Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

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.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

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.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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 Peña 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 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.

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.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

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:

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.

3. Whether or not a hearing on a motion for 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. "An agreement of partition
1âwphi1

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.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-29727 December 14, 1988

PEDRO OLIVERAS, TEODORA GASPAR, MELECIO OLIVERAS and ANICETA MINOR, plaintiffs-
appellees,
vs.
CANDIDO LOPEZ, SEVERO LOPEZ, HIPOLITO LOPEZ, EUGENIA LOPEZ, PRIMITIVO
GASPAR, CORAZON LOPEZ, ALEJANDRO CACAYURIN, FAUSTINA BOTUYAN, MODESTO
SALAZAR, ADORACION BOTUYAN, CLAUDIO GANOTICE and ENONG BOTUYAN, defendants-
appellants.

Venancio B. Fernando for defendants-appellants.

FERNAN, C.J.:

This case exemplifies the Filipino custom of keeping inherited property in a prolonged juridical condition of co-owner ship.

Lorenzo Lopez owned Lot 4685 of the Cadastral survey of Villasis, Pangasinan with an area of
69,687 square meters as evidenced by Original Certificate of Title No. 15262.1 In December, 1931,
Lorenzo Lopez died, 2 leaving said property to his wife, Tomasa Ramos and six (6) children. From
that time on, the heirs of Lorenzo Lopez did not initiate any moves to legally partition the property.

More than twenty-one years later, or on February 11, 1953, Tomasa Ramos and her eldest son,
Candido Lopez, executed a deed of absolute sale of the "eastern undivided four thousand two
hundred and fifty seven-square meters (4,257) more or less, of the undivided portion of (their)
interests, rights and participation" over Lot 4685, in favor of the spouses Melecio Oliveras and
Aniceta Minor, in consideration of the amount of one thousand pesos (P1,000). 3

On the same day, Tomasa and Candido executed another deed of absolute sale of the "undivided"
four thousand two hundred and fifty-seven (4,257) square meters of the "eastern part" of Lot 4685 in
favor of the spouses Pedro Oliveras and Teodora Gaspar, also in consideration of P1,000. 4 Each of
the said documents bear the thumbmark of Tomasa and the signature of Candido.

In his affidavit also executed on February 11, 1953, Candido stated that a month prior to the
execution of the deed of sale in favor of Melecio Oliveras, he offered his: "undivided portion" of Lot
4685 to his "adjacent owners" but none of them was "in a position to purchase" said property. 5

Since the execution of the two deeds of absolute sale, the vendees, brothers Melecio and Pedro,
had been paying the real property taxes for their respectively purchased properties. 6 They also had
been in possession of their purchased properties which, being planted to palay and peanuts, were
segregated from the rest of Lot 4685 by dikes. 7

More than thirteen years later or on November 21, 1966, the counsel of the Oliveras brothers wrote
the heirs of Lorenzo Lopez reminding them of the Oliverases' demands to partition the property so
that they could acquire their respective titles thereto without resorting to court action, and that,
should they fail to respond, he would be forced to file a case in court. 8 Apparently, the Lopezes did
not answer said letter since on December 15, 1966, the Oliveras brothers and their wives filed a
complaint for partition and damages 9 in the Court of First Instance of Pangasinan. 10

The Oliverases stated in their complaint that possession of the disputed properties was delivered to
them with the knowledge and consent of the defendants; that they had been paying the real estate
taxes thereon; that prior to the sale, said properties were offered to the other co-owners for sale but
they refused to buy them; that on February 18, 1953, the transactions were duly annotated and
entered in the Memorandum of encumbrances of OCT No. 15262 as adverse claims; and that their
desire to segregate the portions of Lot 4685 sold to them was frustrated by defendants' adamant
refusal to lend them the owner's duplicate of OCT No. 15262 and to execute a deed of partition of
the whole lot.

In claiming moral damages in the amount of P2,000.00 plaintiffs alleged that defendants also
refused to allow them to survey and segregate the portions bought by them. Plaintiffs prayed that the
court order the defendants to partition Lot 4685 and to allow them to survey and segregate the
portions they had purchased. They also demanded payment of P800.00 as attorney's fees and cost
of the suit.

In their answer, the defendants alleged that no sale ever transpired as the alleged vendors could not
have sold specific portions of the property; that plaintiffs' possession and occupation of specific
portions of the properties being illegal, they could not ripen into ownership; and that they were not
under any obligation to lend their copy of the certificate of title or to accede to plaintiffs' request for
the partition or settlement of the property. As special and affirmative defenses, the defendants
contended that the deeds of sale were null and void and hence, unenforceable against them; that
the complaint did not state a cause of action and that the cause or causes of action if any, had
prescribed.

Defendants averred in their counterclaim that despite repeated demands, plaintiffs refused and failed
to vacate the premises; that the properties occupied by the plaintiffs yielded an average net produce
in palay and peanuts in the amount of P1,600.00 annually, and that the complaint was filed to harass
them. They prayed for the dismissal of the complaint and the payment of P1,600.00 per year from
1953 until plaintiffs shall have vacated the premises and P1,000.00 for attorney's fees.

Plaintiffs filed an answer to defendants' counterclaim, denying all the allegations therein and stating
that defendants never demanded that plaintiffs vacate the portions of Lot 4685 they had bought.

The lower court explored the possibility of an amicable settlement between the parties without
success. Hence, it set the case for trial and thereafter, it rendered a
decision 11 declaring valid the deeds of absolute sale 12 and ordering the defendants to allow the
segregation of the sold portions of Lot 4685 by a licensed surveyor in order that the plaintiffs could
obtain their respective certificates of title over their portions of said lot.

In resolving the case, the lower court passed upon the issue of whether the two deeds of absolute
sale were what they purported to be or merely mortgage documents. It considered as indicia of
plaintiffs' absolute dominion over the portions sold to them their actual possession thereof without
any opposition from the defendants until the filing of the complaint, their payment of taxes thereon
and their having benefited from the produce of the land. The court ruled that the defendants'
testimonial evidence that the deeds in question were merely mortgage documents cannot overcome
the evidentiary value of the public instruments presented by the plaintiffs.

