never refuted by Dr. Mariano who
was present before Brgy. Captain Bassig.
The requirement of a written notice has long been settled as
early as in the case of Castillo v. Samonte,13 where this Court
quoted the ruling in Hernaez v. Hernaez, 32 Phil., 214, thus:
Both the letter and spirit of the New Civil
Code argue against any attempt to widen the
scope of the notice specified in Article 1088
by including therein any other kind of notice,
such as verbal or by registration. If the
intention of the law had been to include
verbal notice or any other means of
information as sufficient to give the effect of
this notice, then there would have been no
necessity or reasons to specify in Article
1088 of the New Civil Code that the said
notice be made in writing for, under the old
law, a verbal notice or information was
sufficient. 14
Moreover, petitioners themselves adopted in their argument such
respondents' allegation In their complaint that sometime on reconveyance. 18
October, 1982 they sought the redemption of the property from
spouses Leonardo Mariano and Avelina Tigue, by tendering the Premises considered, respondents have not lost their right to
repurchase money of P12,000.00, which the spouses redeem, for in the absence of a written notification of the sale
rejected.15 Consequently, private respondents exercised their by the vendors, the 30-day period has not even begun to run.
right of redemption at the first opportunity they have by
tendering the repurchase price to petitioners. The complaint WHEREFORE, the decision of the Court of Appeals is hereby
they filed, before the Barangay Captain and then to the AFFIRMED. Cost against petitioners.
Regional Trial Court was necessary to assert their rights. As we
learned in the case of Castillo, supra:
SO ORDERED.
It would seem clear from the above that the
reimbursement to the purchaser within the Narvasa, C.J., Padilla and Nocon, JJ., concur.
period of one month from the notice in
writing is a requisite or condition precedent
to the exercise of the right of legal
redemption; the bringing of an action in court
is the remedy to enforce that right in case the
purchaser refuses the redemption. The first
must be done within the month-period; the
second within the prescriptive period
provided in the Statute of Limitation. 16

The ruling in Castillo v. Samonte; supra, was reiterated in the

case of Garcia v. Calaliman, where We also discussed the
reason for the requirement of the written notice. We said:

Consistent with aforesaid ruling, in the

interpretation of a related provision (Article
1623 of the New Civil Code) this Court had
stressed that written notice is indispensable,
actual knowledge of the sale acquired in
some other manners by the redemptioner,
notwithstanding. He or she is still entitled to
written notice, as exacted by the code to
remove all uncertainty as to the sale, its
terms and its validity, and to quiet and doubt
that the alienation is not definitive. The law
not having provided for any alternative, the
method of notifications remains exclusive,
though the Code does not prescribe any
particular form of written notice nor any
distinctive method written notification of
redemption (Conejero et al. v. Court of
Appeals et al., 16 SCRA 775 [1966];
Etcuban v. Court of Appeals, 148 SCRA 507
[1987]; Cabrera v. Villanueva, G.R. No.
75069, April 15, 1988).17 (Emphasis ours)

We likewise do not find merit in petitioners' position that

private respondents could not have validly effected redemption
due to their failure to consign in court the full redemption price
after tender thereof was rejected by the petitioners.
Consignation is not necessary, because the tender of payment
was not made to discharge an obligation, but to enforce or
exercise a right. It has been previously held that consignation is
not required to preserve the right of repurchase as a mere
tender of payment is enough on time as a basis for an action to
compel the vendee a retroto resell the property; no subsequent
consignation was necessary to entitle private respondents to
133 Phil. 55
REYES J. B. L., J.:
Direct appeal from an order of the Court of first instance of La
Union, in its Civil Case No. 1990, granting a motion to dismiss
the complain for legal redemption by a co-owner
(retracto legal de comuneros) on account of failure to state a
cause of action.
The basic facts and issues are stated in the decision appealed
from, follows:
"Plaintiff based her complaint for legal redemption on a claim
that she is a co-owner of lot No. 802, for having purchased 1/3
portion thereof, containing an area of 640 square meters as
evidenced by a deed of sale, Annex "A", which was executed
on October 28, 1961 by Crispina Perez de Aquitania, one of the
co-owners, in her favor.
On the other hand, the defendant, who on December 30, 1959
acquired the other 2/3 portion of Lot No. 802
from Crispina Aquitaniaand her children, claimed that the
plaintiff bought the 1/3 southeastern portion, which is
definitely identified and, segregate hence there existed no co-
ownership at the time and after said plaintiff bought the
aforesaid portion, upon which right of legal redemption can be
exercised or taken advantage of.
From the complaint, it would appear that Lot No. 802 of the
Cadastral survey of Rosario, covered by original certificate of
title No. RO-2720 (N.A.), was originally owned by the late
spouses Rosendo Perez and Fortunata Bernal, who were
survived by her child namely, Crispin Perez, Lorenzo Perez
and Ricardo Perez. Ricardo Perez is also now
dead. On October 28, 1951, Crispina P. Vda. deAquitania sold
her right and participation in Lot No. 802 consisting of 1/3
portion with an area of 640 square meters to
Leonora Estoque (Annex of the complaint). On October 29,
1951, Lorenzo Perez, Crispina Perez and Emilia P. Posadas,
widow of her deceased husband, Ricardo Perez, for herself and
in behalf of her minor children, Gumersendo, Raquel, Emilio a
and Ricardo. Jr., executed a deed of extrajudicial settlement
wherein Lorenzo Perez, Emilia P. Posadas and her minor
children assigned all their right, interest and participation in lot
No. 802 to Crispina Perez (Annex B of the complaint). On
December 30, 1959, Crispina Perez and her children,
Rosita Aquitania Belmonte, Remedios Aquitania Misa,
Manuel Aquitania, Sergio Aquitania and Aurora Aquitania sold
to Elena Pajimula, the remaining 2/3 western portion of Lot
No. 802 with an area of 958 square meters (Annex C of the
complaint).
The action of the plaintiff is premised on the claim of co-
ownership. From the deed of sale executed in favor of the
plaintiff, it can be seen that the 1/3 portion sold to plaintiff is
definitely identified as the 1/3 portion located on the south-
eastern part of Lot No. 802 and specifically bounded on the
north by De Guzman Street, on the east by Posadas street, on
the sought by Perez street, and on the west by remaining
portion of the same lot, which contained an area of 640 square
meters. And in the deed of sale executed by CrispinaPerez and
her children in favor of defendant Elena Pajimula over the
remaining 2/3 portion of Lot No. 802, said portion is identified
as the western portion of Lot No. 802 which is bounded on the
north by Dc Guzman street, on the east by properties
of LeonardaEstoque, on the sought by the national mad and on
the west by Lots Nos. 799 and 801, containing an area of 958
square meters.'
The appellant's stand is that the deed in her favor was
inoperative to convey the southeastern third of Lot 802 of the
Rosario Cadastre notwithstanding the description in the deed
itself, for the reason that the vendor being a mere co-owner,
had no right to sell any definite portion of the land held in
common but could only transmit her undivided share, since the
specific portion corresponding to the selling co-owner is not
known until partition takes place (Lopez vs. Ilustre, 5 Phil. 567;
Ramirez vs. Bautista 14Phil. 528). from this premise, the
appellant argues that the sale in her favor, although describing
a definite area, should be construed as having conveyed only
the undivided 1/3 interest in Lot 802 owned at the time bythe
vendor, Crispina Perez Vda. de Aquitania. Wherefore, when
the next day said vendor acquired the 2/3 interest of her two
other co-owners, Lot 802 became the common property
of appelant and Crispina Perez. Therefore, appellant argues,
when Crispina old the rest of the property
to appellee Pajimula spouses, the former was selling an
undivided 2 /3 that appellant, as co-owner was entitled to
redeem, pursuant to Article 1620 of the New Civil Code.
"ART. 1620. A co-owner of a thing may exercise the right of
redemption in case the shares of all the other co-owners or of
arty of them, are sold to a third person. If the price of the
alienation is grossly excessive the redemptioner shall pay only
a reasonable one.
Should two or more co-owners desire to exercise the right of
redemption, they may only do so in proportion to the share they
may respectively have in the thing owned in common.
The lower court, upon motion of defendant, dismissed the
complaint, holding that the deeds of sale show that the lot
acquired by plaintiff Estoque was different from that of the
defendants Pajimula; hence they never became co-owners, and
the alleged right of legal redemption was not
proper. Estoque appealed.
We find no error in the order of dismissal, for the facts pleaded
negate the claim that appellant Estoque ever became a co-
owner of appellee Pajimula.
(1) The deed of sale to Estoque (Annex A of the complaint)
clearly specifies the object sold as the southeastern third
portion of lot 802 of the Rosario Cadastre, with an area of 840
square meters, more or less. Granting that the
seller, Crispina Perez Vda. de Aquitania could not have sold
this particular portion of the lot owned in common by her and
her two brothers, Lorenzo and Ricardo Perez, by no means
does it follow that she intended to sell to appellant Estoque her
1/3 undivided interest in the lot aforementioned. There is
nothing in the deed of sale to justify such inference. That the
seller could have validly sold her one-third undivided interest
to appellant is no proof that she did choose to sell the
same. Ab posse ad actu non vale illatio.
(2) While on the date of the sale to Estoque (Annex A) said
contract may have been ineffective, for lack of power in the
vendor to sell the spec portion described in the deed, the
transaction was validated and became fully effective when the
next day (October 29, 1951) the vendor, Crispina Perez,
acquired the entire interest of bar remaining co-owners (Annex
B) and there became the sole owner of Lot No. 802 of the
Rosario Cadastral survey (Llace, vs. Muoz, 12 Phil.
328). Article 1434 of the Civil Code of the Philippines clearly
prescribes that -
"When a person who is not the owner of a thing sells or
alienates and delivers it, and later the seller or grantor acquires
title thereto such title passes by operation of law to the buyer or
grantee."

Pursuant to this rule, appellant Estoque became the actual

owner of southeastern third of lot 802 on October 29,
1951. Wherefore, she never acquired an undivided interest in
lot 802. And when eight years later Cris Perez sold to
the appellees Pajimula the western two-thirds of the same lot
appellant did not acquire a right to redeem the property thus
sold, since the respective portions were distinct and separate.
IN VIEW OF THE FOREGOING, the appealed order of
dismissal is affirmed. Costs against appellant Estoque.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz
Castro, Angeles, and Fernando, JJ., concur.
G.R. No. 75884 September 24, 1987
JULITA GO ONG, FOR HERSELF AND AS JUDICIAL
GUARDIAN OF STEVEN GO ONG, petitioners,
vs.
THE HON. COURT OF APPEALS, ALLIED BANKING
CORPORATION and the CITY SHERIFF OF QUEZON
CITY, respondents.
PARAS, J.:
This is a petition for review on certiorari of the March 21, 1986
Decision * of the Court of Appeals in AC-G.R. CV No. 02635,
"Julita Ong etc. vs. Allied Banking Corp. et al." affirming, with
modification, the January 5, 1984 Decision of the Regional
Trial Court of Quezon City in Civil Case No. Q-35230.
The uncontroverted facts of this case, as found by the Court of
Appeals, are as follows:
...: Two (2) parcels of land in Quezon City
Identified as Lot No. 12, Block 407, Psd
37326 with an area of 1960.6 sq. m. and Lot
No. 1, Psd 15021, with an area of 3,660.8 sq.
m. are covered by Transfer Certificate of
Title No. 188705 in the name of "Alfredo
Ong Bio Hong married to Julita Go Ong
"(Exh. D). Alfredo Ong Bio Hong died on
January 18, 1975 and Julita Go Ong was
appointed administratrix of her husband's
estate in Civil Case No. 107089. The letters
of administration was registered on TCT No.
188705 on October 23, 1979. Thereafter,
Julita Go Ong sold Lot No. 12 to Lim Che
Boon, and TCT No. 188705 was partially
cancelled and TCT No. 262852 was issued in
favor of Lim Che Boon covering Lot No. 12
(Exh. D-4). On June 8, 1981 Julita Go Ong
through her attorney-in-fact Jovita K. Yeo
(Exh. 1) mortgaged Lot No. 1 to the Allied
Banking Corporation to secure a loan of
P900,000.00 obtained by JK Exports, Inc.
The mortgage was registered on TCT No.
188705 on the same date with the following
notation: "... mortgagee's consent necessary
in case of subsequent alienation or
encumbrance of the property other conditions
set forth in Doc. No. 340, Page No. 69, Book
No. XIX, of the Not. Public of Felixberto
Abad". On the loan there was due the sum of
P828,000.00 and Allied Banking Corporation
tried to collect it from Julita Go Ong, (Exh.
E). Hence, the complaint alleging nullity of
the contract for lack of judicial approval
which the bank had allegedly promised to
secure from the court. In response thereto, the
bank averred that it was plaintiff Julita Go
Ong who promised to secure the court's
approval, adding that Julita Go Ong informed
the defendant that she was processed the sum
of P300,000.00 by the JK Exports, Inc. which
will also take charge of the interest of the
loan.
Concluding, the trial court ruled:
Absent (of) any evidence
that the property in
question is the capital of
the deceased husband
brought into the marriage,
said property should be
presumed as acquired
during the marriage and,
therefore, conjugal
property,
After the dissolution of the
marriage with the death of
plaintiff's husband, the
plaintiff acquired, by law,
her conjugal share, together
with the hereditary rights
thereon. (Margate vs.
Rabacal, L-14302, April
30, 1963). Consequently,
the mortgage constituted on
said property, upon express
authority of plaintiff,
notwithstanding the lack of
judicial approval, is valid,
with respect to her conjugal
share thereon, together
with her hereditary rights.
On appeal by petitioner, respondent Court of Appeals affirmed,
with modification, the appealed decision (Record, pp. 19-22).
The dispositive portion of the appellate court's decision reads:
WHEREFORE, with the modification that
the extrajudicial foreclosure proceedings
instituted by defendant against plaintiff shall
be held in abeyance to await the final result
of Civil Case No. 107089 of the Court of
First Instance of Manila, 6th Judicial District
Branch XXXII, entitled "IN THE MATTER
OF THE INTESTATE ESTATE OF THE
LATE ALFREDO ONG BIO: JULITA GO
ONG, ADMINISTRATRIX". In pursuance
with which the restraining order of the lower
court in this case restraining the sale of the
properties levied upon is hereby ordered to
continue in full force and effect coterminous
with the final result of Civil Case No.
107089, the decision appealed from is hereby
affirmed. Costs against plaintiff-appellant.
SO ORDERED.
On April 8, 1986, petitioner moved for the reconsideration of
the said decision (Ibid., pp. 24-29), but in a Resolution dated
September 11, 1986, respondent court denied the motion for
lack of merit (Ibid., p. 23). Hence, the instant petition
(Ibid., pp. 6-17).
The Second Division of this Court, in a Resolution dated
November 19, 1986 (Rollo, p. 30), without giving due course to
the petition, resolved to require private respondent to comment
thereon and it did on February 19, 1987 (Ibid., pp. 37-42).
Thereafter, in a Resolution dated April 6, 1987, the petition
was given due course and the parties were required to file their
respective memoranda (Ibid., p. 43).
Petitioner filed her Memorandum on May 13, 1987 (Ibid., pp.
45-56), while private respondent filed its Memorandum on
May 20, 1987 (Ibid., pp. 62-68).
The sole issue in this case is
WHETHER OR NOT THE MORTGAGE CONSTITUTED
OVER THE PARCEL OF LAND UNDER PETITIONER'S
ADMINISTRATION IS NULL AND VOID FOR WANT OF
JUDICIAL APPROVAL.
The instant petition is devoid of merit.
The well-settled rule that the findings of fact of the trial court
are entitled to great respect, carries even more weight when
affirmed by the Court of Appeals as in the case at bar.
In brief, the lower court found: (1) that the property under the
administration of petitioner the wife of the deceased, is a
community property and not the separate property of the latter;
(2) that the mortgage was constituted in the wife's personal
capacity and not in her capacity as administratrix; and (3) that
the mortgage affects the wife's share in the community property
and her inheritance in the estate of her husband.
Petitioner, asserting that the mortgage is void for want of
judicial approval, quoted Section 7 of Rule 89 of the Rules of
Court and cited several cases wherein this Court ruled that the
regulations provided in the said section are mandatory.
While petitioner's assertion may have merit insofar as the rest
of the estate of her husband is concerned the same is not true as
regards her conjugal share and her hereditary rights in the
estate. The records show that petitioner willingly and
voluntarily mortgaged the property in question because she was
processed by JK Exports, Inc. the sum of P300,000.00 from the
proceeds of the loan; and that at the time she executed the real
estate mortgage, there was no court order authorizing the
mortgage, so she took it upon herself, to secure an order.
Thus, in confirming the findings of the lower court, as
supported by law and the evidence, the Court of Appeals aptly
ruled that Section 7 of Rule 89 of the Rules of Court is not
applicable, since the mortgage was constituted in her personal
capacity and not in her capacity as administratrix of the estate
of her husband.
Nevertheless, petitioner, citing the cases of Picardal, et al. vs.
Lladas (21 SCRA 1483) and Fernandez, et al. vs.
Maravilla (10 SCRA 589), further argues that in the settlement
proceedings of the estate of the deceased spouse, the entire
conjugal partnership property of the marriage is under
administration. While such may be in a sense true, that fact
alone is not sufficient to invalidate the whole mortgage,
willingly and voluntarily entered into by the petitioner. An
opposite view would result in an injustice. Under similar
circumstances, this Court applied the provisions of Article 493
of the Civil Code, where the heirs as co-owners shall each have
the full ownership of his part and the fruits and benefits
pertaining thereto, and he may therefore alienate, assign or
mortgage it, and even effect of the alienation or mortgage, with
respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of
the co-ownership (Philippine National Bank vs. Court of
Appeals, 98 SCRA 207 [1980]).
Consequently, in the case at bar, the trial court and the Court of
Appeals cannot be faulted in ruling that the questioned
mortgage constituted on the property under administration, by
authority of the petitioner, is valid, notwithstanding the lack of
judicial approval, with respect to her conjugal share and to her
hereditary rights. The fact that what had been mortgaged was in
custodia legis is immaterial, insofar as her conjugal share and
hereditary share in the property is concerned for after all, she
was the ABSOLUTE OWNER thereof. This ownership by hers
is not disputed, nor is there any claim that the rights of the
government (with reference to taxes) nor the rights of any heir
or anybody else have been prejudiced for impaired. As stated
by Associate Justice (later Chief Justice) Manuel Moran
in Jakosalem vs. Rafols, et al., 73 Phil. 618
The land in question, described in the
appealed decision, originally belonged to
Juan Melgar. The latter died and the judicial
administration of his estate was commenced
in 1915 and came to a close on December 2,
1924, only. During the pendency of the said
administration, that is, on July 5, 1917,
Susana Melgar, daughter of the deceased
Juan Melgar, sold the land with the right of
repurchase to Pedro Cui, subject to the
stipulation that during the period for the
repurchase she would continue in possession
of the land as lessee of the purchase. On
December 12, 1920, the partition of the estate
left by the deceased Juan Melgar was made,
and the land in question was adjudicated to
Susana Melgar. In 1921, she conveyed, in
payment of professional fees, one-half of the
land in favor of the defendant-appellee
Nicolas Rafols, who entered upon the portion
thus conveyed and has been in possession
thereof up to the present. On July 23, 1921,
Pedro Cui brought an action to recover said
half of the land from Nicolas Rafols and the
other half from the other defendants, and
while that case was pending, or about August
4, 1925, Pedro Cui donated the whole land in
question to Generosa Teves, the herein
 plaintiff-appellant, after trial, the lower court
rendered a decision absolving Nicolas Rafols
as to the one-half of the land conveyed to him
by Susana Melgar, and declaring the plaintiff
owner of the other half by express
acknowledgment of the other defendants. The
plaintiff appealed from that part of the
judgment which is favorable to Nicolas
Rafols.

The lower court absolved Nicolas Rafols

upon the theory that Susana Melgar could not
have sold anything to Pedro Cui because the
land was then in custodia legis, that is, under
judicial administration. This is error. That the
land could not ordinary be levied upon while
in custodia legis, does not mean that one of
the heirs may not sell the right, interest or
participation which he has or might have in
the lands under administration. The ordinary
execution of property in custodia legis is
prohibited in order to avoid interference with
the possession by the court. But the sale
made by an heir of his share in an
inheritance, subject to the result of the
pending administration, in no wise stands in
the way of such administration.

The reference to judicial approval in Sec. 7, Rule 89 of the

Rules of Court cannot adversely affect the substantiverights of
private respondent to dispose of her Ideal [not inchoate, for the
conjugal partnership ended with her husband's death, and her
hereditary rights accrued from the moment of the death of the
decedent (Art. 777, Civil Code) share in the co-heirship and/or
co-ownership formed between her and the other heirs/co-
owners (See Art. 493, Civil Code, supra.). Sec. 7, Art. 89 of the
Civil Code applies in a case where judicial approval has to be
sought in connection with, for instance, the sale or mortgage of
property under administration for the payment, say of a
conjugal debt, and even here, the conjugal and hereditary
shares of the wife are excluded from the requisite judicial
approval for the reason already adverted to hereinabove,
provided of course no prejudice is caused others, including the
government.

Moreover, petitioner is already estopped from questioning the

mortgage. An estoppel may arise from the making of a promise
even though without consideration, if it was intended that the
promise should be relied upon and in fact it was relied upon,
and if a refusal to enforce it would be virtually to sanction the
perpetration of fraud or would result in other injustice (Gonzalo
Sy Trading vs. Central Bank, 70 SCRA 570).

PREMISES CONSIDERED, the instant petition is hereby

DENIED and the assailed decision of the Court of Appeals is
hereby AFFIRMED.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento,

JJ., concur.
G.R. No. 102380 January 18, 1993
HERODOTUS P. ACEBEDO and DEMOSTHENES P.
ACEBEDO, petitioners,
vs.
HON. BERNARDO P. ABESAMIS, MIGUEL ACEBEDO,
ALEXANDER ACEBEDO, NAPOLEON ACEBEDO,
RIZALINO ACEBEDO, REPUBLICA ACEBEDO,
FILIPINAS ACEBEDO and YU HWA PING, respondents.
Heminio L. Ruiz for petitioners.
Vicente D. Millora for private respondents.
Romero A. Yu for respondent Yu Hua Ping.
CAMPOS, JR., J.:
The lower court's jurisdiction in approving a Deed of
Conditional Sale executed by respondents-heirs and ordering
herein administrator-petitioner Herodotus Acebedo to sell the
remaining portions of said properties, despite the absence of its
prior approval as a probate court, is being challenged in the
case at bar.
The late Felix Acebedo left an estate consisting of several real
estate properties located in Quezon City and Caloocan City,
with a conservative estimated value of about P30 million. Said
estate allegedly has only the following unsettled claims:
a. P87,937.00 representing unpaid real estate
taxes due Quezon City;
b. P20,244.00 as unpaid real estate taxes due
Caloocan City;
c. The unpaid salaries/allowances of former
Administrator Miguel Acebedo, and the
incumbent Administrator Herodotus
Acebedo; and
d. Inheritance taxes that may be due on the
net estate.
The decedent was succeeded by eight heirs, two of whom are
the petitioners herein, and the others are the private
respondents.
Due to the prolonged pendency of the case before the
respondent Court for sixteen years, respondents-heirs filed a
"Motion for Approval of Sale", on October 4, 1989. The said
sale involved the properties covered by Transfer Certificate of
Title Nos. 155569, 120145, 9145, and 18709, all of which are
registered in Quezon City, and form part of the estate. The
consideration for said lots was twelve (12) million pesos and by
that time, they already had a buyer. It was further stated in said
Motion that respondents-heirs have already received their
proportionate share of the six (6) million pesos paid by the
buyer, Yu Hwa Ping, as earnest money; that the balance of
P6,000,000.00 is more than enough to pay the unsettled claims
against the estate. Thus, they prayed for the Court to direct the
administrator, Herodotus Acebedo (referred to as petitioner-
administrator hereafter):
1. to sell the properties mentioned in the
motion;
2. with the balance of P6 million, to pay all
the claims against the Estate; and
3. to distribute the residue among the Heirs in
final settlement of the Estate.
To the aforesaid Motion, herein petitioner-administrator
interposed an "Opposition to Approval of Sale", to wit:
1. That he has learned that some of the heirs
herein have sold some real estate property of
the Estate located at Balintawak, Quezon
City, without the knowledge of the herein
administrator, without the approval of this
Honorable Court and of some heirs, and at a
shockingly low price;
2. That he is accordingly hereby registering
his vehement objection to the approval of the
sale, perpetrated in a manner which can even
render the proponents of the sale liable for
punishment for contempt of this Honorable
Court;
3. The herein Administrator instead herein
prays this Honorable Court to authorize the
sale of the above mentioned property of the
Estate to generate funds to pay certain
liabilities of the Estate and with the approval
of this Honorable Court if warranted, to give
the heirs some advances chargeable against
theirs (sic) respective shares, and, for the
purpose to authorize the herein
Administrator, and the other heirs to help the
Administrator personally or through a broker,
to look for a buyer for the highest obtainable
price, subject always to the approval of this
Honorable Court.1
On October 30, 1989, herein petitioners moved to be given a
period of forty-five (45) days within which to look for a buyer
who will be willing to buy the properties at a price higher than
P12,000,000.00.
The case was set for hearing on December 15, 1989. However,
by said date, petitioners have not found any buyer offering
better terms. Thus, they asked the Court, on February 8, 1990,
for an in extendible period of thirty days to look for a buyer.
Petitioner-administrator then filed a criminal complaint for
falsification of a public document against Yu Hwa Ping and
notary public Eugenio Obon on February 26, 1990. He initiated
this complaint upon learning that it was Yu Hwa Ping who
caused the notarization of the Deed of Conditional Sale
wherein allegedly petitioner-administrator's signature was
made to appear. He also learned that after he confronted the
notary public of the questioned document, the latter revoked his
notarial act on the same.
On April 2, 1990, petitioner-administrator filed the civil action
to secure the declaration by the Court of the nullity of the Deed
of Conditional Sale and the Deed of Absolute Sale.
The period granted herein petitioners having lapsed without
having found a buyer, petitioner Demosthenes Acebedo sought
to nullify the Orders granting them several periods within
which to look for a better buyer. Respondents filed a comment
thereon.
Having miserably failed to find a better buyer, after seven long
months, petitioner-administrator filed another "Opposition to
Approval of Sale", dated May 10, 1990, maintaining that the
sale should wait for the country to recover from the effects of
the coup d'etat attempts, otherwise, the properties should be
divided among the heirs.
On June 21, 1990, petitioners filed a "Motion for Leave of
Court to Mortgage and Lease some of the Properties of the
Estate". To this Motion, respondents filed an Opposition on the
following grounds : that the motion is not proper because of the
pending motion to approve the sale of the same properties; that
said conditional sale was initiated by petitioner-administrator
who had earlier signed a receipt for P500,000.00 as earnest
money; that the approval of the sale would mean Yu Hwa
Ping's assumption of payment of the realty taxes; that the estate
has no further debts and thus, the intestate administrator may
be terminated.
On August 17, 1990, respondent Court issued an Order, the
dispositive portion of which, stated, among others, to wit:2
b. the motion filed by the heirs-movants,
dated October 4, 1989, praying that the new
administrator be directed to sell the
properties covered by TCT Nos. 155569,
120145, 9145 and 18709, in favor of Yu Hwa
Ping is hereby denied; and
c. the new administrator is hereby granted
leave to mortgage some properties of the
estate at a just and reasonable amount,
subject to the approval of the Court.
On December 4, 1990, the respondent Judge issued an order
resolving to call the parties to a conference on December 17,
1990. The conference was held, but still the parties were unable
to arrive at an agreement. So, on January 4, 1991, it was
continued, wherein the parties actually agreed that the heirs be
allowed to sell their shares of the properties to Yu Hwa Ping
for the price already agreed upon, while herein petitioners
negotiate for a higher price with Yu Hwa Ping.
Petitioners, then, instead filed a "Supplemental Opposition" to
the approval of the Deed of Conditional Sale.
On March 29, 1991, the respondent Court issued the challenged
Order, the dispositive portion of which states, to wit:
WHEREFORE, the Order dated August 7,
1990, is hereby lifted, reconsidered and set
aside, and another one is hereby issued as
follows:
1. Approving the conditional sale, dated
September 10, 1989, executed by the heirs-
movants, in favor of Yu Hwa Ping, pertaining
to their respective shares in the properties
covered by TCT Nos. 155569, 120145, 1945
and 18709 of the Register of Deeds of
Quezon City;
2. Ordering the administrator Herodotus
Acebedo to sell the remaining portions of the
said properties also in favor of Yu Hwa Ping
at the same price as the sale executed by the
herein heirs-movants;
3. Ordering Yu Hwa Ping to deposit with the
Court the total remaining balance of the
purchase price for the said lots within
TWENTY (20) DAYS from notice hereof;
4. The motion to cite former administrator
Miguel Acebedo in contempt of court,
resulting from his failure to submit the
owner's copy of TCT Nos. 155569, and
120145 is hereby denied.3
Yu Hwa Ping, on April 4, 1991, deposited the remaining
balance of the purchase price for the properties subject of the
Deed of Conditional Sale in the amount of P6,500,000.00.
Petitioners herein received the questioned Order on April 11,
1991. Twenty one (21) days thereafter, they filed a Motion for
Reconsideration, praying that the Court reinstate its Order of
August 17, 1990. To this, private respondents filed their
Opposition.4
Instead of making a reply, petitioners herein filed a
Supplemental Motion for Reconsideration. The motions for
reconsideration of herein petitioners were denied by the
respondent Court on August 23, 1991.
On September 23, 1991, herein petitioners filed a Motion for
Partial Reconsideration, hoping for the last time that they
would be able to convince the Court that its Order dated March
29, 1991 in effect approving the conditional sale is erroneous
and beyond its jurisdiction.
On October 17, 1991, the respondent Court denied the Motion
for Partial Reconsideration for "lack of merit".
On November 7, 1991, private respondents filed a Motion for
Execution of the Order dated March 29, 1991. This was
pending resolution when the petitioners filed this Petition
for Certiorari.
The controversy in the case at bar revolves around one
question: Is it within the jurisdiction of the lower court, acting
as a probate court, to issue an Order approving the Deed of
Conditional Sale executed by respondents-heirs without prior
court approval and to order herein Administrator to sell the
remaining portion of said properties?
We answer in the positive?
In the case of Dillena vs. Court of Appeals,5 this Court made a
pronouncement that it is within the jurisdiction of the probate
court to approve the sale of properties of a deceased person by
his prospective heirs before final adjudication. Hence, it is error
to say that this matter should be threshed out in a separate
action.
The Court further elaborated that although the Rules of Court
do not specifically state that the sale of an immovable property
belonging to an estate of a decedent, in a special proceeding,
should be made with the approval of the court, this authority is
necessarily included in its capacity as a probate court.
Therefore, it is clear that the probate court in the case at bar,
acted within its jurisdiction in issuing the Order approving the
Deed of Conditional Sale.
We cannot countenance the position maintained by herein
petitioners that said conditional sale is null and void for lack of
prior court approval. The sale precisely was made conditional,
the condition being that the same should first be approved by
the probate court.
Petitioners herein anchor their claim on Section 7, Rule 89 of
the Rules of Court.6 It is settled that court approval is necessary
for the validity of any disposition of the decedent's estate.
However, reference to judicial approval cannot adversely affect
the substantive rights of the heirs to dispose of their ideal share
in the co-heirship and/or co-ownership among the heirs.7
The Civil Code, under the provisions on co-ownership, further
qualifies this right.11 Although it is mandated that each co-
owner shall have the full ownership of his part and of the fruits
and benefits pertaining thereto, and thus may alienate, assign or
mortgage it, and even substitute another person in its
enjoyment, the effect of the alienation or the mortgage, with
respect to the
co-owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of the co-
ownership.12 In other words, the law does not prohibit a co-
owner from selling, alienating or mortgaging his ideal share in
the property held in common.13
As early as 1942, this Court has recognized said right of an heir
to dispose of property under administration. In the case
of Teves de Jakosalem vs. Rafols, et al.,14 it was said that the
sale made by an heir of his share in an inheritance, subject to
the result of the pending administration, in no wise, stands in
the way of such administration. The Court then relied on the
provision of the Old Civil Code, Article 440 and Article 339
which are still in force as Article 533 and Article 493,
respectively, in the new Civil Code. The Court also cited the
words of a noted civilist, Manresa: "Upon the death of a
person, each of his heirs 'becomes the undivided owner of the
whole estate left with respect to the part or portion which might
be adjudicated to him, a community of ownership being thus
formed among the co-owners of the estate which remains
undivided'."
Private respondents having secured the approval of the probate
court, a matter which is unquestionably within its jurisdiction,
and having established private respondents' right to alienate the
decedent's property subject of administration, this Petition
should be dismissed for lack of merit.
PREMISES considered, Petition is hereby DISMISSED. With
Costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur.

