co-heirs.
) This partition was not registered immediately,
FIRST DIVISION
[G.R. No. L-29320. September 19, 1988.]
FELIPE SEGURA, ANTONIA SEGURA,
NICANORA SEGURA,
BERNARDINA SEGURA,
ALIPIO SEGURA and
MONSERRAT SEGURA, plaintiffs-
appellants, vs. NICOLASSEGURA,
SANTIAGO SEGURA,
GAUDENCIO SEGURA, EMILIANO
AMOJIDO, MILDRED ELISON VDA.
DE JAVELOSA, ERNESTO AMOJIDO,
EPIFANIA DE AMOJIDO, IGMEDIO
AMOJIDO, and THE RURAL BANK OF
SANTA BARBARA, defendants-
appellees.
Robert B. Maroma for plaintiffs-appellants.
Estefano Caspe for defendants-appellees.
DECISION
CRUZ, J p:
This is another distasteful case where kin is pitted against
kin in a bitter dispute over property inherited from a
common ancestor who probably would have been
distressed to see her progeny quarreling over it as if they
were hostile strangers. The land in question consists of
4,060 square meters and was originally registered under
Original Certificate of Title No. 1994 in the Registry of
Deeds of Iloilo in the name of Gertrudes Zamora. 1 She
died intestate and without debts in 1936 and was survived
by four children, who never got around to dividing the
property among themselves. This controversy is not
among the four brothers, who are now also deceased. It is
Gertrudes's grandchildren by three of her sons (the fourth
having died without issue) who are involved in this
complaint for recovery of ownership and possession of the
disputed inheritance, plus damages.
The conflict began when on April 6, 1941, three of these
nine grandchildren, namely, Nicolas, Santiago and
Gaudencio Segura, executed a deed of extrajudicial
partition arrogating the entire property to themselves
alone as equal pro indiviso owners 2 (thereby, curiously,
excluding Nicolas and Santiago's own brother and two
sisters, and Gaudencio's own sister, besides the other two
but only in 1946, or five years later.
Before and after such registration, the following
developments transpired:
1. The land was sold for P50.00 to Emiliano Amojido, with
right to repurchase on or before February 15, 1942. This
right was not exercised. 3
2. On November 28, 1946, Amojido executed an affidavit
of consolidation of ownership and obtained TCT No.
28336, with a reservation of the rights of the other heirs
annotated therein. 4
3. On March 31, 1953, Amojido sold the land for P1,500.00
to Mirope Mascareñas vda. de Elison, who obtained TCT
No. T-19396 in her name, which did not retain the
annotation. 5
4. On May 28, 1956, the plaintiffs filed Civil Case No. 3941,
for recovery of possession and ownership of the subject
land from Nicolas, Santiago and Gaudencio Segura. 6
5. On February 14, 1957, Elison sold the land for P1,000.00
to Mildred Elison vda. de Javelosa, who obtained TCT No.
22074 in her name. 7
6. On January 15, 1958, Mildred sold the land for
P1,500.00 to Ernesto and Igmedio Amojido, who obtained
TCT No. 24342 in their names. 8
7. On January 16, 1958, Civil Case No. 3941 was dismissed
on motion of the plaintiffs' counsel.
8. On July 23, 1961, the land was mortgaged to the Rural
Bank of Sta. Barbara, which is one of the appellees herein.
The complaint in the case at bar was filed on January 11,
1968, and docketed as Civil Case No. 7477 in the Court of
First Instance of Iloilo. In it, the six excluded grandchildren
alleged that the partition and all subsequent transfers of
the subject land were null and void insofar as these
transactions deprived them of their shares as co-owners of
the said property. The defendants moved to dismiss,
contending that the action was barred by prior judgment
and that in any event whatever rights might have
pertained to the plaintiffs had already prescribed under
the Rules of Court and the Civil Code. The plaintiffs
opposed the motion. Thereafter, issues having been
joined, the trial court 9 issued its order of March 28, 1968,
dismissing the complaint on the ground of prescription.
The motion for reconsideration was denied in an order
dated May 28, 1968, on the further ground, as if it were an
afterthought, of res judicata. The plaintiffs then appealed
to this Court and now ask that the said orders be reversed
and the complaint reinstated.
We hold at the outset that the present action is not barred
by prior judgment as the dismissal of the earlier complaint
was without prejudice to its refiling at a future date. It
appears that when Civil Case No. 3941 was called for
hearing, the plaintiffs' counsel himself moved for its
dismissal on the ground that his clients had gone to
Mindanao and he did not know when they would be
returning. 10 There is here no showing of failure to
prosecute, such as an unreasonable delay on the part of
the complainants, and the appellees have not so
contended. It was clear that the plaintiffs' counsel had the
intention of reviving the case, and that must have been
the impression too of the trial judge because his order of
dismissal did not state that it was with prejudice to the
refiling of the case 11 The applicable rule is Rule 17,
Section 2, of the Rules of Court reading thus:
"Dismissal by order of the court. —
Except as provided in the preceding
section, an action shall not be
dismissed at the plaintiffs instance
save upon order of the court and
upon such terms and conditions as
the court deems proper. If a
counterclaim has been pleaded by a
defendant prior to the service upon
him of the plaintiff's motion to
dismiss, the action shall not be
dismissed against the defendant's
objection unless the counterclaim
can remain pending for independent
adjudication by the court. Unless
otherwise specified in the order, a
dismissal under this paragraph shall
be without prejudice."
It follows that even, if, as noted by the trial court in its
Order of May 28, 1968, "the same case Civil Case No. 3941
of this Court. Exh. 'A' with the same subject matter, with
the same plaintiffs, almost with the same defendants, and
the same theory, was dismissed by this Court on January
16, 1958," the present action is not barred by res judicata.
The second ground is not as simple.
The claim of prescription is based first on the contention
that under the Rules of Court the deed of extrajudicial
partition should have been impugned within two years
from the date of its execution in 1941. As the challenge in
the instant case was made only in 1956, when Civil Case
No. 3941 was filed, that first case, and more so the case at
bar which was commenced in 1968, should be and were
properly dismissed for tardiness under Rule 74, Section 4,
of the Rules of Court.
This section provides in gist that a person who has been
deprived of his lawful participation in the estate of the
decedent, whether as heir or as creditor, must assert his
claim within two years after the extrajudicial or summary
settlement of such estate under Sections 1 and 2
respectively of the same Rule 74. Thereafter, he will be
precluded from doing so as the right will have prescribed.
It is clear that Section 1 of Rule 74 does not apply to the
partition in question which was null and void as far as the
plaintiffs were concerned. The rule covers only valid
partitions. The partition in the present case was invalid
because it excluded six of the nine heirs who were entitled
to equal shares in the partitioned property. Under the rule,
"no extra-judicial settlement shall be binding upon any
person who has not participated therein or had no notice
thereof." As the partition was a total nullity and did not
affect the excluded heirs, it was not correct for the trial
court to hold that their right to challenge the partition had
prescribed after two years from its execution in 1941.
The appellees invoke a second basis for their claim of
prescription and argue that even under the Civil Code the
complaint should also be deemed prescribed pursuant to
the following provisions:
"Art. 1134. Ownership and other
real rights over immovable property
are acquired by ordinary
prescription through possession of
ten years (1957a)."
"Art. 1144. The following actions
must be brought within ten years
from the time the right of action
accrues:
(1) Upon a written contract;
(2) Upon an obligation created by
law;
(3) Upon a judgment."
It is recalled that following the execution of the deed of
partition, the owners named therein sold the entire land
to Emiliano Amojido who, after the vendors had failed to
exercise their right of repurchase, executed an affidavit of
consolidation in his favor on November 28, 1946. He
subsequently obtained a transfer certificate of title in his
name, but this contained the following annotation:
"This land is subject to any claim
that may be presented by any heir
or any other person deprived of his
lawful participation in the estate of
Gertrudes Zamora, within two years
from date of the Extra-Judicial
Settlement and distribution of the
estate." 12
As a person can sell only what he owns or is authorized to
sell, the buyer can as a consequence acquire no more than
what the seller can legally transfer. The deed of partition
being invalid as to the other heirs, the vendors could
dispose only of their respective shares in the land, or one-
third only of the property and not the other two-thirds as
well which did not belong to them.
Article 493 of the Civil Code reads as follows:
 "Each co-owner shall have the full
ownership of his part and the fruits
and benefits pertaining thereto, and
he may therefore alienate, assign or
mortgage it, and even substitute
another person in its enjoyment,
except when personal rights are
involved. But the effect of the
alienation or the mortgage, with
respect to the co-owners, shall be
limited to the portion which may be
allotted to him in the division upon
the termination of the co-
ownership."
Applying this provision, we have held in previous cases:.
"When a real property belongs pro
indiviso to three persons, who
acquired it by inheritance from a
common ancestor, the action for
recovery by the legal representative
of one of the heirs can only concern
one-third of the property; and if the
other co-owners have, by sale to
third person, disposed of one-third
of the said pro indiviso property, the
plaintiff who sues for recovery is not
entitled to ask for the annulment of
the sale, inasmuch as the latter
merely exercised their rights; such
alienation does not affect the rights
of the heir who claims only one-
third, which belongs to the other
two co-owners whose rights must be
respected by the plaintiff." 13
"Every co-heir has the absolute
ownership of his share in the
community property and may
alienate, assign or mortgage the
same, except as to purely personal
rights, but the effect of any such
transfer is limited to the portion
which may be awarded to him upon
the partition of the property." 14
"None of the other co-heirs who did
not participate in the sale can
demand the nullification of the
same, inasmuch as every co-owner
may alienate, transfer, or mortgage
his share in the common thing, and
even substitute another person in
the enjoyment thereof, unless
personal rights are in question;
although the effect of the alienation
or mortgage, in relation to the co-
owners shall be limited to the
portion that may be adjudicated to
him when the community
ceased." 15
To repeat, the general rule is that no one can give what he
does not have — nemo dat quod non habet. Hence, even if
it be assumed that Amojido had bought the land in good
faith from the parties to the extrajudicial partition, only so
much of their share could be validly acquired by him, with
the rest of the property remaining under the ownership of
the six excluded co-heirs. In other words, Amojido
became pro indiviso co-owner of the land with the other
six heirs, who retained title to their respective shares
although he had possession of the entire property. The
portion pertaining to the herein appellants should be
deemed held by Amojido under an implied trust for their
benefit, conformably to the ruling in Bargayo v.
Camumot, 16 thus:
"In law it is understood that the co-
owners 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."
There is no question that an action for reconveyance of
property held in implied trust is
imprescriptible. 17 However, this is true only as long as the
trustee continues to acknowledge the title of the cestui
que trust, or, otherwise stated, provided he does not
repudiate such title. 18 The moment he does so, the
prescriptive period will begin to run and may eventually
operate to divest the real owners of their right to the
property after the lapse of the applicable statutory period.
Under the provision above-quoted, that period is fixed at
ten years, whether the claim be based upon an obligation
created by law under Article 1144 or covered by Article
1134 on rights over immovable property.
When did such prescriptive period start in the case at bar?
It is noted that when Amojido secured the registration of
the land in his name following the deed of sale executed in
his favor by the parties to the extrajudicial partition, his
certificate of title carried an express reservation of
whatever rights might pertain to the other heirs. This
annotation constituted an acknowledgment of the
possibility that a portion of the land might not belong to
him and the commitment that he would be holding such
part as impliedly conveyed to him in trust by and for its
true owners. However, when Amojido himself sold the
land to Mirope Mascareñas vda. de Elison on March 13,
1953, the transfer certificate of title issued in her name no
longer carried the said encumbrance. By the deletion of
this annotation, Mirope, as the new transferee, repudiated
as of the date of registration the claim of the other heirs to
their shares in the property. From then on her assertion of
ownership over the whole land became adverse even as
against the appellants herein. And as the certificate of title
was notice to the whole world of her exclusive title to the
land, such rejection was binding on the said heirs and
started as against them the period of prescription.