On the issue of whether the two deeds of absolute sale were null and void considering that the land
subject thereof had not yet been partitioned, the court observed that the total area of 8,514 square
meters sold to plaintiffs by Candido was less than his share should Lot 4685 with an area of 69,687
square meters be divided among the six children of Lorenzo Lopez and their mother. In this
connection, the lower court also found that during his lifetime, and before Candido got married,
Lorenzo Lopez had divided Lot 4685 among his children who then took possession of their
respective shares. *

The defendants appealed said decision to this Court contending that the lower court erred in declaring the two deeds of absolute sale as
valid, in ordering the segregation of the sold portions of Lot 4685 to enable the plaintiffs to obtain their respective certificates of title, and in
not considering their defense of prescription.

The extrinsic validity of the two deeds of absolute sale is not in issue in this case in view of the
finding of the trial court that the defendants admittedly do not question their due execution. 13 What
should pre-occupy the Court is the intrinsic validity of said deeds insofar as they pertain to sales of
designated portions of an undivided, co-owned property.

In a long line of decisions, this Court has held that before the partition of a land or thing held in
common, no individual co-owner can claim title to any definite portion thereof. All that the co-owner
has is an Ideal or abstract quota or proportionate share in the entire land or thing. 14

However, the duration of the juridical condition of co-ownership is not limitless. Under Article 494 and
1083 of the Civil Code, co-ownership of an estate should not exceed the period of twenty (20) years.
And, under the former article, any agreement to keep a thing or property undivided should be for a
ten-year period only. Where the parties stipulate a definite period of in division which exceeds the
maximum allowed by law, said stipulation shall be void only as to the period beyond such
maximum.15

Although the Civil Code is silent as to the effect of the in division of a property for more than twenty
years, it would be contrary to public policy to sanction co-ownership beyond the period set by the
law. Otherwise, the 20-year limitation expressly mandated by the Civil Code would be rendered
meaningless.

In the instant case, the heirs of Lorenzo Lopez maintained the co-ownership for more than twenty
years. We hold that when Candido and his mother (who died before the filing of the complaint for
partition) sold definite portions of Lot 4685, they validly exercised dominion over them because, by
operation of law, the co-ownership had ceased. The filing of the complaint for partition by the
Oliverases who, as vendees, are legally considered as subrogated to the rights of Candido over
portions of Lot 4685 in their possession, 16 merely served to put a stamp of formality on Candido's
otherwise accomplished act of terminating the co-ownership.

The action for partition has not prescribed. Although the complaint was filed thirteen years from the
execution of the deeds of sale and hence, as contended by the defendants-appellants, prescription
might have barred its filing under the general provision of Article 1144 (a) of the Civil Code, Article
494 specifically mandates that each
co-owner may demand at any time the partition of the thing owned in common insofar as his share is
concerned. Hence, considering the validity of the conveyances of portions of Lot 4685 in their favor
and as subrogees of Candido Lopez, the Oliverases' action for partition was timely and properly
filed. 17

We cannot write finis to this decision without commenting on the compliance with the resolution of
September 1, 1986 of counsel for defendants-appellants. In said resolution, the court required the
parties to move in the premises "considering the length of time that this case has remained pending
in this Court and to determine whether or not there might be supervening events which may render
the case moot and academic. 18 In his manifestation and motion dated August 12, 1987, said counsel
informed the Court that he had contacted the defendants-appellants whom he advised "to move in
the premises which is the land in question and to maintain the status quo with respect to their actual
possession thereon" and that he had left a copy of said resolution with the defendants-appellants" for
their guidance in the compliance of their obligations (sic) as specified in said
resolution." 19

Obviously, said counsel interpreted literally the Court's directive "to move in the premises." For the
enlightenment of said counsel and all others of similar perception, a "move in the premises"
resolution is not a license to occupy or enter the premises subject of litigation especially in cases
involving real property. A "move in the premises" resolution simply means what is stated therein: the
parties are obliged to inform the Court of developments pertinent to the case which may be of help to
the Court in its immediate disposition.

WHEREFORE, the decision of the lower court insofar as it declares the validity of the two deeds of
sale and directs the partition of Lot 4685, is AFFIRMED. The lower court is hereby ordered to
facilitate with dispatch the preparation of a project of partition which it should thereafter approve.
This decision is immediately executory. No costs.

SO ORDERED
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-62251 July 29, 1985

IRENE TAC-AN-DANO, FELIPE G. TAC-AN, DIOSDADO G. TAC-AN and SOCORRO TAC-AN

GENOBATEN, petitioners,
vs.
THE COURT OF APPEALS and ALFONSO G. TAC-AN, respondents.

Felipe G. Tac-an for petitioners.

Adelino B. Sitoy for private respondent.

MELENCIO-HERRERA, J.:

Petitioners herein seek to reverse the Decision of the then Court of Appeals 1 in CA-G.R. No. 63057-
R, as well as its Resolution which denied their Motion for Reconsideration, and to reinstate in
toto the Decision of the then Court of First Instance of Misamis Occidental, Branch III, Oroquieta
City, in Civil Case No. 3092, for Recovery of Ownership of Coconut Trees and Damages filed by
private respondent against them.

Petitioners Irene Tac-an Dano, Felipe G. Tac-an, Diosdado G. Tac-an and Socorro Tac-an
Genobaten, and private respondent ALFONSO G. Tac-an, are brothers and sisters, children of the
deceased spouses Pio Tac-an and Luisa Guzman. Upon the demise of Pio Tac-an on March 12,
1948, his wife, Luisa, managed the entire estate, including an agricultural land of approximately 89
hectares at San Isidro, Misamis Occidental, until her death on April 18, 1971.