This Court had the occasion to rule that there is no doubt that
an heir can sell whatever right, interest, or participation he may
have in the property under administration. This is a matter
which comes under the jurisdiction of the probate court. 8

The right of an heir to dispose of the decedent's property, even

if the same is under administration, is based on the Civil Code
provision9 stating that the possession of hereditary property is
deemed transmitted to the heir without interruption and from
the moment of the death of the decedent, in case the inheritance
is accepted. Where there are however, two or more heirs, the
whole estate of the decedent is, before its partition, owned in
common by such heirs. 10
G.R. No. 61584 November 25, 1992
DONATO S. PAULMITAN, JULIANA P. FANESA and
RODOLFO FANESA, petitioners,
vs.
COURT OF APPEALS, ALICIO PAULMITAN, ELENA
PAULMITAN, ABELINO PAULMITAN, ANITA
PAULMITAN, BAKING PAULMITAN, ADELINA
PAULMITAN and ANITO PAULMITAN, respondents.
ROMERO, J.:
This is a petition for review on certiorari seeking the reversal
of the decision 1 of the Court of Appeals, dated July 14, 1982 in
CA-G.R. No. 62255-R entitled "Alicio Paulmitan, et al. v.
Donato Sagario Paulmitan, et al." which affirmed the
decision 2 of the then Court of First Instance (now RTC) of
Negros Occidental, 12th Judicial District, Branch IV, Bacolod
City, in Civil Case No. 11770.
The antecedent facts are as follows:
Agatona Sagario Paulmitan, who died sometime in 1953, 3 left
the two following parcels of land located in the Province of
Negros Occidental: (1) Lot No. 757 with an area of 1,946
square meters covered by Original Certificate of Title (OCT)
No. RO-8376; and (2) Lot No. 1091 with an area of 69,080
square meters and covered by OCT No. RO-11653. From her
marriage with Ciriaco Paulmitan, who is also now deceased,
Agatona begot two legitimate children, namely: Pascual
Paulmitan, who also died in 1953, 4 apparently shortly after his
mother passed away, and Donato Paulmitan, who is one of the
petitioners. Petitioner Juliana P. Fanesa is Donato's daughter
while the third petitioner, Rodolfo Fanes, is Juliana's husband.
Pascual Paulmitan, the other son of Agatona Sagario, is
survived by the respondents, who are his children, name:
Alicio, Elena, Abelino, Adelina, Anita, Baking and Anito, all
surnamed Paulmitan.
Until 1963, the estate of Agatona Sagario Paulmitan remained
unsettled and the titles to the two lots mentioned above
remained in the name of Agatona. However, on August 11,
1963, petitioner Donato Paulmitan executed an Affidavit of
Declaration of Heirship, extrajudicially adjudicating unto
himself Lot No. 757 based on the claim that he is the only
surviving heir of Agatona Sagario. The affidavit was filed with
the Register of Deeds of Negros Occidental on August 20,
1963, cancelled OCT No. RO-8376 in the name of Agatona
Sagario and issued Transfer Certificate of Title (TCT) No.
35979 in Donato's name.
As regards Lot No. 1091, Donato executed on May 28, 1974 a
Deed of Sale over the same in favor of petitioner Juliana P.
Fanesa, his daughter. 5
In the meantime, sometime in 1952, for non-payment of taxes,
Lot No. 1091 was forfeited and sold at a public auction, with
the Provincial Government of Negros Occidental being the
buyer. A Certificate of Sale over the land was executed by the
Provincial Treasurer in favor of the Provincial Board of Negros
Occidental. 6
On May 29, 1974, Juliana P. Fanesa redeemed the property
from the Provincial Government of Negros Occidental for the
amount of P2,959.09. 7
On learning of these transactions, respondents children of the
late Pascual Paulmitan filed on January 18, 1975 with the Court
of First Instance of Negros Occidental a Complaint against
petitioners to partition the properties plus damages.
Petitioners set up the defense of prescription with respect to Lot
No. 757 as an affirmative defense, contending that the
Complaint was filed more than eleven years after the issuance
of a transfer certificate of title to Donato Paulmitan over the
land as consequence of the registration with the Register of
Deeds, of Donato's affidavit extrajudicially adjudicating unto
himself Lot No. 757. As regards Lot No. 1091, petitioner
Juliana P. Fanesa claimed in her Answer to the Complaint that
she acquired exclusive ownership thereof not only by means of
a deed of sale executed in her favor by her father, petitioner
Donato Paulmitan, but also by way of redemption from the
Provincial Government of Negros Occidental.
Acting on the petitioners' affirmative defense of prescription
with respect to Lot No. 757, the trial court issued an order
dated April 22, 1976 dismissing the complaint as to the said
property upon finding merit in petitioners' affirmative defense.
This order, which is not the object of the present petition, has
become final after respondents' failure to appeal therefrom.
Trial proceeded with respect to Lot No. 1091. In a decision
dated May 20, 1977, the trial court decided in favor of
respondents as to Lot No. 1091. According to the trial court,
the respondents, as descendants of Agatona Sagario Paulmitan
were entitled to one-half (1/2) of Lot No. 1091, pro
indiviso. The sale by petitioner Donato Paulmitan to his
daughter, petitioner Juliana P. Fanesa, did not prejudice their
rights. And the repurchase by Juliana P. Fanesa of the land
from the Provincial Government of Negros Occidental did not
vest in Juliana exclusive ownership over the entire land but
only gave her the right to be reimbursed for the amount paid to
redeem the property. The trial court ordered the partition of the
land and directed petitioners Donato Paulmitan and Juliana P.
Fanesa to pay private respondents certain amounts representing
the latter's share in the fruits of the land. On the other hand,
respondents were directed to pay P1,479.55 to Juliana P.
Fanesa as their share in the redemption price paid by Fanesa to
the Provincial Government of Negros Occidental. The
dispositive portion of the trial court's decision reads:
WHEREFORE, judgment is hereby rendered
on the second cause of action pleaded in the
complain as follows:
1. The deed of sale (Exh. "F") dated May 28,
1974 is valid insofar as the one-half
undivided portion of Lot 1091 is concerned
as to vest ownership over said half portion in
 favor of defendant Juliana Fanesa and her
husband Rodolfo Fanesa, while the
remaining half shall belong to plaintiffs, pro-
indiviso;
2. Lot 1091, Cadastral Survey of Pontevedra,
Province of Negros Occidental, now covered
by TCT No. RO-11653 (N.A.), is ordered
partitioned. The parties must proceed to an
actual partition by property instrument of
partition, submitting the corresponding
subdivision within sixty (60) days from
finality of this decision, and should they fail
to agree, commissioners of partition may be
appointed by the Court;
3. Pending the physical partition, the Register
of Deeds of Negros Occidental is ordered to
cancel Original Certificate of Title No. RO-
11653 (N.A.) covering Lot 1091, Pontevedra
Cadastre, and to issue in lieu thereof a new
certificate of title in the name of plaintiffs
and defendants, one-half portion each,pro-
indiviso, as indicated in paragraph 1 above;
4. Plaintiffs are ordered to pay, jointly and
severally, defendant Juliana Fanesa the
amount of P1,479.55 with interest at the legal
rate from May 28, 1974 until paid;
5 Defendants Donato Sagario Paulmitan and
Juliana Paulmitan Fanesa are ordered to
account to plaintiffs and to pay them, jointly
and severally, the value of the produce from
Lot 1091 representing plaintiffs' share in the
amount of P5,000.00 per year from 1966 up
to the time of actual partition of the property,
and to pay them the sum of P2,000.00 as
attorney's fees as well as the costs of the suit.
xxx xxx xxx
On appeal, the Court of Appeals affirmed the trial court's
decision. Hence this petition.
To determine the rights and obligations of the parties to the
land in question, it is well to review, initially, the relatives who
survived the decedent Agatona Sagario Paulmitan. When
Agatona died in 1953, she was survived by two (2) sons,
Donato and Pascual. A few months later in the same year,
Pascual died, leaving seven children, the private respondents.
On the other had, Donato's sole offspring was petitioner Juliana
P. Fanesa.
At the time of the relevant transactions over the properties of
decedent Agatona Sagario Paulmitan, her son Pascual had died,
survived by respondents, his children. It is, thus, tempting to
apply the principles pertaining to the right of representation as
regards respondents. It must, however, be borne in mind that
Pascual did no predecease his mother, 8 thus precluding the
operation of the provisions in the Civil Code on the right of
representation 9 with respect to his children, the respondents.
When Agatona Sagario Paulmitan died intestate in 1952, her
two (2) sons Donato and Pascual were still alive. Since it is
well-settled by virtue of Article 777 of the Civil Code that
"[t]he rights to the succession are transmitted from the moment
of the death of the decedent," 10 the right of ownership, not only
of Donato but also of Pascual, over their respective shares in
the inheritance was automatically and by operation of law
vested in them in 1953 when their mother died intestate. At that
stage, the children of Donato and Pascual did not yet have any
right over the inheritance since "[i]n every inheritance, the
relative nearest in degree excludes the more distant
ones." 11 Donato and Pascual excluded their children as to the
right to inherit from Agatona Sagario Paulmitan, their mother.
From the time of the death of Agatona Sagario Paulmitan to the
subsequent passing away of her son Pascual in 1953, the estate
remained unpartitioned. Article 1078 of the Civil Code
provides: "Where there are two or more heirs, the whole estate
of the decedent is, before its partition, owned in common by
such heirs, subject to the payment of debts of the
deceased." 12 Donato and Pascual Paulmitan were, therefore,
co-owners of the estate left by their mother as no partition was
ever made.
When Pascual Paulmitan died intestate in 1953, his children,
the respondents, succeeded him in the co-ownership of the
disputed property. Pascual Paulmitan's right of ownership over
an undivided portion of the property passed on to his children,
who, from the time of Pascual's death, became co-owners with
their uncle Donato over the disputed decedent estate.
Petitioner Juliana P. Fanesa claims ownership over Lot No.
1091 by virtue of two transactions, namely: (a) the sale made in
her favor by her father Donato Paulmitan; and (b) her
redemption of the land from the Provincial of Negros
Occidental after it was forfeited for non-payment of taxes.
When Donato Paulmitan sold on May 28, 1974 Lot No. 1091 to
his daughter Juliana P. Fanesa, he was only a co-owner with
respondents and as such, he could only sell that portion which
may be allotted to him upon termination of the co-
ownership. 13 The sale did not prejudice the rights of
respondents to one half (1/2) undivided share of the land which
they inherited from their father. It did not vest ownership in the
entire land with the buyer but transferred only the seller's pro-
indiviso share in the property 14 and consequently made the
buyer a co-owner of the land until it is partitioned. In Bailon-
Casilao v. Court of Appeals, 15 the Court, through Justice Irene
R. Cortes, outlined the effects of a sale by one co-owner
without the consent of all the co-owners, thus:
The rights of a co-owner of a certain property
are clearly specified in Article 493 of the
Civil Code, Thus:
Art. 493. Each co-owner shall have the full
ownership of his part and of the fruits and
benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it and
 even substitute another person its enjoyment,
except when personal rights are involved. But
the effect of the alienation or mortgage, with
respect to the co-owners, shall be limited to
the portion which may be allotted to him in
the division upon the termination of the co-
ownership. [Emphasis supplied.]
As early as 1923, this Court has ruled that
even if a co-owner sells the whole property
as his, the sale will affect only his own share
but not those of the other co-owners who did
not consent to the sale [Punsalan v. Boon
Liat, 44 Phil. 320 (1923)]. This is because
under the aforementioned codal provision,
the sale or other disposition affects only his
undivided share and the transferee gets only
what would correspond to his grantor in the
partition of the thing owned in common
[Ramirez v. Bautista, 14 Phil. 528 (1909)].
Consequently, by virtue of the sales made by
Rosalia and Gaudencio Bailon which are
valid with respect to their proportionate
shares, and the subsequent transfers which
culminated in the sale to private respondent
Celestino Afable, the said Afable thereby
became a co-owner of the disputed parcel of
land as correctly held by the lower court
since the sales produced the effect of
substituting the buyers in the enjoyment
thereof [Mainit v. Bandoy, 14 Phil. 730
(1910)].
From the foregoing, it may be deduced that
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.
Applying this principle to the case at bar, the sale by petitioner
Donato Paulmitan of the land to his daughter, petitioner Juliana
P. Fanesa, did not give to the latter ownership over the entire
land but merely transferred to her the one half (1/2) undivided
share of her father, thus making her the co-owner of the land in
question with the respondents, her first cousins.
Petitioner Juliana P. Fanesa also claims ownership of the entire
property by virtue of the fact that when the Provincial
Government of Negros Occidental bought the land after it was
forfeited for non-payment of taxes, she redeemed it.
The contention is without merit.
The redemption of the land made by Fanesa did not terminate
the co-ownership nor give her title to the entire land subject of
the co-ownership. Speaking on the same issue raised by
petitioners, the Court, in Adille v. Court of Appeals, 16 resolved
the same with the following pronouncements:
The petition raises a purely legal issue: May
a co-owner acquire exclusive ownership over
the property held in common?
Essentially, it is the petitioners' contention
that the property subject of dispute devolved
upon him upon the failure of his co-heirs to
join him in its redemption within the period
required by law. He relies on the provisions
of Article 1515 of the old Civil Code, Article
1613 of the present Code, giving the vendee a
retro the right to demand redemption of the
entire property.
There is no merit in this petition.
The right of repurchase may be exercised by
co-owner with respect to his share alone
(CIVIL CODE, art. 1612, CIVIL CODE
(1889), art. (1514.). While the records show
that petitioner redeemed the property in its
entirety, shouldering the expenses therefor,
that did not make him the owner of all of it.
In other words, it did not put to end the
existing state of co-ownership (Supra, Art.
489). There is no doubt that redemption of
property entails a necessary expense. Under
the Civil Code:
Art. 488. Each co-owner shall have a right to
compel the other co-owners to contribute to
the expenses of preservation of the thing or
right owned in common and to the taxes. Any
one of the latter may exempt himself from
this obligation by renouncing so much of his
undivided interest as may be equivalent to his
share of the expenses and taxes. No such
waiver shall be made if it is prejudicial to the
co-ownership.
The result is that the property remains to be
in a condition of co-ownership. While a
vendee a retro, under Article 1613 of the
Code, "may not be compelled to consent to a
partial redemption," the redemption by one
co-heir or co-owner of the property in its
totality does not vest in him ownership over
it. Failure on the part of all the co-owners to
redeem it entitles the vendee a retro to retain
the property and consolidate title thereto in
his name (Supra, art. 1607). But the
provision does not give to the redeeming co-
owner the right to the entire property. It does
not provide for a mode of terminating a co-
ownership.
Although petitioner Fanesa did not acquire ownership over the
entire lot by virtue of the redemption she made, nevertheless,
she did acquire the right to reimbursed for half of the
redemption price she paid to the Provincial Government of
Negros Occidental on behalf of her co-owners. Until
reimbursed, Fanesa hold a lien upon the subject property for
the amount due her. 17

Finally, petitioners dispute the order of the trial court, which

the Court of Appeals affirmed, for them to pay private
respondents P5,000.00 per year from 1966 until the partition of
the estate which represents the share of private respondents in
the fruits of the land. According to petitioners, the land is being
leased for P2,000.00 per year only. This assigned error,
however raises a factual question. The settled rule is that only
questions of law may be raised in a petition for review. As a
general rule, findings of fact made by the trial court and the
Court of Appeals are final and conclusive and cannot be
reviewed on appeal. 18

WHEREFORE, the petition is DENIED and the decision of the

Court of Appeals AFFIRMED.

SO ORDERED.

Gutierrez, Jr., Bidin, Davide, Jr., Romero and Melo, JJ.,

concur.
G.R. No. 76351 October 29, 1993
VIRGILIO B. AGUILAR, petitioner,
vs.
COURT OF APPEALS and SENEN B.
AGUILAR, respondents.
Jose F. Manacop for petitioner.
Siruello, Muyco & Associates Law Office for private
respondent.
BELLOSILLO, J.:
This is a petition for review on certiorari seeking to reverse
and set aside the Decision of the Court of Appeals in CA-GR
CV No. 03933 declaring null and void the orders of 23 and 26
April, 1979, the judgment by default of 26 July 1979, and the
order of 22 October 1979 of the then Court of First Instance of
Rizal, Pasay City, Branch 30, and directing the trial court to set
the case for pre-trial conference.
Petitioner Virgilio and respondent Senen are brothers; Virgilio
is the youngest of seven (7) children of the late Maximiano
Aguilar, while Senen is the fifth. On 28 October 1969, the two
brothers purchased a house and lot in Paraaque where their
father could spend and enjoy his remaining years in a peaceful
neighborhood. Initially, the brothers agreed that Virgilio's share
in the co-ownership was two-thirds while that of Senen was
one-third. By virtue of a written memorandum dated 23
February 1970, Virgilio and Senen agreed that henceforth their
interests in the house and lot should be equal, with Senen
assuming the remaining mortgage obligation of the original
owners with the Social Security System (SSS) in exchange for
his possession and enjoyment of the house together with their
father.
Since Virgilio was then disqualified from obtaining a loan from
SSS, the brothers agreed that the deed of sale would be
executed and the title registered in the meantime in the name of
Senen. It was further agreed that Senen would take care of their
father and his needs since Virgilio and his family were staying
in Cebu.
After Maximiano Aguilar died in 1974, petitioner demanded
from private respondent that the latter vacate the house and that
the property be sold and proceeds thereof divided among them.
Because of the refusal of respondent to give in to petitioner's
demands, the latter filed on 12 January 1979 an action to
compel the sale of the house and lot so that the they could
divide the proceeds between them.
In his complaint, petitioner prayed that the proceeds of the sale,
be divided on the basis of two-thirds (2/3) in his favor and one-
third (1/3) to respondent. Petitioner also prayed for monthly
rentals for the use of the house by respondent after their father
died.
In his answer with counterclaim, respondent alleged that he had
no objection to the sale as long as the best selling price could
be obtained; that if the sale would be effected, the proceeds
thereof should be divided equally; and, that being a co-owner,
he was entitled to the use and enjoyment of the property.
Upon issues being joined, the case was set for pre-trial on 26
April 1979 with the lawyers of both parties notified of the pre-
trial, and served with the pre-trial order, with private
respondent executing a special power of attorney to his lawyer
to appear at the pre-trial and enter into any amicable settlement
in his behalf.1
On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel for
respondent, filed a motion to cancel pre-trial on the ground that
he would be accompanying his wife to Dumaguete City where
she would be a principal sponsor in a wedding.
On 23 April 1979, finding the reasons of counsel to be without
merit, the trial court denied the motion and directed that the
pre-trial should continue as scheduled.
When the case was called for pre-trial as scheduled on 26 April
1979, plaintiff and his counsel appeared. Defendant did not
appear; neither his counsel in whose favor he executed a
special power of attorney to represent him at the pre-trial.
Consequently, the trial court, on motion of plaintiff, declared
defendant as in default and ordered reception of plaintiff's
evidence ex parte.
On 7 May 1979, defendant through counsel filed an omnibus
motion to reconsider the order of default and to defer reception
of evidence. The trial court denied the motion and plaintiff
presented his evidence.
On 26 July 1979, rendering judgment by default against
defendant, the trial court found him and plaintiff to be co-
owners of the house and lot, in equal shares on the basis of
their written agreement. However, it ruled that plaintiff has
been deprived of his participation in the property by
defendant's continued enjoyment of the house and lot, free of
rent, despite demands for rentals and continued maneuvers of
defendants, to delay partition. The trial court also upheld the
right of plaintiff as co-owner to demand partition. Since
plaintiff could not agree to the amount offered by defendant for
the former's share, the trial court held that this property should
be sold to a third person and the proceeds divided equally
between the parties.
The trial court likewise ordered defendant to vacate the
property and pay plaintiff P1,200.00 as rentals2 from January
1975 up to the date of decision plus interest from the time the
action was filed.
On 17 September 1979, defendant filed an omnibus motion for
new trial but on 22 October 1979 the trial court denied the
motion.
Defendant sought relief from the Court of Appeals praying that
the following orders and decision of the trial court be set aside:
(a) the order of 23 April 1970 denying defendants motion for
postponement of the pre-trial set on 26 April 1979; (b) the
order of 26 April 1979 declaring him in default and authorizing
plaintiff to present his evidence ex-parte; (e) the default
judgment of 26 July 1979; and, (d) the order dated 22 October
1979 denying his omnibus motion for new trial.
On 16 October 1986, the Court of Appeals set aside the order
of the trial court of 26 April 1979 as well as the assailed
judgment rendered by default., The appellate court found the
explanation of counsel for defendant in his motion to cancel
pre-trial as satisfactory and devoid of a manifest intention to
delay the disposition of the case. It also ruled that the trial court
should have granted the motion for postponement filed by
counsel for defendant who should not have been declared as in
default for the absence of his counsel.
Petitioner now comes to us alleging that the Court of Appeals
erred (1) in not holding that the motion of defendant through
counsel to cancel the pre-trial was dilatory in character and (2)
in remanding the case to the trial court for pre-trial and trial.
The issues to be resolved are whether the trial court correctly
declared respondent as in default for his failure to appear at the
pre-trial and in allowing petitioner to present his evidence ex-
parte, and whether the trial court correctly rendered the default
judgment against respondent.
We find merit in the petition.
As regards the first issue, the law is clear that the appearance of
parties at the pre-trial is mandatory.3 A party who fails to
appear at a pre-trial conference may be non-suited or
considered as in default.4 In the case at bar, where private
respondent and counsel failed to appear at the scheduled pre-
trial, the trial, court has authority to declare respondent in
default.5
Although respondent's counsel filed a motion to postpone pre-
trial hearing, the grant or denial thereof is within the sound
discretion of the trial court, which should take into account two
factors in the grant or denial of motions for postponement,
namely: (a) the reason for the postponement and (b) the merits
of the case of movant.6
In the instant case, the trial court found the reason stated in the
motion of counsel for respondent to cancel the pre-trial to be
without merit. Counsel's explanation that he had to go to by
boat as early as 25 March 1979 to fetch his wife and
accompany her to a wedding in Dumaguete City on 27 April
1979 where she was one of the principal sponsors, cannot be
accepted. We find it insufficient to justify postponement of the
pre-trial, and the Court of Appeals did not act wisely in
overruling the denial. We sustain the trial court and rule that it
did not abuse its discretion in denying the postponement for
lack of merit. Certainly, to warrant a postponement of a
mandatory process as pre-trial would require much more than
mere attendance in a social function. It is time indeed we
emphasize that there should be much more than mere
perfunctory treatment of the pre-trial procedure. Its observance
must be taken seriously if it is to attain its objective, i.e., the
speedy and inexpensive disposition of cases.
Moreover, the trial court denied the motion for postponement
three (3) days before the scheduled pre-trial. If indeed, counsel
for respondent could not attend the pre-trial on the scheduled
date, respondent at least should have personally appeared in
order not to be declared as in default. But, since nobody
appeared for him, the order of the trial court declaring him as in
default and directing the presentation of petitioner's evidence ex
parte was proper.7
With regard to the merits of the judgment of the trial court by
default, which respondent appellate court did not touch upon in
resolving the appeal, the Court holds that on the basis of the
pleadings of the parties and the evidence presented ex parte,
petitioner and respondents are co-owners of subject house and
lot in equal shares; either one of them may demand the sale of
the house and lot at any time and the other cannot object to
such demand; thereafter the proceeds of the sale shall be
divided equally according to their respective interests.
Private respondent and his family refuse to pay monthly rentals
to petitioner from the time their father died in 1975 and to
vacate the house so that it can be sold to third persons.
Petitioner alleges that respondent's continued stay in the
property hinders its disposal to the prejudice of petitioner. On
the part of petitioner, he claims that he should be paid two-
thirds (2/3) of a monthly rental of P2,400.00 or the sum of
P1,600.00.
In resolving the dispute, the trial court ordered respondent to
vacate the property so that it could be sold to third persons and
the proceeds divided between them equally, and for respondent
to pay petitioner one-half (1/2) of P2,400.00 or the sum of
P1,200.00 as monthly rental, conformably with their stipulated
sharing reflected in their written agreement.
We uphold the trial court in ruling in favor of petitioner, except
as to the effectivity of the payment of monthly rentals by
respondent as co-owner which we here declare to commence
only after the trial court ordered respondent to vacate in
accordance with its order of 26 July 1979.
Article 494 of the Civil Code provides that no co-owner shall
be obliged to remain in the co-ownership, and that each co-
owner may demand at any time partition of the thing owned in
common insofar as his share is concerned. Corollary to this
rule, Art. 498 of the Code states that whenever the thing is
essentially, indivisible and the co-owners cannot agree that it
be, allotted to one of them who shall indemnify the others, it
shall be sold and its proceeds accordingly distributed. This is
resorted to (1) when the right to partition the property is
invoked by any of the co-owners but because of the nature of
the property it cannot be subdivided or its subdivision would
prejudice the interests of the co-owners, and (b) the co-owners
are not in agreement as to who among them shall be allotted or
assigned the entire property upon proper reimbursement of the
co-owners. In one case,8 this Court upheld the order of the trial
court directing the holding of a public sale of the properties
owned in common pursuant to Art. 498 of the Civil Code.
However, being a co-owner respondent has the right to use the
house and lot without paying any compensation to petitioner, as
he may use the property owned in common long as it is in
accordance with the purpose for which it is intended and in a
manner not injurious to the interest of the other co-
owners.9 Each co-owner of property held pro indiviso exercises
his rights over the whole property and may use and enjoy the
same with no other limitation than that he shall not injure the
interests of his co-owners, the reason being that until a division
is made, the respective share of each cannot be determined and
every co-owner exercises, together with his co-participants
joint ownership over the pro indiviso property, in addition to
his use and enjoyment of the
same. 10

Since petitioner has decided to enforce his right in court to end

the co-ownership of the house and lot and respondent has not
refuted the allegation that he has been preventing the sale of the
property by his continued occupancy of the premises, justice
and equity demand that respondent and his family vacate the
property so that the sale can be effected immediately. In
fairness to petitioner, respondent should pay a rental of
P1,200.00 per month, with legal interest; from the time the trial
court ordered him to vacate, for the use and enjoyment of the
other half of the property appertaining to petitioner.

When petitioner filed an action to compel the sale of the

property and the trial court granted the petition and ordered the
ejectment of respondent, the co-ownership was deemed
terminated and the right to enjoy the possession jointly also
ceased. Thereafter, the continued stay of respondent and his
family in the house prejudiced the interest of petitioner as the
property should have been sold and the proceeds divided
equally between them. To this extent and from then on,
respondent should be held liable for monthly rentals until he
and his family vacate.