The record does not show when TCT No. T-19396 in the
name of Mirope Mascareñas vda. de Elison was issued, but
it can be conjectured that this was done before February
14, 1957, when she sold the land to Mildred Elison vda. de
Javelosa. On the assumption that the land was registered
in the name of Mirope in 1953 following her purchase
without acknowledgment of the co-heirs' rights, the 10-
year prescriptive period would have started from that
year. Suspended on May 28, 1956, when the first
complaint was filed, it began running again on February
16, 1958, 30 days after it was dismissed, and was
completed after seven more years in 1965, two years
before the second complaint was filed in 1968. Hence, that
complaint was barred by prescription, as correctly held by
the trial court, although the different starting point it used,
erroneously, was 1941, date of the extrajudicial partition.

The unavoidable consequence of all this is that whatever

claims the co-heirs could have validly asserted before can
no longer be invoked by them at this time. They have let
the time inexorably pass while they were slumbering on
their rights, and now it is too late.

WHEREFORE, the appeal is DISMISSED, with costs against

the appellants. It is so ordered.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ.,

concur.

||| (Segura v. Segura, G.R. No. L-29320, [September 19,

1988])
 SECOND DIVISION 1. Whether or not respondents are
withholding their consent
in the sale of the subject
[G.R. No. 189420. March 26, 2014.] properties; and ECaScD

2. In the affirmative, whether or not

RAUL V. ARAMBULO AND TERESITA withholding of consent of
A. DELA CRUZ, petitioners, vs. sale by the respondents is
GENARO NOLASCO AND JEREMY prejudicial to the
SPENCER NOLASCO, respondents. petitioners. 6

On 19 September 2002, the trial court ruled in

favor of petitioners and ordered respondents to give their
DECISION consent to the sale. The dispositive portion of the decision
reads:

WHEREFORE, in view of the

PEREZ, J p: foregoing, judgment is hereby
rendered in favor of the petitioners
This is a Petition for Review of the 7 October 2008 and against the respondents:
Decision 1 and 30 July 2009 Resolution 2 of the Court of
1. Directing respondents
Appeals in CA-G.R. CV No. 76449, which reversed and set
Genaro Nolasco
aside the Decision 3 of the Regional Trial Court (RTC) of
and Jeremy
Manila, Branch 51, dated 19 September 2002.
Spencer A.
Petitioners Raul V. Arambulo and Teresita A. Dela Nolasco to give
Cruz, along with their mother Rosita Vda. de Arambulo, and their consent to
siblings Primo V. Arambulo, Ma. Lorenza A. Lopez, Ana the sale of their
Maria V. Arambulo, Maximiano V. Arambulo, Julio V. shares on the
Arambulo and Iraida Arambulo Nolasco (Iraida) are co- subject
owners of two (2) parcels of land located in Tondo, Manila, properties;
with an aggregate size of 233 square meters. When Iraida
2. Allowing the sale of the
passed away, she was succeeded by her husband,
aforementioned
respondent Genaro Nolasco and their children, Iris Abegail
properties;
Nolasco, Ingrid Aileen Arambulo and respondent Jeremy
Spencer Nolasco. 3. Directing the petitioners
and the co-
On 8 January 1999, petitioners filed a petition for
owners,
relief under Article 491 of the Civil Code with the RTC of
including the
Manila, alleging that all of the co-owners, except for
respondents
respondents, have authorized petitioners to sell their
herein to agree
respective shares to the subject properties; that only
with the price in
respondents are withholding their consent to the sale of
which the
their shares; that in case the sale pushes through, their
subject
mother and siblings will get their respective 1/9 share of the
properties are to
proceeds of the sale, while respondents will get 1/4 share
be sold and to
each of the 1/9 share of Iraida; that the sale of subject
whom to be sold;
properties constitutes alteration; and that under Article 491
and
of the Civil Code, if one or more co-owners shall withhold
their consent to the alterations in the thing owned in 4. Directing the
common, the courts may afford adequate relief. 4 distribution of
the proceeds of
In their Answer, respondents sought the dismissal
the sale of the
of the petition for being premature. Respondents averred
aforementioned
that they were not aware of the intention of petitioners to
properties in the
sell the properties they co-owned because they were not
following
called to participate in any negotiations regarding the
proportion:
disposition of the property. 5
a.) Rosita V. Vda. de
After the pre-trial, two (2) issues were submitted
Arambulo — 1/9
for consideration:
 b.) Primo V. Arambulo —
1/9
c.) Maximiano V. Arambulo
— 1/9
d.) Ana Maria V. Arambulo
— 1/9
e.) Ma. Lorenza A. Lopez —
1/9
f.) Julio V. Arambulo — 1/9
g.) Raul V. Arambulo — 1/9
h.) Teresita A. dela Cruz —
1/9
i.) Genaro Nolasco, Jr. —
1/4 of 1/9
j.) Jeremy Spencer A.
Nolasco — 1/4 of
1/9
k.) Iris Abegail A. Nolasco
— 1/4 of 1/9
l.) Ingrid Aileen Arambulo
— 1/4 of 1/9 7
Going along with petitioners' reliance on Article
491 of the Civil Code, the trial court found that respondents'
withholding of their consent to the sale of their shares is
prejudicial to the common interest of the co-owners.
Respondents filed a Notice of Appeal and the trial
court gave due course to the appeal and the entire records
of the case were elevated to the Court of Appeals.
In a Decision dated 7 October 2008, the Court of
Appeals granted the appeal and reversed the trial court's
decision. The Court of Appeals held that the respondents
had the full ownership of their undivided interest in the
subject properties, thus, they cannot be compelled to sell
their undivided shares in the properties. It referred to the
provisions of Article 493 of the Civil Code.However, the
Court of Appeals, implying applicability of Article 491 also
observed that petitioners failed to show how respondents'
withholding of their consent would prejudice the common
interest over the subject properties.
Hence, the instant petition seeking the reversal of
the appellate court's decision and praying for the
affirmance of the trial court's decision that ordered
respondents to give their consent to the sale of the subject
properties. Petitioners emphasize that under Article 491 of
the Civil Code, they may ask the court to afford them
adequate relief should respondents refuse to sell their
respective shares to the co-owned properties. They refute
the appellate court's finding that they failed to show how
the withholding of consent by respondents becomes
prejudicial to their common interest. Citing the testimony
of petitioner Teresita A. Dela Cruz, they assert that one of
the two subject properties has an area of 122 square meters
and if they decide to partition, instead of selling the same,
their share would be reduced to a measly 30-square meter
lot each. The other property was testified to as measuring
only 111 square meters. Petitioners reiterate that all the
other co-owners are willing to sell the property and give
respondents their share of the proceeds of the sale.
At the core of this petition is whether
respondents, as co-owners, can be compelled by the court
to give their consent to the sale of their shares in the co-
owned properties. Until it reached this Court, the discussion
of the issue moved around Article 491 of the Civil Code.We
have to remove the issue out of the coverage of Article 491.
It does not apply to the problem arising out of the proposed
sale of the property co-owned by the parties in this case.
The Court of Appeals correctly applied the
provision of Article 493 of the Civil Code, which
states: ECSHAD
Art. 493. Each co-owner
shall have the full ownership of his
part and of the fruits and benefits
pertaining thereto, and he may
therefore alienate, assign or
mortgage it, and even substitute
another person in its enjoyment,
except when personal rights are
involved. But the effect of the
alienation or the mortgage, with
respect to the co-owners, shall be
limited to the portion which may be
allotted to him in the division upon
the termination of the co-ownership.
Upon the other hand, Article 491 states:
Art. 491. None of the co-
owners shall, without the consent of
the others, make alterations in the
thing owned in common, even
though benefits for all would result
therefrom. However, if the
withholding of the consent by one or
more of the co-owners is clearly
prejudicial to the common interest,
the courts may afford adequate
relief.
As intimated above, the erroneous application of
Article 491 is, in this case, an innate infirmity. The very
initiatory pleading below was captioned Petition for Relief
under Article 491 of the New Civil Code. Petitioners,
likewise petitioners before the RTC, filed the case on the
submission that Article 491 covers the petition and grants
the relief prayed for, which is to compel the respondent co-
owners to agree to the sale of the co-owned property. The
trial court took up all that petitioners tendered, and it
favored the pleading with the finding that:
. . . To this court, the act of
respondents of withholding consent
to the sale of the properties is not
only prejudicial to the common
interest of the co-owners but is also
considered as an alteration within
the purview of Article 491 of the New
Civil Code. . . . . Hence, it is deemed
just and proper to afford adequate
relief to herein petitioners under
Article 491 of the New Civil Code. 8
That a sale constitutes an alteration as mentioned
in Article 491 is an established jurisprudence. It is settled
that alterations include any act of strict dominion or
ownership and any encumbrance or disposition has been
held implicitly to be an act of alteration. 9 Alienation of the
thing by sale of the property is an act of strict
dominion. 10 However, the ruling that alienation is
alteration does not mean that a sale of commonly owned
real property is covered by the second paragraph of Article
491, such that if a co-owner withholds consent to the sale,
the courts, upon a showing of a clear prejudice to the
common interest, may, as adequate relief, order the grant
of the withheld consent. Such is the conclusion drawn by
the trial court, and hinted at, if not relied upon, by the
appellate court.
Ruling that the trial court erred in its conclusion,
the Court of Appeals correctly relied on Article 493 in
support of the finding that respondents cannot be
compelled to agree with the sale. We affirm the reversal by
the Court of Appeals of the judgment of the trial court.
1. There is co-ownership whenever, as in this
case, the ownership of an undivided thing, belongs to
different persons. 11 Article 493 of the Code defines the
ownership of the co-owner, clearly establishing that each
co-owner shall have full ownership of his part and of its
fruits and benefits.
Pertinent to this case, Article 493 dictates that
each one of the parties herein as co-owners with full
ownership of their parts can sell their fully owned part. The
sale by the petitioners of their parts shall not affect the full
ownership by the respondents of the part that belongs to
them. Their part which petitioners will sell shall be that
which may be apportioned to them in the division upon the
termination of the co-ownership. With the full ownership of
the respondents remaining unaffected by petitioners' sale
of their parts, the nature of the property, as co-owned,
likewise stays. In lieu of the petitioners, their vendees shall
be co-owners with the respondents. The text of Article 493
says so.
2. Our reading of Article 493 as applied to the
facts of this case is a reiteration of what was pronounced
in Bailon-Casilao v. Court of Appeals. 12 The rights of a co-
owner of a certain property are clearly specified in Article
493 of the Civil Code.Thus: ECTAHc
Art. 493. Each co-owner
shall have the full ownership of his
part and of the fruits and benefits
pertaining thereto, and he may
therefore alienate, assign or
mortgageit[,] and even substitute
another person in its enjoyment,
except when personal rights are
involved. But the effect of the
alienation or [the] mortgage, with
respect to the co-owners, shall be
limited to the portion which may be
allotted to him in the division upon
the termination of the co-ownership.
As early as 1923, this Court
has ruled that even if a co-owner sells
the whole property as his, the sale
will affect only his own share but not
those of the other co-owners who did
not consent to the sale. 13 This is
because under the
aforementioned codal provision, the
sale or other disposition affects only
his undivided share and the
transferee gets only what would
correspond to his grantor in the
partition of the thing owned in
common. 14 Consequently, by virtue
of the sales made by Rosalia and
Gaudencio Bailon which are valid
with respect to their proportionate
shares, and the subsequent transfers
which culminated in the sale to
private respondent Celestino Afable,
the said Afable thereby became a co-
owner of the disputed parcel of land
as correctly held by the lower court
since the sales produced the effect
of substituting the buyers in the
enjoyment thereof. 15
From the foregoing, it may
be deduced that since a co-owner is
entitled to sell his undivided share, a
sale of the entire property by one co-
owner without the consent of the
other co-owners is not null and void.
However, only the rights of the co-
owner-seller are transferred, thereby
making the buyer a co-owner of the
property. 16 (Italics theirs).
Nearer to the dispute at hand are the
pronouncements in the 1944 case of Lopez v. Vda. de
Cuaycong. 17 Citing Manresa on Article 399 which is the
present Article 493 of the Civil Code, the Court said:
. . . Article 399 shows the
essential integrity of the right of each
co-owner in the mental portion
which belongs to him in the
ownership or community.
xxx xxx xxx
To be a co-owner of a
property does not mean that one is
deprived of every recognition of the
disposal of the thing, of the free use
of his right within the circumstantial
conditions of such judicial status, nor
is it necessary, for the use and
enjoyment, or the right of free
disposal, that the previous consent of
all the interested parties be
obtained. 18(Underscoring
supplied).
The Court in Lopez further cited Scaevola:
2nd. Absolute right of each
co-owner with respect to his part or
share. — With respect to the latter,
each co-owner is the same as
an individual owner. He is a singular
owner, with all the rights inherent in
such condition. The share of the co-
owner, that is, the part which ideally
belongs to him in the common thing
or right and is represented by a
certain quantity, is his and he may
dispose of the same as he pleases,
because it does not affect the right of
the others. Such quantity is
equivalent to a credit against the
common thing or right and is the
private property of each creditor (co-
owner). The various shares ideally
signify as many units of thing or right,
pertaining individually to the
different owners; in other words, a
unit for each
owner. 19 (Underscoring supplied).
The ultimate authorities in civil law, recognized as
such by the Court, agree that co-owners such as
respondents have over their part, the right of full and
absolute ownership. Such right is the same as that of
individual owners which is not diminished by the fact that
the entire property is co-owned with others. That part
which ideally belongs to them, or their mental portion, may
be disposed of as they please, independent of the decision
of their co-owners. So we rule in this case. The respondents
cannot be ordered to sell their portion of the co-owned
properties. In the language of Rodriguez v. Court of First
Instance of Rizal, 20 "each party is the sole judge of what is
good for him." 21
3. Indeed, the respected commentaries suggest
the conclusion that, insofar as the sale of co-owned
properties is concerned, there is no common interest that
may be prejudiced should one or more of the co-owners
refuse to sell the co-owned property, which is exactly the
factual situation in this case. When respondents disagreed
to the sale, they merely asserted their individual ownership
rights. Without unanimity, there is no common interest.
Petitioners who project themselves as prejudiced
co-owners may bring a suit for partition, which is one of the
modes of extinguishing co-ownership. Article 494 of
the Civil Code provides that no co-owner shall be obliged to
remain in the co-ownership, and that each co-owner may
demand at any time partition of the thing owned in
common insofar as his share is concerned. Corollary to this
rule, Article 498 of the Civil Code states that whenever the
thing is essentially indivisible and the co-owners cannot
agree that it be allotted to one of them who shall indemnify
the others, it shall be sold and its proceeds accordingly
distributed. This is resorted to (a) when the right to partition
the property is invoked by any of the co-owners but
because of the nature of the property, it cannot be
subdivided or its subdivision would prejudice the interests
of the co-owners, and (b) the co-owners are not in
agreement as to who among them shall be allotted or
assigned the entire property upon proper reimbursement
of the co-owners. 22 This is the result obviously aimed at by
petitioners at the outset. As already shown, this cannot be
done while the co-ownership exists.
Essentially, a partition proceeding accords all
parties the opportunity to be heard, the denial of which was
raised as a defense by respondents for opposing the sale of
the subject properties.
The necessity of partition could not be more
emphasized than in Rodriguez v. Court of First Instance of
Rizal, 23 to wit: cAaETS
. . . That this recourse
would entail considerable time,
trouble and expense, unwarranted
by the value of the property from the
standpoint of the [respondents], is
no legal justification for the
apportionment of the property not
agreeable to any of the co-owners.
Disagreements and differences
impossible of adjustment by the
parties themselves are bound to
arise, and it is precisely with such
contingency in view that the law on
partition was evolved. 24
 WHEREFORE, based on the foregoing, the
petition is DENIED.
THIRD DIVISION
[G.R. No. 61584. November 25, 1992.]
DONATO S. PAULMITAN, JULIANA
P. FANESA and RODOLFO
FANESA, petitioners, vs. COURT OF
APPEALS, ALICIO PAULMITAN,
ELENA PAULMITAN, ABELINO
PAULMITAN, ANITA PAULMITAN,
BAKING PAULMITAN, ADELINA
PAULMITAN and ANITO
PAULMITAN, respondents.
DECISION
ROMERO, J p:
This is a petition for review on certiorari seeking the
reversal of the decision 1 of the Court of Appeals, dated
July 14, 1982 in CA-G.R. No. 62255-R entitled "Alicio
Paulmitan, et al. v. Donato Sagario Paulmitan, et al." which
affirmed the decision 2 of the then Court of First Instance
(now RTC) of Negros Occidental, 12th Judicial District,
Branch IV, Bacolod City, in Civil Case No. 11770.
The antecedent facts are as follows:
Agatona Sagario Paulmitan, who died sometime in
1953, 3 left the two following parcels of land located in the
Province of Negros Occidental: (1) Lot No. 757 with an
area of 1,946 square meters covered by Original Certificate
of Title (OCT) No. RO-8376; and (2) Lot No. 1091 with an
area of 69,080 square meters and covered by OCT No. RO-
11653. From her marriage with Ciriaco Paulmitan, who is
also now deceased, Agatona begot two legitimate
children, namely: Pascual Paulmitan, who also died in
1953, 4 apparently shortly after his mother passed away,
and Donato Paulmitan, who is one of the petitioners.
Petitioner Juliana P. Fanesa is Donato's daughter while the
third petitioner, Rodolfo Fanesa, is Juliana's husband.
Pascual Paulmitan, the other son of Agatona Sagario, is
survived by the respondents, who are his children, namely:
Alicio, Elena, Abelino, Adelina, Anita, Baking and Anito, all
surnamed Paulmitan.
Until 1963, the estate of Agatona Sagario Paulmitan
remained unsettled and the titles to the two lots
mentioned above remained in the name of Agatona.
However, on August 11, 1963, petitioner Donato
Paulmitan executed an Affidavit of Declaration of Heirship,
extrajudicially adjudicating unto himself Lot No. 757 based
on the claim that he is the only surviving heir of Agatona
Sagario. The affidavit was filed with the Register of Deeds
of Negros Occidental who, on August 20, 1963, cancelled
OCT No. RO-8376 in the name of Agatona Sagario and
issued Transfer Certificate of Title (TCT) No. 35979 in
Donato's name.
As regards Lot No. 1091, Donato executed on May 28,
1974 a Deed of Sale over the same in favor of petitioner
Juliana P. Fanesa, his daughter. 5
In the meantime, sometime in 1952, for non-payment of
taxes, Lot No. 1091 was forfeited and sold at a public
auction, with the Provincial Government of Negros
Occidental being the buyer. A Certificate of Sale over the
land was executed by the Provincial Treasurer in favor of
the Provincial Board of Negros Occidental. 6
On May 29, 1974, Juliana P. Fanesa redeemed the
property from the Provincial Government of Negros
Occidental for the amount of P2,959.09. 7
On learning of these transactions, respondents children of
the Late Pascual Paulmitan filed on January 18, 1975 with
the Court of First Instance of Negros Occidental a
Complaint against petitioners to partition the properties
plus damages. Cdpr
Petitioners set up the defense of prescription with respect
to Lot No. 757 as an affirmative defense, contending that
the Complaint was filed more than eleven years after the
issuance of a transfer certificate of title to Donato
Paulmitan over the land as a consequence of the
registration with the Register of Deeds, of Donato's
affidavit extrajudicially adjudicating unto himself Lot No.
757. As regards Lot No. 1091, petitioner Juliana P. Fanesa
claimed in her Answer to the Complaint that she acquired
exclusive ownership thereof not only by means of a deed
of sale executed in her favor by her father, petitioner
Donato Paulmitan, but also by way of redemption from the
Provincial Government of Negros Occidental.
Acting on the petitioners' affirmative defense of
prescription with respect to Lot No. 757, the trial court
issued an order dated April 22, 1976 dismissing the
complaint as to the said property upon finding merit in
petitioners' affirmative defense. This order, which is not
the object of the present petition, has become final after
respondents' failure to appeal therefrom.
Trial proceeded with respect to Lot No. 1091. In a decision
dated May 20, 1977, the trial court decided in favor of
respondents as to Lot No. 1091. According to the trial
court, the respondents, as descendants of Agatona Sagario
Paulmitan were entitled to one-half (1/2) of Lot No.
1091, pro indiviso. The sale by petitioner Donato
Paulmitan to his daughter, petitioner Juliana P. Fanesa, did
not prejudice their rights. And the repurchase by Juliana P.
Fanesa of the land from the Provincial Government of
Negros Occidental did not vest in Juliana exclusive
ownership over the entire land but only gave her the right
to be reimbursed for the amount paid to redeem the
property. The trial court ordered the partition of the land
and directed petitioners Donato Paulmitan and Juliana P.
Fanesa to pay private respondents certain amounts
representing the latter's share in the fruits of the land. On
the other hand, respondents were directed to pay
P1,479.55 to Juliana P. Fanesa as their share in the
redemption price paid by Fanesa to the Provincial
Government of Negros Occidental. The dispositive portion
of the trial court's decision reads:
"WHEREFORE, judgment is hereby
rendered on the second cause of
action pleaded in the complaint as
follows:
"1. The deed of sale (Exh. 'F') dated
May 28, 1974 is valid insofar as the
one-half undivided portion of Lot
1091 is concerned as to vest
ownership over said half portion in
favor of defendant Juliana Fanesa
and her husband Rodolfo Fanesa,
while the remaining half shall belong
to plaintiffs, pro-indiviso;
"2. Lot 1091, Cadastral Survey of
Pontevedra, Province of Negros
Occidental, now covered by TCT No.
RO-11653 (N.A.), is ordered
partitioned. The parties must
proceed to an actual partition by
property instrument of partition,
submitting the corresponding
subdivision within sixty (60) days
from finality of this decision, and
should they fail to agree,
commissioners of partition may be
appointed by the Court;
"3. Pending the physical partition,
the Register of Deeds of Negros
Occidental is ordered to cancel
Original Certificate of Title No. RO-
11653 (N.A.) covering Lot 1091,
Pontevedra Cadastre, and to issue in
lieu thereof a new certificate of title
in the name of plaintiffs and
defendants, one half portion each,
pro-indiviso, as indicated in
paragraph 1 above;
"4. Plaintiffs are ordered to pay,
jointly and severally, defendant
Juliana Fanesa the amount of
P1,479.55 with interest at the legal
rate from May 28, 1974 until paid;
"5. Defendants Donato Sagario
Paulmitan and Juliana Paulmitan
Fanesa are ordered to account to
plaintiffs and to pay them, jointly
and severally, the value of the
produce from Lot 1091 representing
plaintiffs' share in the amount of
P5,000.00 per year from 1966 up to
the time of actual partition of the
property, and to pay them the sum
of P2,000.00 as attorney's fees as
well as the costs of the suit."
xxx xxx xxx
On appeal, the Court of Appeals affirmed the trial court's
decision. Hence this petition.
To determine the rights and obligations of the parties to
the land in question, it is well to review, initially, the
relatives who survived the decedent Agatona Sagario
Paulmitan. When Agatona died in 1953, she was survived
by two (2) sons, Donato and Pascual. A few months later in
the same year, Pascual died, leaving seven children, the
private respondents. On the other hand, Donato's sole
offspring was petitioner Juliana P. Fanesa.
At the time of the relevant transactions over the
properties of decedent Agatona Sagario Paulmitan, her
son Pascual had died, survived by respondents, his
children. It is, thus, tempting to apply the principles
pertaining to the right of representation as regards
respondents. It must, however, be borne in mind that
Pascual did not predecease his mother8 thus precluding
the operation of the provisions in the Civil Code on the
right of representation 9 with respect to his children, the
respondents. When Agatona Sagario Paulmitan died
intestate in 1952, her two (2) sons Donato and Pascual
were still alive. Since it is well-settled by virtue of Article
777 of the Civil Code that "[t]he rights to the succession
are transmitted from the moment of the death of the
decedent," 10 the right of ownership, not only of Donato
but also of Pascual, over their respective shares in the
inheritance was automatically and by operation of law
vested in them in 1953 when their mother died intestate.
At that stage, the children of Donato and Pascual did not
yet have any right over the inheritance since "[i]n every
inheritance the relative nearest in degree excludes the
more distant ones." 11 Donato and Pascual excluded their
children as to the right to inherit from Agatona Sagario
Paulmitan, their mother. cdll
From the time of the death of Agatona Sagario Paulmitan
to the subsequent passing away of her son Pascual in
1953, the estate remained unpartitioned. Article 1078 of
the Civil Code provides: "Where there are two or more
heirs, the whole estate of the decedent is, before its
partition, owned in common by such heirs, subject to the
payment of debts of the deceased." 12 Donato and Pascual
Paulmitan were, therefore, co-owners of the estate left by
their mother as no partition was ever made.
When Pascual Paulmitan died intestate in 1953, his
children, the respondents, succeeded him in the co-
ownership of the disputed property. Pascual Paulmitan's
right of ownership over an undivided portion of the
property passed on to his children, who, from the time of
Pascual's death, became co-owners with their uncle
Donato over the disputed decedent estate.
Petitioner Juliana P. Fanesa claims ownership over Lot No.
1091 by virtue of two transactions, namely: (a) the sale
made in her favor by her father Donato Paulmitan; and (b)
her redemption of the land from the Provincial
Government of Negros Occidental after it was forfeited for
non-payment of taxes.
When Donato Paulmitan sold on May 28, 1974 Lot No.
1091 to his daughter Juliana P. Fanesa, he was only a co-
owner with respondents and as such, he could only sell
that portion which may be allotted to him upon
termination of the co-ownership. 13 The sale did not
prejudice the rights of respondents to one half (1/2)
undivided share of the land which they inherited from
their father. It did not vest ownership in the entire land
with the buyer but transferred only the seller's pro
indiviso share in the property 14 and consequently made
the buyer a co-owner of the land until it is
partitioned. In Bailon-Casilao v. Court of Appeals, 15 the
Court, through Justice Irene R. Cortes, outlined the effects
of a sale by one co-owner without the content of all the
co-owners, thus:
"The rights of a co-owner of a
certain property are clearly specified
in Article 493 of the Civil Code. Thus:
ARTICLE 493. Each co-owner shall
have the full ownership of his part
and of the fruits and benefits
pertaining thereto, and he may
therefore alienate, assign or
mortgage it and even substitute
another person in its enjoyment,
except when personal rights are
involved. But the effect of the
alienation or mortgage, with respect
to the co owners, shall be limited to
the portion which may be allotted to
him in the division upon the
termination of the co-ownership.
[Emphasis supplied.].
As early as 1923, this Court has ruled
that even if a co-owner sells the
whole property as his, the sale will
affect only his own share but not
those of the other co-owners who
did not consent to the sale
[Punsalan v. Boon Liat, 44 Phil. 320
(1923)]. This is because under the
aforementioned codal provision, the
sale or other disposition affects only
his undivided share and the
transferee gets only what would
correspond to his grantor in the
partition of the thing owned in
common. [Ramirez v. Bautista, 14
Phil. 528 (1909)]. Consequently, by
virtue of the sales made by Rosalia
and Gaudencio Bailon which are
valid with respect to their
proportionate shares, and the
subsequent transfers which
culminated in the sale to private
respondent Celestino Afable, the
said Afable thereby became a co-
owner of the disputed parcel of land
as correctly held by the lower court
since the sales produced the effect
of substituting the buyers in the
enjoyment thereof [Mainit v.
Bandoy, 14 Phil. 730 (1910)].
From the foregoing, it may be
deduced that since a co-owner is
entitled to sell his undivided share, a
sale of the entire property by one
co-owner without the consent of the
other co-owners is not null and void.
However, only the rights of the co-
owner-seller are transferred,
thereby making the buyer a co-
owner of the property."
Applying this principle to the case at bar, the sale by
petitioner Donato Paulmitan of the land to his daughter,
petitioner Juliana P. Fanesa, did not give to the latter
ownership over the entire land but merely transferred to
her the one half (1/2) undivided share of her father, thug
making her the co-owner of the land in question with the
respondents, her first cousins.
Petitioner Juliana P. Fanesa also claims ownership of the
entire property by virtue of the fact that when the
Provincial Government of Negros Occidental bought the
land after it was forfeited for non-payment of taxes, she
redeemed it.
The contention is without merit.
The redemption of the land made by Fanesa did not
terminate the co-ownership nor give her title to the entire
land subject of the co-ownership. Speaking on the same
issue raised by petitioners, the Court, in Adille v. Court of
Appeals, 16 resolved the same with the following
pronouncements:
"The petition raises a purely legal
issue: May a co-owner acquire
exclusive ownership over the
property held in common?
Essentially, it is the petitioners'
contention that the property subject
of dispute devolved upon him upon
the failure of his co-heirs to join him
in its redemption within the period
required by law. He relies on the
provisions of Article 1515 of the old
Civil Code, Article 1613 of the
present Code, giving the vendee a
retro the right to demand
redemption of the entire property.
There is no merit in this petition.
The right of repurchase may be
exercised by a co-owner with
respect to his share alone (CIVIL
CODE, art. 1612; CIVIL CODE (1889),
art. 1514.). While the records show
that petitioner redeemed the
property in its entirety, shouldering
the expenses therefor, that did not
make him the owner of all of it. In
other words, it did not put to end
the existing state of co-ownership
(Supra, art. 489). There is no doubt
that redemption of property entails
a necessary expense. Under the Civil
Code:
ARTICLE 488. Each co-owner shall
have a right to compel the other co-
owners to contribute to the
expenses of preservation of the
thing or right owned in common and
to the taxes. Any one of the latter
may exempt himself from this
obligation by renouncing so much of
his undivided interest as may be
equivalent to his share of the
expenses and taxes. No such waiver
shall be made if it is prejudicial to
the co-ownership.
The result is that the property
remains to be in a condition of co-
ownership. While a vendee a retro,
under Article 1613 of the Code,
"may not be compelled to consent
to a partial redemption," the
redemption by one co-heir or co-
owner of the property in its totality
does not vest in him ownership over
it. Failure on the part of all the co-
owners to redeem it entitles the
vendee a retro to retain the
property and consolidate title
thereto in his name (Supra, art.
1607). But the provision does not
give to the redeeming co-owner the
right to the entire property. It does
not provide for a mode of
terminating a co-ownership."
Although petitioner Fanesa did not acquire ownership over
the entire lot by virtue of the redemption she made,
nevertheless, she did acquire the right to be reimbursed
for half of the redemption price she paid to the Provincial
Government of Negros Occidental on behalf of her co-
owners. Until reimbursed, Fanesa holds a lien upon the
subject property for the amount due her. 17
Finally, petitioners dispute the order of the trial court,
which the Court of Appeals affirmed, for them to pay
private respondents P5,000.00 per year from 1966 until
the partition of the estate which represents the share of
private respondents in the fruits of the land. According to
petitioners, the land is being leased for P2,000.00 per year
only. This assigned error, however, raises a factual
question. The settled rule is that only questions of law may
be raised in a petition for review. As a general rule,
findings of fact made by the trial court and the Court of
Appeals are final and conclusive and cannot be reviewed
on appeal. 18
WHEREFORE, the petition is DENIED and the decision of
the Court of Appeals AFFIRMED.
SO ORDERED.
||| (Paulmitan v. Court of Appeals, G.R. No. 61584,
[November 25, 1992], 290 PHIL 376-387)