On September 28, 1971, intestate proceedings for the settlement of Luisa's estate were instituted by
petitioner Diosdado Tac-an before the Court of First instance of Misamis Occidental, Branch III,
docketed as Special Proceedings No. 615. ALFONSO opposed the petition contending that one-half
of the new 6,159 coconut trees at the San Isidro property belonged to him in accordance with his
agreement with his late mother. Ultimately, on January 29, 1973, partition was ordered by the
intestate Court pursuant to a Compromise Agreement arrived at among the heirs. ALFONSO
claimed, however, that the partition was without prejudice to the prosecution of his claim in a
separate suit.

On January 31, 1975, ALFONSO filed a complaint for Recovery of Ownership of Coconut Trees and
Damages against petitioners with the then Court of First Instance of Misamis Occidental, Branch III,
Oroquieta City, docketed as Civil Case No. 3092, which he amended on April 3, 1975. He alleged
that sometime in 1944, upon the request of his late mother, and with the consent of petitioners, he
planted coconut trees on an agricultural land of their late father at San Isidro Señor Sinacaban,
Misamis Occidental, with an area of 89.7033 hectares: that part of the land was planted with sugar
cane which he gradually replaced with coconut trees, completing the work in 1957; that he and his
mother, during her lifetime, agreed, without objection from petitioners, that the coconut trees
including the fruits and produce thereof, would be equally divided between them; that their equal
sharing continued for fifteen (15) years; that upon the death of their mother, petitioner Diosdado Tac-
an filed in September 1971, Special Proceeding No. 615 with the Court of First Instance of Misamis
Occidental, Branch III, for the partition of the real and personal properties left by their parents, which
he opposed.

Petitioners, in their Answer, stated that ALFONSO's claim for improvements is barred by prior
judgment in Special Proceedings No. 615 rendered by the intestate Court on the basis of the
amicable compromise agreement entered into by the parties after concessions were given to
respondent for the settlement of said claim; that by virtue of said Decision, the land in San Isidro was
subdivided and adjudicated in equal shares among them; that the claim of respondent for one-half
(½) of the produce of the coconut trees was denied by the intestate Court in its Order of April 18,
1972, which had already became final; that the complaint states no cause of action; that the claim is
unenforceable under the Statute of Frauds, and is barred by the Statute of Limitations and/or
prescription.

On September 12, 1977, the trial Court, through Judge Mariano M. Florido, dismissed ALFONSO's
Complaint and rendered judgment, thus:

ACCORDINGLY, judgment is hereby rendered dismissing the plaintiff's complaint for

lack of merit; and ordering the plaintiff, under the Counterclaim, to pay and deliver to
the defendants:

1. The amount of P21,000.00, representing the share of the defendants which the
plaintiff failed to give and deliver to the defendants from May, 1971 to September,
1971, with interest thereon at six (6) per cent per annum from the filing of defendants'
Counterclaim on July 3, 1975, until the amount is fully paid;

2. The forty (40) heads of cows representing the shares of the defendants in the
amicable settlement dated January 29, 1973 in Special Proc. No. 615, and the
additional forty (40) heads of cows representing the offsprings, which the cows of the
defendants would ordinarily have produced but which they failed to do so, to the
prejudice of the defendants, on account of the default of the plaintiff, or for a total of
eighty (80) heads of cows; or in case of failure of plaintiff to deliver the eighty (80)
heads of cows to the defendants, to pay to the defendants the amount of
P80,000.00, representing the value of the eighty (80) heads of cows at P1,000.00 per
head. plus interest thereon at six (6%) per cent per annum from the filing of
defendants' counterclaim on July 3, 1975, until fully paid;

3. The amount of P15,000.00 as moral damages;

4. The amount of P20,000.00 as attorney's fees; and in the further amount of

P5,000.00, as expenses of litigation; and

5. With costs against the plaintiff.

On appeal, the then Court of Appeals modified the judgment of the trial Court by allowing ALFONSO
to receive one-half of the produce of the coconut trees, reducing the number of cows, and
eliminating the award of damages and attorney's fees, as follows:

WHEREFORE, with the modifications that the plaintiff is entitled to receive one-half
(1/2) of the produce of coconuts in the land at San Isidro, Sinacaban, Misamis
Occidental to resume upon finality of this decision; that plaintiff should only return to
defendants 40 cows and if not possible the equivalent in value at the rate of P500.00
per head or a total of P20,000.00 with legal rate of interest at 6% from the filing of
defendants' counterclaim on July 3, 1975 until fully paid; the elimination of moral
damages, attorney's fees and expenses of litigation; the decision appealed from is
hereby AFFIRMED in all other respects, without pronouncement as to costs in this
instance.

Before us now, petitioners, as defendants below, impugn the Decision of the Appellate Court
assigning to it the following errors:

The Court of Appeals committed serious error of law and grave abuse of discretion
amounting to lack of jurisdiction in not holding that the claim for improvements of
Alfonso Tac-an is barred by a prior final order in Special Proceeding No. 615 — Res
Judicata.

II

The Court of Appeals committed serious error of law and grave abuse of discretion
amounting to want of jurisdiction in not holding that the claim for improvements of
Alfonso Tac-an was likewise settled and adjudicated by the final decision embodying
the amicable compromise agreement of the parties for the partition of the estate in
Special Proceeding No. 615 — Res Judicata.

III

The Court of Appeals committed grave abuse of discretion amounting to lack of

jurisdiction when it sanctioned the filing of this present independent civil action
relying mainly on the clarificatory orders (erroneously referred to by the Court of
Appeals as "decision") of Judge Melecio Genato which are contrary to the amicable
compromise agreement embodied and approved in the decision of Judge Mariano
Florido.

IV

The Court of Appeals committed grave abuse of discretion amounting to lack of

jurisdiction in modifying the lower court decision by declaring that Alfonso Tac-an is
entitled to receive one-half (½) of the produce despite the fact that it emphatically
declared and held that no agreement existed between plaintiff and his mother.

Assuming arguendo that there was such agreement the Court of Appeals gravely
erred in enforcing it against petitioners.

VI

The Court of Appeals committed grave abuse of discretion amounting to lack of

jurisdiction in resolving the claim of Alfonso Tac-an by entitling him to one-half (½) of
the produce based on equity, justice and human considerations instead of applying
clear and specific provisions of law (positive laws).