WHEREFORE, the petition is GRANTED. The assailed

Decision of the Court of Appeals dated 16 October 1986 is
REVERSED and SET ASIDE. The decision of the trial court in
Civil Case No. 69.12-P dated 16 July 1979 is REINSTATED,
with the modification that respondent Senen B. Aguilar is
ordered to vacate the premises in question within ninety (90)
days from receipt of this and to pay petitioner Virgilio B.
Aguilar a monthly rental of P1,200.00 with interest at the legal
rate from the time he received the decision of the trial court
directing him to vacate until he effectively leaves the premises.

The trial court is further directed to take immediate steps to

implement this decision conformably with Art. 498 of the Civil
Code and the Rules of Court. This decision is final and
executory.

SO ORDERED.

Cruz, Davide, Jr., Quiason, JJ., concur.

G.R. No. L-33187 March 31, 1980
CORNELIO PAMPLONA alias GEMINIANO
PAMPLONA and APOLONIA ONTE, petitioners,
vs.
VIVENCIO MORETO, VICTOR MORETO, ELIGIO
MORETO, MARCELO MORETO, PAULINA MORETO,
ROSARIO MORETO, MARTA MORETO, SEVERINA
MENDOZA, PABLO MENDOZA, LAZARO MENDOZA,
VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO
MORETO and LORENZO MENDOZA, respondents.
E.P. Caguioa for petitioners.
Benjamin C. Yatco for respondents.
GUERRERO, J.:
This is a petition for certiorari by way of appeal from the
decision of the Court of Appeals 1 in CA-G.R. No. 35962-R,
entitled "Vivencio Moreto, et al., Plaintiff-Appellees vs.
Cornelio Pamplona, et al., Defendants-Appellants," affirming
the decision of the Court of First Instance of Laguna, Branch I
at Bian.
The facts, as stated in the decision appealed from, show that:
Flaviano Moreto and Monica Maniega were husband and wife.
During their marriage, they acquired adjacent lots Nos. 1495,
4545, and 1496 of the Calamba Friar Land Estate, situated in
Calamba, Laguna, containing 781-544 and 1,021 square meters
respectively and covered by certificates of title issued in the
name of "Flaviano Moreto, married to Monica Maniega."
The spouses Flaviano Moreto and Monica Maniega begot
during their marriage six (6) children, namely, Ursulo, Marta,
La Paz, Alipio, Pablo, and Leandro, all surnamed Moreto.
Ursulo Moreto died intestate on May 24, 1959 leaving as his
heirs herein plaintiffs Vivencio, Marcelo, Rosario, Victor,
Paulina, Marta and Eligio, all surnamed Moreto.
Marta Moreto died also intestate on April 30, 1938 leaving as
her heir plaintiff Victoria Tuiza.
La Paz Moreto died intestate on July 17, 1954 leaving the
following heirs, namely, herein plaintiffs Pablo, Severina,
Lazaro, and Lorenzo, all surnamed Mendoza.
Alipio Moreto died intestate on June 30, 1943 leaving as his
heir herein plaintiff Josefina Moreto.
Pablo Moreto died intestate on April 25, 1942 leaving no issue
and as his heirs his brother plaintiff Leandro Moreto and the
other plaintiffs herein.
On May 6, 1946, Monica Maniega died intestate in Calamba,
Laguna.
On July 30, 1952, or more than six (6) years after the death of
his wife Monica Maniega, Flaviano Moreto, without the
consent of the heirs of his said deceased wife Monica, and
before any liquidation of the conjugal partnership of Monica
and Flaviano could be effected, executed in favor of Geminiano
Pamplona, married to defendant Apolonia Onte, the deed of
absolute sale (Exh. "1") covering lot No. 1495 for P900.00. The
deed of sale (Exh. "1") contained a description of lot No. 1495
as having an area of 781 square meters and covered by transfer
certificate of title No. 14570 issued in the name of Flaviano
Moreto, married to Monica Maniega, although the lot was
acquired during their marriage. As a result of the sale, the said
certificate of title was cancelled and a new transfer certificate
of title No. T-5671 was issued in the name of Geminiano
Pamplona married to Apolonia Onte (Exh. "A").
After the execution of the above-mentioned deed of sale (Exh.
"1"), the spouses Geminiano Pamplona and Apolonia Onte
constructed their house on the eastern part of lot 1496 as
Flaviano Moreto, at the time of the sale, pointed to it as the
land which he sold to Geminiano Pamplona. Shortly thereafter,
Rafael Pamplona, son of the spouses Geminiano Pamplona and
Apolonia Onte, also built his house within lot 1496 about one
meter from its boundary with the adjoining lot. The vendor
Flaviano Moreto and the vendee Geminiano Pamplona thought
all the time that the portion of 781 square meters which was the
subject matter of their sale transaction was No. 1495 and so lot
No. 1495 appears to be the subject matter in the deed of sale
(Exh. "1") although the fact is that the said portion sold thought
of by the parties to be lot No. 1495 is a part of lot No. 1496.
From 1956 to 1960, the spouses Geminiano Pamplona and
Apolonio Onte enlarged their house and they even constructed
a piggery corral at the back of their said house about one and
one-half meters from the eastern boundary of lot 1496.
On August 12, 1956, Flaviano Moreto died intestate. In 1961,
the plaintiffs demanded on the defendants to vacate the
premises where they had their house and piggery on the ground
that Flaviano Moreto had no right to sell the lot which he sold
to Geminiano Pamplona as the same belongs to the conjugal
partnership of Flaviano and his deceased wife and the latter
was already dead when the sale was executed without the
consent of the plaintiffs who are the heirs of Monica. The
spouses Geminiano Pamplona and Apolonia Onte refused to
vacate the premises occupied by them and hence, this suit was
instituted by the heirs of Monica Maniega seeking for the
declaration of the nullity of the deed of sale of July 30, 1952
above-mentioned as regards one-half of the property subject
matter of said deed; to declare the plaintiffs as the rightful
owners of the other half of said lot; to allow the plaintiffs to
redeem the one-half portion thereof sold to the defendants.
"After payment of the other half of the purchase price"; to order
the defendants to vacate the portions occupied by them; to
order the defendants to pay actual and moral damages and
attorney's fees to the plaintiffs; to order the defendants to pay
plaintiffs P120.00 a year from August 1958 until they have
vacated the premises occupied by them for the use and
occupancy of the same.
The defendants claim that the sale made by Flaviano Moreto in
their favor is valid as the lot sold is registered in the name of
Flaviano Moreto and they are purchasers believing in good
faith that the vendor was the sole owner of the lot sold.
After a relocation of lots 1495, 1496 and 4545 made by
agreement of the parties, it was found out that there was mutual
error between Flaviano Moreto and the defendants in the
execution of the deed of sale because while the said deed
recited that the lot sold is lot No. 1495, the real intention of the
parties is that it was a portion consisting of 781 square meters
of lot No. 1496 which was the subject matter of their sale
transaction.
After trial, the lower court rendered judgment, the dispositive
part thereof being as follows:
WHEREFORE, judgment is hereby rendered
for the plaintiffs declaring the deed of
absolute sale dated July 30, 1952 pertaining
to the eastern portion of Lot 1496 covering
an area of 781 square meters null and void as
regards the 390.5 square meters of which
plaintiffs are hereby declared the rightful
owners and entitled to its possession.
The sale is ordered valid with respect to the
eastern one-half (1/2) of 1781 square meters
of Lot 1496 measuring 390.5 square meters
of which defendants are declared lawful
owners and entitled to its possession.
After proper survey segregating the eastern
one-half portion with an area of 390.5 square
meters of Lot 1496, the defendants shall be
entitled to a certificate of title covering said
portion and Transfer Certificate of Title No.
9843 of the office of the Register of Deeds of
Laguna shall be cancelled accordingly and
new titles issued to the plaintiffs and to the
defendants covering their respective portions.
Transfer Certificate of Title No. 5671 of the
office of the Register of Deeds of Laguna
covering Lot No. 1495 and registered in the
name of Cornelio Pamplona, married to
Apolonia Onte, is by virtue of this decision
ordered cancelled. The defendants are
ordered to surrender to the office of the
Register of Deeds of Laguna the owner's
duplicate of Transfer Certificate of Title No.
5671 within thirty (30) days after this
decision shall have become final for
cancellation in accordance with this decision.
Let copy of this decision be furnished the
Register of Deeds for the province of Laguna
for his information and guidance.
With costs against the defendants. 2
The defendants-appellants, not being satisfied with said
judgment, appealed to the Court of Appeals, which affirmed
the judgment, hence they now come to this Court.
The fundamental and crucial issue in the case at bar is whether
under the facts and circumstances duly established by the
evidence, petitioners are entitled to the full ownership of the
property in litigation, or only one-half of the same.
There is no question that when the petitioners purchased the
property on July 30, 1952 from Flaviano Moreto for the price
of P900.00, his wife Monica Maniega had already been dead
six years before, Monica having died on May 6, 1946. Hence,
the conjugal partnership of the spouses Flaviano Moreto and
Monica Maniega had already been dissolved. (Article 175, (1)
New Civil Code; Article 1417, Old Civil Code). The records
show that the conjugal estate had not been inventoried,
liquidated, settled and divided by the heirs thereto in
accordance with law. The necessary proceedings for the
liquidation of the conjugal partnership were not instituted by
the heirs either in the testate or intestate proceedings of the
deceased spouse pursuant to Act 3176 amending Section 685 of
Act 190. Neither was there an extra-judicial partition between
the surviving spouse and the heirs of the deceased spouse nor
was an ordinary action for partition brought for the purpose.
Accordingly, the estate became the property of a community
between the surviving husband, Flaviano Moreto, and his
children with the deceased Monica Maniega in the concept of a
co-ownership.
The community property of the marriage, at
the dissolution of this bond by the death of
one of the spouses, ceases to belong to the
legal partnership and becomes the property of
a community, by operation of law, between
the surviving spouse and the heirs of the
deceased spouse, or the exclusive property of
the widower or the widow, it he or she be the
heir of the deceased spouse. Every co-owner
shall have full ownership of his part and in
the fruits and benefits derived therefrom, and
he therefore may alienate, assign or mortgage
it, and even substitute another person in its
enjoyment, unless personal rights are in
question. (Marigsa vs. Macabuntoc, 17 Phil.
107)
In Borja vs. Addision, 44 Phil. 895, 906, the Supreme Court
said that "(t)here is no reason in law why the heirs of the
deceased wife may not form a partnership with the surviving
husband for the management and control of the community
property of the marriage and conceivably such a partnership, or
rather community of property, between the heirs and the
surviving husband might be formed without a written
agreement." In Prades vs. Tecson, 49 Phil. 230, the Supreme
Court held that "(a)lthough, when the wife dies, the surviving
husband, as administrator of the community property, has
authority to sell the property withut the concurrence of the
children of the marriage, nevertheless this power can be waived
in favor of the children, with the result of bringing about a
conventional ownership in common between the father and
children as to such property; and any one purchasing with
knowledge of the changed status of the property will acquire
only the undivided interest of those members of the family who
join in the act of conveyance.
It is also not disputed that immediately after the execution of
the sale in 1952, the vendees constructed their house on the
eastern part of Lot 1496 which the vendor pointed out to them
as the area sold, and two weeks thereafter, Rafael who is a son
of the vendees, also built his house within Lot 1496.
Subsequently, a cemented piggery coral was constructed by the
vendees at the back of their house about one and one-half
meters from the eastern boundary of Lot 1496. Both vendor
and vendees believed all the time that the area of 781 sq.
meters subject of the sale was Lot No. 1495 which according to
its title (T.C.T. No. 14570) contains an area of 781 sq. meters
so that the deed of sale between the parties Identified and
described the land sold as Lot 1495. But actually, as verified
later by a surveyor upon agreement of the parties during the
proceedings of the case below, the area sold was within Lot
1496.
Again, there is no dispute that the houses of the spouses
Cornelio Pamplona and Apolonia Onte as well as that of their
son Rafael Pamplona, including the concrete piggery coral
adjacent thereto, stood on the land from 1952 up to the filing of
the complaint by the private respondents on July 25, 1961, or a
period of over nine (9) years. And during said period, the
private respondents who are the heirs of Monica Maniega as
well as of Flaviano Moreto who also died intestate on August
12, 1956, lived as neighbors to the petitioner-vendees, yet lifted
no finger to question the occupation, possession and ownership
of the land purchased by the Pamplonas, so that We are
persuaded and convinced to rule that private respondents are in
estoppel by laches to claim half of the property, in dispute as
null and void. Estoppel by laches is a rule of equity which bars
a claimant from presenting his claim when, by reason of
abandonment and negligence, he allowed a long time to elapse
without presenting the same. (International Banking
Corporation vs. Yared, 59 Phil. 92)
We have ruled that at the time of the sale in 1952, the conjugal
partnership was already dissolved six years before and
therefore, the estate became a co-ownership between Flaviano
Moreto, the surviving husband, and the heirs of his deceased
wife, Monica Maniega. Article 493 of the New Civil Code is
applicable and it provides a follows:
Art. 493. Each co-owner shall have the full
ownership of his part and of the fruits and
benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and
even substitute another person in its
enjoyment, except when personal rights are
involve. But the effect of the alienation or the
mortgage, with respect to the co-owners,
shall be limited to the portion which may be
allotted to him in the division upon the
termination of the co-ownership.
We agree with the petitioner that there was a partial partition of
the co-ownership when at the time of the sale Flaviano Moreto
pointed out the area and location of the 781 sq. meters sold by
him to the petitioners-vendees on which the latter built their
house and also that whereon Rafael, the son of petitioners
likewise erected his house and an adjacent coral for piggery.
Petitioners point to the fact that spouses Flaviano Moreto and
Monica Maniega owned three parcels of land denominated as
Lot 1495 having an area of 781 sq. meters, Lot 1496 with an
area of 1,021 sq. meters, and Lot 4545 with an area of 544 sq.
meters. The three lots have a total area of 2,346 sq. meters.
These three parcels of lots are contiguous with one another as
each is bounded on one side by the other, thus: Lot 4545 is
bounded on the northeast by Lot 1495 and on the southeast by
Lot 1496. Lot 1495 is bounded on the west by Lot 4545. Lot
1496 is bounded on the west by Lot 4545. It is therefore, clear
that the three lots constitute one big land. They are not separate
properties located in different places but they abut each other.
This is not disputed by private respondents. Hence, at the time
of the sale, the co-ownership constituted or covered these three
lots adjacent to each other. And since Flaviano Moreto was
entitled to one-half pro-indiviso of the entire land area or 1,173
sq. meters as his share, he had a perfect legal and lawful right
to dispose of 781 sq. meters of his share to the Pamplona
spouses. Indeed, there was still a remainder of some 392 sq.
meters belonging to him at the time of the sale.
We reject respondent Court's ruling that the sale was valid as to
one-half and invalid as to the other half for the very simple
reason that Flaviano Moreto, the vendor, had the legal right to
more than 781 sq. meters of the communal estate, a title which
he could dispose, alienate in favor of the vendees-petitioners.
The title may be pro-indiviso or inchoate but the moment the
co-owner as vendor pointed out its location and even indicated
the boundaries over which the fences were to be erectd without
objection, protest or complaint by the other co-owners, on the
contrary they acquiesced and tolerated such alienation,
occupation and possession, We rule that a factual partition or
termination of the co-ownership, although partial, was created,
and barred not only the vendor, Flaviano Moreto, but also his
heirs, the private respondents herein from asserting as against
the vendees-petitioners any right or title in derogation of the
deed of sale executed by said vendor Flaiano Moreto.
Equity commands that the private respondents, the successors
of both the deceased spouses, Flaviano Moreto and Monica
Maniega be not allowed to impugn the sale executed by
Flaviano Moreto who indisputably received the consideration
of P900.00 and which he, including his children, benefitted
from the same. Moreover, as the heirs of both Monica Maniega
and Flaviano Moreto, private respondents are duty-bound to
comply with the provisions of Articles 1458 and 1495, Civil
Code, which is the obligation of the vendor of the property of
delivering and transfering the ownership of the whole property
sold, which is transmitted on his death to his heirs, the herein Teehankee (Chairman), Makasiar, Fernandez, De Castro and
private respondents. The articles cited provide, thus: Melencio-Herrera, JJ., concur.

Art. 1458. By the contract of sale one of the

contracting parties obligates himself to
transfer the ownership of and to deliver a
determinate thing, and the other part to pay
therefore a price certain in money or its
equivalent.

A contract of sale may be absolute or

conditionial.

Art. 1495. The vendor is bound to transfer

the ownership of and deliver, as well as
warrant the thing which is the object of the
sale.

Under Article 776, New Civil Code, the inheritance which

private respondents received from their deceased parents and/or
predecessors-in-interest included all the property rights and
obligations which were not extinguished by their parents' death.
And under Art. 1311, paragraph 1, New Civil Code, the
contract of sale executed by the deceased Flaviano Moreto took
effect between the parties, their assigns and heirs, who are the
private respondents herein. Accordingly, to the private
respondents is transmitted the obligation to deliver in full
ownership the whole area of 781 sq. meters to the petitioners
(which was the original obligation of their predecessor
Flaviano Moreto) and not only one-half thereof. Private
respondents must comply with said obligation.

The records reveal that the area of 781 sq. meters sold to and
occupied by petitioners for more than 9 years already as of the
filing of the complaint in 1961 had been re-surveyed by private
land surveyor Daniel Aranas. Petitioners are entitled to a
segregation of the area from Transfer Certificate of Title No. T-
9843 covering Lot 1496 and they are also entitled to the
issuance of a new Transfer Certificate of Title in their name
based on the relocation survey.

WHEREFORE, IN VIEW OF THE FOREGOING, the

judgment appealed from is hereby AFFIRMED with
modification in the sense that the sale made and executed by
Flaviano Moreto in favor of the petitioners-vendees is hereby
declared legal and valid in its entirely.

Petitioners are hereby declared owners in full ownership of the

781 sq. meters at the eastern portion of Lot 1496 now occupied
by said petitioners and whereon their houses and piggery coral
stand.

The Register of Deeds of Laguna is hereby ordered to segregate

the area of 781 sq. meters from Certificate of Title No. 9843
and to issue a new Transfer Certificate of Title to the
petitioners covering the segregated area of 781 sq. meters.

No costs.

SO ORDERED.
G.R. No. L-25014 October 17, 1973
DOLORES LAHORA VDA. DE CASTRO, ARSENIO DE
CASTRO, JR., WILFREDO DE CASTRO, IRINEO DE
CASTRO and VIRGINIA DE CASTRO ALEJANDRO, (in
substitution for the deceased defendant-appellant
ARSENIO DE CASTRO, SR.)., petitioners,
vs.
GREGORIO ATIENZA, respondent.
Arsenio de Castro, Jr. and F.T. Papa for petitioners.
Dakila Castro and Z.D. de Mesa for respondent.
TEEHANKEE, J.:
The Court rejects petitioners' appeal as without merit and
affirms the judgment of the appellate court. Petitioners'
predecessor-in-interest as co-owner of an undivided one-half
interest in the fishpond could validly lease his interest to a third
party, respondent Atienza, independently of his co-owner
(although said co-owner had also leased his other undivided
one-half interest to the same third party) and could likewise by
mutual agreement independently cancel his lease agreement
with said third party. Said predecessor-in-interest (and
petitioners who have substituted him as his heirs) therefore
stands liable on his express undertaking to refund the advance
rental paid to him by the lessee on the cancelled lease and
cannot invoke the non-cancellation of the co-owner's lease to
elude such liability.
The Court of Appeals, in its decision affirming in toto the
judgment of the Manila court of first instance ordering therein
defendant-appellant Arsenio de Castro, Sr. (now deceased and
substituted by above-named petitioners as his heirs) "to return
to the plaintiff (respondent) Gregorio Atienza the sum
P2,500.00 with legal interest from the date of the filing of
complaint until fully paid plus the sum of P250.00 as attorney's
fees and the costs of the suit", found the following facts to
undisputed:
On January 24, 1956 the brothers Tomas de
Castro and Arsenio de Castro, Sr. leased to
plaintiff a fishpond containing an area of 26
hectares situated in Polo, Bulacan and
forming part of a bigger parcel of land
covered by Transfer Certificate of Title No.
196450 of the registry of the property of
Bulacan. The lessors are co-owners in equal
shares of the leased property.
According to the contract of lease (Exh. 1)
the term of the lease was for five years from
January 24, 1956 at a rental of P5,000 a year,
the first year's rental to be paid on February
1, 1956, the second on February 1, 1957 and
the rental for the last three years on February
1, 1958. The first year's rental was paid on
time.
In the meantime, Tomas de Castro died.
In the month of November, 1956, plaintiff as
lessee and defendant Arsenio de Castro, Sr.
as one of the lessors, agreed to set aside and
annul the contract of lease and for this
purpose an agreement (Exh. A) was signed
by them, Exhibit A as signed by plaintiff and
defendant shows that Felisa Cruz Vda. de
Castro, widow of Tomas de Castro, was
intended to be made a party thereof in her
capacity as representative of the heirs of
Tomas Castro.
Condition No. 2 of Exhibit A reads as
follows:
"2. Na sa pamamagitan nito ay pinawawalang
kabuluhan namin ang nasabing kasulatan at
nagkasundo kami na ang bawat isa sa amin ni
Arsenio de Castro at Felisa Cruz Vda. de
Castro ay isauli kay GREGORIO ATIENZA
ang tig P2,500.00 o kabuuang halagang
P5,000.00 na paunang naibigay nito
alinsunod sa nasabing kasulatan; na ang
nasabing tig P2,500.00 ay isasauli ng bawat
isa sa amin sa o bago dumating ang Dec. 30,
1956."
Felisa Cruz Vda. de Castro refused to sign
Exhibit A. Defendant did not pay the
P2,500.00 which under the above-quoted
paragraph of Exhibit A, he should have paid
on December 30, 1956. Demand for payment
was made by plaintiff's counsel on January 7,
1957 but to no avail, hence the present
action.
On the conflicting contentions between the parties as to who
between them would attend to securing the signature of Mrs.
Felisa Cruz Vda. de Castro (widow of Tomas de Castro) to the
agreement of cancellation of the lease with respondent Atienza,
the appellate court found that "the testimony of the defendant
(Arsenio de Castro, Sr.) ... supports the contention of the
plaintiff (Atienza) "that it was the defendant Arsenio who was
interested and undertook to do so, citing Arsenio's own
declaration that "I agreed to sign this document (referring to the
cancellation) because of my desire to cancel our original
agreement" and that his purpose in obtaining the cancellation of
said lease agreement with plaintiff Atienza was "(B)ecause I
had the intention of having said fishpond leased to other
persons and I cannot lease it to third parties unless I can secure
the signature of Felisa Vda. de Castro."
The appellate court thus held in effect that as Arsenio "was the
one interested in cancelling the lease (Exh. 1), it stands to
reason that he most probably undertook to obtain the signature
of Mrs. Castro [widow and successor-in-interest of his brother
Tomas]" and that he could not invoke his own failure to obtain Makalintal, Actg. C.J., Zaldivar, Castro, Fernando, Barredo,
such signature to elude his own undertaking and liability to Makasiar, Antonio and Esguerra, JJ., concur.
refund respondent (plaintiff) his share of the rental paid in
advance by respondent on the cancelled lease in the sum of
P2,500.00.

The appellate court furthermore correctly held that the consent

or concurrence of Felisa Vda. de Castro (as co-owner in
succession of Tomas) was not an essential condition to the
validity and effectivity of the agreement of cancellation of the
lease (Exhibit A) as between Arsenio and respondent-lessee,
contrary to petitioners' claim, holding that "(S)ince there is no
specific provision in Exhibit A supporting defendant's claim,
we are not prepared to supply such condition unless the same
can be deduced from other evidence or unless the terms of
Exhibit A cannot be performed by plaintiff and defendant
without Mrs. Castro being bound as a party thereto."

The issue is simply reduced to whether Arsenio as co-owner of

the fishpond owned pro-indiviso by him with his brother
Tomas (succeeded by Felisa Vda. de Castro) could validly
lease his half-interest to a third party (respondent
Atienza) independently of his
co-owner, and in case his co-owner also leased his other half
interest to the same third party, whether Arsenio could cancel
his own lease agreement with said third party?

The appellate court correctly resolved the issue thus: "Our view
of the contract of lease Exhibit 1 is that each of the Castro
brothers, leased his undivided one-half interest in the fishpond
they owned in common to the plaintiff. Could one of them have
validly leased his interest without the other co-owner leasing
his own? The answer to this is given by appellant in his own
brief (p. 14) when he said that it would result in a partnership
between the lessee and the owner of the other undivided half. If
the lease could be entered into partially by one of the co-
owners, insofar as his interest is concerned, then the lease,
Exhibit 1, can also be cancelled partially as between plaintiff
and defendant. Therefore, we conclude that the consent of Mrs.
Felisa Cruz Vda. de Castro is not essential for the cancellation
of the lease of defendant's one-half undivided share in the
fishpond to plaintiff."

The appellate court's judgment is fully supported by the Civil

Code provisions on the rights and prerogatives of co-owners,
and specifically by Article 493 which expressly provides that

Art. 493. Each co-owner shall have the full

ownership of his part and of the fruits and
benefitspertaining thereto, and he may
therefore alienate, assign or mortgage it,
and even substitute another person in its
enjoyment, except when personal rights are
involved. But the effect of the alienation or
the mortgage, with respect to the co-owners,
shall be limited to the portion which may be
alloted to him in the division upon the
termination of the co-ownership. *