EN BANC
[G.R. No. 152766. June 20, 2003.]
LILIA SANCHEZ, petitioner, vs.
COURT OF APPEALS, HON.
VICTORINO S. ALVARO as Presiding
Judge, RTC-Br. 120, Caloocan City,
and VIRGINIA TERIA,respondents.
Noel S. Sorreda for petitioner.
Felizardo M. Mercado for private respondent.
DECISION
BELLOSILLO, J p:
This is a Special Civil Action for Certiorari under
Rule 65 of the Rules of Court to annul and set aside the
Decision of the Court of Appeals dated 23 May 2001 as well
as its Resolution dated 8 January 2002 in CA-G.R. SP No.
59182.
Lilia Sanchez, petitioner, constructed a house on
a 76-square meter lot owned by her parents-in-law. The lot
was registered under TCT No. 263624 with the following co-
owners: Eliseo Sanchez married to Celia Sanchez, Marilyn
Sanchez married to Nicanor Montalban, Lilian Sanchez,
widow, Nenita Sanchez, single, Susana Sanchez married to
Fernando Ramos, and Felipe Sanchez. 1 On 20 February
1995, the lot was registered under TCT No 289216 in the
name of private respondent Virginia Teria by virtue of a
Deed of Absolute Sale supposed to have been executed on
23 June 1995 2 by all six (6) co-owners in her
favor. 3 Petitioner claimed that she did not affix her
signature on the document and subsequently refused to
vacate the lot, thus prompting private respondent Virginia
Teria to file an action for recovery of possession of the
aforesaid lot with the Metropolitan Trial Court (MeTC) of
Caloocan City sometime in September 1995, subsequently
raffled to Br. 49 of that court.
On 12 February 1998, the MeTC-Br. 49 of
Caloocan City ruled in favor of private respondent declaring
that the sale was valid only to the extent of 5/6 of the lot
and the other 1/6 remaining as the property of petitioner,
on account of her signature in the Deed of Absolute
Sale having been established as a forgery.
Petitioner then elevated her appeal to the
Regional Trial Court of Caloocan City, subsequently assigned
to Br. 120, which ordered the parties to file their respective
memoranda of appeal. Counsel for petitioner did not
comply with this order, nor even inform her of the
developments in her case. Petitioner not having filed any
pleading with the RTC of Caloocan City, the trial court
affirmed the 27 July 1998 decision of the MeTC.
On 4 November 1998, the MeTC issued an order
for the issuance of a writ of execution in favor of private
respondent Virginia Teria, buyer of the property. On 4
November 1999 or a year later, a Notice to Vacate was
served by the sheriff upon petitioner who however refused
to heed the Notice.
On 28 April 1999 private respondent started
demolishing petitioner's house without any special permit
of demolition from the court.
Due to the demolition of her house which
continued until 24 May 1999 petitioner was forced to
inhabit the portion of the premises that used to serve as the
house's toilet and laundry area.
On 29 October 1999 petitioner filed her Petition
for Relief from Judgment with the RTC on the ground that
she was not bound by the inaction of her counsel who failed
to submit petitioner's appeal memorandum. However the
RTC denied the Petition and the subsequent Motion for
Reconsideration.
On 14 June 2000 petitioner filed her Petition
for Certiorari with the Court of Appeals alleging grave abuse
of discretion on the part of the court a quo.
On 23 May 2001 the appellate court dismissed the
petition for lack of merit. On 18 June 2001 petitioner filed
a Motion for Reconsideration but the Court of Appeals
denied the motion in its Resolution of 8 January 2002.
The only issue in this case is whether the Court of
Appeals committed grave abuse of discretion in dismissing
the challenged case before it. AIECSD
As a matter of policy, the original jurisdiction of
this Court to issue the so-called extraordinary writs should
generally be exercised relative to actions or proceedings
before the Court of Appeals or before constitutional or
other tribunals or agencies the acts of which for some
reason or other are not controllable by the Court of
Appeals. Where the issuance of the extraordinary writ is
also within the competence of the Court of Appeals or the
Regional Trial Court, it is either of these courts that the
specific action for the procurement of the writ must be
presented. However, this Court must be convinced
thoroughly that two (2) grounds exist before it gives due
course to a certiorari petition under Rule 65: (a) The
Tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his
jurisdiction; and (b) There is no appeal nor any plain, speedy
and adequate remedy in the ordinary course of law.
Despite the procedural lapses present in this case,
we are giving due course to this petition as there are
matters that require immediate resolution on the merits to
effect substantial justice.
The Rules of Court should be liberally construed
in order to promote their object of securing a just, speedy
and inexpensive disposition of every action or proceeding. 4
The rules of procedure should be viewed as mere
tools designed to aid the courts in the speedy, just and
inexpensive determination of the cases before them.
Liberal construction of the rules and the pleadings is the
controlling principle to effect substantial
justice. 5 Litigations should, as much as possible, be decided
on their merits and not on mere technicalities. 6
Verily, the negligence of petitioner's counsel
cannot be deemed as negligence of petitioner herself in the
case at bar. A notice to a lawyer who appears to have been
unconscionably irresponsible cannot be considered as
notice to his client. 7 Under the peculiar circumstances of
this case, it appears from the records that the counsel was
negligent in not adequately protecting his client's interest,
which necessarily calls for a liberal construction of the
Rules.
The rationale for this approach is explained
in Ginete v. Court of Appeals — 8
This Court may suspend its
own rules or exempt a particular case
from its operation where the
appellate court failed to obtain
jurisdiction over the case owing to
appellant's failure to perfect an
appeal. Hence, with more reason
would this Court suspend its own
rules in cases where the appellate
court has already obtained
jurisdiction over the appealed case.
This prerogative to relax procedural
rules of the most mandatory
character in terms of compliance,
such as the period to appeal has been
invoked and granted in a
considerable number of cases . . .
Let it be emphasized that
the rules of procedure should be
viewed as mere tools designed to
facilitate the attainment of justice.
Their strict and rigid application,
which would result in technicalities
that tend to frustrate rather than
promote substantial justice, must
always be eschewed. Even the Rules
of Court reflect this principle. The
power to suspend or even disregard
rules can be so pervasive and
compelling as to alter even that
which this Court itself has already
declared to be final, as we are now
constrained to do in the instant case .
..
The emerging trend in the
rulings of this Court is to afford every
party litigant the amplest
opportunity for the proper and just
determination of his cause, free from
the constraints of technicalities. Time
and again, this Court has consistently
held that rules must not be applied
rigidly so as not to override
substantial justice.
Aside from matters of life, liberty, honor or
property which would warrant the suspension of the Rules
of the most mandatory character and an examination and
review by the appellate court of the lower court's findings
of fact, the other elements that should be considered are
the following: (a) the existence of special or compelling
circumstances, (b) the merits of the case, (c) a cause not
entirely attributable to the fault or negligence of the party
favored by the suspension of the rules, (d) a lack of any
showing that the review sought is merely frivolous and
dilatory, and (e) the other party will not be unjustly
prejudiced thereby. 9
The suspension of the Rules is warranted in this
case since the procedural infirmity was not entirely
attributable to the fault or negligence of petitioner. Besides,
substantial justice requires that we go into the merits of the
case to resolve the present controversy that was brought
about by the absence of any partition agreement among the
parties who were co-owners of the subject lot in question.
Hence, giving due course to the instant petition shall put an
end to the dispute on the property held in
common. DEaCSA
In People's Homesite and Housing Corporation
v. Tiongco 10 we held:
There should be no dispute
regarding the doctrine that normally
notice to counsel is notice to parties,
and that such doctrine has
beneficent effects upon the prompt
dispensation of justice. Its
application to a given case, however,
should be looked into and adopted,
according to the surrounding
circumstances; otherwise, in the
court's desire to make short-cut of
the proceedings, it might foster,
wittingly or unwittingly, dangerous
collusions to the detriment of justice.
 It would be then be easy for one
lawyer to sell one's rights down the
river, by just alleging that he just
forgot every process of the court
affecting his clients, because he was
so busy. Under this circumstance,
one should not insist that a notice to
such irresponsible lawyer is also a
notice to his clients.
Thus, we now look into the merits of the petition.
This case overlooks a basic yet significant
principle of civil law: co-ownership. Throughout the
proceedings from the MeTC to the Court of Appeals, the
notion of co-ownership 11 was not sufficiently dealt with.
We attempt to address this controversy in the interest of
substantial justice. Certiorari should therefore be granted
to cure this grave abuse of discretion.
Sanchez Roman defines co-ownership as "the
right of common dominion which two or more persons have
in a spiritual part of a thing, not materially or physically
divide. 12Manresa defines it as the "manifestation of the
private right of ownership, which instead of being exercised
by the owner in an exclusive manner over the things subject
to it, is exercised by two or more owners and the undivided
thing or right to which it refers is one and the same." 13
The characteristics of co-ownership are: (a)
plurality of subjects, who are the co-owners, (b) unity of or
material indivision, which means that there is a single object
which is not materially divided, and which is the element
which binds the subjects, and, (c) the recognition of ideal
shares, which determines the rights and obligations of the
co-owners.14
lease his undivided interest to a third party independently
of the others co-owners. 18 But he has no right to sell or
alienate a concrete, specific or determinate part of the
thing owned in common because his right over thing is
represented by quota or ideal portion without any physical
adjudication. 19
Although assigned an aliquot but abstract part of
the property, the metes and bounds of petitioner's lot has
not been designated. As she was not a party to the Deed of
Absolute Sale voluntarily entered into by the other co-
owners, her right to 1/6 of the property must be respected.
Partition needs to be effected to protect her right to her
definite share and determine the boundaries of her
property. Such partition must be done without prejudice to
the rights of private respondent Virginia Teria as buyer of
5/6 portion of the lot under dispute.
WHEREFORE, the Petition is GRANTED. The
Decision of the Court of appeals dated 23 May 2001 as well
as its Resolution dated 8 January 2002 in CA-G.R. SP No.
59182 is ANNULLED and SET ASIDE. A survey of the
questioned lot with TCT No. 289216 (formerly TCT No.
263624) by a duly licensed geodetic engineer and the
PARTITION of the aforesaid lot are ORDERED.
Let the records of this case be REMANDED to
MeTC-Br. 49, Caloocan City to effect the aforementioned
survey and partition, as well as segregate the 1/6 portion
appertaining to petitioner Lilia Sanchez.
The Deed of Absolute Sale by the other co-owners
to Virginia Teria shall be RESPECTED insofar as the other
undivided 5/6 portion of the property is concerned.
SO ORDERED.