VII

The Court of Appeals committed grave abuse of discretion amounting to lack of

jurisdiction in applying laches and estoppel against defendants.

VIII

The Court of Appeals gravely erred in not resolving the issue that this action is
barred by prescription relying on the illegal clarificatory orders of Judge Melecio
Genato.

IX

The Court of Appeals likewise gravely erred in resolving the issue that this action is
barred by the Statute of Frauds also relying on the clarificatory orders of Judge
Genato.

The Court of Appeals gravely erred in modifying the decision of the lower Court by
ordering plaintiff to return to defendants only 40 heads of cows or if not possible the
equivalent in value at the rate of P500.00 per head or a total sum of P20,000.00
instead of the valuation of the trial Court.

XI

The Court of Appeals gravely erred in eliminating the award of P21,000.00

representing the share of petitioners which plaintiff failed to give or deliver for the
period from May 1971 to September 1971.

XII
 The Court of Appeals gravely erred in deleting the award of moral damages,
attorney's fees and expenses of litigation.

On July 27, 1983, we denied the petition for lack of merit, and likewise denied on January 11, 1984,
petitioners' Motion for Reconsideration of said Resolution. However, upon petitioners' Second Motion
for Reconsideration, we resolved to reconsider our Resolutions of July 27, 1983 and January 11,
1984 and gave due course to the Petition.

On res judicata and prescription

Petitioners contend that ALFONSO's suit for recovery of ownership of coconut trees is barred by
prior judgment in Special Proceedings No. 615. While it may be that the said intestate proceedings
did attain finality, it was subject to the clarificatory Order, dated April 24, 1973, issued by Judge
Melecio Genato reading:

The decision dated January 29, 1973, rendered by this Court based on the amicable
settlement of the heirs in this case is amended to be without prejudice to whatever
claim oppositor Alfonso Tac-an has over the improvements he had personally
introduced or caused to be introduced into the estate situated at Señor Sinacaban,
Misamis Occidental.

In his Order, dated June 19, 1973, resolving petitioners' Motion for Reconsideration, the same Judge
held that there was "no amendment" to the Decision dated January 29, 1973. 2

Those Orders were elevated on certiorari to this Court in G.R. No. L-37298 entitled Irene Tac-an
Dano, etc. vs. Hon. Melecio Genato, et al., which petition this Court dismissed for lack of merit on
February 12, 1974. 3

Premised on the foregoing, the defense of res judicata must fail and it has to be held that the right
was reserved to ALFONSO to pursue his claim for recovery of ownership of coconut trees.

Prescription can neither be invoked as against ALFONSO by reason of that reservation in his favor.
He filed suit two years after the Decision in the intestate proceedings had been rendered. Under
Article 1144 of the Civil Code, he had ten (10) years from the time the right of action accrued within
which to file suit upon a judgment.

On the Alleged Agreement

ALFONSO's complaint, filed in the trial Court, was completely based on an alleged oral agreement
between himself, as co- owner, and his mother as another co-owner, whereby he would be receiving
benefits from the mentioned coconut land more than he would be entitled to as co-owner. Both the
trial Court and the Appellate Court made the factual finding that the arrangement if at all, could have
referred only to the produce, with the difference that the former Court held that its effectivity ceased
after the mother's death and could not bind the other heirs; whereas the latter Court ruled that since
petitioners acquiesced in the arrangement during their mother's lifetime, they are now estopped from
asserting the contrary.

It is not disputed that the San Isidro property was the capital property of the father of the opposing
parties, and that Luisa, their mother, was not authorized by petitioners upon the death of their father,
to enter into contract with ALFONSO concerning the produce of their respective shares of said
property. It has been established, too, that the expenses incurred in planting coconut trees in said
land came from the common fund 4 and that concessions were given ALFONSO in the partition for
his work in converting the property into coconut land. So, whatever agreement the mother had with
ALFONSO regarding the produce of the coconut trees, could legally bind her share only, and chased
upon her death. Petitioners merely tolerated such sharing arrangement in deference to their mother's
commitment. This is shown by the fact that five months after her death, petitioners instituted the
proceedings for the partition of the estate of their deceased parents including the San Isidro
property. Accordingly, the doctrine of laches and estoppel as against petitioners cannot be
successfully invoked. Absent was any element of turpitude or negligence connected with the silence
by which another is misled to his injury. 5

Moreover, the agreement between mother and son must be deemed superseded, for, on September
29, 1953, even during the lifetime of the mother, Original Certificate of Title No. 28 (Lot No. 1) in the
name of the deceased father, was cancelled and replaced by TCT No. RT-121 issued in the names
of "Felipe Tac-An Irene Tac-an, Alfonso Tac-an, Catalina Tac-an, Diosdado Tac-an, Socorro Tac-an
and Luisa Guzman, in pro indiviso share of one- seventh (1/7) each", the last named being the
surviving spouse (Exhibit "12"). It will be seen, therefore, that, after 1953, it was expressly made of
record that ALFONSO, his mother, and five (5) siblings (Catalina has since passed away) were co-
owners in equal shares. If, in fact, ALFONSO, had an agreement as to ownership of the trees and
produce with his mother, that was the time for him to have insisted on a lien to be specifically
included in the title. His mother, too, would have been in a position to confirm or deny the existence
of the agreement.

Additionally, as petitioners contend, to give ALFONSO the right to receive one-half (½) of the
produce of coconuts, as respondent Court did, would be to perpetuate a state of co-ownership,
contrary to Article 494 of the Civil Code, which limits co-ownership to a period of ten (10) years or at
most twenty (20) years.