ACCORDINGLY, the appealed judgment is hereby affirmed

with costs against petitioners.
FIRST DIVISION
[G.R. No. 137152. January 29, 2001]
CITY OF MANDALUYONG, petitioner, vs. ANTONIO N.,
FRANCISCO N., THELMA N., EUSEBIO N.,
RODOLFO N., all surnamed
AGUILAR, respondents.
DECISION
PUNO, J.:
This is a petition for review under Rule 45 of the Rules of
Court of the Orders dated September 17, 1998 and December
29, 1998 of the Regional Trial Court, Branch 168, Pasig
City[1] dismissing the petitioners Amended Complaint in SCA
No. 1427 for expropriation of two (2) parcels of land in
Mandaluyong City.
The antecedent facts are as follows:
On August 4, 1997, petitioner filed with the Regional
Trial Court, Branch 168, Pasig City a complaint for
expropriation entitled City of Mandaluyong, plaintiff v. Antonio
N., Francisco N., Thelma N., Eusebio N., Rodolfo N., all
surnamed Aguilar, defendants. Petitioner sought to expropriate
three (3) adjoining parcels of land with an aggregate area of
1,847 square meters registered under Transfer Certificates of
Title Nos. 59780, 63766 and 63767 in the names of the
defendants, herein respondents, located at 9 de Febrero Street,
Barangay Mauwag, City of Mandaluyong; on a portion of the 3
lots, respondents constructed residential houses several decades
ago which they had since leased out to tenants until the present;
on the vacant portion of the lots, other families constructed
residential structures which they likewise occupied; in 1983,
the lots were classified by Resolution No. 125 of the Board of
the Housing and Urban Development Coordinating Council as
an Area for Priority Development for urban land reform under
Proclamation Nos. 1967 and 2284 of then President Marcos; as
a result of this classification, the tenants and occupants of the
lots offered to purchase the land from respondents, but the
latter refused to sell; on November 7, 1996, the Sangguniang
Panlungsod of petitioner, upon petition of the Kapitbisig, an
association of tenants and occupants of the subject land,
adopted Resolution No. 516, Series of 1996 authorizing Mayor
Benjamin Abalos of the City of Mandaluyong to initiate action
for the expropriation of the subject lots and construction of a
medium-rise condominium for qualified occupants of the land;
on January 10, 1996, Mayor Abalos sent a letter to respondents
offering to purchase the said property at P3,000.00 per square
meter; respondents did not answer the letter. Petitioner thus
prayed for the expropriation of the said lots and the fixing of
just compensation at the fair market value of P3,000.00 per
square meter.[2]
In their answer, respondents, except Eusebio N. Aguilar
who died in 1995, denied having received a copy of Mayor
Abalos offer to purchase their lots. They alleged that the
expropriation of their land is arbitrary and capricious, and is
not for a public purpose; the subject lots are their only real
property and are too small for expropriation, while petitioner
has several properties inventoried for socialized housing; the
fair market value of P3,000.00 per square meter is arbitrary
because the zonal valuation set by the Bureau of Internal
Revenue is P7,000.00 per square meter. As counterclaim,
respondents prayed for damages of P21 million.[3]
Respondents filed a Motion for Preliminary Hearing
claiming that the defenses alleged in their Answer are valid
grounds for dismissal of the complaint for lack of jurisdiction
over the person of the defendants and lack of cause of
action. Respondents prayed that the affirmative defenses be set
for preliminary hearing and that the complaint be
dismissed.[4] Petitioner replied.
On November 5, 1997, petitioner filed an Amended
Complaint and named as an additional defendant Virginia N.
Aguilar and, at the same time, substituted Eusebio Aguilar with
his heirs. Petitioner also excluded from expropriation TCT No.
59870 and thereby reduced the area sought to be expropriated
from three (3) parcels of land to two (2) parcels totalling 1,636
square meters under TCT Nos. 63766 and 63767.[5]
The Amended Complaint was admitted by the trial court
on December 18, 1997. Respondents, who, with the exception
of Virginia Aguilar and the Heirs of Eusebio Aguilar had yet to
be served with summons and copies of the Amended
Complaint, filed a Manifestation and Motion adopting their
Answer with Counterclaim and Motion for Preliminary
Hearing as their answer to the Amended Complaint.[6]
The motion was granted. At the hearing of February 25,
1998, respondents presented Antonio Aguilar who testified and
identified several documentary evidence. Petitioner did not
present any evidence.Thereafter, both parties filed their
respective memoranda.[7]
On September 17, 1998, the trial court issued an order
dismissing the Amended Complaint after declaring respondents
as small property owners whose land is exempt from
expropriation under Republic Act No. 7279. The court also
found that the expropriation was not for a public purpose for
petitioners failure to present any evidence that the intended
beneficiaries of the expropriation are landless and homeless
residents of Mandaluyong. The court thus disposed of as
follows:
WHEREFORE, the Amended Complaint is hereby ordered
dismissed without pronouncement as to cost.
SO ORDERED.[8]
Petitioner moved for reconsideration. On December 29,
1998, the court denied the motion. Hence this petition.
Petitioner claims that the trial court erred
IN UPHOLDING RESPONDENTS CONTENTION THAT
THEY QUALIFY AS SMALL PROPERTY OWNERS AND
ARE THUS EXEMPT FROM EXPROPRIATION.[9]
 Petitioner mainly claims that the size of the lots in
litigation does not exempt the same from expropriation in view
of the fact that the said lots have been declared to be within the
Area for Priority Development (APD) No. 5 of Mandaluyong
by virtue of Proclamation No. 1967, as amended by
Proclamation No. 2284 in relation to Presidential Decree No.
1517.[10] This declaration allegedly authorizes petitioner to
expropriate the property, ipso facto, regardless of the area of
the land.
Presidential Decree (P.D.) No. 1517, the Urban Land
Reform Act, was issued by then President Marcos in 1978. The
decree adopted as a State policy the liberation of human
communities from blight, congestion and hazard, and
promotion of their development and modernization, the
optimum use of land as a national resource for public
welfare.[11] Pursuant to this law, Proclamation No. 1893 was
issued in 1979 declaring the entire Metro Manila as Urban
Land Reform Zone for purposes of urban land reform. This was
amended in 1980 by Proclamation No. 1967 and in 1983 by
Proclamation No. 2284 which identified and specified 245 sites
in Metro Manila as Areas for Priority Development and Urban
Land Reform Zones.
In 1992, the Congress of the Philippines passed Republic
Act No. 7279, the Urban Development and Housing Act of
1992. The law lays down as a policy that the state, in
cooperation with the private sector, undertake a comprehensive
and continuing Urban Development and Housing Program;
uplift the conditions of the underprivileged and homeless
citizens in urban areas and resettlement areas by making
available to them decent housing at affordable cost, basic
services and employment opportunities and provide for the
rational use and development of urban land to bring about,
among others, equitable utilization of residential lands;
encourage more effective people's participation in the urban
development process and improve the capability of local
government units in undertaking urban development and
housing programs and projects.[12] Towards this end, all city
and municipal governments are mandated to conduct
an inventory of all lands and improvements within their
respective localities, and in coordination with the National
Housing Authority, the Housing and Land Use Regulatory
Board, the National Mapping Resource Information Authority,
and the Land Management Bureau, identify lands for
socialized housing and resettlement areas for the immediate
and future needs of the underprivileged and homeless in the
urban areas, acquire the lands, and dispose of said lands to the
beneficiaries of the program.[13]
The acquisition of lands for socialized housing is
governed by several provisions in the law. Section 9 of R.A.
7279 provides:
Sec. 9. Priorities in the Acquisition of Land.Lands for
socialized housing shall be acquired in the following order:
(a) Those owned by the Government or any of its
subdivisions, instrumentalities, or agencies,
including government-owned or controlled
corporations and their subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas for Priority
Development, Zonal Improvement Program
sites, and Slum Improvement and Resettlement
Program sites which have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and
Services or BLISS Sites which have not yet been
acquired;
(f) Privately-owned lands.
Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities mentioned in
this section shall not apply. The local government units shall
give budgetary priority to on-site development of government
lands.
Lands for socialized housing are to be acquired in the
following order: (1) government lands; (2) alienable lands of
the public domain; (3) unregistered or abandoned or idle lands;
(4) lands within the declared Areas for Priority Development
(APD), Zonal Improvement Program (ZIP) sites, Slum
Improvement and Resettlement (SIR) sites which have not yet
been acquired; (5) BLISS sites which have not yet been
acquired; and (6) privately-owned lands.
There is no dispute that the two lots in litigation are
privately-owned and therefore last in the order of priority
acquisition. However, the law also provides that lands within
the declared APDs which have not yet been acquired by the
government are fourth in the order of priority. According to
petitioner, since the subject lots lie within the declared APD,
this fact mandates that the lots be given priority in
acquisition.[14]
Section 9, however, is not a single provision that can be
read separate from the other provisions of the law. It must be
read together with Section 10 of R.A. 7279 which also
provides:
Section 10. Modes of Land Acquisition.The modes of acquiring
lands for purposes of this Act shall include, among others,
community mortgage, land swapping, land assembly or
consolidation, land banking, donation to the Government, joint-
venture agreement, negotiated purchase, and
expropriation: Provided, however, That expropriation shall
be resorted to only when other modes of acquisition have
been exhausted: Provided, further, That where expropriation
is resorted to, parcels of land owned by small property
owners shall be exempted for purposes of this
Act: Provided, finally, That abandoned property, as herein
defined, shall be reverted and escheated to the State in a
proceeding analogous to the procedure laid down in Rule 91 of
the Rules of Court.[15]
For the purposes of socialized housing, government-owned and
foreclosed properties shall be acquired by the local government
units, or by the National Housing Authority primarily through
negotiated purchase: Provided, That qualified beneficiaries
who are actual occupants of the land shall be given the right of
first refusal.
Lands for socialized housing under R.A. 7279 are to be
acquired in several modes. Among these modes are the
following: (1) community mortgage; (2) land swapping, (3)
land assembly or consolidation; (4) land banking; (5) donation
to the government; (6) joint venture agreement; (7) negotiated
purchase; and (8) expropriation. The mode of expropriation is
subject to two conditions: (a) it shall be resorted to only when
the other modes of acquisition have been exhausted; and (b)
parcels of land owned by small property owners are exempt
from such acquisition.
Section 9 of R.A. 7279 speaks of priorities in the
acquisition of lands. It enumerates the type of lands to be
acquired and the heirarchy in their acquisition. Section 10 deals
with the modes of land acquisition or the process of acquiring
lands for socialized housing. These are two different
things. They mean that the type of lands that may be
acquired in the order of priority in Section 9 are to be
acquired only in the modes authorized under Section
10. The acquisition of the lands in the priority list must be
made subject to the modes and conditions set forth in the next
provision. In other words, land that lies within the APD, such
as in the instant case, may be acquired only in the modes under,
and subject to the conditions of, Section 10.
Petitioner claims that it had faithfully observed the
different modes of land acquisition for socialized housing
under R.A. 7279 and adhered to the priorities in the acquisition
for socialized housing under said law.[16] It, however, did not
state with particularity whether it exhausted the other modes of
acquisition in Section 9 of the law before it decided to
expropriate the subject lots. The law states expropriation shall
be resorted to when other modes of acquisition have been
exhausted. Petitioner alleged only one mode of
acquisition, i.e., by negotiated purchase. Petitioner, through the
City Mayor, tried to purchase the lots from respondents but the
latter refused to sell.[17] As to the other modes of acquisition, no
mention has been made. Not even Resolution No. 516, Series
of 1996 of the Sangguniang Panlungsod authorizing the Mayor
of Mandaluyong to effect the expropriation of the subject
property states whether the city government tried to acquire the
same by community mortgage, land swapping, land assembly
or consolidation, land banking, donation to the government,
or joint venture agreement under Section 9 of the law.
Section 9 also exempts from expropriation parcels of land
owned by small property owners.[18] Petitioner argues that the
exercise of the power of eminent domain is not anymore
conditioned on the size of the land sought to be
expropriated.[19] By the expanded notion of public use, present
jurisprudence has established the concept that expropriation is
not anymore confined to the vast tracts of land and landed
estates, but also covers small parcels of land.[20] That only a
few could actually benefit from the expropriation of the
property does not diminish its public use character. [21] It simply
is not possible to provide, in one instance, land and shelter for
all who need them.[22]
While we adhere to the expanded notion of public use, the
passage of R.A. No. 7279, the Urban Development and
Housing Act of 1992 introduced a limitation on the size of the
land sought to be expropriated for socialized housing. The law
expressly exempted small property owners from expropriation
of their land for urban land reform. R.A. No. 7279 originated as
Senate Bill No. 234 authored by Senator Joey Lina[23] and
House Bill No. 34310. Senate Bill No. 234 then provided that
one of those lands not covered by the urban land reform and
housing program was land actually used by small property
owners within the just and equitable retention limit as provided
under this Act.[24] Small property owners were defined in
Senate Bill No. 234 as:
4. Small Property Ownersare those whose rights are protected
under Section 9, Article XIII of the Constitution of the
Philippines, who own small parcels of land within the fair and
just retention limit provided under this Act and which are
adequate to meet the reasonable needs of the small property
owners family and their means of livelihood.[25]
The exemption from expropriation of lands of small-
property owners was never questioned on the Senate
floor.[26] This exemption, although with a modified definition,
was actually retained in the consolidation of Senate Bill No.
234 and House Bill No. 34310 which became R.A. No.
7279.[27]
The question now is whether respondents qualify as small
property owners as defined in Section 3 (q) of R.A.
7279. Section 3 (q) provides:
Section 3 x x x (q). Small property owners refers to those whose
only real property consists of residential lands not exceeding
three hundred square meters (300 sq.m.) in highly urbanized
cities and eight hundred square meters (800 sq.m.) in other
urban areas.
Small-property owners are defined by two elements: (1) those
owners of real property whose property consists of residential
lands with an area of not more than 300 square meters in highly
urbanized cities and 800 square meters in other urban areas;
and (2) that they do not own real property other than the same.
The case at bar involves two (2) residential lots in
Mandaluyong City, a highly urbanized city. The lot under TCT
No. 63766 is 687 square meters in area and the second under
TCT No. 63767 is 949 square meters, both totalling 1,636
square meters in area. TCT No. 63766 was issued in the names
of herein five (5) respondents, viz:
FRANCISCO N. AGUILAR, widower; THELMA N.
AGUILAR, single; EUSEBIO N. AGUILAR, JR., widower;
RODOLFO N. AGUILAR, single and ANTONIO N.
AGUILAR, married to Teresita Puig; all of legal age,
Filipinos.[28]
TCT No. 63767 was issued in the names of the five (5)
respondents plus Virginia Aguilar, thus:
FRANCISCO N. AGUILAR, widower; THELMA N.
AGUILAR, single; EUSEBIO N. AGUILAR, JR., widower;
RODOLFO N. AGUILAR, single and ANTONIO N.
AGUILAR, married to Teresita Puig; and VIRGINIA N.
AGUILAR, single, all of legal age, Filipinos.[29]
 Respondent Antonio Aguilar testified that he and the
other registered owners are all siblings who inherited the
subject property by intestate succession from their
parents.[30] Their father died in 1945 and their mother in
1976.[31] Both TCTs were issued in the siblings names on
September 2, 1987.[32] In 1986, however, the siblings agreed to
extrajudicially partition the lots among themselves, but no
action was taken by them to this end. It was only eleven (11)
years later, on November 28, 1997 that a survey of the two lots
was made[33] and on February 10, 1998, a consolidation
subdivision plan was approved by the Lands Management
Service of the Department of Environment and Natural
Resources.[34] The co-owners signed a Partition Agreement on
February 24, 1998[35] and on May 21, 1998, TCT Nos. 63766
and 63767 were cancelled and new titles issued in the names of
the individual owners pursuant to the Partition Agreement.
Petitioner argues that the consolidation of the subject lots
and their partition was made more than six (6) months after the
complaint for expropriation was filed on August 4, 1997,
hence, the partition was made in bad faith, for the purpose of
circumventing the provisions of R.A. 7279.[36]
At the time of filing of the complaint for expropriation,
the lots subject of this case were owned in common by
respondents. Under a co-ownership, the ownership of an
undivided thing or right belongs to different persons. [37] During
the existence of the co-ownership, no individual can claim title
to any definite portion of the community property until the
partition thereof; and prior to the partition, all that the co-owner
has is an ideal or abstract quota or proportionate share in the
entire land or thing.[38] Article 493 of the Civil Code however
provides that:
Art. 493. Each co-owner shall have the full ownership of his
part and of the fruits and benefits pertaining thereto, and he
may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the alienation or
the mortgage, with respect to the co-owners shall be limited to
the portion which may be allotted to him in the division upon
termination of the co-ownership.[39]
Before partition in a co-ownership, every co-owner has the
absolute ownership of his undivided interest in the common
property. The co-owner is free to alienate, assign or mortgage
his interest, except as to purely personal rights.[40] He may also
validly lease his undivided interest to a third party
independently of the other co-owners.[41] The effect of any such
transfer is limited to the portion which may be awarded to him
upon the partition of the property.[42]
Article 493 therefore gives the owner of an undivided interest
in the property the right to freely sell and dispose of his
undivided interest.[43] The co-owner, however, has no right to
sell or alienate a concrete specific or determinate part of the
thing owned in common, because his right over the thing is
represented by a quota or ideal portion without any physical
adjudication.[44] If the co-owner sells a concrete portion, this,
nonetheless, does not render the sale void. Such a sale affects
only his own share, subject to the results of the partition but not
those of the other co-owners who did not consent to the sale.[45]
In the instant case, the titles to the subject lots were issued
in respondents names as co-owners in 1987ten (10) years
before the expropriation case was filed in 1997. As co-owners,
all that the respondents had was an ideal or abstract quota or
proportionate share in the lots. This, however, did not mean
that they could not separately exercise any rights over the
lots. Each respondent had the full ownership of his undivided
interest in the property. He could freely sell or dispose of his
interest independently of the other co-owners. And this interest
could have even been attached by his creditors.[46] The partition
in 1998, six (6) months after the filing of the expropriation
case, terminated the co-ownership by converting into certain
and definite parts the respective undivided shares of the co-
owners.[47] The subject property is not a thing essentially
indivisible. The rights of the co-owners to have the property
partitioned and their share in the same delivered to them cannot
be questioned for "[n]o co-owner shall be obliged to remain in
the co-ownership."[48] The partition was merely a necessary
incident of the co-ownership;[49] and absent any evidence to the
contrary, this partition is presumed to have been done in good
faith.
Upon partition, four (4) co-owners, namely, Francisco,
Thelma, Rodolfo and Antonio Aguilar each had a share of 300
square meters under TCT Nos. 13849, 13852, 13850,
13851.[50] Eusebio Aguilars share was 347 square meters under
TCT No. 13853[51] while Virginia Aguilars was 89 square
meters under TCT No. 13854.[52]
It is noted that Virginia Aguilar, although granted 89
square meters only of the subject lots, is, at the same time, the
sole registered owner of TCT No. 59780, one of the three (3)
titles initially sought to be expropriated in the original
complaint. TCT No. 59780, with a land area of 211 square
meters, was dropped in the amended complaint. Eusebio
Aguilar was granted 347 square meters, which is 47 square
meters more than the maximum of 300 square meters set by
R.A. 7279 for small property owners. In TCT No. 13853,
Eusebios title, however, appears the following annotation:
subject to x x x, and to the prov. of Sec. 4 Rule 74 of the Rules
of Court with respect to the inheritance left by the deceased
Eusebio N. Aguilar.[53]
Eusebio died on March 23, 1995,[54] and, according to
Antonios testimony, the former was survived by five (5)
children.[55] Where there are several co-owners, and some of
them die, the heirs of those who die, with respect to that part
belonging to the deceased, become also co-owners of the
property together with those who survive.[56] After Eusebio
died, his five heirs became co-owners of his 347 square-meter
portion. Dividing the 347 square meters among the five entitled
each heir to 69.4 square meters of the land subject of litigation.
Consequently, the share of each co-owner did not exceed
the 300 square meter limit set in R.A. 7279. The second
question, however, is whether the subject property is the only
real property of respondents for them to comply with the
second requisite for small property owners.
Antonio Aguilar testified that he and most of the original
co-owners do not reside on the subject property but in their
ancestral home in Paco, Manila.[57] Respondents therefore
appear to own real property other than the lots in
litigation. Nonetheless, the records do not show that the
ancestral home in Paco, Manila and the land on which it stands
are owned by respondents or any one of them. Petitioner did
not present any title or proof of this fact despite Antonio
Aguilars testimony.
On the other hand, respondents claim that the subject lots
are their only real property[58] and that they, particularly two of
the five heirs of Eusebio Aguilar, are merely renting their
houses and therefore do not own any other real property in
Metro Manila.[59] To prove this, they submitted certifications
from the offices of the City and Municipal Assessors in Metro
Manila attesting to the fact that they have no registered real
property declared for taxation purposes in the respective
cities. Respondents were certified by the City Assessor of
Manila;[60] Quezon City;[61] Makati City;[62] Pasay
[63] [64]
City; Paranaque; Caloocan City;[65] Pasig
City;[66] Muntinlupa;[67] Marikina;[68] and the then municipality
of Las Pias[69] and the municipality of San Juan del Monte[70] as
having no real property registered for taxation in their
individual names.
Finally, this court notes that the subject lots are now in the
possession of respondents. Antonio Aguilar testified that he
and the other co-owners filed ejectment cases against the
occupants of the land before the Metropolitan Trial Court,
Mandaluyong, Branches 59 and 60. Orders of eviction were
issued and executed on September 17, 1997 which resulted in
the eviction of the tenants and other occupants from the land in
question.[71]
IN VIEW WHEREOF, the petition is DENIED and the
orders dated September 17, 1998 and December 29, 1998 of the
Regional Trial Court, Branch 168, Pasig City in SCA No. 1427
are AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan,
Pardo, and Ynares-Santiago, JJ., concur.
G.R. No. L-46296 September 24, 1991
EPITACIO DELIMA, PACLANO DELIMA, FIDEL
DELIMA, VIRGILIO DELIMA, GALILEO DELIMA, JR.,
BIBIANO BACUS, OLIMPIO BACUS and
PURIFICACION BACUS, petitioners,
vs.
HON. COURT OF APPEALS, GALILEO DELIMA
(deceased), substituted by his legal heirs, namely:
FLAVIANA VDA. DE DELIMA, LILY D. ARIAS, HELEN
NIADAS, ANTONIO DELIMA, DIONISIO DELIMA,
IRENEA DELIMA, ESTER DELIMA AND FELY
DELIMA, respondents.
Gabriel J. Canete for petitioners.
Emilio Lumontad, Jr. for private respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari of the decision of the
Court of Appeals reversing the trial court's judgment which
declared as null and void the certificate of title in the name of
respondents' predecessor and which ordered the partition of the
disputed lot among the parties as co-owners.
The antecedent facts of the case as found both by the
respondent appellate court and by the trial court are as follows:
During his lifetime, Lino Delima acquired Lot No. 7758 of the
Talisay-Minglanilla Friar Lands Estate in Cebu by sale on
installments from the government. Lino Delima later died in
1921 leaving as his only heirs three brothers and a sister
namely: Eulalio Delima, Juanita Delima, Galileo Delima and
Vicente Delima. After his death, TCT No. 2744 of the property
in question was issued on August 3, 1953 in the name of the
Legal Heirs of Lino Delima, deceased, represented by Galileo
Delima.
On September 22, 1953, Galileo Delima, now substituted by
respondents, executed an affidavit of "Extra-judicial
Declaration of Heirs." Based on this affidavit, TCT No. 2744
was cancelled and TCT No. 3009 was issued on February
4,1954 in the name of Galileo Delima alone to the exclusion of
the other heirs.
Galileo Delima declared the lot in his name for taxation
purposes and paid the taxes thereon from 1954 to 1965.
On February 29, 1968, petitioners, who are the surviving heirs
of Eulalio and Juanita Delima, filed with the Court of First
Instance of Cebu (now Regional Trial Court) an action for
reconveyance and/or partition of property and for the
annulment of TCT No. 3009 with damages against their uncles
Galileo Delima and Vicente Delima,. Vicente Delima was
joined as party defendant by the petitioners for his refusal to
join the latter in their action.
On January 16, 1970, the trial court rendered a decision in
favor of petitioners, the dispositive portion of which states:
IN VIEW OF THE FOREGOING
CONSIDERATIONS, the following are the declared
owners of Lot No. 7758 of the Talisay-Minglanilla
Friar Lands Estate presently covered by transfer
Certificate of Title No. 3009, each sharing a pro-
indiviso share of one-fourth;
1) Vicente Delima (one-fourth)
2) Heirs of Juanita Delima, namely: Bibiano Bacus,
Olimpio Bacus and Purificacion Bacus (on-fourth);
3) Heirs of Eulalio Delima, namely Epitacio, Pagano,
Fidel, Virgilio and Galileo Jr., all surnamed Delima
(one-fourth); and
4) The Heirs of Galileo Delima, namely Flaviana Vda.
de Delima, Lily D. Arias, Helen Niadas and Dionisio,
Antonio, Eotu Irenea, and Fely, all surnamed Delima
(one-fourth).
Transfer Certificate of Title No. 3009 is declared null
and void and the Register of Deeds of Cebu is ordered
to cancel the same and issue in lieu thereof another
title with the above heirs as pro-indiviso owners.
After the payment of taxes paid by Galileo Delima
since 1958, the heirs of Galileo Delima are ordered to
turn a over to the other heirs their respective shares of
the fruits of the lot in question computed at P170.00
per year up to the present time with legal (interest).
Within sixty (60) days from receipt of this decision
the parties are ordered to petition the lot in question
and the defendants are directed to immediately turn
over possession of the shares here awarded to the
respective heirs.
Defendants are condemned to pay the costs of the suit.
The counterclaim is dismissed.
SO ORDERED. (pp. 54-55, Rollo)
Not satisfied with the decision, respondents appealed to the
Court of Appeals. On May 19, 1977, respondent appellate court
reversed the trial court's decision and upheld the claim of
Galileo Delima that all the other brothers and sister of Lino
Delima, namely Eulalio, Juanita and Vicente, had already
relinquished and waived their rights to the property in his
favor, considering that he (Galileo Delima) alone paid the
remaining balance of the purchase price of the lot and the realty
taxes thereon (p. 26, Rollo).
Hence, this petition was filed with the petitioners alleging that
the Court of Appeals erred:
 1) In not holding that the right of a co-heir to demand
partition of inheritance is imprescriptible. If it does,
the defenses of prescription and laches have already
been waived.
2) In disregarding the evidence of the
petitioners.(p.13, Rollo)
The issue to be resolved in the instant case is whether or not
petitioners' action for partition is already barred by the statutory
period provided by law which shall enable Galileo Delima to
perfect his claim of ownership by acquisitive prescription to the
exclusion of petitioners from their shares in the disputed
property. Article 494 of the Civil Code expressly provides:
Art. 494. No co-owner shall be obliged to remain in
the co-ownership. Each co-owner may demand at any
time the partition of the thing owned in common,
insofar as his share is concerned.
Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not exceeding
ten years, shall be valid. This term may be extended
by a new agreement.
A donor or testator may prohibit partition for a period
which shall not exceed twenty years.
Neither shall there be any partition when it is
prohibited by law.
No prescription shall run in favor of a co-owner or co-
heir against his co-owners or co-heirs so long as he
expressly or impliedly recognizes the co-ownership.
As a rule, possession by a co-owner will not be presumed to be
adverse to the others, but will be held to benefit all. It is
understood that the co-owner or co-heir who is in possession of
an inheritance pro-indiviso for himself and in representation of
his co-owners or co-heirs, if, as such owner, he administers or
takes care of the rest thereof with the obligation of delivering it
to his co-owners or co-heirs, is under the same situation as a
depository, a lessee or a trustee (Bargayo v. Camumot, 40 Phil,
857; Segura v. Segura, No. L-29320, September 19, 1988, 165
SCRA 368). Thus, an action to compel partition may be filed at
any time by any of the co-owners against the actual possessor.
In other words, no prescription shall run in favor of a co-owner
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership (Del Blanco v.
Intermediate Appellate Court, No. 72694, December 1, 1987,
156 SCRA 55).
However, from the moment one of the co-owners claims that
he is the absolute and exclusive owner of the properties and
denies the others any share therein, the question involved is no
longer one of partition but of ownership (De Castro v. Echarri,
20 Phil. 23; Bargayo v. Camumot, supra; De los Santos v.
Santa Teresa, 44 Phil. 811). In such case, the imprescriptibility
of the action for partition can no longer be invoked or applied
when one of the co-owners has adversely possessed the
property as exclusive owner for a period sufficient to vest
ownership by prescription.
It is settled that possession by a co-owner or co-heir is that of a
trustee. In order that such possession is considered adverse to
the cestui que trust amounting to a repudiation of the co-
ownership, the following elements must concur: 1) that the
trustee has performed unequivocal acts amounting to an ouster
of the cestui que trust; 2) that such positive acts of repudiation
had been made known to the cestui que trust; and 3) that the
evidence thereon should be clear and conclusive (Valdez v.
Olorga, No. L-22571, May 25, 1973, 51 SCRA 71; Pangan v.
Court of Appeals, No. L-39299, October 18, 1988, 166 SCRA
375).
We have held that when a co-owner of the property in question
executed a deed of partition and on the strength thereof
obtained the cancellation of the title in the name of their
predecessor and the issuance of a new one wherein he appears
as the new owner of the property, thereby in effect denying or
repudiating the ownership of the other co-owners over their
shares, the statute of limitations started to run for the purposes
of the action instituted by the latter seeking a declaration of the
existence of the co-ownership and of their rights thereunder
(Castillo v. Court of Appeals, No. L-18046, March 31, 1964,
10 SCRA 549). Since an action for reconveyance of land based
on implied or constructive trust prescribes after ten (10) years,
it is from the date of the issuance of such title that the effective
assertion of adverse title for purposes of the statute of
limitations is counted (Jaramil v. Court of Appeals, No. L-
31858, August 31, 1977, 78 SCRA 420).
Evidence shows that TCT No. 2744 in the name of the legal
heirs of Lino Delima, represented by Galileo Delima, was
cancelled by virtue of an affidavit executed by Galileo Delima
and that on February 4, 1954, Galileo Delima obtained the
issuance of a new title in Ms name numbered TCT No. 3009 to
the exclusion of his co-heirs. The issuance of this new title
constituted an open and clear repudiation of the trust or co-
ownership, and the lapse of ten (10) years of adverse
possession by Galileo Delima from February 4, 1954 was
sufficient to vest title in him by prescription. As the certificate
of title was notice to the whole world of his exclusive title to
the land, such rejection was binding on the other heirs and
started as against them the period of prescription. Hence, when
petitioners filed their action for reconveyance and/or to compel
partition on February 29, 1968, such action was already barred
by prescription. Whatever claims the other co-heirs could have
validly asserted before can no longer be invoked by them at
this time.
ACCORDINGLY, the petition is hereby DENIED and the
assailed decision of the Court of Appeals dated May 19, 1977
is AFFIRMED.
SO ORDERED.
Narvasa (Chairman), Cruz and Grio-Aquino, JJ., concur.
G.R. No. L-57062 January 24, 1992
MARIA DEL ROSARIO MARIATEGUI, ET
AL., petitioners,
vs.
HON. COURT OF APPEALS, JACINTO MARIATEGUI,
JULIAN MARIATEGUI and PAULINA
MARIATEGUI, respondents.
Montesa, Albon & Associates for petitioners.
Parmenio B. Patacsil, Patacsil Twins Law Office for the heirs
of the late Maria del Rosario Mariategui.
Tinga, Fuentes & Tagle Firm for private respondents.
BIDIN, J.:
This is a petition for review on certiorari of the decision * of
the Court of Appeals dated December 24, 1980 in CA-G.R. No.
61841, entitled "Jacinto Mariategui, et al. v. Maria del Rosario
Mariategui, et al.," reversing the judgment of the then Court of
First Instance of Rizal, Branch VIII ** at Pasig, Metro Manila.
The undisputed facts are as follows:
Lupo Mariategui died without a will on June 26, 1953 (Brief
for respondents, Rollo, pp. 116; 8). During his lifetime, Lupo
Mariategui contracted three (3) marriages. With his first wife,
Eusebia Montellano, who died on November 8, 1904, he begot
four (4) children, namely: Baldomera, Maria del Rosario,
Urbana and Ireneo. Baldomera died and was survived by her
children named Antero, Rufina, Catalino, Maria, Gerardo,
Virginia and Federico, all surnamed Espina. Ireneo also died
and left a son named Ruperto. With his second wife, Flaviana
Montellano, he begot a daughter named Cresenciana who was
born on May 8, 1910 (Rollo, Annex "A", p. 36).
Lupo Mariategui and Felipa Velasco (Lupo's third wife) got
married sometime in 1930. They had three children, namely:
Jacinto, born on July 3, 1929, Julian, born on February 16,
1931 and Paulina, born on April 19, 1938. Felipa Velasco
Mariategui died in 1941 (Rollo, Ibid).
At the time of his death, Lupo Mariategui left certain properties
which he acquired when he was still unmarried (Brief for
respondents, Rollo, pp. 116; 4). These properties are described
in the complaint as Lots Nos. 163, 66, 1346 and 156 of the
Muntinglupa Estate (Rollo, Annex "A", p. 39).
On December 2, 1967, Lupo's descendants by his first and
second marriages, namely, Maria del Rosario, Urbana, Ruperto,
Cresencia, all surnamed Mariategui and Antero, Rufina,
Catalino, Maria, Gerardo, Virginia and Federico, all surnamed
Espina, executed a deed of extrajudicial partition whereby they
adjudicated unto themselves Lot No. 163 of the Muntinglupa
Estate. Thereafter, Lot No. 163 was the subject of a voluntary
registration proceedings filed by the adjudicatees under Act
No. 496, and the land registration court issued a decree
ordering the registration of the lot. Thus, on April 1, 1971,
OCT No. 8828 was issued in the name of the above-mentioned
heirs. Subsequently, the registered owners caused the
subdivision of the said lot into Lots Nos. 163-A to 163-H, for
which separate transfer certificates of title were issued to the
respective parties (Rollo, ibid).
On April 23, 1973, Lupo's children by his third marriage with
Felipa Velasco (Jacinto, Julian and Paulina) filed with the
lower court an amended complaint claiming that Lot No. 163
together with Lots Nos. 669, 1346 and 154 were owned by
their common father, Lupo Mariategui, and that, with the
adjudication of Lot No. 163 to their co-heirs, they (children of
the third marriage) were deprived of their respective shares in
the lots. Plaintiffs pray for partition of the estate of their
deceased father and annulment of the deed of extrajudicial
partition dated December 2, 1967 (Petition, Rollo, p. 10).
Cresencia Mariategui Abas, Flaviana Mariategui Cabrera and
Isabel Santos were impleaded in the complaint as unwilling
defendants as they would not like to join the suit as plaintiffs
although they acknowledged the status and rights of the
plaintiffs and agreed to the partition of the parcels of land as
well as the accounting of their fruits (Ibid., Rollo, p. 8; Record
on Appeal, p. 4).
The defendants (now petitioners) filed an answer with
counterclaim (Amended Record on Appeal, p. 13). Thereafter,
they filed a motion to dismiss on the grounds of lack of cause
of action and prescription. They specifically contended that the
complaint was one for recognition of natural children. On
August 14, 1974, the motion to dismiss was denied by the trial
court, in an order the dispositive portion of which reads:
It is therefore the opinion of the Court that
Articles 278 and 285 of the Civil Code cited
by counsel for the defendants are of
erroneous application to this case. The
motion to dismiss is therefore denied for lack
of merit.
SO ORDERED. (Ibid, p. 37).
However, on February 16, 1977, the complaint as well as
petitioners' counterclaim were dismissed by the trial court, in
its decision stating thus:
The plaintiffs' right to inherit depends upon
the acknowledgment or recognition of their
continuous enjoyment and possession of
status of children of their supposed father.
The evidence fails to sustain either premise,
and it is clear that this action cannot be
sustained. (Ibid, Rollo, pp. 67-68)
The plaintiffs elevated the case to the Court of Appeals on the
ground that the trial court committed an error ". . . in not
finding that the parents of the appellants, Lupo Mariategui and
Felipa Velasco (were) lawfully married, and in holding (that)
they (appellants) are not legitimate children of their said
parents, thereby divesting them of their inheritance . . . "
(Rollo, pp. 14-15).
On December 24, 1980, the Court of Appeals rendered a
decision declaring all the children and descendants of Lupo
Mariategui, including appellants Jacinto, Julian and Paulina
(children of the third marriage) as entitled to equal shares in the
estate of Lupo Mariategui; directing the adjudicatees in the
extrajudicial partition of real properties who eventually
acquired transfer certificates of title thereto, to execute deeds of
reconveyance in favor, and for the shares, of Jacinto, Julian and
Paulina provided rights of innocent third persons are not
prejudiced otherwise the said adjudicatees shall reimburse the
said heirs the fair market value of their shares; and directing all
the parties to submit to the lower court a project of partition in
the net estate of Lupo Mariategui after payment of taxes, other
government charges and outstanding legal obligations.
The defendants-appellees filed a motion for reconsideration of
said decision but it was denied for lack of merit. Hence, this
petition which was given due course by the court on December
7, 1981.
The petitioners submit to the Court the following issues: (a)
whether or not prescription barred private respondents' right to
demand the partition of the estate of Lupo Mariategui, and (b)
whether or not the private respondents, who belatedly filed the
action for recognition, were able to prove their successional
rights over said estate. The resolution of these issues hinges,
however, on the resolution of the preliminary matter, i.e., the
nature of the complaint filed by the private respondents.
The complaint alleged, among other things, that "plaintiffs are
the children of the deceased spouses Lupo Mariategui . . . and
Felipa Velasco"; that "during his lifetime, Lupo Mariategui had
repeatedly acknowledged and confirmed plaintiffs as his
children and the latter, in turn, have continuously enjoyed such
status since their birth"; and "on the basis of their relationship
to the deceased Lupo Mariategui and in accordance with the
law on intestate succession, plaintiffs are entitled to inherit
shares in the foregoing estate (Record on Appeal, pp. 5 & 6). It
prayed, among others, that plaintiffs be declared as children
and heirs of Lupo Mariategui and adjudication in favor of
plaintiffs their lawful shares in the estate of the decedent (Ibid,
p. 10).
A perusal of the entire allegations of the complaint, however,
shows that the action is principally one of partition. The
allegation with respect to the status of the private respondents
was raised only collaterally to assert their rights in the estate of
the deceased. Hence, the Court of Appeals correctly adopted
the settled rule that the nature of an action filed in court is
determined by the facts alleged in the complaint constituting
the cause of action (Republic vs. Estenzo, 158 SCRA 282
[1988]).
It has been held that, if the relief demanded is not the proper
one which may be granted under the law, it does not
characterize or determine the nature of plaintiffs' action, and
the relief to which plaintiff is entitled based on the facts alleged
by him in his complaint, although it is not the relief demanded,
is what determines the nature of the action (1 Moran, p. 127,
1979 ed., citing Baguioro vs. Barrios, et al., 77 Phil. 120).
With respect to the legal basis of private respondents' demand
for partition of the estate of Lupo Mariategui, the Court of
Appeals aptly held that the private respondents are legitimate
children of the deceased.
Lupo Mariategui and Felipa Velasco were alleged to have been
lawfully married in or about 1930. This fact is based on the
declaration communicated by Lupo Mariategui to Jacinto who
testified that "when (his) father was still living, he was able to
mention to (him) that he and (his) mother were able to get
married before a Justice of the Peace of Taguig, Rizal." The
spouses deported themselves as husband and wife, and were
known in the community to be such. Although no marriage
certificate was introduced to this effect, no evidence was
likewise offered to controvert these facts. Moreover, the mere
fact that no record of the marriage exists does not invalidate the
marriage, provided all requisites for its validity are present
(People vs. Borromeo, 133 SCRA 106 [1984]).
Under these circumstances, a marriage may be presumed to
have taken place between Lupo and Felipa. The laws presume
that a man and a woman, deporting themselves as husband and
wife, have entered into a lawful contract of marriage; that a
child born in lawful wedlock, there being no divorce, absolute
or from bed and board is legitimate; and that things have
happened according to the ordinary course of nature and the
ordinary habits of life (Section 5 (z), (bb), (cc), Rule 131, Rules
of Court; Corpus v. Corpus, 85 SCRA 567 [1978]; Saurnaba v.
Workmen's Compensation, 85 SCRA 502 [1978]; Alavado v.
City Gov't. of Tacloban, 139 SCRA 230 [1985]; Reyes v. Court
of Appeals, 135 SCRA 439 [1985]).
Courts look upon the presumption of marriage with great favor
as it is founded on the following rationale:
The basis of human society throughout the
civilized world is that of marriage. Marriage
in this jurisdiction is not only a civil contract,
but it is a new relation, an institution in the
maintenance of which the public is deeply
interested. Consequently, every intendment
of the law leans toward legalizing
matrimony. Persons dwelling together in
apparent matrimony are presumed, in the
absence of any counterpresumption or
evidence special to that case, to be in fact
married. The reason is that such is the
common order of society and if the parties
were not what they thus hold themselves out
as being, they would be living in the constant
violation of decency and of
law . . . (Adong vs. Cheong Seng Gee, 43
Phil. 43, 56 [1922] quoted in Alavado vs.
City Government of Tacloban, 139 SCRA
230 [1985]).
So much so that once a man and a woman have lived as
husband and wife and such relationship is not denied nor
contradicted, the presumption of their being married must be
admitted as a fact (Alavado v. City Gov't. of Tacloban,supra).
The Civil Code provides for the manner under which legitimate
filiation may be proven. However, considering the effectivity
of the Family Code of the Philippines, the case at bar must be
decided under a new if not entirely dissimilar set of rules
because the parties have been overtaken by events, to use the
popular phrase (Uyguangco vs. Court of Appeals, G.R. No.
76873, October 26, 1989). Thus, under Title VI of the Family
Code, there are only two classes of children legitimate and
illegitimate. The fine distinctions among various types of
illegitimate children have been eliminated (Castro vs. Court of
Appeals, 173 SCRA 656 [1989]).
Article 172 of the said Code provides that the filiation of
legitimate children may be established by the record of birth
appearing in the civil register or a final judgment or by the
open and continuous possession of the status of a legitimate
child.
Evidence on record proves the legitimate filiation of the private
respondents. Jacinto's birth certificate is a record of birth
referred to in the said article. Again, no evidence which tends
to disprove facts contained therein was adduced before the
lower court. In the case of the two other private respondents,
Julian and Paulina, they may not have presented in evidence
any of the documents required by Article 172 but they
continuously enjoyed the status of children of Lupo Mariategui
in the same manner as their brother Jacinto.
While the trial court found Jacinto's testimonies to be
inconsequential and lacking in substance as to certain dates and
names of relatives with whom their family resided, these are
but minor details. The nagging fact is that for a considerable
length of time and despite the death of Felipa in 1941, the
private respondents and Lupo lived together until Lupo's death
in 1953. It should be noted that even the trial court mentioned
in its decision the admission made in the affidavit of
Cresenciana Mariategui Abas, one of the petitioners herein, that
" . . . Jacinto, Julian and Paulina Mariategui ay pawang mga
kapatid ko sa
ama . . ." (Exh. M, Record on Appeal, pp. 65-66).
In view of the foregoing, there can be no other conclusion than
that private respondents are legitimate children and heirs of
Lupo Mariategui and therefore, the time limitation prescribed
in Article 285 for filing an action for recognition is inapplicable
to this case. Corollarily, prescription does not run against
private respondents with respect to the filing of the action for
partition so long as the heirs for whose benefit prescription is
invoked, have not expressly or impliedly repudiated the co-
ownership. In other words, prescription of an action for
partition does not lie except when the co-ownership is properly
repudiated by the co-owner (Del Banco vs. Intermediate
Appellate Court, 156 SCRA 55 [1987] citing Jardin vs.
Hollasco, 117 SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the
share of the other co-owners absent a clear repudiation of co-
ownership duly communicated to the other co-owners (Mariano
vs. De Vega, 148 SCRA 342 [1987]). Furthermore, an action to
demand partition is imprescriptible and cannot be barred by
laches (Del Banco vs. IAC, 156 SCRA 55 [1987]). On the other
hand, an action for partition may be seen to be at once an action
for declaration of co-ownership and for segregation and
conveyance of a determinate portion of the property involved
(Roque vs. IAC, 165 SCRA 118 [1988]).
Petitioners contend that they have repudiated the co-ownership
when they executed the extrajudicial partition excluding the
private respondents and registered the properties in their own
names (Petition, p. 16; Rollo, p. 20). However, no valid
repudiation was made by petitioners to the prejudice of private
respondents. Assuming petitioners' registration of the subject
lot in 1971 was an act of repudiation of the co-ownership,
prescription had not yet set in when private respondents filed in
1973 the present action for partition (Ceniza vs. C.A., 181
SCRA 552 [1990]).
In their complaint, private respondents averred that in spite of
their demands, petitioners, except the unwilling defendants in
the lower court, failed and refused to acknowledge and convey
their lawful shares in the estate of their father (Record on
Appeal, p. 6). This allegation, though denied by the petitioners
in their answer (Ibid, p. 14), was never successfully refuted by
them. Put differently, in spite of petitioners' undisputed
knowledge of their relationship to private respondents who are
therefore their co-heirs, petitioners fraudulently withheld
private respondent's share in the estate of Lupo Mariategui.
According to respondent Jacinto, since 1962, he had been
inquiring from petitioner Maria del Rosario about their
(respondents) share in the property left by their deceased father
and had been assured by the latter (Maria del Rosario) not to
worry because they will get some shares. As a matter of fact,
sometime in 1969, Jacinto constructed a house where he now
resides on Lot No. 163 without any complaint from petitioners.
Petitioners' registration of the properties in their names in 1971
did not operate as a valid repudiation of the co-ownership.
In Adille vs. Court of Appeals (157 SCRA 455, 461-462
[1988]), the Court held:
Prescription, as a mode of terminating a
relation of co-ownership, must have been
preceded by repudiation (of the co-
ownership). The act of repudiation, in turn, is
subject to certain conditions: (1) a co-owner
repudiates the co-ownership; (2) such an act
of repudiation is clearly made known to the
other co-owners; (3) the evidence thereon is
clear and conclusive; and (4) he has been in
possession through open, continuous,
exclusive, and notorious possession of the
property for the period required by law.
xxx xxx xxx
It is true that registration under the Torrens
system is constructive notice of title, but it
has likewise been our holding that the
Torrens title does not furnish shield for fraud.
 It is therefore no argument to say that the act
of registration is equivalent to notice of
repudiation, assuming there was one,
notwithstanding the long-standing rule that
registration operates as a universal notice of
title.