In co-ownership, the relationship of such co- ||| (Sanchez v. Court of Appeals, G.R. No. 152766, [June
owner to the other co-owners is fiduciary in character and 20, 2003], 452 PHIL 665-677)
attribute. Whether established by law or by agreement of
the co-owners, the property or thing held pro-indiviso is
impressed with a fiducial nature so that each co-owner
becomes a trustee for the benefit of his co-owners and he
may not do any act prejudicial to the interest of his co-
owners. 15

Thus, the legal effect of an agreement to preserve

the properties in co-ownership is to create an express trust
among the heirs as co-owners of the properties. Co-
ownership is a form of trust and every co-owner is a trustee
for the others. 16

Before the partition of a land or thing held in

common, no individual or co-owner can claim title to any
definite portion thereof. All that the co-owner has is an
ideal or abstract quota proportionate share in the entire
land or thing. 17

Article 493 of the Civil Code gives the owner of an

undivided interest in the property the right to freely sell and
dispose of it, i.e., his undivided interest. He may validly
 the heirs of the late Esdras Nufable,
portions of which read:

‘KNOW ALL MEN

THIRD DIVISION
BY THESE PRESENTS:

[G.R. No. 126950. July 2, 1999.] We, ANGEL

CUSTODIO NUFABLE,
GENEROSA NUFABLE,
NELSON NUFABLE, VILFOR NUFABLE, and
SILMOR NUFABLE and MARCELO NUFABLE, all of
AQUILINA NUFABLE petitioners, vs. legal ages (sic), Filipinos,
GENEROSA NUFABLE, and with residence and
VILFOR NUFABLE, postal address at
MARCELO NUFABLE, and the COURT Manjuyod, Negros
OF APPEALS, respondents. Oriental, Philippines,