On the Partition

It follows that ALFONSO's claim for recovery of ownership of the coconut trees and of the produce
thereof must fail. He should only be entitled to the share alloted to him in the "share raffle" embodied
in their compromise agreement and approved by the Court in Special Proceeding No. 615, dated
January 29, 1973, as follows:

5. The share raffle was conducted with respect to the "Coconut Lands" mentioned on
page 3 of the said partition proposal and the following result was registered:

1. Lot 1 was drawn in favor of Mrs. Socorro Tac-an Genobatan; Lot 2 was drawn in
favor of Mrs. Irene Tac-an Dano; Lot 3 was drawn in favor of oppositor Alfonso Tac-
an; Lot 4 was drawn in favor of Atty. Felipe Tac-an, and Lot 5 was drawn in favor of
Diosdado Tac-an.

xxx xxx xxx

7. ... The administrator of the estate is hereby ordered to make a tentative partition of
the coconut land located at Señor Sinacaban into five (5) shares based not only on
the area, but also on the value of the improvements thereon within a period of ten
(10) days from today, and that the heirs hereby agree to draw another raffle in order
to determine the share that would correspond to them in the drawing of lots, except
the share of Alfonso Tac-an, the oppositor, which is agreed by the heirs to be that
area where his house is standing and that the farm house be adjudicated to
him. 6 (Emphasis ours)

The sharing in the Compromise Agreement submitted before the intestate Court with respect to the
partition of the cows should also be maintained. The Courts, as a rule may not impose upon the
parties a judgment different from their Compromise Agreement. 7 The pertinent sharing agreement
reads:

7. With respect to the number of cows, as of today, there are seventy-one (71) heads
of cows. It has been agreed by the parties and their counsel that Alfonso Tac-an will
get 3/7 of this number or of whatever number of cows there are belonging to the
estate, and the remainder 4/7 of the cows shall be divided equally by the four (4)
remaining heirs which would give them the equivalent of 1/7 share of the said cows.
If actually the number of cows as counted by the administrator is only 71, let it be
divided in accordance with the agreement of the parties and the remaining one head
of cow be turned over to the administrator for evaluation and the administrator may
sell it and distribute the actual proceeds among the heirs. ... 8

Consonant, therefore, with our finding that ALFONSO is not entitled to one-half (½) of the produce of
the San Isidro property, he should give to petitioners, as ruled by the trial court, their share which he
failed to deliver from May 1971 to September 1971, or the amount of P21,000.00 plus interest
thereon at six (6) per cent per annum from the filing of petitioners' counterclaim on July 3, 1975, until
the amount is fully paid.
As to the award of damages, there being no evidence of fraud and bad faith committed by
ALFONSO, the elimination by respondent Appellate Court of the award of moral damages, attorney's
fees and expenses of litigation to petitioners should be affirmed.

WHEREFORE, modifying the judgment under review, this court RESOLVES:

1] The elimination of the award of moral damages, attorney's fees and expenses of litigation to
petitioners is hereby AFFIRMED.

2] The award in favor of private respondent, Alfonso G. Tac-an, of one-half of the produce of the
coconut trees from the coconut lands situated at San Isidro Señor Sinacaban, Misamis Occidental, is
hereby SET ASIDE;

3] Private respondent, Alfonso G. Tac-an, is hereby ordered to pay to petitioners the amount of
P21,000.00 representing the latter's share in the produce of the coconuts from May 1971 to
September 1971 with six (6) per cent interest thereon per annum from the filing of the counterclaim
on July 3, 1975 until the amount is fully paid; and

4] The parties are enjoined to abide by the terms of their Compromise Agreement in the partition of
the heads of cattle.

No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 72694 December 1, 1987

AURORA DEL BANCO, EVELYN DEL BANCO, FEDERICO TAINO, SOLEDAD TAINO,
JOVENCIO TAINO, SAMSON TAINO, NOE TAINO, SOCORRO TAINO and CLEOFAS
TAINO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT (Second Civil Cases Division), ALEJANDRA
PANSACOLA, LEONILA ENCALLADO, VEDASTO ENCALLADO, JOSE YEPES, et
al., respondents.

PARAS, J.:

This is a petition for review on certiorari by way of appeal from: (a) the decision of respondent Court
of Appeals (Intermediate Appellate Court) * promulgated on May 17, 1985 in AC-G.R. CV No. 70460, entitled "Alejandra
Pansacola, et al. vs. Domen Villabona del Banco, et al." which reversed and set aside the judgment ** of the trial court; and (b) its
resolution ** of October 15, 1985 in the same case, denying petitioners' motion for reconsideration of the aforementioned decision and their
supplement to motion for reconsideration.

The dispositive portion of the questioned decision (Rollo, p. 97) reads, as follows:

ACCORDINGLY, the decision appealed from is hereby SET ASIDE insofar as it

dismisses the complaint, and another one entered —

(1) Declaring plaintiffs-appellants and defendants-appellees, in their respective

capacities as described in par. V of the complaint, as co-owners of the property in
dispute, but subject to the four-part pro-indiviso division already made by said
property;

(2) Ordering the cancellation of all certificates of title that may have been issued to
any of the parties hereto; and

(3) Ordering the complete and final partition of the subject property in conformity with
law.

For this purpose, this case is hereby remanded to the Court of origin so that a final
partition shall be made in accordance with Sections 2, 3, et. seq., Rule 69 of the
Rules of Court.

Let a copy of this decision be furnished to the Register of Deeds for the Province of
Quezon.

The facts of the case are taken from the decision of the Appellate Court (Rollo, p. 39) as follows:

In a document executed in the Municipality of San Rafael, Bulacan, on February 11, 1859, three
brothers, Benedicto Pansacola, Jose Pansacola and Manuel Pansacola (known as Fr. Manuel Pena)
entered into an agreement which provided, among others:

(1) That they will purchase from the Spanish Government the lands comprising the Island of
Cagbalite which is located within the boundaries of the Municipality of Mauban, Province of Tayabas
(now Quezon) and has an approximate area of 1,600 hectares;

(2) That the lands shall be considered after the purchase as their common property;
(3) That the co-ownership includes Domingo Arce and Baldomera Angulo, minors at that time
represented by their father, Manuel Pansacola (Fr. Manuel Pena) who will contribute for them in the
proposed purchase of the Cagbalite Island;

(4) That whatever benefits may be derived from the Island shall be shared equally by the co-owners
in the following proportion: Benedicto Pansacola-1/4 share; Jose Pansacola-1/4 share; and,
Domingo Arce and Baldomera Angulo-2/4 shares which shall be placed under the care of their
father, Manuel Pansacola (Fr. Manuel Pena).