Inasmuch as petitioners registered the properties in their names

in fraud of their co-heirs prescription can only be deemed to
have commenced from the time private respondents discovered
the petitioners' act of defraudation (Adille vs. Court of
Appeals, supra). Hence, prescription definitely may not be
invoked by petitioners because private respondents commenced
the instant action barely two months after learning that
petitioners had registered in their names the lots involved.

WHEREFORE, the petition is DENIED and the assailed

decision of the Court of Appeals dated December 24, 1980 is
Affirmed.

SO ORDERED.

Gutierrez, Jr., Feliciano, Davide, Jr. and Romero, JJ., concur.

G.R. No. 109910 April 5, 1995
REMEDIOS G. SALVADOR and GRACIA G.
SALVADOR, petitioners,
vs.
COURT OF APPEALS, ALBERTO and ELPIA YABO,
FRANCISCA YABO, et al., respondents.
DAVIDE, JR., J.:
Assailed in this petition is the legal determination made by the
Court of Appeals on the issues of which portion of Lot No.
6080 and Lot No. 6180 formed part of the conjugal assets of
the spouses Pastor Makibalo and Maria Yabo, and of whether
or not the rights of Pastor's co-heirs in the estate of Maria Yabo
were extinguished through prescription or laches.
Alipio Yabo was the owner of Lot No. 6080 and Lot No. 6180
situated in Barrio Bulua, Cagayan de Oro City, containing an
area of 1,267 and 3,816 square meters, respectively. Title
thereto devolved upon his nine children, namely, Victoriano,
Procopio, Lope, Jose, Pelagia, Baseliza, Francisca, Maria, and
Gaudencia, upon his death sometime before or during the
second world war.
On 28 April 1976, Pastor Makibalo, who is the husband of
Maria Yabo, one of Alipio's children, filed with the then Court
of First Instance of Misamis Oriental a complaint, docketed as
Civil Case No. 5000, against the spouses Alberto and Elpia
Yabo for "Quieting of Title, Annulment of Documents, and
Damages." In the complaint, he alleged that he owned a total of
eight shares of the subject lots, having purchased the shares of
seven of Alipio's children and inherited the share of his wife,
Maria, and that except for the portion corresponding to
Gaudencia's share which he did not buy, he occupied,
cultivated, and possessed continuously, openly, peacefully, and
exclusively the two parcels of land. He then prayed that he be
declared the absolute owner of 8/9 of the lots in question. 1
On 8 October 1976, the grandchildren and great-grandchildren
of the late Alipio Yabo2 lodged with the same court a
complaint for partition and quieting of title with
damages,3 docketed as Civil Case No. 5174, against Pastor
Makibalo, Enecia Cristal, and the spouses Eulogio and
Remedies Salvador. They alleged that Lot No. 6080 and Lot
No. 6180 are the common property of the heirs of Alipio Yabo,
namely, the plaintiffs, defendant Enecia Cristal, Maria Yabo
and Jose Yabo, whose share had been sold to Alberto Yabo;
that after Alipio's death, the spouses Pastor and Maria
Makibalo, Enecia Cristal and Jose Yabo became the de
facto administrators of the said properties; and that much to
their surprise, they discovered that the Salvador spouses, who
were strangers to the family, have been harvesting coconuts
from the lots, which act as a cloud on the plaintiffs' title over
the lots.
The plaintiffs then prayed that (a) they, as well as defendant
Pastor Makibalo, in representation of his wife, and Enecia
Cristal, in representation of Gaudencia, be declared as the
owners of the lots; (b) the Salvador spouses be declared as
having no rights thereto except as possible assignees of their
co-defendants, Pastor Makibalo and Enecia Cristal; (c) the lots
be partitioned according to law among the aforementioned co-
owners; and (d) the defendants be made to pay for the value of
the fruits they harvested from the lots and for moral and
exemplary damages, attorney's fees, expenses of the litigation,
and costs of the suit.
The two cases were consolidated and jointly heard by Branch 5
of the Court of First Instance of Cagayan de Oro City.
By evidence, Pastor, Makibalo sought to prove the following
allegations:
He was married to Maria Yabo who died on 17 March
1962.4 In August 1949, Jose and Victoriano, both surnamed
Yabo, sold their respective shares in the disputed lots to one
Pedro Ebarat, and in 1952 the latter sold both shares to Pastor
Makibalo.5 Ebarat formalized this conveyance by executing an
Affidavit of Waiver and Quitclaim dated 30 May 1969 in favor
of Pastor.6
On 16 January 1951, the heirs of the late Lope Yabo sold
Lope's shares in the litigated properties to one Dominador
Canomon,7 who, in turn, sold the same to Pastor.8 Canomon
afterwards executed an Affidavit of Waiver and Quitclaim in
favor of the latter.9
Pastor Makibalo likewise purchased the shares of Baseliza in
the two lots in 1942, of Procopio in 1957, of Francisca in 1958,
and of Pelagia in 1967. The only share he did not buy was that
of Gaudencia. After every purchase, he took possession of the
portions bought and harvested the products thereof.10
In 1966, Pastor sold back to Alberto a portion of Lot No. 6180
which was formerly the share of Alberto's father, Procopio. 11
In December 1968, Pastor mortgaged the two lots to the
spouses Eulogio and Remedios Salvador. 12 On 26 September
1978, he executed a document denominated as a "Confirmation
and Quitclaim" whereby he waived all his rights, interests, and
participation in the lots in favor of the Salvador spouses. 13
On the other hand, by their evidence, l4 the spouses Alberto
and Elpia Yabo tried to prove that they had repurchased from
Pastor Makibalo the share of Procopio, which was previously
sold to Pastor, and had bought the shares of Jose and Maria. 15
Filoteo Yabo denied having sold the share of his father, Lope
Yabo, in the contested lots and disowned his signature and
those of his mother, brothers, and sisters appearing at the back
of Exhibit "C". 16
Ignacio Yabo testified that his father, Victoriano Yabo, did not
know how to write and sign his name. He further declared that
he had no knowledge that his father affixed his thumbmark in
the document marked as Exhibit "A" purporting to alienate his
father's share in the disputed lots. l7
On 15 January 1983, the trial court rendered its
decision 18 holding as follows:
Assuming that the thumbmark on the
typewritten name "Jose Yabo" in Exh. 3 was
that of Jose Yabo, Alberto Yabo and Elpia R.
Yabo purchased the share of Jose Yabo in
bad faith because they knew before and up to
the execution of Exh. 3 on October 24, 1972
that Jose Yabo was no longer the owner of
that area because from the documents she
borrowed from Mrs. Salvador they came to
know that Jose Yabo had sold his shares to
Pedro Ebarat, and they have seen that Pastor
Makibalo has been in possession of those
shares together with the seven others
exclusively as owner, he having mortgaged
them to Mrs. Salvador.
As Jose Yabo was no longer the owner of the
one-ninth (1/9) shares which he sold to
Alberto Yabo and Elpia Yabo under Exh. 3,
the sale is null and void, and Alberto and
Elpia acquired nothing because Jose Yabo
had no more title, right or interest to dispose
of.
...
Pastor Makibalo had been in possession of
Jose Yabo's share since 1949 after purchasing
it from Ebarat, and has been in possession
thereof up to September 26, 1978 when he
sold it to the spouses Eulogio Salvador and
Remedios Salvador, who are now in
possession of the same.
Exh. A, evidencing the sale of Victoriano
Yabo's share to Pedro Ebarat was identified
by the latter who testified that he sold it to
Pastor Makibalo in 1951. Exh. A is an
ancient document 1949 when the
document came to existence up to now is
more than 30 years, and the document had
been in the possession of Pastor Makibalo,
then Remedios Salvador who had interest in
its preservation.
As regards the shares of Lope Yabo, the same
had been sold by his surviving spouse Juana
Legaspi, and his children Filoteo, Andresa,
Jovita, Bonifacio, and Rundino for P105.00
on January 16, 1951 to Dominador Conomon
(Exh. C and C-1), who in turn sold it to
Pastor Makibalo in 1952, executing a formal
Deed of Waiver and Quitclaim on May 30,
1969
(Exh. D).
Exh. C is an ancient document, being more
than 30 years old and has been in the
possession of Pastor Makibalo and then the
spouses Eulogio and Remedios Salvador
who had an interest in its preservation. The
claim of Filoteo Yabo that the signatures
appearing in Exh. C are not his and those of
his brothers and sisters are of no avail, for if
they were not the ones who affixed those
signatures and so they did not sell the shares
of their father Lope Yabo, why did they not
then take possession of said shares they
remained silent from 1951 to September 16,
1976 a period of 25 years. They are now
[e]stopped by laches.
And as regards the shares of Baseliza,
Francisca and Pelagia, there is no evidence
presented to effectively rebut the testimony
of Pastor Makibalo that he acquired the
shares of Baseliza Yabo in 1942 by changing
it with a buffalo; that he bought the shares of
Francisca Yabo in 1958 and that he bought
the shares of Pelagia Yabo in 1967; Pastor
Makibalo had been in possession of these
shares from the time he acquired them,
continuously, adversely, openly, and
peacefully, as owner up to the time he sold
his rights and interest therein to the spouses
Eulogio and Remedies Salvador. The heirs of
Baseliza, Francisca and Pelagia have not
taken any step to protect their rights over
those shares for over 40 years in the case of
Baseliza's share, for about 20 years in the
case of Francisca's share, and for more than
10 years in the case of Pelagia's share.
Laches, likewise has rendered their rights
stale.
On March 10, 1966 Pastor Makibalo sold
back to Alberto Yabo the share of Procopio
Yabo in Lot 6180 (Exh. 1 and 2), but there is
nothing to show that. Pastor Makibalo also
sold back Procopio's share in Lot 6080.
So then, by purchase, Pastor Makibalo and
Maria Yabo acquired the shares of Baseliza,
Victoriano, Jose, Lope, Procopio and
Francisca, or six (6) shares from Lots 6080
and 6180. These belonged to the conjugal
partnership of Pastor Makibalo and Maria
Yabo. Maria Yabo had also a share from Lots
6080 and 6180, and Pastor Makibalo
acquired the shares of Pelagia Yabo in both
Lots 6080 and 6180. All in all; Pastor
Makibalo acquired eight shares in both Lot
6080 and 6180.
While Maria Yabo died on March 17, 1962,
and so one-fourth (1/4) of the shares of
Baseliza, Victoriano, Jose, Lope, and
Francisca, or one-fourth of five-ninth (5/9) of
both lots and one-fourth (1/4) of Lot 6080
should go to the children of the brothers and
sisters of Maria Yabo by virtue of the
provisions of Article 1001 of the New Civil
Code, the latter have lost their rights thereto
by laches for their inaction for a very long
period and their rights have become stale. On
the other hand, Pastor Makibalo who had
been in possession of the whole of the eight
shares in both Lots 6080 and 6180, enjoying
the fruits thereof exclusively,
uninterruptedly, publicly, peacefully, and
continuously from the death of Maria Yabo
up to the filing of the complaint in Civil Case
No. 5174 on October 8, 1976, or a period of
14 years, had acquired title to the whole of
the eight shares in Lot 6080 and seven shares
in Lot 6180 (the share of Procopio in Lot
6180 had been sold back to Alberto Yabo).
IN VIEW OF ALL THE FOREGOING,
judgment is hereby rendered finding Pastor
Makibalo, now Eulogio Salvador and
Remedios Salvador the owner of eight (8)
shares, equivalent to eight-ninth (8/9) of Lot
No. 6080, and of seven (7) shares, equivalent
to seven-ninth (7/9) of Lot No. 6180, and
therefore, ordering the partition of Lot 6080
so that the one-ninth (1/9) alloted to
Gaudencia Yabo will go to her heirs or their
assigns, and the remaining eight-ninth (8/9)
will go to the spouses Eulogio Salvador and
Remedios Salvador, as successor of Pastor
Makibalo, and the partition of Lot 6180 so
that the seven-ninth (7/9) portion which
formerly belonged to Baseliza, Victoriano,
Jose, Lope, Maria, Francisca, and Pelagia
will go to the spouses Eulogio and Remedios
Salvador, the one-ninth (1/9) which formerly
belonged to Procopio, will go to Alberto
Yabo, and the remaining one-ninth (1/9)
which formerly belonged to Gaudencia, will
go to Gaudencia's heirs or their assigns.
Doc. No. 720, recorded on page 28 of
Notarial Register No. VII, and acknowledged
before Notary Public Isidro S. Baculio (Exh.
E) [purportedly executed by Maria Yabo and
Pastor Makibalo] is hereby declared null and
void, and so the Office of the City Fiscal is
directed to cause an investigation of this
matter to find out the person or persons
responsible for the falsification of the said
document, and if the evidence warrants, to
file the corresponding criminal action in
court. The Office of the City Assessor of
Cagayan de Oro City is, likewise, directed to
cause the cancellation of Tax Declarations
Nos. 33553, marked as Exh. H-3, 33557,
marked as Exh. H-2, both in the name of
Alberto Yabo, for having been issued on the
basis of a falsified document. Let copies of
this decision be furnished the Offices of the
City Fiscal and City Assessor, both of
Cagayan de Oro City.
No pronouncement as to damages, attorney's
fees and costs.
SO ORDERED. 19
The defendants in Civil Case No. 5000 and the plaintiffs in
Civil Case No. 5174 appealed from the decision to the Court of
Appeals on 19 August 1983. 20
In its decision of 3 February 1993, 21 the Court of Appeals held
that (a) Maria Yabo did not sell her share to Alberto and Elpia
Yabo; (b) prescription and laches have not run against the
private respondents with respect to the 1/9 share of Maria Yabo
in the estate of her father and to her conjugal share in the
portions acquired from her brothers and sisters; and (c)
Procopio never sold his share in Lot No. 6080 to Pastor
Makibalo. More specifically it stated:
Exh. E is the document found by the lower
court to be a falsification. This finding
appellants do not dispute and have not raised
an error.
...
While acknowledging. that upon the death of
Maria Yabo on March 17, 1962, one-half
(1/2) of the share of Maria Yabo in Lots 6080
and 6180 and one-half (1/2) of Maria Yabo's
conjugal share in the portions bought from
Basiliza, Victoriano, Jose, Lope, Pelagia and
Francisca should go to the children of the
brothers and sisters of Maria in accordance
with Article 1001 of the Civil Code, the
lower court rule that said children have lost
their rights by laches "for their inaction for a
very long period and their rights have
become stale" (Decision, p. 16; Record, Vol.
2, p. 158).
Appellants in their second assignment of
error aver that this is an error.
We agree that the lower court erred.
While between March 17, 1962 when Maria
Yabo died and October 8, 1976, when Civil
Case No. 5174 for partition was filed, was a
period of more than fourteen (14) years, that
alone to our mind would not suffice to
establish laches or prescription. Upon the
death of Maria Yabo, appellee Pastor
Makibalo and appellants and the other
children of the brothers and sisters of Maria,
by operation of law become co-owners of the
one-ninth (1/9) share of Maria as heir of her
father Alipio and the conjugal share of Maria
in the portions acquired from Basiliza,
Victoriano, Jose, Lope, Pelagia and
Francisca. Time alone is not a decisive factor.
Appellee Pastor Makibalo, it must be
remembered, is the husband of Maria and,
therefore, an uncle in-law of appellants. In
our culture, a demand by an heir or heirs for
partition immediately upon the death of a
relative is more often taken not as a
legitimate assertion of a right but of
something else, like greed. It must also be
noted that the spouses, the appellee Pastor
Makibalo and his deceased wife Maria, were
childless and, therefore, appellants and the
other children of the brothers and sisters of
Maria must have felt that at any rate the
property would go to them in the course of
time. This probably explains why appellants
started asserting their right over the property
only after appellee Pastor Makibalo sold the
same to the spouses Eulogio and Remedios
Salvador. Besides, Lots 6080 and 6180 have
a combined area only of 5,083 square meters
and before the development of Northern
Mindanao, and even in 1962 when Maria
Yabo died, were not that valuable. This is
shown by the fact that each heir sold his other
share only for P110.00.
As we have said not time alone. In the early
case of Cortes v. Oliva, 33 Phil. 480, it was
held that"(o)rdinarily, possession by one joint
owner will not be presumed to be adverse to
the others, but will, as a rule, be held to be
for the benefit of all. Much stronger evidence
The respondent court then concluded and held as follows:
is required to show an adverse holding by
one of several joint owners than by a
stranger; and in such cases, to sustain a plea
of prescription, it must always clearly appear
that one who was originally a joint owner has
repudiated the claims of his co-owners, and
that his co-owners were apprised or should
have been apprised of his claim of adverse
and exclusive ownership before the alleged
prescription began to run (at page 484). This
ruling on prescription should apply with
equal force to laches.
The third assignment of error challenges the
finding of the lower court that "there is
nothing to show that Pastor Makibalo also
sold back Procopio's share in Lot 6080"
(Decision, p. 16; Records, Vol. 2,p. 158).
Exhibits 1 and 2 cover only Procopio's share
in Lot 6180. In other words, Exhibits 1 and. 2
conveyed back to Alberto Yabo only his
father, Procopio's share in Lot 6180.
There is indeed no evidence that Pastor
Makibalo also sold back to Alberto, his father
Procopio's share in Lot 6080.
But from the evidence it appears that
Procopio Yabo never sold his share in Lot
6080 to Pastor Makibalo. So there was no
need to convey back Procopio's share in Lot
6080.
This fact is evident from the Affidavit of
Confirmation of Sale (Exh. M) dated April
22, 1970, executed by Alberto Yabo, which
is the very document relied upon by the
lower court (Decision, p. 11; Record, Vol. 2,
p. 153) in finding that "Alberto Yabo
admitted that the share of his father Procopio
Yabo was previously bought by Pastor
Makibalo." A look at Exh. M, particularly
par. 3 thereof, reveals that AlbertoYabo
merely acknowledged or confirmed the sale
of his father's share to Pastor Makibalo in Lot
6180. In effect, it at the same time proves that
Lot 6080 was never sold by Procopio to
appellee Pastor Makibalo; otherwise, it
would have been included in the said
Affidavit of Confirmation of Sale. The Deed
of Absolute Sale (Exh. 2) subsequently
executed by Pastor Makibalo in favor of
Alberto Yabo on April 23, 1970, further
proves this point, since the latter merely
bought back what was previously sold, his
father's share in Lot 6180.22
In summary, appellee Pastor Makibalo and
his assigns, the spouses Eulogio and
Remedios Salvador, are entitled only to one-
half () of the one-ninth (1/9) share of Maria
and three-fourths (3/4) of the six-ninth (6/9)
shares acquired from Basiliza, Victoriano,
Jose, Lope, Pelagia and Francisca.
Accordingly, the partition should be done as
follows:
(1) 1/9 of Lots 6080 end
6180 should be given to the
heirs of Gaudencia Yabo or
their successors and
assigns;
(2) 1/9 of Lot 6180 should
go to Alberto Yabo and his
wife Elpia Yabo;
(3) 1/9 of Lot 6080 should
be given to the heirs of
Procopio Yabo and their
successors end assigns,
including Alberto Yabo;
 (4) The 1/9 share of Maria
Yabo in Lots 6080 and
6180 should be partitioned:
One-half (1/2) for the
surviving spouse Pastor
Makibalo (now the spouses
Eulogio Salvador and
Remedios Salvador) and
the other half for the
children of the brothers and
sisters of Maria Yabo in
equal shares.
(5) The remaining 6/9, one-
half (1/2) of which is
conjugal between Maria
Yabo and appellee Pastor
Makibalo should be
partitioned three-fourths
(3/4) for Pastor Makibalo
(now the spouses Eulogio
Salvador and Remedios
Salvador) and one-fourth
(1/4) for the children of the
brothers and sisters of
Maria Yabo in equal
shares.
(6) Jose Yabo if he is still
alive should participate in
the partition as heir of
Maria otherwise he shall be
represented by his children.
WHEREFORE, premises considered, subject
to the modification in the partition, as
indicated above, the decision appealed from
is AFFIRMED, without pronouncement as to
costs. The lower court is directed if necessary
to fully effect the partition, to conduct further
hearings and determine whether Jose Yabo is
still alive and who are the children of the
brothers and sisters of Maria Yabo.23
Unable to obtain a reconsideration of the said-decision,
Remedios Salvador, together with her daughter, Ma. Gracia
Salvador, as one of the successors-in-interest of Eulogio M.
Salvador who died during the pendency of the
appeal, 24 elevated the case to this Court contending that the
respondent court erred in ruling that: (1) the shares of Pelagia
Yabo should be included in the partition; (2) prescription and
laches have not run against the private respondents in relation
to the 1/9 share of Maria Yabo in the estate of her father and to
her conjugal share in those acquired by purchase; (3)
Procopio Yabo never sold to Pastor Makibalo his share in Lot
No. 6080; and(4) Jose Yabo should be allowed to participate as
heir of Maria even as he had openly rejected this option by
refusing to participate in both civil cases. 25
Article 160 of the Civil Code provides that all property of the
marriage is presumed to belong to the conjugal partnership,
unless it be proved that it pertains .exclusively to the husband
or to the wife. Since the shares of Jose, Victoriano, Lope,
Baseliza, Procopio, and Francisca in Lot No. 6180 and Lot No.
6080 had been purchased by Pastor during his marriage with
Maria, and there is no proof that these were acquired with his
exclusive money, the same are deemed conjugal properties. Not
forming part of the conjugal partnership are: (1) the 1/9 share
inherited by Maria which remained as her exclusive property
pursuant to Article 146 (2) of the Civil Code; (2) the 1/9 share
of Gaudencia which was not sold to Pastor; and (3) the 1/9
share of Pelagia which was acquired by Pastor in 1967 or five
years after the death of his wife and which was therefore his
exclusive property.
There is, thus; merit in the petitioners' first assigned error. The
Court of .Appeals should have excluded from the conjugal
partnership the share of Pelagia which Pastor had acquired after
his wife's death.
Upon Maria's death in 1962, the conjugal partnership of gains
was dissolved. 26 Half of the conjugal properties, together with
Maria's l/9 hereditary share in the disputed lots, constituted
Maria's estate and should thus go to her surviving
heirs. 27 Under Article 1001 of the Civil Code, her heirs are her
spouse, Pastor Makibalo, who shall be entitled to-one-half (1/2)
of her estate, her brother, Jose, and the children of her other
brothers and sisters, who shall inherit the other half. There
having been no actual partition of the estate yet, the said heirs
became co-owners thereof by operation of law. 28
We now determine whether prescription and laches can be
applied against the co-heirs of Pastor Makibalo.
It has been said that Article 494 of the Civil Code which
provides that each co-owner may demand at any time the
partition of the common property implies that an action to
demand partition is imprescriptible or cannot be barred by
laches. 29 The imprescriptibility of the action cannot, however,
be invoked when one of the co-owners has possessed the
property as exclusive owner and for a period sufficient to
acquire it by prescription. 30
What needs to be addressed first is whether or not Pastor
Makibalo has acquired by prescription the shares of his other
co-heirs or co-owners. Prescription as a mode of acquiring
ownership requires a continuous, open, peaceful, public, and
adverse possession for a period of time fixed by law.
This Court has held that the possession of a co-owner is like
that of a trustee and shall not be regarded as adverse to the
other co-owners but in fact as beneficial to all of them. 31 Acts
which may be considered adverse to strangers may not be
considered adverse insofar as co-owners are concerned. A mere
silent possession by a co-owner, his receipt of rents, fruits or
profits from the property, the erection of buildings and fences
and the planting of trees thereon, and the payment of land
taxes, cannot serve as proof of exclusive ownership, if it is not
borne out by clear and convincing evidence that he exercised
acts of possession which unequivocably constituted an ouster
or deprivation of the rights of the other co-owners. 32
Thus, in order that a co-owner's possession may be deemed
adverse to the cestui que trust or the other co-owners, the
following elements must concur: (1) that he has performed
unequivocal acts of repudiation amounting to an ouster of
the cestui que trust or the other co-owners; (2) that such
positive acts of repudiation have been made known to
the cestui que trust or the other co-owners; and (3) that the
evidence thereon must be clear and convincing. 33
In Pangan vs. Court of Appeals, 34 this Court had occasion to
lay down specific acts which are considered as acts of
repudiation:
Filing by a trustee of an action in
court against the trustor to quiet title to
property, or for recovery of ownership
thereof, held in possession by the former,
may constitute an act of repudiation of the
trust reposed on him by the latter.
The issuance of the certificate of title would
constitute an open and clear repudiation of
any trust, and the lapse of more than 20
years, open and adverse possession as owner
would certainly suffice to vest title by
prescription.
An action for the reconveyance of land based
on implied or constructive trust prescribes
within 10 years. And it is from the date of
the issuance of such title that the effective
assertion of adverse title for purposes of the
statute of limitation is counted.
The prescriptive period may only be counted
from the time petitioners repudiated the trust
relation in 1955 upon the filing of the
complaint for recovery of possession against
private respondents so that the counterclaim
of the private respondents contained in their
amended answer wherein they asserted
absolute ownership of the disputed realty by
reason of the continuous and adverse
possession of the same is well within the l0-
year prescriptive period.
There is clear repudiation of a trust when one
who is an apparent administrator of property
causes the cancellation of the title thereto in
the name of the apparent beneficiaries and
gets a new certificate of title in his own
name.
It is only when the defendants, alleged co-
owners of the property in question, executed
a deed of partition and on the strength
thereof obtained the cancellation of the
title in the name of their predecessor and the
issuance of a new one wherein they appear as
the new owners of a definite area each,
thereby in effect denying or repudiating the
ownership of one of the plaintiffs over his
alleged share in the entire lot, that the statute
of limitations started to run for the purposes
of the action instituted by the latter seeking a
declaration of the existence of the co-
ownership and of their rights thereunder.
The records do not show that Pastor Makibalo adjudicated to
himself the whole estate of his wife by means of an affidavit
filed with the Office of the Register of Deeds as allowed under
Section 1 Rule 74 of the Rules of Court, or that he caused the
issuance of a certificate of title in his name or the cancellation
of the tax declaration in Alipio's name and the issuance of a
new one in his own name. The only act which may be deemed
as a repudiation by Pastor of the co-ownership over the lots is
his filing on 28 April 1976 of an action to quiet title (Civil Case
No. 5000). The period of prescription started to run only from
this repudiation. However, this was tolled when his co-heirs,
the private respondents herein, instituted on 8 October 1976 an
action for partition (Civil Case No. 5174) of the lots. Hence,
the adverse possession by Pastor being for only about six
months would not vest in him exclusive ownership of his wife's
estate, and absent acquisitive prescription of ownership, laches
and prescription of the action for partition will not lie in favor
of Pastor. 35
The issue presented by the petitioners in their third assigned
error involves a question of fact. This Court is not ordinarily a
trier of facts, its jurisdiction being limited to errors of law.
Thus; the findings of facts of the Court of Appeals are as a rule
deemed conclusive. However, when the findings of facts of the
appellate court vary with those of the trial court, this Court has
to review the evidence in order to arrive at the correct
findings. 36
In the instant case, a conflict in the findings of facts of the
lower courts exists. The trial court found that Pastor was the
owner of Procopio's share in Lot No. 6080, as there was
nothing to show that he sold it back to Alberto Yabo. The
respondent court on the other hand, held that Procopio Yabo
never sold his share in Lot No. 6080 to pastor, thus, there was
no need to convey it back to Procopio's son, Alberto.
At this juncture, it is worthy to quote pertinent portions of the
testimony of Pastor Makibalo:
COURT: (To the witness.)
Q Where is AlbertoYabo
living?
A It is there in their house
at Bulua.
ATTY. JARAULA:
(Continuing.)
Q In whose land?
A Alipio Yabo's land.
Q What relation has that Q This is now identified as
land to the two (2) parcels Lot No. 6180?
of land under litigation?
A Yes, Your Honor.
A I bought already.
ATTY. JARAULA:
Q So, will you please tell (Continuing.)
the Honorable Court, why
Alberto Yabo is staying on Q Where did you sign a
that land when you said document ceding that
you have bought that land portion requested by
already. Alberto Yabo?