'— HEREBY
DECLARE AND MAKE
Lenin R Victorino for petitioners.
MANIFEST —
Quinciano D. Vailoces for respondents.
'1. That on
. August 9, 1965, Rev. Fr.
Esdras Nufable died
leaving (a) Last Will and
Testament (marked Exh. G)
DECISION disposing (of) his
properties or estate in
favor of his four legitimate
children, namely: Angel
GONZAGA-REYES, J p: Custodio Nufable,
Generosa Nufable,
This petition for review on certiorari seeks to Vilfor Nufable and
reverse and set aside the Decision dated November 25, Marcelo Nufable;
1995 of the Fifth Division 1 of the Court of Appeals for
allegedly being contrary to law. dctai '2. That on
March 30, 1966, the said
The following facts as found by the Court of Last Will and Testament
Appeals are undisputed: was probated by the
Honorable Court, Court of
"Edras Nufable owned an First Instance of Negros
untitled parcel of land located at Oriental, and is embodied
Poblacion, Manjuyod, Negros in the same order
Oriental, consisting of 948 square appointing an
meters, more or less. He died on Administratrix,
August 9, 1965 and was survived by Generosa Nufable, but to
his children, namely: Angel Custodio, qualify only if she put up a
Generosa, Vilfor and Marcelo, all necessary bond of
surnamed Nufable. Upon petition for P1,000.00;
probate filed by said heirs and after
due publication and hearing, the '3. That herein
then Court of First Instance of Negros legitimate children prefer
Oriental (Branch II) issued an Order not to appoint an
dated March 30, 1966 admitting to Administratrix, as agreed
probate the last will and testament upon (by) all the heirs,
executed by the deceased because they have no
Edras Nufable (Exhs. B, C and C-1). objection as to the manner
of disposition of their share
On June 6, 1966, the same made by the testator, the
court issued an Order approving the expenses of the
Settlement of Estate submitted by
 proceedings and that they
have already taken
possession of their
respective shares in
accordance with the will;
'4. That the
herein heirs agreed, as
they hereby agree to settle
the estate in accordance
with the terms and
condition of the will in the
following manner, to
wit: Cdpr
'a) That the
parcel of land situated in
Poblacion Manjuyod,
Negros Oriental remains
undivided for community
ownership but respecting
conditions imposed therein
(sic) in the will;
'xxx xxx xxx.'
(Exhs. "E" and "E-1")
Two months earlier, or on
March 15, 1966, spouses Angel
Custodio and
Aquilina Nufable mortgaged the
entire property located at Manjuyod
to the Development Bank of the
Philippines [DBP] (Pre-trial Order,
dated January 7, 1992, p. 103,
Original Records). Said mortgagors
became delinquent for which reason
the mortgaged property was
foreclosed by DBP on February 26,
1973 (id.).
On January 11, 1980,
Nelson Nufable, the son of Angel
Custodio Nufable (who died on
August 29, 1978 [TSN, Testimony of
Nelson Nufable, Hearing of August
18, 1992, p. 17]), purchased said
property from DBP (Exh. ‘1’).
Generosa, Vilfor and
Marcelo, all surnamed Nufable filed
with the lower court a complaint
dated July 25, 1985 'To Annul
Fraudulent Transactions, to Quiet
Title and To Recover Damages'
against Nelson Nufable, and wife,
Silnor Nufable and his mother
Aquilina Nufable. Plaintiffs pray:
'WHEREFORE,
plaintiffs pray this
Honorable Court that after
trial judgment be rendered
ordering: prLL
'(a) That the said
Deed of Sale (Annex 'C')
executed by the
Development Bank of the
Philippines in favor of the
defendants be declared
null and void as far as the
three fourths (3/) rights
which belongs (sic) to the
plaintiffs are concerned;
'(b) That the said
three fourths (3/4) rights
over the above parcel in
question be declared as
belonging to the plaintiffs
at one fourth right to each
of them;
'(c) To order the
defendants to pay jointly
and severally to the
plaintiffs by way of actual
and moral damages the
amount of P10,000.00 and
another P5,000.00 as
Attorney's fees, and to pay
the costs.
'(d) Plus any
other amount which this
Court may deem just and
equitable.' (p. 6, Original
Records)
In their Answer,
defendants contend:
'4. Paragraph 4 is
denied, the truth being
that the late
Angel Nufable was the
exclusive owner of said
property, that as such
owner he mortgaged the
same to the Development
Bank of the Philippines on
March 15, 1966, that said
mortgage was foreclosed
and the DBP became the
successful bidder at the
auction sale, that
ownership was
consolidated in the name
 of the DBP, and that
defendant
Nelson Nufable bought
said property from the DBP
thereafter. During this
period, the plaintiffs never
questioned the
transactions which were
public, never filed any third
party claim nor attempted
to redeem said property as
redemptioners, and that
said Deed of Sale, Annex 'B'
to the complaint, is
fictitious, not being
supported by any
consideration;' (pp. 20-
21, id.) cdtai
The Deed of Sale (Annex
'B'), referred to by the parties is a
notarized Deed of Sale, dated July 12,
1966 (marked as Exhibit 'H') by virtue
of which, spouses Angel and
AquilinaNufable, as vendors, sold 3/4
portion of the subject property to
herein plaintiffs for and in
consideration of P1,000.00 (Exh.
'5')." 2
On November 29, 1995, the Court of Appeals
rendered judgment, the dispositive portion 3 of which
reads:
"WHEREFORE, the
appealed decision of the lower court
is REVERSED and SET ASIDE. A new
judgment is hereby entered declaring
plaintiffs-appellants as the rightful
co-owners of the subject property
and entitled to possession of 3/4
southern portion thereof; and
defendant-appellee
Nelson Nufable to 1/4 portion.
No award on damages.
No costs."
Defendants-appellees' Motion for
Reconsideration was denied for lack of merit in the
Resolution of the Court of Appeals 4 dated October 2, 1996.
Hence, the present petition. Petitioners raise the
following grounds for the petition:
"1. The Honorable Court of
Appeals erred in considering as
controlling the probate of the Last
Will and Testament of
Esdras Nufable, the probate thereof
not being an issue in this case;
2. The Honorable Court of
Appeals erred in not considering the
fact that the Development Bank of
the Philippines became the absolute,
exclusive, legal, and rightful owner of
the land in question, from whom
petitioner Nelson Nufable acquired
the same by purchase and that,
therefore, no award can be made in
favor of private respondents unless
and until the Development Bank of
the Philippines' title thereto is first
declared null and void by the
court." LexLib
The Court of Appeals, in its decision, stated that
the trial court failed to take into consideration the probated
will of the late Esdras Nufable bequeathing the subject
property to all his four children. 5 In the present petition,
petitioners present the issue of whether or not the Last Will
and Testament of Esdras Nufable and its subsequent
probate are pertinent and material to the question of the
right of ownership of petitioner Nelson Nufable who
purchased the land in question from, and as acquired
property of, the Development Bank of the Philippines (DBP,
for short). They contend that the probate of the Last Will
and Testament of Esdras Nufable did not determine the
ownership of the land in question as against third parties.
As a general rule, courts in probate proceedings
are limited only to passing upon the extrinsic validity of the
will sought to be probated, the due execution thereof, the
testator's testamentary capacity and the compliance with
the requisites or solemnities prescribed by law. Said court
at this stage of the proceedings is not called upon to rule on
the intrinsic validity or efficacy of the provision of the
will. 6 The question of the intrinsic validity of a will normally
comes only after the court has declared that the will has
been duly authenticated.
The records show that upon petition for probate
filed by the heirs of the late Esdras Nufable, an Order dated
March 30, 1966 was issued by then Court of First Instance
of Negros Oriental, Branch II, admitting to probate the last
will and testament executed by the decedent. 7 Thereafter,
on June 6, 1966, the same court approved the Settlement
of Estate submitted by the heirs of the late
Esdras Nufable wherein they agreed "(T)hat the parcel land
situated in Poblacion Manjuyod, Negros Oriental remains
undivided for community ownership but respecting
conditions imposed therein (sic) in the will." 8 In paragraph
3 thereof, they stated that "they have no objection as to the
manner of disposition of their share made by the testator,
the expenses of the proceeding and that they have already
taken possession of their respective shares in accordance
with the will." Verily, it was the heirs of the late
Esdras Nufable who agreed among themselves on the
disposition of their shares. The probate court simply
approved the agreement among the heirs which approval
was necessary for the validity of any disposition of the
decedent's estate. 9
It should likewise be noted that the late
Esdras Nufable died on August 9, 1965. When the entire
property located at Manjuyod was mortgaged on March 15,
1966 by his son Angel Custodio with DBP, the other heirs of
Esdras — namely: Generosa, Vilfor and Marcelo — had
already acquired successional rights over the said property.
This is so because of the principle contained in Article 777
of the Civil Code to the effect that the rights to the
succession are transmitted from the moment of death of
the decedent. Accordingly, for the purpose of transmission
of rights, it does not matter whether the Last Will and
Testament of the late Esdras Nufable was admitted on
March 30, 1966 or thereafter or that the Settlement of
Estate was approved on June 6, 1966 or months later. It is
to be noted that the probated will of the late
Esdras Nufable specifically referred to the subject property
in stating that "the land situated in the Poblacion,
Manjuyod, Negros Oriental, should not be divided because
this must remain in common for them, but it is necessary to
allow anyone of them brothers and sisters to construct a
house therein." 10 It was therefor the will of the decedent
that the subject property should remain undivided,
although the restriction should not exceed twenty (20)
years pursuant to Article 870 11 of the Civil Code. cdtai
Thus, when Angel Nufable and his spouse
mortgaged the subject property to DBP on March 15, 1966,
they had no right to mortgage the entire property. Angel's
right over the subject property was limited only to 1/4 pro
indiviso share. As co-owner of the subject property, Angel's
right to sell, assign or mortgage is limited to that portion
that may be allotted to him upon termination of the co-
ownership. Well-entrenched is the rule that a co-owner can
only alienate his pro indiviso share in the co-owned
property. 12
The Court of Appeals did not err in ruling that
Angel Custodio Nufable "had no right to mortgage the
subject property in its entirety. His right to encumber said
property was limited only to 1/4 pro indiviso share of the
property in question." 13 Article 493 of the Civil Code spells
out the rights of co-owners over a co-owned property.
Pursuant to said Article, a co-owner shall have full
ownership of his part and of the fruits and benefits
pertaining thereto. He has the right to alienate, assign or
mortgage it, and even substitute another person in its
enjoyment. As a mere part owner, he cannot alienate the
shares of the other co-owners. The prohibition is premised
on the elementary rule that "no one can give what he does
not have." 14
Moreover, respondents stipulated that they were
not aware of the mortgage by petitioners of the subject
property. 15 This being the case, a co-owner does not lose
his part ownership of a co-owned property when his share
is mortgaged by another co-owner without the former's
knowledge and consent 16 as in the case at bar. It has
likewise been ruled that the mortgage of the inherited
property is not binding against co-heirs who never
benefited. 17
Furthermore, the Deed of Sale dated June 17,
1966 marked as Exhibit "H" executed by spouses Angel and
Aquilina Nufable in favor of respondents Generosa, Vilfor
and Marcelo wherein the former sold, ceded and
transferred back to the latter the 3/4 portion of the subject
property bolsters respondents' claim that there was co-
ownership. Petitioner Nelson himself claimed that he was
aware of the aforesaid Deed of Sale. 18
Anent the second ground of the petition,
petitioners allege that the Development Bank of the
Philippines acquired ownership of the land in question
through foreclosure, purchase and consolidation of
ownership. Petitioners argue that if petitioner
Nelson Nufable had not bought said land from the DBP,
private respondents, in order to acquire said property, must
sue said bank for the recovery thereof, and in so doing,
must allege grounds for the annulment of documents
evidencing the bank's ownership thereof. Petitioners
contend that since petitioner Nelson Nufable simply bought
the whole land from the bank, they cannot be deprived of
the ownership of 3/4 without making any pronouncement
as to the legality or illegality of the bank's ownership of said
land. It is argued that there was no evidence to warrant
declaration of nullity of the bank's acquisition of said land;
and that neither was there a finding by the court that the
bank illegally acquired the said property. cda
As adverted to above, when the subject property
was mortgaged by Angel Custodio, he had no right to
mortgage the entire property but only with respect to his
1/4 pro indiviso share as the property was subject to the
successional rights of the other heirs of the late
Esdras. Moreover, in case of foreclosure, a sale would result
in the transmission of title to the buyer which is feasible
only if the seller can be in a position to convey ownership of
the things sold. 19 And in one case, 20 it was held that a
foreclosure would be ineffective unless the mortgagor has
title to the property to be foreclosed. Therefore, as regards
the remaining 3/4 pro indiviso share, the same was held in
trust for the party rightfully entitled thereto, 21 who are the
private respondents herein.
Pursuant to Article 1451 of the Civil Code, when
land passes by succession to any person and he causes the
legal title to be put in the name of another, a trust is
established by implication of law for the benefit of the true
owner. Likewise, under Article 1456 of the same Code, if
property is acquired through mistake or fraud, the person
obtaining it is, by force of law, considered a trustee of an
implied trust for the benefit of the person from whom the
property comes. In the case of Noel vs. Court of
Appeals, 22this Court held that "a buyer of a parcel of land
at a public auction to satisfy a judgment against a widow
acquired only one-half interest on the land corresponding Private respondents do not question the legality
to the share of the widow and the other half belonging to of the foreclosure of the mortgaged property and the
the heirs of her husband became impressed with a subsequent sale of the same to DBP. The subject property
constructive trust in behalf of said heirs." was already purchased by petitioner Nelson from DBP and
the latter, by such sale, transferred its rights and obligations
Neither does the fact that DBP succeeded in to the former. Clearly, petitioners' interest in the
consolidating ownership over the subject property in its controversy is distinct and separable from the interest of
name terminate the existing co-ownership. Registration of DBP and a final determination can be had of the action
property is not a means of acquiring ownership. 23 When despite the non-inclusion of DBP as party-defendant.
the subject property was sold to and consolidated in the Hence, DBP, not being an indispensable party, did not have
name of DBP, it being the winning bidder in the public to be impleaded in this case.
auction, DBP merely held the 3/4 portion in trust for the
private respondents. When petitioner Nelson purchased WHEREFORE, there being no reversible error in
the said property, he merely stepped into the shoes of DBP the decision appealed from, the petition for review
and acquired whatever rights and obligations appertain on certiorari is hereby DENIED.
thereto.
SO ORDERED.
This brings us to the issue of whether or not the
DBP should have been impleaded as party-defendant in the
case at bar. Petitioners contend that DBP was never
impleaded and that due process requires that DBP be
impleaded so that it can defend its sale to petitioner
Nelson Nufable; and that it was the duty of private
respondents, and not of petitioner Nelson, to implead the
bank and ask for the annulment of documents evidencing
the bank's ownership of the disputed land.

In the Rejoinder to the Reply, private respondents

that the non-inclusion of DBP as a "necessary party" was not
questioned by petitioners from the time the Complaint was
filed until the case was "finished." It was only after the
adverse decision by the respondent Court of Appeals that
petitioners raised the issue.