On August 14, 1866, co-owners entered into the actual possession and enjoyment of the Island
purchased by them from the Spanish Government. On April 11, 1868 they agreed to modify the
terms and conditions of the agreement entered into by them on February 11, 1859. The new
agreement provided for a new sharing and distribution of the lands, comprising the Island of
Cagbalite and whatever benefits may be derived therefrom, as follows:

(a) The first one-fourth (1/4) portion shall belong to Don Benedicto Pansacola;

(b) The second one-fourth (1/4) portion shall belong to Don Jose Pansacola;

(c) The third one-fourth(1/4) portion shall henceforth belong to the children of their
deceased brother, Don Eustaquio Pansacola, namely: Don Mariano Pansacola,-
Maria Pansacola and Don Hipolito Pansacola;

(d) The fourth and last one-fourth (1/4) portion shall belong to their nephews and
nieces (1) Domingo Arce, (2) Baldomera Angulo, (3) Marcelina Flores, (4) Francisca
Flores, (5) Candelaria dela Cruz, and (6) Gervasio Pansacola who, being all minors,
are still under the care of their brother, Manuel Pansacola (Fr. Manuel Pena). The
latter is the real father of said minors.

About one hundred years later, on November 18, 1968, private respondents brought a special action
for partition in the Court of First Instance of Quezon, under the provisions of Rule 69 of the Rules of
Court, including as parties the heirs and successors-in-interest of the co-owners of the Cagbalite
Island in the second contract of co-ownership dated April 11, 1968. In their answer some of the
defendants, petitioners herein, interposed such defenses as prescription, res judicata, exclusive
ownership, estoppel and laches.

After trial on the merits, the trial court rendered a decision *** dated November 6, 1981 dismissing the complaint, the
dispositive portion of which reads as follows:

WHEREFORE, and in the fight of all the foregoing this Court finds and so holds that
the Cagbalite Island has already been partitioned into four (4) parts among the
original co-owners or their successors-in-interest.

Judgment is therefore rendered for the defendants against the plaintiffs dismissing
the complaint in the above entitled case.

Considering that the cross claims filed in the above entitled civil case are not
compulsory cross claims and in order that they may be litigated individually the same
are hereby dismissed without prejudice.

IT IS SO ORDERED.

The motion for reconsideration filed by the plaintiffs, private respondents herein, was denied by the
trial court in an order dated February 25, 1982 (Record on Appeal, p. 241).

On appeal, respondent Court reversed and set aside the decision of the lower court (Rollo, p. 117). It
also denied the motion for reconsideration and the supplement to motion for reconsideration filed by
private respondents, in its resolution dated October 15, 1983 (Rollo, p. 86).

Instant petition was filed with the Court on December 5, 1985 (Rollo, p. 12). Petitioners Josefina
Pansacola, et al. having filed a separate petition (G.R. No. 72620) on the same subject matter and
issues raised in the instant 'petition, the counsel for private respondents filed a consolidated
comment on the separate petitions for review on February 24, 1986 with the First Division of the
Court (Rollo, p. 119). It appears that counsel for petitioners also filed a consolidated reply to the
consolidated comment of private respondents as required by the Second Division of the Court (Rollo,
p. 151). However, petitioners filed a separate reply in the instant case on February 18,1987 (Rollo, p.
168)as required by the Court in a Resolution of the Second Division dated November 24, 1986
(Rollo, p. 160).

On May 19, 1987, private respondents in the instant petition filed a manifestation praying for the
denial of the instant petition in the same manner that G.R. No. 72620 was denied by the Court in its
Resolution dated July 23, 1986 (Rollo, p. 151). Their rejoinder to the reply of petitioners was filed on
May 25,1987 (Rollo, p. 179).

On June 8, 1987, the Court resolved to give due course to the petition (Rollo, p. 192). The
memorandum of private respondents was mailed on July 18, 1987 and received in the Court on July
29, 1987 (Rollo, p. 112); the memorandum for petitioners was mailed on August 18, 1987 and
received in the Court on September 7, 1987 (Rollo, p. 177).

The sole issue to be resolved by the Court is the question of whether or not Cagbalite Island is still
undivided property owned in common by the heirs and successors-in-interest of the brothers,
Benedicto, Jose and Manuel Pansacola.

The Pansacola brothers purchased the Island in 1859 as common property and agreed on how they
would share in the benefits to be derived from the Island. On April 11, 1868, they modified the terms
and conditions of the agreement so as to include in the co-ownership of the island the children of
their deceased brothers Eustaquio and the other children of Manuel Pansacola (Fr. Manuel Pena)
who were committed in the agreement of February 11, 1859. The new agreement provided for a new
sharing proportion and distribution of the Island among the co-owners.

On January 20, 1907, the representative of the heirs of all the original owners of Cagbalite Island
entered into an agreement to partition the Island, supplemented by another agreement dated April
18, 1908. The contract dated January 20, 1907 provides as follows:

Sa Mauban, Tayabas, ika 20 ng Enero ng 1907 caming mga quinatawan ng mga

ibang co-herederos na hindi caharap, sa pulong na ito, sa nasa naming lahat na
magcaroon na ng catahimikan ang aming-aming cabahagui sa Pulong Kagbalete
sumacatuid upang mapagtoos ang hangahan ng apat na sapul na pagcacabahagui
nitong manang ito, pagcacausap na naming lahat at maihanay at mapagtalonan ang
saysay ng isa't isa, ay cusa naming pinagcasunduan at pinasiya ang
nangasosonod:—

Una: Ang malaquing calupaan, alis ang lahat na pacatan ay babahaguin alinsunod
sa pagcabaki na guinawa sa croquis na niyari ng practico agrimensor Don Jose
Garcia.