A So, I sold back a portion A We did not make any

to them because they receipt in favor of
requested me. AlbertoYabo because they
got only the receipt of that
COURT: (To the witness.) of his father.

Q When was that when you COURT: (To the witness.)

said that Alberto Yabo
requested a portion? Q You mean to say, that
the receipt which Procopio
A In 1967. signed when he sold his
share for [sic] the
COURT: document which Alberto
got?
Q Did you give that portion
which they requested? A Yes.

A Their share being COURT:

inherited from their father
Procopio was the portion All right.
they requested.
ATTY. JARAULA
COURT (Continuing.)

Q Yes. Did you grant that?
A Yes.
Q That is the area you sold
to Alberto Yabo, pursuant
to his request?
Q Now, for how much did
you buy. the shares of each
of the brothers and sisters
of your wife?
A One Hundred Ten
(P110.00) Pesos.

A Because that was the Q When you sold back to

land they inherited from
their father that was what
they requested.
Q All right. So that, the
area now being occupied
by Alberto Yabo?
Alberto Yabo, the portion
corresponding to the share
of his father Procopio in
the Poblacion, how much
did he pay you?
A The same.

A Yes. That land in the Q By the same, you are

Centro. referring by the same
amount of One Hundred
Ten (P110.00) Pesos?
 A Yes, Sir. The same
amount. 37
The petitioners contend that the sales or conveyances made by
Alipio's heirs were for their consolidated shares in the two lots.
If this was so, and the receipt which Procopio signed when he
sold his consolidated share to Pastor was turned over to
Alberto, the inevitable conclusion is that Alberto redeemed his
father's share in both lots, not only in Lot: No. 6180. This
conclusion is further buttressed by the above-quoted testimony
of Pastor that he bought the shares (consolidated) of each of
Alipio's heirs for P110.00 and that when he sold back to
Alberto the former share of Procopio, Alberto paid him the
same amount of P110.00.
However, since the share of Procopio in the two litigated
parcels of land was purchased by Pastor during his marriage
with Maria, the same became conjugal property, and half of it
formed part of Maria's estate upon her death in 1962.
Accordingly, Pastor's resale in favor of Alberto could only be
valid with respect to Pastor's one-half (1/2) conjugal share and
one-fourth (1/4) hereditary share as heir of Maria. 38 The
remaining one-fourth (1/4) should go to Pastor's co-heirs, the
private respondents herein.
Now on the fourth assigned error.
Section 1, Rule 69 of the Rules of Court requires that all
persons interested in the land sought to be partitioned must be
joined as defendants in the complaints. All co-owners and
persons having an interest in the property are considered
indispensable parties and an action for partition will not lie
without the joinder of said persons. 39 It has been held that the
absence of an indispensable party in a case renders ineffective
all the proceedings subsequent to the filing of the complaint
including the judgment. 40
It must be recalled that in Civil Case No. 5174 the private
respondents sought the partition of the two lots based on the
co-ownership which arose from the right of succession to
Alipio's estate. Since Jose Yabo confirmed, through his
thumbmark in the verification of the complaint, that he had
already parted with his share in Alipio's estate, he in effect
admitted that he had ceased to be a co-owner of the two lots
which comprised his father's estate. Thus, his non-joinder as a
party-plaintiff in the complaint would appear to be proper. He
does not, as well, appear to be an indispensable party in Civil
Case No. 5000.
As it turned out, however, the evidence and the issues which
cropped up rendered imperative the determination of the
conjugal assets of Pastor Makibalo and Maria Yabo and the
partition of the latter's estate among her heirs. Her estate
consists of one-half() of the conjugal properties, which
should then be divided pursuant to Article 1001 of the Civil
Code since the marriage produced no child; thus: one-half ()
to Pastor, and the other half to her brother Jose, and to her
nephews and nieces.
Insofar as the partition of Maria Yabo's estate is concerned,
Jose is an indispensable party. Strictly, the rule on
indispensable parties may bar a partition of Maria's estate.
Considering, however, that such estate or its partition are but
incidents in Civil Case No. 5000 and Civil Case No. 5174, and
the parties have not offered any objection to the propriety of
the determination and partition of her estate, then in the light of
Section 11 of Rule 3 41 and Sections 1 and 5, Rule 10 42 of the
Rules of Court, and following the rulings of this Court in the
1910 case of Alonso vs. Villamor43 and the 1947 case
of Cuyugan vs. Dizon, 44 an amendment of the complaint in
Civil Case No. 5174 to implead Jose Yabo as party plaintiff
would be in order.
In Alonso, it was held that under Section 110 of the Code of
Civil Procedure whose first paragraph is substantially the
same as the aforesaid Section 1 of Rule 10 and Section 503
thereof, this Court "has full power, apart from that power and
authority which is inherent, to amend the process, pleadings,
proceedings, and decision in this case by substituting, as party
plaintiff, the real party in interest." Our ruling
in Cuyugan states:
We, however, do not believe that the case
should be dismissed for plaintiff's failure to
join her husband. (Sec. 11, Rule 2, Rules of
Court). Nor should the case be remanded to
the court below and a new trial ordered on
this account. The complaint may and should
be amended here, to cure the defect of party
plaintiffs, after final decision is rendered.
Section 11, Rule 2, and Section 2, Rule 17,
explicitly authorize such procedure. As this
Court had occasion to say in Quison vs.
Salud, (12 Phil., 109, 116), "a second action
would be but a repetition of the first and
would involve both parties, plaintiffs and
defendant, in much additional expense and
would cause much delay, in that way
defeating the purpose of the section, which is
expressly stated to be "that the actual merits
of the controversy may speedily be
determined without regard to technicalities
and in the most expeditious and inexpensive
manner." (See also Diaz vs. De la Rama, 73
Phil., 104)
To avoid further delay in the disposition of this case, we
declare Civil Case No. 5174 as thus duly amended.
Consequently, Jose Yabo may participate in the partition of the
estate of Maria Yabo. The fourth assigned error must then be
rejected.
In view of the foregoing disquisitions, the appealed judgment
should be modified as follows: (a) the former 1/9 share of
Pelagia Yabo in Lots No. 6180 and 6080 which she sold to
Pastor should be treated as the latter's exclusive property which
should now pertain to the petitioners, his successors-in-interest;
and (b) the former 1/9 share of Procopio Yabo in both lots
should be divided as follows: 3/4 (respondent Pastor's 1/2
conjugal share and 1/4 representing his share therein as Maria's
heir) for the spouses Alberto and Elpia Yabo, and 1/4
(representing the share therein of Maria's collateral relatives as
Maria's heirs) for the private respondents, including Alberto
and Jose Yabo. The partition of the two lots in controversy
should therefore be made in this wise:
(1) 1/9 share of Gaudencia Yabo should be
allotted to her heirs or successors-in-interest;
(2) 1/9 share formerly belonging to Pelagia
Yabo to the petitioners as successors-in-
interest of Pastor Makibalo;
(3) 1/9 hereditary share of Maria Yabo to be
divided as follows:
WHEREFORE, the challenged decision of the Court of
Appeals of 8 February 1993 in CA-G.R. CV No. 12839 is
AFFIRMED, subject to the modifications indicated above.
Upon the finality of this decision, let this case be forthwith
remanded to the court a quo for further proceedings on the
partition of Lots Nos. 6180 and 6080 in conformity with this
decision.
No pronouncement as to costs.
SO ORDERED.
Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

(a) 1/2 for the petitioners

(as successors-in-interest of
Pastor Makibalo), and

(b) 1/2 for the private

respondents, including Jose
Yabo or his heirs;

(4) 1/9 share formerly belonging to Procopio

Yabo to be divided thus:

(a) 3/4 for Spouses Alberto

and Elpia Yabo, and

(b) 1/4 for the other private

respondents, including Jose
Yabo or his heirs;

(5) 5/9 shares which became the conjugal

properties of Pastor Makibalo and Maria
Yabo to be divided thus:

(a) 3/4 for the petitioners

(as successors-in-interest of
Pastor Makibalo), and

(b) for the private

respondents, including Jose
Yabo or his heirs.

In sum, Lots Nos. 6180 anid 6080 should be partitioned as

follows:

1/9 or 4/36 to Guadencia Yabo's heirs or

successors-in-interest;

3/4 of 1/9 or 3/36 to the spouses Alberto

and Elpina Yabo;

8/36 to the private respondents, including

Jose Yabu or his heirs;

21/36 to the petitioners as successors-in-

interest of Pastor Makibalo.
CELERINO E. MERCADO, G.R. No. 184109
Petitioner, property[4] dated November 1, 1948, Macario claimed that
Present: Dionisia had donated her share to him in May 1945.

Thereafter, on August 9, 1977, Macario and his daughters Betty

- versus -
CORONA, C.J., Gullaba and Saida Gabelo sold[5] 225 sq. m. to his son Roger

Chairperson, Espinocilla, husband of respondent Belen Espinocilla and

father of respondent Ferdinand Espinocilla. On March 8, 1985,
LEONARDO-DE
BELEN* ESPINOCILLA** AN Roger Espinocilla sold[6] 114 sq. m. to Caridad Atienza. Per
D FERDINAND
CASTRO, actual survey of Lot No. 552, respondent Belen Espinocilla
ESPINOCILLA,
Respondents. occupies 109 sq. m., Caridad Atienza occupies 120 sq. m.,
BERSAMIN,
Caroline Yu occupies 209 sq. m., and petitioner, Salvacion's
DEL CASTILLO, and son, occupies 132 sq. m.[7]
The case for petitioner
VILLARAMA, JR., JJ

. Petitioner sued the respondents to recover two portions: an area

of 28.5[8] sq. m. which he bought from Aspren and another 28.5
Promulgated:
sq. m. which allegedly belonged to him but was occupied by
February 1, 2012 Macarios house.[9] His claim has since been modified to an
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
--------x alleged encroachment of only 39 sq. m. that he claims must be
returned to him. He avers that he is entitled to own and possess
DECISION
171 sq. m. of Lot No. 552, having inherited 142.5 sq. m. from
VILLARAMA, JR., J.:
his mother Salvacion and bought 28.5 sq. m. from his aunt
Aspren. According to him, his mothers inheritance is 142.5 sq.
The case
m., that is, 114 sq. m. from Doroteo plus 28.5 sq. m. from
Dionisia. Since the area he occupies is only 132 sq. m.,[10] he
[1]
Petitioner Celerino E. Mercado appeals the Decision dated
claims that respondents encroach on his share by 39 sq. m. [11]
April 28, 2008 and Resolution[2] dated July 22, 2008 of the
Court of Appeals (CA) in CA-G.R. CV No. 87480. The CA
The case for respondents
dismissed petitioners complaint[3] for recovery of possession,
quieting of title, partial declaration of nullity of deeds and Respondents agree that Doroteos five children each inherited
documents, and damages, on the ground of prescription. 114 sq. m. of Lot No. 552. However, Macarios share increased
when he received Dionisias share. Macarios increased share
The antecedent facts
was then sold to his son Roger, respondents husband and
Doroteo Espinocilla owned a parcel of land, Lot No. 552, with father. Respondents claim that they rightfully possess the land
an area of 570 sq. m., located at Magsaysay Avenue, Zone 5, they occupy by virtue of acquisitive prescription and that there
Bulan, Sorsogon. After he died, his five children, Salvacion, is no basis for petitioners claim of encroachment.[12]
Aspren, Isabel, Macario, and Dionisia divided Lot No. 552
equally among themselves. Later, Dionisia died without issue The trial courts decision
ahead of her four siblings, and Macario took possession of
Dionisias share. In an affidavit of transfer of real

On May 15, 2006, the Regional Trial Court (RTC) ruled in
favor of petitioner and held that he is entitled to 171 sq. m. The
RTC found that petitioner inherited 142.5 sq. m. from his
mother Salvacion and bought 28.5 sq. m. from his aunt
Aspren. The RTC computed that Salvacion, Aspren, Isabel and
Macario each inherited 142.5 sq. m. of Lot No. 552.Each
inherited 114 sq. m. from Doroteo and 28.5 sq. m. from
Dionisia. The RTC further ruled that Macario was not entitled
to 228 sq. m. Thus, respondents must return 39 sq. m. to
petitioner who occupies only 132 sq. m.[13]
There being no public document to prove Dionisias donation,
the RTC also held that Macarios 1948 affidavit is void and is
an invalid repudiation of the shares of his sisters Salvacion,
Aspren, and Isabel in Dionisias share. Accordingly, Macario
cannot acquire said shares by prescription. The RTC further
held that the oral partition of Lot No. 552 by Doroteos heirs did
not include Dionisias share and that partition should have been
the main action. Thus, the RTC ordered partition and deferred
the transfer of possession of the 39 sq. m. pending
partition.[14] The dispositive portion of the RTC decision reads:
WHEREFORE, in view of the foregoing
premises, the court issues the following
ORDER, thus -
a) Partially declaring the nullity of the
Deed of Absolute Sale of Property
dated August 9, 1977 x x x executed
by Macario Espinocilla, Betty E.
Gullaba and Saida E. Gabelo in
favor of Roger Espinocilla, insofar
as it affects the portion or the share
belonging to Salvacion Espinocilla,
mother of [petitioner,] relative to the
property left by Dionisia
Espinocilla, including [Tax
Declaration] No. 13667 and other
documents of the same nature and
character which emanated from the
said sale;
b) To leave as is the Deeds of Absolute
Sale of May 11, 1983 and March 8,
1985, it having been determined that
they did not involve the portion
belonging to [petitioner] x x x.
c) To effect an effective and real
partition among the heirs for
purposes of determining the exact
location of the share (114 sq. m.) of
the late Dionisia Espinocilla
together with the 28.5 sq.
m. belonging to [petitioners] mother
Salvacion, as well as, the exact
location of the 39 sq. m. portion
belonging to the [petitioner] being
encroached by the [respondents],
with the assistance of the
Commissioner (Engr. Fundano)
appointed by this court.
d) To hold in abeyance the transfer of
possession of the 39 sq. m.
portion to the [petitioner] pending
the completion of the real partition
above-mentioned.[15]
The CA decision
On appeal, the CA reversed the RTC decision and dismissed
petitioners complaint on the ground that extraordinary
acquisitive prescription has already set in in favor of
respondents. The CA found that Doroteos four remaining
children made an oral partition of Lot No. 552 after Dionisias
death in 1945 and occupied specific portions. The oral partition
terminated the co-ownership of Lot No. 552 in 1945. Said
partition also included Dionisias share because the lot was
divided into four parts only. And since petitioners complaint
was filed only on July 13, 2000, the CA concluded that
prescription has set in.[16] The CA disposed the appeal as
follows:
WHEREFORE, the appeal is
GRANTED. The assailed May 15, 2006
Decision of the Regional Trial Court (RTC)
of Bulan, Sorsogon is hereby REVERSED
and SET ASIDE. The Complaint of the
[petitioner] is hereby DISMISSED. No
costs.[17]
The instant petition
The core issue to be resolved is whether petitioners action to
recover the subject portion is barred by prescription.
Petitioner confirms oral partition of Lot No. 552 by Doroteo's
heirs, but claims that his share increased from 114 sq. m. to 171
sq. m. and that respondents encroached on his share by 39 sq.
m. Since an oral partition is valid, the corresponding survey
ordered by the RTC to identify the 39 sq. m. that must be
returned to him could be made.[18] Petitioner also alleges that
Macario committed fraud in acquiring his share; hence, any
evidence adduced by him to justify such acquisition is
inadmissible. Petitioner concludes that if a person obtains legal
title to property by fraud or concealment, courts of equity will
impress upon the title a so-called constructive trust in favor of
the defrauded party.[19]
The Courts ruling
We affirm the CA ruling dismissing petitioners complaint on
the ground of prescription.
Prescription, as a mode of acquiring ownership and other real
rights over immovable property, is concerned with lapse of
time in the manner and under conditions laid down by law,
namely, that the possession should be in the concept of an
owner, public, peaceful, uninterrupted, and
adverse. Acquisitive prescription of real rights may be ordinary
or extraordinary. Ordinary acquisitive prescription requires
possession in good faith and with just title for 10 years. In
extraordinary prescription, ownership and other real rights over
immovable property are acquired through uninterrupted
adverse possession for 30 years without need of title or of good
faith.[20]
Here, petitioner himself admits the adverse nature of
respondents possession with his assertion that Macarios
fraudulent acquisition of Dionisias share created a constructive
trust.In a constructive trust, there is neither a promise nor any
fiduciary relation to speak of and the so-called trustee
(Macario) neither accepts any trust nor intends holding the
property for the beneficiary (Salvacion, Aspren, Isabel). The
relation of trustee and cestui que trust does not in fact exist,
and the holding of a constructive trust is for the trustee himself,
and therefore, at all times adverse.[21] Prescription may
supervene even if the trustee does not repudiate the
relationship.[22]
Then, too, respondents uninterrupted adverse possession for 55
years of 109 sq. m. of Lot No. 552 was established. Macario
occupied Dionisias share in 1945 although his claim that
Dionisia donated it to him in 1945 was only made in a 1948
affidavit. We also agree with the CA that Macarios possession
of Dionisias share was public and adverse since his other co-
owners, his three other sisters, also occupied portions of Lot
No. 552. Indeed, the 1977 sale made by Macario and his two
daughters in favor of his son Roger confirms the adverse nature
of Macarios possession because said sale of 225 sq. m. [23] was
an act of ownership over Macarios original share and Dionisias
share. In 1985, Roger also exercised an act of ownership when
he sold 114 sq. m. to Caridad Atienza. It was only in the year
2000, upon receipt of the summons to answer petitioners
complaint, that respondents peaceful possession of the
remaining portion (109 sq. m.) was interrupted. By then,
however, extraordinary acquisitive prescription has already set
in in favor of respondents. That the RTC found Macarios 1948
affidavit void is of no moment. Extraordinary prescription is
unconcerned with Macarios title or good faith. Accordingly, the
RTC erred in ruling that Macario cannot acquire by
prescription the shares of Salvacion, Aspren, and Isabel, in
Dionisias 114-sq. m. share from Lot No. 552.
Moreover, the CA correctly dismissed petitioners complaint as
an action for reconveyance based on an implied or constructive
trust prescribes in 10 years from the time the right of action
accrues.[24] This is the other kind of prescription under the Civil
Code, called extinctive prescription, where rights and actions
are lost by the lapse of time.[25]Petitioners action for recovery
of possession having been filed 55 years after Macario
occupied Dionisias share, it is also barred by extinctive
prescription. The CA while condemning Macarios fraudulent
act of depriving his three sisters of their shares in Dionisias
share, equally emphasized the fact that Macarios sisters wasted
their opportunity to question his acts.
WHEREFORE, we DENY the petition for review on
certiorari for lack of merit and AFFIRM the assailed Decision
dated April 28, 2008 and Resolution dated July 22, 2008 of the
Court of Appeals in CA-G.R. CV No. 87480.