At the outset, it should be stated that petitioners

never raised this issue in their Answer and pursuant to
Section 2, Rule 9 of the Rules of Court, defenses and
objections not pleaded either in a motion to dismiss or in
the answer are deemed waived. dctai

Nonetheless, the rule is that indispensable

parties, i.e., parties in interest without whom no final
determination can be had of an action, shall be joined either
as plaintiffs or defendants; the inclusion as a party being
compulsory. 24 On the other hand, in case of proper or
necessary parties, i.e., persons who are not indispensable
but ought to be parties if complete relief is to be accorded
as between those already parties, the court may, in its
discretion, proceed in the action without making such
persons parties, and the judgment rendered therein shall be
without prejudice to the rights of such persons. 25 Proper
parties, therefore, have been described as parties whose
presence is necessary in order to adjudicate the whole
controversy, but whose interests are so far separable that a
final decree can be made in their absence without affecting
them. 26 Any claim against a party may be severed and
proceeded with separately. 27

The pivotal issue to be determined is whether

DBP is an indispensable party in this case.

FIRST DIVISION
[G.R. No. L-33187. March 31, 1980.]
CORNELIO PAMPLONA alias
GEMINIANO PAMPLONA and APOLONIA
ONTE, petitioners, vs. VIVENCIO MORETO,
VICTOR MORETO, ELIGIO MORETO,
MARCELOMORETO, PAULINA MORETO,
ROSARIO MORETO, MARTA MORETO,
SEVERINA MENDOZA, PABLO MENDOZA,
LAZARO MENDOZA, VICTORIA TUIZA,
JOSEFINAMORETO,
LEANDRO MORETO and LORENZO
MENDOZA, respondents.
E.P. Caguioa for petitioners.
Benjamin C. Yatco for respondents.
DECISION
GUERRERO, J p:
This is a petition for certiorari by way of appeal from the
decision of the Court of Appeals 1 in CA-G.R. No. 35962-R,
entitled "Vivencio Moreto, et al., Plaintiff-Appellees vs.
CornelioPamplona, et al., Defendants-Appellants,"
affirming the decision of the Court of First Instance of
Laguna, Branch I at Biñan.
The facts, as stated in the decision appealed from, show
that:
"Flaviano Moreto and Monica Maniega were husband and
wife. During their marriage, they acquired adjacent lots
Nos. 1495, 4545, and 1496 of the Calamba Friar Land
Estate, situated in Calamba, Laguna, containing 781-544
and 1,021 square meters respectively, and covered by
certificates of title issued in the name of "Flaviano Moreto,
married to Monica Maniega."
"The spouses Flaviano Moreto and Monica Maniega begot
during their marriage six (6) children, namely, Ursulo,
Marta, La Paz, Alipio, Pablo, and Leandro, all
surnamed Moreto.
"Ursulo Moreto died intestate on May 24, 1959 leaving as
his heirs herein plaintiffs Vivencio, Marcelo, Rosario,
Victor, Paulina, Marta and Eligio, all surnamed Moreto.
"Marta Moreto died also intestate on April 30, 1938
leaving as her heir plaintiff Victoria Tuiza.
"La Paz Moreto died intestate on July 17, 1954 leaving the
following heirs, namely, herein plaintiffs Pablo, Severina,
Lazaro, and Lorenzo, all surnamed Mendoza.
"Alipio Moreto died intestate on June 30, 1943 leaving as
his heir herein plaintiff Josefina Moreto.
"Pablo Moreto died intestate on April 25, 1942 leaving no
issue and as his heirs his brother plaintiff
Leandro Moreto and the other plaintiffs herein.
"On May 6, 1946, Monica Maniega died intestate in
Calamba, Laguna.
"On July 30, 1952, or more than six (6) years after the
death of his wife Monica Maniega, Flaviano Moreto,
without the consent of the heirs of his said deceased wife
Monica, and before any liquidation of the conjugal
partnership of Monica and Flaviano could be effected,
executed in favor of Geminiano Pamplona, married to
defendant Apolonia Onte, the deed of absolute sale (Exh.
"1") covering lot No. 1495 for P900.00. The deed of sale
(Exh. "1") contained a description of lot No. 1495 as having
an area of 781 square meters and covered by transfer
certificate of title No. 14570 issued in the name of
Flaviano Moreto, married to Monica Maniega, although
the lot was acquired during their marriage. As a result of
the sale, the said certificate of title was cancelled and a
new transfer certificate of title No. T-5671 was issued in
the name of Geminiano Pamplona married to Apolonia
Onte (Exh. "A").
"After the execution of the above-mentioned deed of sale
(Exh. "1"), the spouses Geminiano Pamplona and Apolonia
Onte constructed their house on the eastern part of lot
1496 as Flaviano Moreto, at the time of the sale, pointed
to it as the land which he sold to Geminiano Pamplona.
Shortly thereafter, Rafael Pamplona, son of the spouses
GeminianoPamplona and Apolonia Onte, also built his
house within lot 1496 about one meter from its boundary
with the adjoining lot. The vendor Flaviano Moreto and
the vendee Geminiano Pamplona thought all the time that
the portion of 781 square meters which was the subject
matter of their sale transaction was No. 1495 and so lot
No. 1495 appears to be the subject matter in the deed of
sale (Exh. "1") although the fact is that the said portion
sold thought of by the parties to be lot No. 1495 is a part
of lot No. 1496.
"From 1956 to 1960, the spouses
Geminiano Pamplona and Apolonio Onte enlarged their
house and they even constructed a piggery corral at the
back of their said house about one and one-half meters
from the eastern boundary of lot 1496.
"On August 12, 1956, Flaviano Moreto died intestate. In
1961, the plaintiffs demanded on the defendants to vacate
the premises where they had their house and piggery on
the ground that Flaviano Moreto had no right to sell the
lot which he sold to Geminiano Pamplona as the same
belongs to the conjugal partnership of Flaviano and his
deceased wife and the latter was already dead when the
sale was executed without the consent of the plaintiffs
who are the heirs of Monica. The spouses
Geminiano Pamplona and Apolonia Onte refused to vacate
the premises occupied by them and hence, this suit was
instituted by the heirs of Monica Maniega seeking for the
declaration of the nullity of the deed of sale of July 30,
1952 above-mentioned as regards one half of the property
subject matter of said deed; to declare the plaintiffs as the
rightful owners of the other half of said lot; to allow the
plaintiffs to redeem the one-half portion thereof sold to
the defendants 'After payment of the other half of the
purchase price'; to order the defendants to vacate the
portions occupied by them; to order the defendants to pay
actual and moral damages and attorney's fees to the
plaintiffs; to order the defendants to pay plaintiffs P120.00
a year from August 1958 until they have vacated the
premises occupied by them for the use and occupancy of
the same.
"The defendants claim that the sale made by
Flaviano Moreto in their favor is valid as the lot sold is
registered in the name of Flaviano Moreto and they are
purchasers believing in good faith that the vendor was the
sole owner of the lot sold.
"After a relocation of lots 1495, 1496 and 4545 made by
agreement of the parties, it was found out that there was
mutual error between Flaviano Moreto and the
defendants in the execution of the deed of sale because
while the said deed recited that the lot sold is lot No. 1495,
the real intention of the parties is that it was a portion
consisting of 781 square meters of lot No. 1496 which was
the subject matter of their sale transaction.
"After trial, the lower court rendered judgment, the
dispositive part thereof being as follows:
'WHEREFORE, judgment is hereby
rendered for the plaintiffs declaring
the deed of absolute sale dated July
30, 1952 pertaining to the eastern
portion of Lot 1496 covering an area
of 781 square meters null and void
as regards the 390.5 square meters
of which plaintiffs are hereby
declared the rightful owners and
entitled to its possession.
'The sale is ordered valid with
respect to the eastern one-half (1/2)
of 1781 square meters of Lot 1496
measuring 390.5 square meters of
which defendants are declared
lawful owners and entitled to its
possession.
After proper survey segregating the
eastern one-half portion with an
area of 390.5 square meters of Lot
1496, the defendants shall be
entitled to s certificate of title
covering said portion and Transfer
Certificate of Title No. 9843 of the
office of the Register of Deeds of
Laguna shall be cancelled
accordingly and new titles issued to
the plaintiffs and to the defendants
covering their respective portions.
'Transfer Certificate of Title No. 5671
of the office of the Register of Deeds
of Laguna covering Lot No. 1495 and
registered in the name of
Cornelio Pamplona, married to
Apolonia Onte, is by virtue of this
decision ordered cancelled. The
defendants are ordered to surrender
to the office of the Register of Deeds
of Laguna the owner's duplicate of
Transfer Certificate of Title No. 5671
within thirty (30) days after this
decision shall have become final for
cancellation in accordance with this
decision.
'Let copy of this decision be
furnished the Register of Deeds for
the province of Laguna for his
information and guidance.
'With costs against the
defendants.' 2
The defendants-appellants, not being satisfied with said
judgment, appealed to the Court of Appeals, which
affirmed the judgment, hence they now come to this
Court.
The fundamental and crucial issue in the case at bar is
whether under the facts and circumstances duly
established by the evidence, petitioners are entitled to the
full ownership of the property in litigation, or only one-half
of the same.
There is no question that when the petitioners purchased
the property on July 30, 1952 from Flaviano Moreto for
the price of P900.00, his wife Monica Maniega had already
been dead six years before, Monica having died on May 6,
1946. Hence, the conjugal partnership of the spouses
Flaviano Moreto and Monica Maniega had already been
dissolved. (Article 175, (1) New Civil Code; Article 1417,
Old Civil Code). The records show that the conjugal estate
had not been inventoried, liquidated, settled and divided
by the heirs thereto in accordance with law. The necessary
proceedings for the liquidation of the conjugal partnership
were not instituted by the heirs either in the testate or
intestate proceedings of the deceased spouse pursuant to
Act 3176 amending Section 685 of Act 190. Neither was
there an extra-judicial partition between the surviving
spouse and the heirs of the deceased spouse nor was an
ordinary action for partition brought for the purpose.
Accordingly, the estate became the property of a
community between the surviving husband,
Flaviano Moreto, and his children with the deceased
Monica Maniega in the concept of a co-ownership.
"The community property of the
marriage, at the dissolution of this
bond by the death of one of the
spouses, ceases to belong to the
legal partnership and becomes the
property of a community, by
operation of law, between the
surviving spouse and the heirs of the
deceased spouse, or the exclusive
property of the widower or the
widow, if he or she be the heir of the
deceased spouse. Every co-owner
shall have full ownership of his part
and in the fruits and benefits
derived therefrom, and he therefore
may alienate, assign or mortgage it
and even substitute another person
in its enjoyment, unless personal
rights are in question." (Marigsa vs.
Macabuntoc, 17 Phil. 107)
In Borja vs. Addision, 44 Phil. 895, 906, the Supreme Court
said that "(t)here is no reason in law why the heirs of the
deceased wife may not form a partnership with the
surviving husband for the management and control of the
community property of the marriage and conceivably such
a partnership, or rather community of property, between
the heirs and the surviving husband might be formed
without a written agreement." In Prades vs. Tecson, 49
Phil. 230, the Supreme Court held that "(a)lthough, when
the wife dies, the surviving husband, as administrator of
the community property, has authority to sell the property
without the concurrence of the children of the marriage,
nevertheless this power can be waived in favor of the
children, with the result of bringing about a conventional
ownership in common between the father and children as
to such property; and any one purchasing with knowledge
of the changed status of the property will acquire only the
undivided interest of those members of the family who
join in the act of conveyance."
It is also not disputed that immediately after the execution
of the sale in 1952, the vendees constructed their house
on the eastern part of Lot 1496 which the vendor pointed
out to them as the area sold, and two weeks thereafter,
Rafael who is a son of the vendees, also built his house
within Lot 1496. Subsequently, a cemented piggery coral
was constructed by the vendees at the back of their house
about one and one-half meters from the eastern boundary
of Lot 1496. Both vendor and vendees believed all the time
that the area of 781 sq. meters subject of the sale was Lot
No. 1495 which according to its title (T.C.T. No. 14570)
contains an area of 781 sq. meters so that the deed of sale
between the parties identified and described the land sold
as Lot 1495. But actually, as verified later by a surveyor
upon agreement of the parties during the proceedings of
the case below, the area sold was within Lot 1496. cdphil
Again, there is no dispute that the houses of the spouses
Cornelio Pamplona and Apolonia Onte as well as that of
their son Rafael Pamplona, including the concrete piggery
coral adjacent thereto, stood on the land from 1952 up to
the filing of the complaint by the private respondents on
July 25, 1961, or a period of over nine (9) years. And during
said period, the private respondents who are the heirs of
Monica Maniega as well as of Flaviano Moreto who also
died intestate on August 12, 1956, lived as neighbors to
the petitioners-vendees, yet lifted no finger to question
the occupation, possession and ownership of the land
purchased by the Pamplonas, so that We are persuaded
and convinced to rule that private respondents are in
estoppel by laches to claim half of the property in dispute
as null and void. Estoppel by laches is a rule of equity
which bars a claimant from presenting his claim when, by
reason of abandonment and negligence, he allowed a long
time to elapse without presenting the same. (International
Banking Corporation vs. Yared, 59 Phil. 92)
We have ruled that at the time of the sale in 1952, the
conjugal partnership was already dissolved six years before
and therefore, the estate became a co-ownership between
Flaviano Moreto, the surviving husband, and the heirs of
his deceased wife, Monica Maniega. Article 493 of the
New Civil Code is applicable and it provides as follows:
"Art. 493. Each co-owner shall have
the full ownership of his part and of
the fruits and benefits pertaining
thereto, and he may therefore
alienate, assign or mortgage it, and
even substitute another person in its
enjoyment, except when personal
rights are involved. But the effect of
the alienation or the mortgage, with
respect to the co-owners, shall be
limited to the portion which may be
allotted to him in the division upon
the termination of the co-
ownership."
We agree with the petitioner that there was a partial
partition of the co-ownership when at the time of the sale
Flaviano Moreto pointed out the area and location of the
781 sq. meters sold by him to the petitioners-vendees on
which the latter built their house and also that whereon
Rafael, the son of petitioners likewise erected his house
and an adjacent coral for piggery.
Petitioners point to the fact that spouses
Flaviano Moreto and Monica Maniega owned three
parcels of land denominated as Lot 1495 having an area of
781 sq. meters, Lot 1496 with an area of 1,021 sq. meters,
and Lot 4545 with an area of 544 sq. meters. The three lots
have a total area of 2,346 sq. meters. These three parcels
of lots are contiguous with one another as each is
bounded on one side by the other, thus: Lot 4545 is
bounded on the northeast by Lot 1495 and on the
southeast by Lot 1496. Lot 1495 is bounded on the west by
Lot 4545. Lot 1496 is bounded on the west by Lot 4545. It
is therefore, clear that the three lots constitute one big
land. They are not separate properties located in different
places but they abut each other. This is not disputed by
private respondents. Hence, at the time of the sale, the co-
ownership constituted or covered these three lots
adjacent to each other. And since Flaviano Moreto was
entitled to one-half pro-indiviso of the entire land area or
1,173 sq. meters as his share, he had a perfect legal and
lawful right to dispose of 781 sq. meters of his share to
the Pamplona spouses. Indeed, there was still a remainder
of some 392 sq. meters belonging to him at the time of the
sale.
We reject respondent Court's ruling that the sale was valid
as to one-half and invalid as to the other half for the very
simple reason that Flaviano Moreto, the vendor, had the
legal right to more than 781 sq. meters of the communal
estate, a title which he could dispose, alienate in favor of
the vendees-petitioners. The title may be pro-indiviso or
inchoate but the moment the co-owner as vendor pointed
out its location and even indicated the boundaries over
which the fences were to be erected without objection,
protest or complaint by the other co-owners, on the
contrary they acquiesced and tolerated such alienation,
occupation and possession, We rule that a factual partition
or termination of the co-ownership, although partial, was
created, and barred not only the vendor, Flaviano Moreto,
but also his heirs, the private respondents herein from
asserting as against the vendees-petitioners any right or
title in derogation of the deed of sale executed by said
vendor Flaviano Moreto. LLjur
Equity commands that the private respondents, the
successors of both the deceased spouses,
Flaviano Moreto and Monica Maniega be not allowed to
impugn the sale executed by Flaviano Moreto who
indisputably received the consideration of P900.00 and
which he, including his children, benefited from the same.
Moreover, as the heirs of both Monica Maniega and
Flaviano Moreto, private respondents are duty-bound to
comply with the provisions of Articles 1458 and 1495, Civil
Code, which is the obligation of the vendor of the property
of delivering and transferring the ownership of the whole
property sold, which is transmitted on his death to his
heirs, the herein private respondents. The articles cited
provide, thus:
"Art. 1458. By the contract of sale
one of the contracting parties
obligates himself to transfer the
ownership of and to deliver a
determinate thing, and the other
party to pay therefor a price certain
in money or its equivalent.
A contract of sale may be absolute
or conditional."
"Art. 1495. The vendor is bound to
transfer the ownership of and
deliver, as well as warrant the thing
which is the object of the sale."
Under Article 776, New Civil Code, the inheritance which
private respondents received from their deceased parents
and/or predecessors-in-interest included all the property
rights and obligations which were not extinguished by
their parents' death. And under Art. 1311, paragraph 1,
New Civil Code, the contract of sale executed by the
deceased Flaviano Moreto took effect between the
parties, their assigns and heirs, who are the private
respondents herein. Accordingly, to the private
respondents is transmitted the obligation to deliver in full
ownership the whole area of 781 sq. meters to the
petitioners (which was the original obligation of their
predecessor Flaviano Moreto) and not only one-half
thereof. Private respondents must comply with said
obligation.
The records reveal that the area of 781 sq. meters sold to
and occupied by petitioners for more than 9 years already
as of the filing of the complaint in 1961 had been re-
surveyed by private land surveyor Daniel Aranas.
Petitioners are entitled to a segregation of the area from
Transfer Certificate of Title No. T-9843 covering Lot 1496
and they are also entitled to the issuance of a new
Transfer Certificate of Title in their name based on the
relocation survey.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment
appealed from is hereby AFFIRMED with modification in
the sense that the sale made and executed by
Flaviano Moretoin favor of the petitioners-vendees is
hereby declared legal and valid in its entirely.
Petitioners are hereby declared owners in full ownership
of the 781 sq. meters at the eastern portion of Lot 1496
now occupied by said petitioners and whereon their
houses and piggery coral stand.
The Register of Deeds of Laguna is hereby ordered to
segregate the area of 781 sq. meters from Certificate of
Title No. 9843 and to issue a new Transfer Certificate of
Title to the petitioners covering the segregated area of 781
sq. meters.
No costs.
SO ORDERED. Jose Bornales 1/16