Icalawa: Ang Lomingoy, doon ang tuid na guhit sa ilong ng Pait ay pagaapatin ding
sinlaqui ayon sa dating pagkakabaki.

Icatlo: Cung magawa na ang tunay na piano at icapit na sa lupa, paglalagay ng

nadarapat na mojon, ang masacupan ng guhit, sumacatuid ang caingin at pananim
ng isa na nasacupan ng pucto na noocol sa iba, ay mapapasulit sa dapat mag-ari, na
pagbabayaran nito ang nagtanim sa halagang:- bawat caponong niog na nabunga, P
1.00 'un peso); cung ang bias ay abot sa isang vara, P 0.50; cung bagong tanim o
locloc P 0. 50 ang capono.

Icapat: Ang lahat na pacatan ay bacod na pagaapatin at bawat bahagui ay noocol sa

isat-isa sa apat na sanga ng paganacang nagmana.

Icalima: Upang ang naipatanim ng bawat isa ay matama sa canya ng mailagan ang
hirap ng loob ng nagatikha; ay pagtotolong-tolongan ng lahat naiba na mahusay ang
dalawang partes na magcalapit na mapa ayong tumama, hangang may pagluluaran,
sa nagsikap at maoyanam, maidaco sa lugar na walang cailangang pagusapan.

Icanim: Ang casulatang ito, cung mapermahan na na magcacaharap sampong ng

mga ibang co-herederos na notipicahan nitong lahat na pinagcasundoan ay
 mahahabilin sa camay ng agrimensor, Amadeo Pansacola, upang canyang
mapanusugan ang maipaganap ang dito'y naootos.

Na sa catunayan at catibayan ng lahat na nalalagda dito, sa pag galang at pag

ganap dito sa paingacaisahan ay pumirma sampo ng mga sacsing caharap at
catanto ngayong fecha ayon sa itaas.

The contract dated April 18, 1908 provides as follows:

Sa Mauban, ika 18 ng Abril ng 1908, sa pagcacatipon ng lahat na firmantes nito ay

pinagcaisahan itong nangasosonod:—

Una — Pinagtitibay ang mga pinagcasundoan sa itaas noong 20 ng Enero ng 1907,

liban na lamang sa mga pangcat na una at icapat at tongcol doon pinasiya naming
bahaguinin ng halohalo at paparejo ang calupaan at pacatan.

Ycalawa — Sa pagsucat ng agrimensor na si Amadeo at paggawa ng piano at

descripcion ay pagbabayaran siya ng sa bawat isa naoocol sa halagang isang piso
sa bawat hectares.

Icatlo — Ang counting pucto sa 'Mayanibulong' na may caingin ni G. Isidro

Altamarino, asawa ni Restitute ay tutumbasan naman cay G. Norberto Pansacola sa
lugar ng Dapo calapit ng Pinangalo ng gasing sucat.

Icapat — Sa inilahad na piano ay pinasiya nang itoloy at upang maca pagparehistro

ang isa't isa ay pinagcaisahang magcacagastos na parepareho para sa tablang
pangmohon at ibat iba pang cagastusan.

Sa catunayan at catibayan ay cami, pumirma. (Record on Appeal, p. 224)

There is nothing in all four agreements that suggests that actual or physical partition of the Island
had really been made by either the original owners or their heirs or successors-in-interest. The
agreement entered into in 1859 simply provides for the sharing of whatever benefits can be derived
from the island. The agreement, in fact, states that the Island to be purchased shall be considered
as their common property. In the second agreement entered in 1868 the co-owners agreed not only
on the sharing proportion of the benefits derived from the Island but also on the distribution of the
Island each of the brothers was allocated a 1/4 portion of the Island with the children of the
deceased brother, Eustaquio Pansacola allocated a 1/4 portion and the children of Manuel
Pansacola (Fr. Manuel Pena) also allocated a 1/4 portion of the Island. With the distribution agreed
upon each of the co-owner is a co-owner of the whole, and in this sense, over the whole he
exercises the right of dominion, but he is at the same time the sole owner of a portion, in the instant
case, a 1/4 portion (for each group of co-owners) of the Island which is truly abstract, because until
physical division is effected such portion is merely an Ideal share, not concretely determined (3
Manresa, Codigo Civil, 3rd Ed., page 486, cited in Lopez vs. Cuaycong, 74 Phil. 601; De la Cruz vs.
Cruz, 32 SCRA 307 [1970]; Felices vs. Colegado, 35 SCRA 173 [1970],; Dultra vs. CFl 70 SCRA
465 [1976]; Gatchalian vs. Arlegui, 75 SCRA 234 [1977].)

In the agreement of January 20, 1907, the heirs that were represented agreed on how the Island
was to be partitioned. The agreement of April 18, 1908 which supplements that of January 20, 1907
reveals that as of the signing of the 1908 agreement no actual partition of the Island had as yet been
done. The second and fourth paragraphs of the agreement speaks of a survey yet to be conducted
by a certain Amadeo and a plan and description yet to be made. Virgilio Pansacola, a son of the
surveyor named Amadeo who is referred to in the contract dated April 18, 1908 as the surveyor to
whom the task of surveying Cagbalite Island pursuant to said agreement was entrusted, however,
testified that said contracts were never implemented because nobody defrayed the expenses for
surveying the same (Record on Appeal, p. 225).

Petitioners invoke res judicata to bar this action for partition in view of the decision of the Court in
G.R. No. 21033, "Domingo Arce vs. Maria Villabona, et al.," 21034, "Domingo Arce vs. Francisco
Pansacola, et al.," and 21035, "Domingo Arce vs. Emiliano Pansacola, et al." promulgated on
February 20, 1958 (Rollo, p. 141) and Brief for Defendants-Appellees, p. 87 Appendix 1), wherein
the Court said:
 Considering the facts that he waited for a period of nearly 23 years after the return
from his deportation before taking any positive action to recover his pretended right
in the property in question, gives great credit, in our opinion, to the declaration of the
witnesses for the defense (a) that the original parcel of land was partitioned as they
claim, and (b) that the plaintiff had disposed of all the right and interest which he had
in the portion which had been given to him.