No pronouncement as to costs.

SO ORDERED
G.R. No. L-27952 February 15, 1982 Diez mil ochocientos seize
(10,806) acciones
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ,
MARIA LUISA PALACIOS, Administratrix, petitioner- de la 'Central Luzon Milling Co.', disuelta y
appellee, en
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, liquidacion a P0.15 por accion
JORGE and ROBERTO RAMIREZ, legatees, oppositors- ..............................................1,620.90
appellants.
Cuenta de Ahorros en el
Philippine Trust

ABAD SANTOS, J.: Co....................................................................

.......................... 2,350.73
The main issue in this appeal is the manner of partitioning the
testate estate of Jose Eugenio Ramirez among the principal TOTAL...............................
beneficiaries, namely: his widow Marcelle Demoron de ...............................
Ramirez; his two grandnephews Roberto and Jorge Ramirez; P512,976.97
and his companion Wanda de Wrobleski.
MENOS:
The task is not trouble-free because the widow Marcelle is a
French who lives in Paris, while the companion Wanda is an Deuda al Banco de las Islas
Austrian who lives in Spain. Moreover, the testator provided
Filipinas, garan-
for substitutions.
tizada con prenda de las acciones de La
Jose Eugenio Ramirez, a Filipino national, died in Spain on Carlota ......... P 5,000,00
December 11, 1964, with only his widow as compulsory heir.
His will was admitted to probate by the Court of First Instance
of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios VALOR
was appointed administratrix of the estate. In due time she LIQUIDO...........................
submitted an inventory of the estate as follows: ................ P507,976.97

INVENTARIO The testamentary dispositions are as follows:

Una sexta parte (1/6) A.En nuda propiedad, a D. Roberto y D.

proindiviso de un te Jorge Ramirez, ambas menores de edad,
residentes en Manila, I.F., calle 'Alright, No.
1818, Malate, hijos de su sobrino D. Jose Ma.
rreno, con sus mejoras y edificaciones,
Ramirez, con sustitucion vulgar a favor de
situadoen
sus respectivos descendientes, y, en su
defecto, con sustitucion vulgar reciprocal
la Escolta, entre ambos.
Manila.............................................................
P500,000.00
El precedente legado en nuda propiedad de la
participacion indivisa de la finca Santa Cruz
Una sexta parte (1/6) Building, lo ordena el testador a favor de los
proindiviso de dos legatarios nombrados, en atencion a que
dicha propiedad fue creacion del querido
parcelas de terreno situadas en Antipolo, padre del otorgante y por ser aquellos
Rizal................... 658.34 continuadores del apellido Ramirez,

Cuatrocientos noventa y B.Y en usufructo a saber:

uno (491) acciones
a. En cuanto a una tercera parte, a favor de la
de la 'Central Azucarera de la Carlota a esposa del testador, Da. Marcelle Ramirez,
P17.00 domiciliada en IE PECO, calle del General
Gallieni No. 33, Seine Francia, con
por accion sustitucion vulgar u fideicomisaria a favor de
......................................................................... Da. Wanda de Wrobleski, de Palma de
.......8,347.00
 Mallorca, Son Rapina Avenida de los Reyes
13,
b.Y en cuanto a las dos terceras partes
restantes, a favor de la nombrada Da. Wanda
de Nrobleski con sustitucion vulgar v
fideicomisaria a saber:
En cuanto a la mitad de dichas dos terceras
partes, a favor de D. Juan Pablo Jankowski,
de Son Rapina Palma de Mallorca; y
encuanto a la mitad restante, a favor de su
sobrino, D. Horace V. Ramirez, San Luis
Building, Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideiconiisarias
precedentemente ordinadas, las
usufiructuarias nombradas conjuntamente
con los nudo propietarios, podran en
cualquier memento vender a tercero los
bienes objeto delegado, sin intervencion
alguna de los titulares fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of
partition as follows: the property of the deceased is to be
divided into two parts. One part shall go to the widow 'en pleno
dominio" in satisfaction of her legitime; the other part or "free
portion" shall go to Jorge and Roberto Ramirez "en nuda
propriedad." Furthermore, one third (1/3) of the free portion is
charged with the widow's usufruct and the remaining two-
thirds (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the
grounds: (a) that the provisions for vulgar substitution in favor
of Wanda de Wrobleski with respect to the widow's usufruct
and in favor of Juan Pablo Jankowski and Horacio V. Ramirez,
with respect to Wanda's usufruct are invalid because the first
heirs Marcelle and Wanda) survived the testator; (b) that the
provisions for fideicommissary substitutions are also invalid
because the first heirs are not related to the second heirs or
substitutes within the first degree, as provided in Article 863 of
the Civil Code; (c) that the grant of a usufruct over real
property in the Philippines in favor of Wanda Wrobleski, who
is an alien, violates Section 5, Article III of the Philippine
Constitution; and that (d) the proposed partition of the testator's
interest in the Santa Cruz (Escolta) Building between the
widow Marcelle and the appellants, violates the testator's
express win to give this property to them Nonetheless, the
lower court approved the project of partition in its order dated
May 3, 1967. It is this order which Jorge and Roberto have
appealed to this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle
one-half of the estate in full ownership. They admit that the
testator's dispositions impaired his widow's legitime. Indeed,
under Art. 900 of the Civil Code "If the only survivor is the
widow or widower, she or he shall be entitled to one-half of the
hereditary estate." And since Marcelle alone survived the
deceased, she is entitled to one-half of his estate over which he
could impose no burden, encumbrance, condition or
substitution of any kind whatsoever. (Art. 904, par. 2, Civil
Code.)
It is the one-third usufruct over the free portion which the
appellants question and justifiably so. It appears that the court a
quo approved the usufruct in favor of Marcelle because the
testament provides for a usufruct in her favor of one-third of
the estate. The court a quo erred for Marcelle who is entitled to
one-half of the estate "en pleno dominio" as her legitime and
which is more than what she is given under the will is not
entitled to have any additional share in the estate. To give
Marcelle more than her legitime will run counter to the
testator's intention for as stated above his dispositions even
impaired her legitime and tended to favor Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the appoint-
judgment of another heir so that he may enter into the
inheritance in default of the heir originally instituted." (Art.
857, Civil Code. And that there are several kinds of
substitutions, namely: simple or common, brief or
compendious, reciprocal, and fideicommissary (Art. 858, Civil
Code.) According to Tolentino, "Although the Code
enumerates four classes, there are really only two principal
classes of substitutions: the simple and the fideicommissary.
The others are merely variations of these two." (111 Civil
Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil
Code which reads:
ART. 859. The testator may designate one or
more persons to substitute the heir or heirs
instituted in case such heir or heirs should die
before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of
the cases to which it refers, shall comprise
the three mentioned in the preceding
paragraph, unless the testator has otherwise
provided.
The fideicommissary substitution is described in the Civil Code
as follows:
ART. 863. A fideicommissary substitution by
virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to
preserve and to transmit to a second heir the
whole or part of inheritance, shall be valid
and shall take effect, provided such
substitution does not go beyond one degree
from the heir originally instituted, and
provided further that the fiduciary or first heir
and the second heir are living at time of the
death of the testator.
It will be noted that the testator provided for a vulgar
substitution in respect of the legacies of Roberto and Jorge
Ramirez, the appellants, thus: con sustitucion vulgar a favor de
sus respectivos descendientes, y, en su defecto, con substitution
vulgar reciprocal entre ambos.
The appellants do not question the legality of the substitution
so provided. The appellants question the sustitucion vulgar y
fideicomisaria a favor de Da. Wanda de Wrobleski" in
connection with the one-third usufruct over the estate given to
the widow Marcelle However, this question has become moot
because as We have ruled above, the widow is not entitled to
any usufruct.
The appellants also question the sustitucion vulgar y
fideicomisaria in connection with Wanda's usufruct over two
thirds of the estate in favor of Juan Pablo Jankowski and
Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void
because Wanda survived the testator or stated differently
because she did not predecease the testator. But dying before
the testator is not the only case for vulgar substitution for it also
includes refusal or incapacity to accept the inheritance as
provided in Art. 859 of the Civil Code, supra. Hence, the
vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the
appellants are correct in their claim that it is void for the
following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V.
Ramirez) are not related to Wanda, the heir originally
instituted. Art. 863 of the Civil Code validates a
fideicommissary substitution "provided such substitution does
not go beyond one degree from the heir originally instituted."
What is meant by "one degree" from the first heir is explained
by Tolentino as follows:
Scaevola Maura, and Traviesas construe
"degree" as designation, substitution, or
transmission. The Supreme Court of Spain
has decidedly adopted this construction.
From this point of view, there can be only
one tranmission or substitution, and the
substitute need not be related to the first heir.
Manresa, Morell and Sanchez Roman,
however, construe the word "degree" as
generation, and the present Code has
obviously followed this interpretation. by
providing that the substitution shall not go
beyond one degree "from the heir originally
instituted." The Code thus clearly indicates
that the second heir must be related to and be
one generation from the first heir.
From this, it follows that the fideicommissary
can only be either a child or a parent of the
first heir. These are the only relatives who are
one generation or degree from the fiduciary
(Op. cit., pp. 193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the
usufruct to the substitutes as required by Arts. 865 and 867 of
the Civil Code. In fact, the appellee admits "that the testator
contradicts the establishment of a fideicommissary substitution
when he permits the properties subject of the usufruct to be
sold upon mutual agreement of the usufructuaries and the
naked owners." (Brief, p. 26.)
3. The usufruct of Wanda.
The appellants claim that the usufruct over real properties of
the estate in favor of Wanda is void because it violates the
constitutional prohibition against the acquisition of lands by
aliens.
The 1935 Constitution which is controlling provides as follows:
SEC. 5. Save in cases of hereditary
succession, no private agricultural land shall
be transferred or assigned except to
individuals, corporations, or associations
qualified to acquire or hold lands of the
public domain in the Philippines. (Art. XIII.)
The court a quo upheld the validity of the usufruct given to
Wanda on the ground that the Constitution covers not only
succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional
provision which enables aliens to acquire private lands does not
extend to testamentary succession for otherwise the prohibition
will be for naught and meaningless. Any alien would be able to
circumvent the prohibition by paying money to a Philippine
landowner in exchange for a devise of a piece of land.
This opinion notwithstanding, We uphold the usufruct in favor
of Wanda because a usufruct, albeit a real right, does not vest
title to the land in the usufructuary and it is the vesting of title
to land in favor of aliens which is proscribed by the
Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio
Ramirez is hereby ordered distributed as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and
Jorge Ramirez in naked ownership and the usufruct to Wanda
de Wrobleski with a simple substitution in favor of Juan Pablo
Jankowski and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a
quo. No special pronouncement as to costs.
SO ORDERED.
Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and
Escolin, JJ., concur.

Aquino J., took no part.

G.R. No. L-45142 April 26, 1991
SIMPROSA VDA. DE ESPINA, RECAREDO ESPINA,
TIMOTEO ESPINA, CELIA ESPINA, GAUDIOSA
ESPINA and NECIFORA ESPINA, petitioners,
vs.
THE HON. OTILIO ABAYA and SOFIA ESPINA and
JOSE ESPINA, respondents.
Cipriano C. Alvizo, Sr. for private respondents.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the issuance of a
writ of preliminary injunction seeking the nullification of the
orders issued by the respondent Judge Otilio Abaya, in his
capacity as the presiding judge of the Court of First Instance of
Surigao del Sur, Branch II, Lianga, Surigao del Sur in Civil
Case No. L-108, entitled "Simprosa Vda. de Espina, et. al. v.
Sofia Espina, et. al." dated May 9, 1975 dismissing the
complaint for partition; July 25, 1975 denying the motion for
reconsideration; August 13, 1975 denying the second motion
for reconsideration and March 15, 1976 denying plaintiffs'
notice of appeal.
The antecedent facts are as follows:
Marcos Espina died on February 14, 1953 and was survived by
his spouses, Simprosa Vda. de Espina and their children
namely, Recaredo, Timoteo, Celia, Gaudiosa, Necifora, Sora
and Jose, all surnamed Espina. Decedent's estate comprises of
four (4) parcels of land located at the Municipality of Barobo
Province of Surigao del Sur.
On August 23, 1973 an action for partition of the
aforementioned parcels of land was filed by petitioners
Simprosa and her children Recaredo, Timoteo, Celia,
Gaudencia and Necifora.
The complaint alleges that parcel No. 1 is the exclusive
property of the deceased, hence the same is owned in common
by petitioners and private respondents in eight (8) equal parts,
while the other three (3) parcels of land being conjugal
properties, are also owned in common, one-half (1/2) belongs
to the widow Simprosa and the other half is owned by her and
her children in eight (8) equal parts.
It also alleges that parcel No. 1 has been subdivided into two
lots. Lot No. 994 PL8-44 is covered by Original Certificate of
Title No. 5570 in the name of one of the heirs, Sofia Espina,
who acquired the title as a trustee for the beneficiaries or heirs
of Marcos Espina, while lot No. 1329 PCS-44 is covered by
Original Certificate of Title No. 3732 issued in the name of one
of the heirs, Jose Espina as trustee for the heirs of Marcos
Espina. Said parcel of land is in the possession of petitioners
and private respondents who have their respective houses
thereon.
Simprosa presently occupies parcel No. 2 while parcel No. 3 is
occupied by Timoteo, although the same is actually titled in the
name of Sofia. Parcel No. 4 is occupied by Recaredo.
Petitioners have several times demanded the partition of the
aforementioned properties, but notwithstanding such demands
private respondents refused to accede.
Private respondents alleged in their answer that in or about
April, 1951, the late Marcos Espina and his widow, Simprosa,
together with their children made a temporary verbal division
and assignment of shares among their children. After the death
of Marcos, the temporary division was finalized by the heirs.
Thereafter the heirs took immediate possession of their
respective shares on April 20, 1952. Private respondents took
actual physical possession of their respective shares including
the portions ceded to them by Simprosa upon their payment of
P50.00 each per quarter starting April, 1952 until the latter's
death pursuant to their contract of procession The assignment
of shares was as follows:
(a) To the surviving spouses, (sic) Simprosa Vda. de
Espina, herein plaintiffs, one-half (1/2) of the parcel of
land adjudicated to each of said plaintiffs-heirs and
defendants;
(b) To each of the following compulsory heirs, to wit:
1. To Recaredo (sic) Espina, one-half (1/2) portion
which contains an area of one and three-fourths (1
3/4) hectares and which forms part of Parcel 4 whose
description is given in paragraph III of the complaint,
the said Parcel IV has been in the possession of both
Recaredo Espina and plaintiff Simprosa Vda. de
Espina from April 20, 1952 until the present time;
2. To Timoteo Espina, one half (1/2) portion which
contains an area of not less than one-half (1/2) hectare
and which forms part of Parcel 3 whose description is
given in paragraph III of the complaint, the said Parcel
III was originally assigned by Marcos Espina who
thereupon obtained an Original Certificate of Title in
her (sic) name but was finally adjudicated to said
Timoteo Espina in April, 1952, the other half (1/2)
portion of which parcel III was the share of the
surviving spouses (sic), Simprosa Vda. de Espina, and
said Parcel III has been in the possession of said
Timoteo Espina and Simprosa Vda. de Espina from
April, 1952 until the present time as their share;
3. To Cecilia (sic) Espina, Gaudiosa Espina and
Necifora Espina, one-half (1/2) portion, share and
share alike which contains two (2) hectares and which
forms part of Parcel II whose description is given in
paragraph III of the complaint, the other half (1/2) of
said Parcel III (sic) is the share of the surviving
spouses (sic) Simprosa Vda. de Espina, and said
Parcel III (sic) has been in the possession of said
Cecilia. (sic) Espina, Gaudiosa Espina and Necifora
Espina and Simprosa Vda. de Espina from April, 1952
until the present time;
 4. To Sofia Espina, one-half (1/2) portion of the parcel
of land included in the deception of Parcel 1 in
paragraph III of the complaint, the other half (1/2) of
said parcel being the share of the surviving spouses
(sic) Simprosa Vda. de Espina and having been ceded
by said Simprosa Vda. de Espina to said Sofia Espina
for a valuable consideration payable quarterly at the
rate of P50.00 beginning April, 1952 until her death,
and said Sofia Espina has been regularly paying to
said Simprosa Vda. de Espina quarterly from April,
1952 the said amount of P50.00 until the present time,
and by virtue of said agreement, Sofia Espina obtained
Original Certificate of Title in her name of said parcel
of land which is included in the description of said
parcel 1, as her exclusive property;
5. To Jose Espina, one-half (1/2) portion of the other
parcel of land included in the description of Parcel 1
in paragraph 1 of the complaint, the other half (1/2) of
said parcel being the share of the surviving spouses
(sic) Simprosa Vda. de Espina and having been coded
(sic) by said Simprosa Vda. de Espina to said Jose
Espina for a valuable consideration payable quarterly
at the rate of P50.00 beginning April, 1952 until her
death, and said Jose Espina has been regularly
quarterly paying to said Simprosa Vda. de Espina
from April, 1952 until the present time, the said
amount of P50.00, and by virtue of said agreement,
Jose Espina obtained Original Certificate of Title in
his name of said parcel of land which is included in
the description of said Parcel 1 as his exclusive
property. (Rollo, pp. 27-28)
On February 13, 1974 private respondents filed a motion to
dismiss the complaint alleging the following grounds, to wit:
I 3. Whether or not a hearing on a motion for
THAT THE FACTS ALLEGED IN THE
COMPLAINT FAIL TO CONFER UPON THE
COURT COMPLETE AND LAWFUL
JURISDICTION OVER THE CASE FOR NON-
COMPLIANCE WITH THE CONDITION SINE
QUA NON CONCERNING SUIT BETWEEN
MEMBERS OF THE SAME FAMILY.
xxx xxx xxx
II
THAT THE CAUSE OF ACTION IS BARRED BY .
. . . STATUTE OF LIMITATIONS.
xxx xxx xxx
III
THAT THE PLAINTIFFS HAS NO LEGAL
CAPACITY TO SUE, (Motion to Dismiss Complaint,
pp. 1-5; Rollo, pp. 34-38)
xxx xxx xxx
On May 9, 1975 the trial court granted the motion and
thereafter dismissed the complaint. On May 23, 1975
petitioners filed a motion for reconsideration on the following
grounds, to wit:
1. THAT THE ORDER OF DISMISSAL HAS NO
LEGAL BASIS IN FACT AND IN LAW.
2. THAT THE STATUTE OF LIMITATIONS IS
NOT APPLICABLE IN THE CASE AT BAR. (Rollo,
p. 50)
However, petitioners' motion was denied in an order dated July
23, 1975. On August 11, 1975 petitioners filed another motion
for reconsideration stressing that they were denied due process
when their motion was not heard. Again said motion was
denied on August 13, 1975.
Thereafter, petitioners filed their notice of appeal on September
11, 1975 and a motion for extension of time to file their Record
on Appeal on September 18, 1975.
On March 15, 1976, the respondent judge disapproved
petitioners' Record on Appeal and appeal bond on the ground
that the notice of appeal was filed out of time. Hence, this
petition. The petitioners raised four (,41) assignment of errors:
1. Whether or not an action for partition among co-
heirs prescribes.
2. Whether or not an oral partition among co-heirs is
valid.
reconsideration is indispensable the lack of which is a
deal of due process.
4. Whether or not the second motion for
reconsideration is pro forma Rollo, p. 10)
Petitioners maintain that the present action is not for
reconveyance but one for partition. Hence, the rule insisted by
the private respondents on prescriptibility of an action for
reconcile conveyance of real property based on an implied trust
is not applicable in the case at bar. In addition, petitioners,
argue that private respondents cannot set up the defense of
prescription or laches because their possession of the property
no matter how long cannot ripen into ownership.
(Memorandum for Petitioners, p. 7)
However, the private respondents stress that 'any supposed
right of the petitioners to demand a new division or partition of
said estate of Marcos Espina has long been barred by the
Statute of Limitations and has long prescribed." (Memorandum
for Private Respondents, p. 5)
The petitioners claim that the alleged oral partition is invalid
and strictly under the coverage of the statute of Frauds on two
grounds, to wit:
Firstly, parcel No. 1 being an exclusive property of the
deceased should have been divided into eight (8) equal parts.
Therefore, Simprosa . could only cede her share of the land
which is 1/8 portion thereof and cannot validly cede the shares
of her then minor children without being duly appointed as
guardian.
Secondly, under Article 1358 of the New Civil Code, Simprosa
could not have ceded her right and that of her other children
except by a public document. (Memorandum of Petitioners, pp.
8-9)
On the other hand, private respondents insist that the oral
partition is valid and binding and does not fall under the
coverage of the Statute of Frauds.
Petitioners claim that they were denied due process when the
motion for reconsideration was denied without any hearing.
However, private respondents maintain that the hearing of a
motion for reconsideration in oral argument is a matter which
rest upon the sound discretion of the Court.
Finally, petitioners stress that the second motion for
reconsideration is not pro forma, thus, it suspends the running
of the period of appeal. Hence, the notice of appeal was timely
filed.
On this point, private respondent maintain that the order of
respondent judge dated March 1 5, 1976 disapproving
petitioners' Record on Appeal and appeal bond may not
properly be a subject of a petition for certiorari. (Memorandum
of Private Respondents, p. 13)
We find the petition devoid of merit.
We already ruled in Lebrilla, et al. v. Intermediate Appellate
Court (G.R. No. 72623, December 18, 1989, 180 SCRA 188;
192) that an action for partition is imprescriptible. However, an
action for partition among co-heirs ceases to be such, and
becomes one for title where the defendants allege exclusive
ownership.
In the case at bar, the imprescriptibility of the action for
partition cannot be invoked because two of the co-heirs,
namely private respondents Sora and Jose Espina possessed the
property as exclusive owners and their possession for a period
of twenty one (21) years is sufficient to acquire it by
prescription. Hence, from the moment these co-heirs claim that
they are the absolute and exclusive owners of the properties
and deny the others any share therein, the question involved is
no longer one of partition but of ownership.
Anent the issue of oral partition, We sustain the validity of said
partition.1wphi1 "An agreement of partition may be made
orally or in writing. An oral agreement for the partition of the
property owned in common is valid and enforceable upon the
parties. The Statute of Frauds has no operation in this kind of
agreements, for partition is not a conveyance of property but
simply a segregation and designation of the part of the property
which belong to the co-owners." (Tolentino, Commentaries and
Jurisprudence on the Civil Code of the Philippines, Vol. II,
1983 Edition, 182-183 citing Hernandez v. Andal, et. al., G.R.
No. L275, March 29, 1957)
Time and again, the Court stresses that the hearing of a motion
for reconsideration in oral argument is a matter which rests
upon the sound discretion of the Court. Its refusal does not
constitute a denial of due process in the absence of a showing
of abuse of discretion. (see Philippine Manufacturing Co. v.
Ang Bisig ng PMC et. al., 118 Phil. 431, 434)
The absence of a formal hearing on the petitioners' motion for
reconsideration is thoroughly explained in the order of the
respondent judge dated August 13, 1975, which is hereunder
quoted as follows:
When the court issued its order of June 5, 1975
requiring counsel for defendants to answer plaintiffs'
motion for reconsideration, the court opted to resolve
plaintiffs' motion based on the pleadings of the parties,
without further oral arguments. The court considered
the arguments of the parties stated in their pleadings
as already sufficient to apprise the court of the issues
involved in said motion.
Plaintiffs' allegation that the Clerk of Court failed to
calendar their motion for reconsideration for oral
argument has not deprived the plaintiffs of any
substantial right or his right to due process.
SO ORDERED. (Memorandum of Private
Respondents, pp. 1213)
A cursory reading of the aforequoted order will show that there
was indeed no formal hearing on the motion for
reconsideration. There is no question however, that the motion
is grounded on the lack of basis in fact and in law of the order
of dismissal and the existence or lack of it is determined by a
reference to the facts alleged in the challenged pleading. The
issue raised in the motion was fully discussed therein and in the
opposition thereto. Under such circumstances, oral argument
on the motion is reduced to an unnecessary ceremony and
should be overlooked (see Ethel Case, et al. v. Jugo, 77 Phil.
517, 522).
We adhere to the findings of the trial court that the second
motion for reconsideration dated August 11, 1975 is pro forma,
to it
The grounds stated in said motion being in reiteration
of the same grounds alleged in his first motion, the
same is pro-forma. (Order dated March 15, 1976, p.
2, Rollo, p. 74)
xxx xxx xxx
 Furthermore, the second motion for reconsideration
has not stated new grounds considering that the
alleged failure of the Clerk of Court to set plaintiffs'
motion for reconsideration, although seemingly a
different ground than those alleged in their first
motion for reconsideration, is only incidental to the
issues raised in their first motion for reconsideration,
as it only refers to the right of plaintiffs' counsel to
argue his motion in court just to amplify the same
grounds already deed by the court. (Ibid, p. 3, Rollo, p.
75)

Therefore, it is very evident that the second motion for

reconsideration being pro-forma did not suspend the running of
the period of appeal. Thus, the lower court committed no error
when it held that the notice of appeal was filed after the lapse
of thirty five (35) days, which is clearly beyond the period of
thirty (30) days allowed by the rules.

Finally, it has been a basic rule that certiorari is not a substitute

for appeal which had been lost. (see Edra v. Intermediate
Appellate Court, G.R. No. 75041, November 13, 1989, 179
SCRA 344) A special civil action under Rule 65 of the Rules of
Court will not be a substitute or cure for failure to file a timely
petition for review on certiorari(appeal) under Rule 45 of the
Rules of Court. (Escudero v. Dulay, G.R. No. 60578, February
23, 1988, 158 SCRA 69, 77)

The application of the abovecited rule should be relaxed where

it is shown that it will result in a manifest failure or miscarriage
of justice. (Ibid, p. 77) However, as emphasized earlier, the
case at bar is totally devoid of merit, thus, the strict application
of the said file will not in any way override sub-substantial
justice.

Therefore, the delay of five (5) days in filing a notice of appeal

and a motion for extension to file a record on appeal cannot be
excused on the basis of equity.

All premises considered, the Court is convinced that the acts of

respondent judge, in dismissing the action for partition and in
subsequently denying the motions for reconsideration of the
petitioners, does not amount to grave abuse of discretion.

ACCORDINGLY, the petition is DISMISSED.

SO ORDERED.

Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

G.R. No. 180269 February 20, 2013
JOSE Z. CASILANG, SR., substituted by his heirs, namely:
FELICIDAD CUD lAMA T VDA. DE CASILANG, JOSE
C. CASILANG, JR., RICARDO C. CASILANG, MARIA
LOURDES C. CASILANG, CHRISTOPHER C.
CASILANG, BEN C. CASILANG, DANTE C.
CASILANG, GREGORIO C. CASILANG, HERALD C.
CASILANG; and FELICIDAD Z. CASILANG,
MARCELINA Z. CASILANG, JACINTA Z. CASILANG,
BONIFACIO Z. CASILANG, LEONORA Z. CASILANG,
and FLORA Z. CASILANG, Petitioners,
vs.
ROSARIO Z. CASILANG-DIZON, MARIO A.
CASILANG, ANGELO A. CASILANG, RODOLFO A.
CASILANG, and ATTY. ALICIA B. FABIA, in her
capacity as Clerk of Court and Ex-Officio Sheriff of
Pangasinan and/or her duly authorized
representative, Respondents.
DECISION
REYES, J.:
Before us is a petition for review of the Decision1 dated July
19, 2007 of the Court of Appeals (CA) in CA-G.R. CV No.
79619, which reversed and set aside the Decision2 dated April
21, 2003 of the Regional Trial Court (RTC) of Dagupan City,
Branch 41, in Civil Case No. 98-02371-D.
Antecedent Facts
The late spouses Liborio Casilang (Liborio) and Francisca
Zacarias (Francisca) had eight (8) children, namely: Felicidad
Casilang (Felicidad), Ireneo Casilang (Ireneo), Marcelina
Casilang (Marcelina), Jacinta Casilang (Jacinta), Bonifacio
Casilang (Bonifacio), Leonora Casilang (Leonora), Jose
Casilang (Jose) and Flora Casilang (Flora). Liborio died
intestate on October 11, 1982 at the age of 83, followed not
long after by his wife Francisca on December 25, 1982. Their
son Bonifacio also died in 1986, survived by his child Bernabe
Casilang (Bernabe), while son Ireneo died on June 11, 1992,
survived by his four (4) children, namely: Mario Casilang
(Mario), Angelo Casilang (Angelo), Rosario Casilang-Dizon
(Rosario) and Rodolfo Casilang (Rodolfo), herein respondents.
The estate of Liborio, which left no debts, consisted of three (3)
parcels of land located in Barangay Talibaew, Calasiao,
Pangasinan, namely: (1) Lot No. 4676, with an area of 4,164
square meters; (2) Lot No. 4704, containing 1,164 sq m; and
(3) Lot No. 4618, with 897 sq m.
On May 26, 1997, respondent Rosario filed with the Municipal
Trial Court (MTC) of Calasiao, Pangasinan a complaint for
unlawful detainer, docketed as Civil Case No. 847, to evict her
uncle, petitioner Jose from Lot No. 4618. Rosario claimed that
Lot No. 4618 was owned by her father Ireneo, as evidenced by
Tax Declaration (TD) No. 555 issued in 1994 under her
fathers name. On April 3, 1997, the respondents executed
a Deed of Extrajudicial Partition with Quitclaim3 whereby they
adjudicated Lot No. 4618 to themselves. In the same
instrument, respondents Mario, Angelo and Rodolfo renounced
their respective shares in Lot No. 4618 in favor of Rosario.
In his Answer, Jose raised the defense that he was the "lawful,
absolute, exclusive owner and in actual possession" of the said
lot, and that he acquired the same "through intestate succession
from his late father."4 For some reason, however, he and his
lawyer, who was from the Public Attorneys Office, failed to
appear at the scheduled pre-trial conference, and Jose was
declared in default; thus, the adverse judgment against him.5
On February 18, 1998, the MTC rendered judgment finding
Rosario to be the owner of Lot No. 4618, and ordering Jose to
remove his house, vacate Lot No. 4618, and pay Rosario
500.00 in monthly rentals from the filing of the complaint
until she was placed in possession, plus attorneys fees of
5,000.00, litigation expenses and costs. On March 23, 1998,
the MTC issued a writ of execution; and on August 28, 1998, a
Writ of Demolition6 was issued.
On June 2, 1998, the petitioners, counting 7 of the 8 children of
Liborio and Francisca,7 filed with the RTC of Dagupan City a
Complaint,8 docketed as Civil Case No. 98-02371-D for
"Annulment of Documents, Ownership and Peaceful
Possession with Damages" against the respondents. On June
10, 1998, the petitioners moved for the issuance of a writ of
preliminary injunction or temporary restraining order, which
the RTC however denied on June 23, 1998.
Among the documents sought to be annulled was the 1997
Deed of Extrajudicial Partition executed by Ireneos children
over Lot No. 4618, as well as TD No. 555, and by necessary
implication its derivatives, TD No. 15177 (for the lot) and TD
No. 15176 (for the house), both of which were issued in 1998
in the name of Rosario Casilang-Dizon.9
The petitioners alleged in their complaint that all eight (8)
children of Liborio entered into a verbal partition of his estate,
pursuant to which Jose was allotted Lot No. 4618 as his share;
that Ireneo never claimed ownership of Lot No. 4618, nor took
possession of it, because his share was the southwestern 1/5
portion of Lot No. 4676, containing an area of 1,308 sq m, 10 of
which he took exclusive possession during his lifetime; that
Jose has always resided in Lot No. 4618 since childhood,
where he built his familys semi-concrete house just a few steps
away from his parents old bamboo hut; that he took in and
cared for his aged parents in his house until their deaths in
1982; that one of his children has also built a house on the
lot.11 Jose, said to be the most educated of the Casilang
siblings, worked as an insurance agent.12 The complete
disposition of the intestate estate of Liborio per the parties
verbal partition appears as follows:
1. Lot No. 4676, with 4,164 sq m, declared under TD
No. 534 in Liborios name,13 was verbally partitioned
among Marcelina (236 sq m), Leonora (1,965 sq m),
Flora (655 sq m), and Ireneo, represented by his
children, the herein respondents-defendants (1,308 sq
m), as shown in a Deed of Extrajudicial Partition with
Quitclaim dated January 8, 1998, subsequently
 executed by all the Casilang siblings and their
representatives.
2. Lot No. 4704, with 1,164 sq m, declared under TD
No. 276 in Liborios name,14 was divided among
Jacinta and Bonifacio, who died in 1986 and is now
represented by his son Bernabe; and
3. Lot No. 4618, containing 897 sq m, declared since
1994 under TD No. 555 in Ireneos name, 15 is now the
subject of the controversy below. Jose insists that he
succeeded to it per verbal partition, and that he and his
family have always occupied the same peacefully,
adversely and exclusively even while their parents
were alive.16
For her part, Rosario alleged in her answer with
counterclaim,17 which she filed on September 15, 1998, that:
a) She is the actual and lawful owner of Lot No. 4618
with an area of 897 square meters, having acquired the
same by way of a Deed of Extra judicial Partition with
Quitclaim dated 3 April 1997 which was duly
executed among herein Appellant ROSARIO and her
brothers, namely, MARIO, ANGELO and
RODOLFO, all surnamed CASILANG;
b) Her ownership over subject property could be
traced back to her late father IR[E]NEO which the
latter inherited by way of intestate succession from his
deceased father LIBORIO sometime in 1992; that the
residential house described in herein Appellee JOSEs
complaint is an illegal structure built by him in 1997
without her (ROSARIOs) knowledge and consent;
that in fact, an ejectment suit was filed against
Appellee JOSE with the Municipal Trial Court in
Calasiao, Pangasinan in Civil Case No. 847;
c) The subject lot is never a portion of Appellee
JOSEs share from the intestate of his deceased father,
LIBORIO; that on the contrary, the lot is his deceased
brother IR[E]NEOs share from the late LIBORIOs
intestate estate; that in fact, the property has long been
declared in the name of the late IRENEO as shown by
Tax Declaration No. 555 long before his children
ROSARIO DIZON, MARIO, ANGELO and
RODOLFO, all surnamed CASILANG, executed the
Deed of Partition dated 18 February 1998; that
Appellee JOSE had actually consumed his shares
which he inherited from his late father, and after a
series of sales and dispositions of the same made by
him, he now wants to take Appellants property;
d) Appellee JOSE is never the rightful owner of the lot
in question and has not shown any convincing proof
of his supposed ownership; that the improvements
introduced by him, specifically the structures he cited
are the subject of a Writ of Demolition dated 28
August 1998 pursuant to the Order dated 17 August
1998 of the MTC of Calasiao, Pangasinan;
e) No protestation or objection was ever made by
Appellee JOSE in Civil Case No. 847 (Unlawful
Detainer case) where he was the defendant; that the
truth was that his possession of the subject property
was upon the tolerance and benevolence of his late
brother IRENEO during the latters lifetime and that
Appellant ROSARIO;
f) The RTC Clerk of Court and Ex-officio Provincial
Sheriff would just be doing her job if she and her
deputies would implement the writ of
execution/demolition issued by the MTC of Calasiao,
Pangasinan since it is its ministerial duty to do so;
g) The Appellees have no cause of action; not having
shown in their complaint the basis, the reason and the
very core of their claim as to why the questioned
document should be nullified.18 (Citation omitted)
In their reply19 to Rosarios aforesaid answer, the petitioners
asserted that the MTC committed a grave error in failing to
consider a material fact-that Jose had long been in prior
possession under a claim of title which he obtained by
partition.
At the pre-trial conference in Civil Case No. 98-02371-D, the
parties entered into the following stipulations:
1. That the late LIBORIO is the father of
FELICIDAD, MARCELINA, JUANITA,
LEONORA, FLORA and IRENEO, all surnamed
CASILANG;
2. That the late LIBORIO died in 1982; That the late
LIBORIO and his family resided on Lot [No.] 4618 up
to his death in 1982; That the house of the late
LIBORIO is located on Lot [No.] 4618;
3. That Plaintiff JOSE used to reside on the lot in
question because there was a case for ejectment filed
against him;
4. That the house which was demolished is the family
house of the late LIBORIO and FRANCISCA
ZACARIAS with the qualification that it was given to
the defendants;
5. That the action involves members of the same
family; and
6. That no earnest efforts were made prior to the
institution of the case in court. 20
Ruling of the RTC
After a full trial on the merits, the RTC in its Decision21 dated
April 21, 2003 decreed as follows:
WHEREFORE, premises considered, judgment is hereby
rendered in favor of the plaintiffs and against the defendants as
follows:
1. Declaring the Deed of Extrajudicial Partition with
Quitclaim dated April 3, 1997 null and void;
2. Declaring plaintiff Jose Z. Casilang Sr. as the
lawful owner and possessor of the subject Lot No.
4618 and as such, entitled to the peaceful possession
of the same;
3. Ordering the defendants to pay to plaintiff Jose Z.
Casilang Sr. attorneys fees in the amount of
20,000.00 and litigation expenses in the amount of
5,000.00, and to pay the costs of suit.
SO ORDERED.22
The RTC affirmed Joses ownership and possession of Lot No.
4618 by virtue of the oral partition of the estate of Liborio by
all the siblings. In the Deed of Extrajudicial Partition with
Quitclaim23 dated January 8, 1998, subsequently executed by
all the eight (8) Casilang siblings and their legal
representativeswith Ireneo represented by his four (4)
children, and Bonifacio by his son Bernabepetitioners Jose,
Felicidad, Jacinta and Bernabe, acknowledged that they had
already received their respective shares of inheritance in
advance,"24 and therefore, renounced their claims over Lot No.
4676 in favor of co-heirs Marcelina, Leonora, Flora and Ireneo,
as follows:
We hereby RENOUNCED, WAIVED AND QUITCLAIM, all
our rights, interests and participations over the WHOLE parcel
of land [Lot No. 4676], left by the late, LIBORIO CASILANG,
in favor of our coheirs, namely: MARCELINA Z.
CASILANG-PARAYNO, LEONORA Z. CASILANG-
SARMIENTO, FLORA Z. CASILANG, MARIO A.
CASILANG, ANGELO A. CASILANG, ROSARIO A.
CASILANGDIZON AND RODOLFO A. CASILANG.25
Thus, Jose expressly renounced his share in Lot No. 4676,
which has an area of 4,164 sq m, because he had already
received in advance his share in his fathers estate, Lot No.
4618 with 897 sq m:
To the mind of the court, Jose Casilang could have not [sic]
renounced and waived his rights and interests over Lot [No.]
4676 if he believes that Lot [No.] 4618 is not his, while the
other lot, Lot [No.] 470[4], was divided between sister Jacinta
Casilang and brother Bonifacio Casilang[,] Sr., who was
represented by his son. In the same [way] as testified to by
plaintiffs Felicidad Casilang and Jacinta Casilang, they signed
the Deed of Extrajudicial Partition with Quitclaim wherein they
waived and renounced their rights and interests over Lot [No.]
4676 because they have already received their share, which is
Lot [No.] 470[4].26
The RTC found baseless the claim of Rosario that Lot No.
4618 was an inheritance of her father Ireneo considering that a
tax declaration is not conclusive proof of ownership. The RTC
even noted that the tax declaration of Ireneo started only in
1994, although he had been dead since 1992. "Such being the
case, the heirs of Ir[e]neo Casilang has [sic] no basis in
adjudicating unto themselves Lot No. 4618 and partitioning the
same by executing the Deed of Extrajudicial Partition with
Quitclaim."27
Appeal to the CA
Undeterred, Rosario appealed to the CA averring that: (1) the
lower court erred in declaring the Deed of Extrajudicial
Partition with Quitclaim dated April 3, 1997 as null and void;
and (2) the lower court erred in declaring Jose as the lawful
owner and possessor of the subject Lot No. 4618. 28
In the now assailed decision, the CA reversed the RTC by
relying mainly on the factual findings and conclusions of the
MTC in Civil Case No. 847, viz:
Per the records, the above described property was subject of
Civil Case No. 847 decided by the MTC of Calasiao, First
Judicial Region, Province of Pangasinan which rendered a
judgment, supra, in favor of Appellant ROSARIO ordering
herein Appellee JOSE and all persons claiming rights under
him to vacate the land of Appellant ROSARIO. It was found by
the MTC that the latter is the owner of the subject parcel of
land located at Talibaew, Calasiao, Pangasinan; that the former
owner of the land is the late IRENEO (who died on 11 June
1992), father of Appellant ROSARIO; that Extra Judicial
Partition with Quitclaim was executed by and among the heirs
of the late IRENEO; that MAURO [sic], ANGELO and
RODOLFO, all surnamed CASILANG waived and quitclaimed
their respective shares over the subject property in favor of
Appellant ROSARIO; that Appellee JOSE was allowed by the
late IRENEO during his lifetime to occupy a portion of the land
without a contract of lease and no rentals being paid by the
former; that Appellant ROSARIO allowed Appellee JOSE to
continue occupying the land after the Extra Judicial Partition
with Quitclaim was executed.29
Moreover, noting that the decision in Civil Case No. 847 in
favor of Rosario was issued on February 18, 1998 while the
petitioners complaint in Civil Case No. 98-02371-D was filed
on June 2, 1998, the CA concluded that the latter case was a
mere afterthought:
If the latter has really a strong and valid reason to question the
validity of the Deed of Extra Judicial Partition with
Quitclaim, supra, he could have done it soon after the said
Deed was executed on 3 April 1997. However, curiously
enough, it was only when the MTC ordered his eviction from
the subject property that he decided to file the instant case
against the Appellants.30
Petition for Review in the Supreme Court
Now in this petition for review on certiorari, petitioners
maintain that:
IN UPHOLDING THE LEGALITY [OF] THE DEED OF
EXTRAJUDICIAL PARTITION AND QUITCLAIM DATED
APRIL 3, 1997, THE HONORABLE COURT OF APPEALS
GROSSLY VIOLATED THE SUBSTANTIVE RIGHT OF
JOSE Z. CASILANG, SR. AS DIRECT COMPULSORY
HEIR.31
Our Ruling and Discussions
There is merit in the petition.
Inferior courts are empowered to rule on the question of
ownership raised by the defendant in an ejectment suit, but
only to resolve the issue of possession; its determination is
not conclusive on the issue of ownership.
It is well to be reminded of the settled distinction between a
summary action of ejectment and a plenary action for recovery
of possession and/or ownership of the land. What really
distinguishes an action for unlawful detainer from a possessory
action (accion publiciana) and from a reinvindicatory action
(accion reinvindicatoria) is that the first is limited to the
question of possession de facto. Unlawful detainer suits (accion
interdictal) together with forcible entry are the two forms of
ejectment suit that may be filed to recover possession of real
property. Aside from the summary action of ejectment, accion
publiciana or the plenary action to recover the right of
possession and accion reinvindicatoria or the action to recover
ownership which also includes recovery of possession, make
up the three kinds of actions to judicially recover possession. 32
Under Section 3 of Rule 70 of the Rules of Court, the Summary
Procedure governs the two forms of ejectment suit, the purpose
being to provide an expeditious means of protecting actual
possession or right to possession of the property. They are not
processes to determine the actual title to an estate. If at all,
inferior courts are empowered to rule on the question of
ownership raised by the defendant in such suits, only to resolve
the issue of possession and its determination on the ownership
issue is not conclusive.33 As thus provided in Section 16 of
Rule 70:
Sec. 16. Resolving defense of ownership.When the defendant
raises the defense of ownership in his pleadings and the
question of possession cannot be resolved without deciding the
issue of ownership, the issue of ownership shall be resolved
only to determine the issue of possession.
It is apropos, then, to note that in contrast to Civil Case No.
847, which is an ejectment case, Civil Case No. 98-02371-D is
for "Annulment of Documents, Ownership and Peaceful
Possession;" it is an accion reinvindicatoria, or action to
recover ownership, which necessarily includes recovery of
possession34 as an incident thereof. Jose asserts his ownership
over Lot No. 4618 under a partition agreement with his co-
heirs, and seeks to invalidate Ireneos "claim" over Lot No.
4618 and to declare TD No. 555 void, and consequently, to
annul the Deed of Extrajudicial Partition and Quitclaim
executed by Ireneos heirs.
It is imperative to review the CAs factual conclusions since
they are entirely contrary to those of the RTC, they have no
citation of specific supporting evidence, and are premised
on the supposed absence of evidence, particularly on the
parties verbal partition, but are directly contradicted by
the evidence on record.
It must be noted that the factual findings of the MTC, which
the CA adopted without question, were obtained through
Summary Procedure and were based solely on the complaint
and affidavits of Rosario, after Jose had been declared in
default. But since a full trial was had in Civil Case No. 98-
02371-D, the CA should have pointed out the specific errors
and weaknesses in the RTCs factual conclusions before it
could rule that Jose was unable to present "any evidentiary
support" to establish his title, and that his continued possession
of Lot No. 4618 was by mere tolerance of Rosario. At most,
however, the CA only opined that it was conjectural for the
RTC to conclude, that Jose had already received his inheritance
when he renounced his share in Lot No. 4676. It then ruled that
the RTC erred in not considering the findings of the MTC in
Civil Case No. 847-that Joses possession over subject property
was by mere tolerance. Said the appellate court:
Given the claim of the Appellee that Lot [No.] 4618
was orally given/assigned to him by his deceased father
LIBORIO, or that his claim was corroborated by his sisters (his
co-plaintiffs-Appellees), or that their claim is indubitably tied
up with the Deed of Extrajudicial Partition with Quitclaim over
Lot No. 4676, still We cannot fully agree with the
pronouncement of the court a quo that Appellee JOSE could
not have renounced and waived his rights and interest over Lot
[No.] 4676 if he believes that Lot [No.] 4618 is not his.
Wanting any evidentiary support, We find this stance as
conjectural being unsubstantiated by law or convincing
evidence. At the most and taking the factual or legal
circumstances as shown by the records, We hold that the
court a quo erred in not considering the findings of the MTC in
Civil Case No. 847 ruling that herein Appellee JOSEs
possession over subject property was by mere tolerance. Based
as it is on mere tolerance, Appellee JOSEs possession
therefore could not, in any way, ripen into
ownership.35 (Citations omitted)
By relying solely on the MTCs findings, the CA completely
ignored the testimonial, documentary and circumstantial
evidence of the petitioners, obtained by the RTC after a full
trial on the merits. More importantly, the CA did not point to
any evidence of Rosario that Ireneo had inherited Lot No. 4618
from Liborio. All it did was adopt the findings of the MTC.
The Supreme Court is not a trier of facts, and unless the case
falls under any of the well-defined exceptions, the Supreme
Court will not delve once more into the findings of facts.
In Sps. Sta. Maria v. CA,36 this Court stated:
Settled is the rule that the jurisdiction of this Court in cases
brought before it from the Court of Appeals via Rule 45 of the
Rules of Court is limited to reviewing errors of law. Findings
of fact of the latter are conclusive, except in the following
instances: (1) when the findings are grounded entirely on
speculation, surmises, or conjectures; (2) when the inference
made is manifestly mistaken, absurd, or impossible; (3) when
there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of
fact are conflicting; (6) when in making its findings the Court
of Appeals went beyond the issues of the case, or its findings
are contrary to the admissions of both the appellant and the
appellee; (7) when the findings are contrary to those of the trial
court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts
set forth in the petition as well as in the petitioners main and
reply briefs are not disputed by the respondent; and (10) when
the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on
record.37 (Citation omitted)
In the instant case, the factual findings of the CA and the RTC
are starkly contrasting. Moreover, we find that the CA decision
falls under exceptions (7), (8) and (10) above, which warrants
another review of its factual findings.
The evidence supporting Rosarios claim of sole ownership of
Lot No. 4618 is the Deed of Extrajudicial Partition with
Quitclaim, which she executed with her brothers Mario, Angelo
and Rodolfo. There is no question that by itself, the said
document would have fully conveyed to Rosario whatever
rights her brothers might have in Lot No. 4618. But what needs
to be established first is whether or not Ireneo did in fact own
Lot No. 4618 through succession, as Rosario claims. And here
now lies the very crux of the controversy.
A review of the parties evidence shows that they entered
into an oral partition, giving Lot No. 4618 to Jose as his
share, whereas Rosario presented no proof whatsoever that
her father inherited Lot No. 4618 from his father Liborio.
Rosarios only proof of Ireneos ownership is TD No. 555,
issued in his name, but she did not bother to explain why it was
dated 1994, although Ireneo died on June 11, 1992. Liborios
ownership of Lot No. 4618 is admitted by all the parties, but it
must be asked whether in his lifetime Liborio did in fact
transmit it to Ireneo, and if not, whether it was conveyed to him
by Liborios heirs. It is imperative for Rosario to have
presented proof of this transfer to Ireneo, in such a form as
would have vested ownership in him. We find, instead, a
preponderance of contrary evidence.
1. In his testimony, Jose claimed that his parents
bamboo house in Lot No. 4618 disintegrated from
wear and tear; so he took them in to his semi-concrete
house in the same lot, which was just a few steps
away, and he cared for them until they died; shortly
before Liborios death, and in the presence of all his
siblings, his father Liborio assigned Lot No. 4618 to
him as his inheritance; his house was demolished in
1998 as a result of the ejectment case filed against
him; but his family continued to live thereat after
reconstructing the house; Ireneo and his family did not
live in Lot No. 4618; although Joses job as an
insurance agent took him around Pangasinan, he
always came home to his family in his house in Lot
No. 4618, which he used as his permanent address;
only Lot No. 4676 was included in the Deed of
Extrajudicial Partition dated January 8, 1998 because
Lot No. 4618 had already been distributed to Jose, and
Lot No. 4704 had already been assigned to Jacinta and
Bonifacio as their share in their fathers estate.38
2. Joses testimony was corroborated by petitioners
Felicidad,39 Jacinta,40 Leonora,41 and Flora,42 who all
confirmed that their brother Jose has always resided in
Lot No. 4618 from his childhood up to the present,
that he took their aged parents into his house after
their bamboo house was destroyed, and he attended to
their needs until they died in 1982. The sisters were
also one in saying that their father Liborio verbally
willed Lot No. 4618 to Jose as his share in his estate,
and that their actual partition affirmed their fathers
dispositions. Jacinta claimed that she and Bonifacio
have since taken possession of Lot No. 4704 pursuant
to their partition, and have also declared their
respective portions for tax purposes.43 Flora
corroborated Jacinta on their taking possession of Lot
No. 4704, as well as that Jose built his house on Lot
No. 4618 next to his parents and they came to live
with him in their old age. Flora affirmed that Exhibit
"F" correctly reflects their verbal partition of Lot No.
4676, and that she was fully in accord with it. She
added that Felicidad and Marcelina had since
constructed their own houses on the portions of Lot
No. 4676 assigned to them.44Felicidad mentioned that
in their partition, Ireneo was given a portion of Lot
No. 4676, while Lot No. 4704 was divided between
Jacinta and Bonifacio, and Jose alone got Lot No.
4618. Leonora confirmed that they were all present
when their father made his above dispositions of his
estate.
3. Benjamin Lorenzo, a long-time neighbor of the
Casilangs testified that Joses house stands on Lot No.
4618 and Ireneo did not live with his family on the
said lot but was a tenant in another farm some distance
away.45
4. For her part, Rosario merely asserted that her father
Ireneo succeeded to Lot No. 4618 from Liborio, as
shown in TD No. 555 (Exhibit "1"); that she and her
brothers extra-judicially settled Ireneos estate, and
that they each waived their shares in her favor; and,
that she has been paying taxes on Lot No. 4618.
Rosario admitted, however, that Jose has lived in the
lot since he was a child, and he has reconstructed his
house thereon after its court-ordered demolition.46 But
Rosario on cross-examination backtracked by
claiming that it was her father Ireneo and grandfather
Liborio who built the old house in Lot No. 4618,
where Ireneo resided until his death; he even planted
various fruit trees. Yet, there is no mention
whatsoever to this effect by any of the witnesses.
Rosario also contradicted herself when she denied that
Jose lived there because his job as insurance agent
took him away often and yet admitted that Joses
 house stands there, which he reconstructed after it was
ordered demolished by the MTC. Inexplicably,
Rosario disclaimed knowledge of Ireneos share in
Lot No. 4676, although she was a signatory, along
with her brothers and all the petitioners, in the deed of
partition of the said lot, whereby she got 1,308 sq m.
Rosario also admitted that taxes were paid on the lot
only beginning in 1997, not before.47
5. Benjamin Dizon, husband of Rosario, testified that
Rosario was losing appetite and sleep because of the
case filed by Jose; that Ireneo died in another farm;
that Ireneo had a house in Lot No. 4618 but Jose took
over the house after he died in 1992.48 Respondent
Angelo, brother of Rosario, claimed that when he was
13 or 14 years old, he heard his grandfather tell his
father Ireneo that he would inherit Lot No. 4618. On
cross-examination, Angelo insisted that his father had
always lived with his family in his grandfathers house
in Lot No. 4618, that Jose did not live there but was
given another lot, although he could not say which lot
it was; he admitted that his grandmother lived with
Jose when she died, and Ireneos share was in Lot No.
4676.49
6. On rebuttal, Jose recounted that after his four
children were married, Ireneo lived as a tenant in
another farm; that during a period of illness he lived in
Manila for some time, and later resided in Cagayan
with his two married sons; and lastly on his return,
worked as a tenant of the Maningding family for about
10 years in Calasiao, staying in a hut one kilometer
away. Jose also claimed that Ireneo had asked Liborio
for a portion of Lot No. 4676, a lot which is bigger
than Lot No. 4618 by several hundreds of square
meters.50
7. On sur-rebuttal, Rosario claimed that her
grandparents, father and mother lived in Lot No. 4618
when she was a child until she married and left in
1976; that her uncle Jose asked permission from
Liborio to be allowed to stay there with his family.
She admitted that Jose built his house in 1985, three
years after Liborio died, but as if to correct herself,
she also claimed that Jose built his house in Lot No.
4676, and not in Lot No. 4618. (Contrarily, her aunt
Leonora testified that Jose built his house in Lot No.
4618 while their parents were alive.)51 Moreover, if
such was the case, Rosario did not explain why she
filed Civil Case No. 847, if she thought her uncle built
his house in Lot No. 4676, and not in Lot No.
4618.52 Rosario also claimed that Ireneo always came
home in the evenings to his father Liborios house
from the Maningding farm, which he tenanted for 10
years, but obviously, by then Liborios house had long
been gone. Again, confusedly, Rosario denied that she
knew of her fathers share in Lot No. 4676.
From the testimonies of the parties, we are convinced that the
conclusion of the RTC is well-supported that there was indeed
a verbal partition among the heirs of Liborio, pursuant to which
each of his eight children received his or her share of his estate,
and that Joses share was Lot No. 4618.
The parties verbal partition is valid, and has been ratified
by their taking possession of their respective shares.
The validity of an oral partition is well-settled in our
jurisdiction. In Vda. de Espina v. Abaya,53 this Court declared
that an oral partition is valid:
Anent the issue of oral partition, We sustain the validity of said
partition. "An agreement of partition may be made orally or in
writing. An oral agreement for the partition of the property
owned in common is valid and enforceable upon the parties.
The Statute of Frauds has no operation in this kind of
agreements, for partition is not a conveyance of property but
simply a segregation and designation of the part of the property
which belong to the co-owners."54
In Maestrado v. CA,55 the Supreme Court upheld the partition
after it found that it conformed to the alleged oral partition of
the heirs, and that the oral partition was confirmed by the
notarized quitclaims executed by the heirs
subsequently.56 In Maglucot-Aw v. Maglucot,57 the Supreme
Court elaborated on the validity of parol partition:
On general principle, independent and in spite of the statute of
frauds, courts of equity have enforce [sic] oral partition when it
has been completely or partly performed.
Regardless of whether a parol partition or agreement to
partition is valid and enforceable at law, equity will [in] proper
cases, where the parol partition has actually been consummated
by the taking of possession in severalty and the exercise of
ownership by the parties of the respective portions set off to
each, recognize and enforce such parol partition and the rights
of the parties thereunder. Thus, it has been held or stated in a
number of cases involving an oral partition under which the
parties went into possession, exercised acts of ownership, or
otherwise partly performed the partition agreement, that equity
will confirm such partition and in a proper case decree title in
accordance with the possession in severalty.
In numerous cases it has been held or stated that parol partition
may be sustained on the ground of estoppel of the parties to
assert the rights of a tenant in common as to parts of land
divided by parol partition as to which possession in severalty
was taken and acts of individual ownership were exercised.
And a court of equity will recognize the agreement and decree
it to be valid and effectual for the purpose of concluding the
right of the parties as between each other to hold their
respective parts in severalty.
A parol partition may also be sustained on the ground that the
parties thereto have acquiesced in and ratified the partition by
taking possession in severalty, exercising acts of ownership
with respect thereto, or otherwise recognizing the existence of
the partition.
A number of cases have specifically applied the doctrine of part
performance, or have stated that a part performance is
necessary, to take a parol partition out of the operation of the
statute of frauds. It has been held that where there was a
partition in fact between tenants in common, and a part
performance, a court of equity would have regard to and
enforce such partition agreed to by the parties.58

Joses possession of Lot No. 4618 under a claim of ownership

is well borne out by the records. It is also consistent with the
claimed verbal partition with his siblings, and fully
corroborated by his sisters Felicidad, Jacinta, Leonora, and
Flora, who further testified that they each had taken possession
of their own shares and built their houses thereon.

A possessor of real estate property is presumed to have title

thereto unless the adverse claimant establishes a better
right.59 Moreover, under Article 541 of the Civil Code, one
who possesses in the concept of owner has in his favor the legal
presumption that he possesses with a just title, and he cannot be
obliged to show or prove it. Similarly, Article 433 of the Civil
Code provides that actual possession under a claim of
ownership raises a disputable presumption of ownership. Thus,
actual possession and exercise of dominion over definite
portions of the property in accordance with an alleged partition
are considered strong proof of an oral partition60 which the
Court will not hesitate to uphold.

Tax declarations and tax receipts are not conclusive

evidence of ownership.

It is settled that tax declarations and tax receipts alone are not
conclusive evidence of ownership. They are merely indicia of a
claim of ownership,61 but when coupled with proof of actual
possession of the property, they can be the basis of claim of
ownership through prescription.62 In the absence of actual,
public and adverse possession, the declaration of the land for
tax purposes does not prove ownership.63 We have seen that
there is no proof that Liborio, or the Casilang siblings
conveyed Lot No. 4618 to Ireneo. There is also no proof that
Ireneo himself declared Lot No. 4618 for tax purposes, and
even if he or his heirs did, this is not enough basis to claim
ownership over the subject property. The Court notes that TO
No. 555 was issued only in 1994, two years after Ireneo's
death. Rosario even admitted that she began paying taxes only
in 1997.64 More impmiantly, Ireneo never claimed Lot No.
4618 nor took possession of it in the concept of owner.

WHEREFORE, premises considered, the Petition

is GRANTED. The Decision dated July 19, 2007 of the Court
of Appeals in CA-G.R. CV No. 79619 is hereby REVERSED
and SET ASIDE, and the Decision dated April 21, 2003 of the
Regional Trial Court of Dagupan City, Branch 41 in Civil Case
No. 98-02371-D is REINSTATED.

SO ORDERED.