The issue in the aforementioned case which were tried together is not whether there has already
been a partition of the Cagbalite Island. The actions were brought by the plaintiff to recover
possession of three distinct parcels of land, together with damages. In fact the word partition was
used in the metaphysical or Ideal sense (not in its physical sense).

Commenting on the above ruling of the Court in connection with the instant case, the respondent
Court said:

Concededly, the Supreme Court decision in G.R. Nos. 21033-35 (Exh. X) did use or
employ the word "partition." A careful reading of the said decision will, however,
reveal, and we so hold, that the employment or use of the word "partition" therein
was made not in its technical and legal meaning or sense adverted to above, but,
rather in its Ideal, abstract and spiritual sense, this is (at) once evident from the bare
statement in said decision to the effect that the property was divided into four parts,
without any reference to the specific parts of the property that may have been
adjudicated to each owner. There being no such reference in the decision and in the
judgment affirmed therein to the adjudication of specific and definite portions of the
property to each co-owner, there is a clear and logical inference that there was
indeed no adjudication of specific and definite portions of the property made to each
co-owner.

It must be admitted that the word "partition" is not infrequently used both in popular and technical
parlance (Fule vs. Fule, 52 Phil. 750 [1929]). For purposes of the aforementioned case, evidently the
Court used the word "partition" to refer to the distribution of the Cagbalite Island agreed upon by the
original owners and in the later agreements, by the heirs and their subsequent successors-in-
interest. There need not be a physical partition; a distribution of the Island even in a state of indiviso
or was sufficient in order that a co-owner may validly sell his portion of the co-owned property. The
sale of part of a particular lot thus co-owned by one co-owner was within his right pro-indivisois valid
in its entirety (Pamplona vs. Moreto, 96 SCRA 775 [1980]) but he may not convey a physical portion
with boundaries of the land owned in common (Mercado vs. Liwanag, 5 SCRA 472 [1962]).
Definitely, there was no physical partition of the Island in 1859. Neither could there have been one in
1894 because the manner of subdividing the Island was only provided for in the later agreements
entered into by the heirs in 1907 and 1908. There was a distribution of the Island in 1868 as agreed
upon by the original co-owners in their agreement of April 11, 1868. Any agreement entered into by
the parties in 1894 could be no more than another agreement as to the distribution of the Island
among the heirs of the original co-owners and the preparation of a tentative plan by a practical
surveyor, a Mr. Jose Garcia, mentioned in the first paragraph of the 1907 agreement, preparatory to
the preparation of the real plan to be prepared by the surveyor Amadeo, mentioned in the agreement
of April 18, 1908.

What is important in the Court's ruling in the three aforementioned cases is that, the fact that there
was a distribution of the Island among the co-owners made the sale of Domingo Arce of the portion
allocated to him though pro-indiviso, valid. He thus disposed of all his rights and interests in the
portion given to him.

It is not disputed that some of the private respondents and some of the petitioners at the time the
action for partition was filed in the trial court have been in actual possession and enjoyment of
several portions of the property in question (Rollo, p. 148). This does not provide any proof that the
Island in question has already been actually partitioned and co-ownership terminated. A co-owner
cannot, without the conformity of the other co-owners or a judicial decree of partition issued pursuant
to the provision of Rule 69 of the Rules of Court (Rule 71 of the Old Rules), adjudicate to himself in
fee simple a determinate portion of the lot owned in common, as his share therein, to the exclusion
of other co-owners (Santos, Jr. vs. Buenconsejo, 14 SCRA 407 [1965]; Carvajal vs. Court of
Appeals, 112 SCRA 237 [1982]). 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 any definite portion
thereof (Diversified Credit Corporation vs. Rosada 26 SCRA 470 [1968]). lt is therefore of no
moment that some of the co-owners have succeeded in securing cadastral titles in their names to
some portions of the Island occupied by them (Rollo, p. 10).

It is not enough that the co-owners agree to subdivide the property. They must have a subdivision
plan drawn in accordance with which they take actual and exclusive possession of their respective
portions in the plan and titles issued to each of them accordingly (Caro vs. Court of Appeals, 113
SCRA 10 [1982]). The mechanics of actual partition should follow the procedure laid down in Rule
69 of the Rules of Court. Maganon vs. Montejo, 146 SCRA 282 [1986]).

Neither can such actual possession and enjoyment of some portions of the Island by some of the
petitioners herein be considered a repudiation of the co-ownership. It is undisputed that the
Cagbalite Island was purchased by the original co-owners as a common property and it has not
been proven that the Island had been partitioned among them or among their heirs. While there is
co-ownership, a co-owner's possession of his share is co-possession which is linked to the
possession of the other co-owners (Gatchalian vs. Arlegui, 75 SCRA 234 [1977]).

Furthermore, 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 (Valdez vs. Olonga, 51 SCRA 71
[1973], Tero vs. Tero, 131 SCRA 100 [1984]). Co-owners cannot acquire by prescription the share of
the other co-owners, absent a clear repudiation of the co-ownership clearly communicated to the
other co-owners (Mariano vs. De Vega, 148 SCRA 342 [1987]).

An action for partition does not prescribe. Article 403 of the Old Civil Code, now Article 497, provides
that the assignees of the co-owners may take part in the partition of the common property, and
Article 400 of the Old Code, now Article 494 provides that each co-owner may demand at any time
the partition of the common property, a provision which implies that the action to demand partition is
imprescriptible or cannot be barred by laches (Budlong vs. Pondoc, 79 SCRA 24 [1977]). An action
for partition does not lie except when the co-ownership is properly repudiated by the co- owner
(Jardin vs. Hollasco, 117 SCRA 532 [1982]).

On July 23, 1986, the Court through its Second Division denied the petition for the review of G.R.
No. 72620, the petition for review on certiorari separately filed by Josefina Pansacola (Rollo, p. 151).

PREMISES CONSIDERED, the instant petition is likewise DENIED for lack of merit.

SO ORDERED.