||| (Pamplona v. Moreto, G.R. No. L-33187, [March 31, Quirico Bornales 1/16
1980], 185 PHIL 556-566)
Rosalia Bornales 1/16

Julita Bornales 1/16

SECOND DIVISION
[G.R. No. 108228. February 1, 2001.]
SPOUSES MANUEL and
SALVACION DEL CAMPO, petitioners
, vs. HON. COURT OF APPEALS and
HEIRS OF JOSE REGALADO,
SR., respondents.
De Jesus Paguio & Associates for petitioners.
Atty. Alberto L. Deslate for private respondents.
On July 14, 1940, Salome sold part of her
4/16 share in Lot 162 for P200.00 to Soledad Daynolo.
In the Deed of Absolute Sale signed by Salome and
two other co-owners, Consorcia and Alfredo, the
portion of Lot 162 sold to Soledad was described as
having more or less the following measurements:
63-1/2 meters from point
"9" to "10", 35 meters from point
"10" to point "11", 30 meters from
point "11" to a certain point parallel
to a line drawn from points "9" to
"10"; and then from this "Certain
Point" to point "9" and as shown in
the accompanying sketch, and made
an integral part of this deed, to
SOLEDAD DAYNOLO, her heirs and
assigns. 1

Thereafter, Soledad Daynolo immediately took

DECISION possession of the land described above and built a house
thereon. A few years later, Soledad and her husband,
Simplicio Distajo, mortgaged the subject portion of Lot 162
as security for a P400.00 debt to Jose Regalado, Sr. This
QUISUMBING, J p: transaction was evidenced by a Deed of Mortgage 2 dated
May 1, 1947.
This is a petition for review on certiorari of a
decision of the Court of Appeals which affirmed the On April 14, 1948, three of the eight co-
judgment of the Regional Trial Court of Roxas City, Branch owners of Lot 162, specifically, Salome, Consorcia and
15 in Civil Case No. V-5369, ordering the dismissal of the Alfredo, sold 24,993 square meters of said lot to Jose
action for repartition, resurvey and reconveyance filed by Regalado, Sr.
petitioners.
On May 4, 1951, Simplicio Distajo, heir of Soledad
Pure questions of law are raised in this appeal as Daynolo who had since died, paid the mortgage debt and
the following factual antecedents are undisputed: redeemed the mortgaged portion of Lot 162 from Jose
Regalado, Sr. The latter, in turn, executed a
Salome, Consorcia, Alfredo, Maria, Rosalia, Jose, Deed of Discharge of Mortgage 3 in favor of Soledad's
Quirico and Julita, all surnamed Bornales, were the original heirs, namely: Simplicio Distajo, Rafael Distajo and Teresita
co-owners of Lot 162 of the Cadastral Distajo-Regalado. On same date, the said heirs sold the
Survey of Pontevedra, Capiz under Original redeemed portion of Lot 162 for P1,500.00 to herein
Certificate of Title No. 18047. As appearing therein, the lot, petitioners, the spouses Manuel Del Campo and Salvacion
which consisted of a total area of 27,179 square meters Quiachon.
was divided in aliquot shares among the eight (8) co-owners
as follows: Meanwhile, Jose Regalado, Sr. caused the
reconstitution of Original Certificate of Title No. 18047. The
Salome Bornales 4/16 reconstituted OCT No. RO-4541 initially reflected the
shares of the original co-owners in Lot 162. However, title
Consorcia Bornales 4/16 was transferred later to Jose Regalado, Sr. who subdivided
the entire property into smaller lots, each covered by a
Alfredo Bornales 2/16
respective title in his name. One of these small lots is Lot
Maria Bornales 2/16 No. 162-C-6 with an area of 11,732 square meters which
was registered on February 24, 1977 under TCT No. 14566.
 In 1987, petitioners Manuel and
Salvacion del Campo brought this complaint for
"repartition, resurvey and reconveyance" against the
heirs of the now deceased Jose Regalado, Sr. Petitioners
claimed that they owned an area of 1,544 square meters
located within Lot 162-C-6 which was erroneously included
in TCT No. 14566 in the name ofRegalado. Petitioners
alleged that they occupied the disputed area as residential
dwelling ever since they purchased the property from the
Distajos way back in 1951. They also declared the land for
taxation purposes and paid the corresponding taxes.
On April 1, 1987, summons were served on
Regalado's widow, Josefina Buenvenida, and two of her
children, Rosemarie and Antonio. Josefina and Rosemarie
were declared in default on May 10, 1989 because only
Antonio filed an answer to the complaint.
During trial, petitioners presented the
Deed of Absolute Sale 4 executed between Soledad
Daynolo and Salome Bornales as well as the
Deed of Mortgage 5 and Deed ofDischarge 6 signed by Jose
Regalado, Sr. The Deed of Absolute Sale 7 showing the
purchase by the Del Campos of the property from the
Distajos was likewise given in evidence.
Despite the filing of an answer, Antonio failed to
present any evidence to refute the claim of petitioners.
Thus, after considering Antonio to have waived his
opportunity to present evidence, the trial court deemed
the case submitted for decision.
On November 20, 1990, the trial court rendered
judgment dismissing the complaint. It held that while
Salome could alienate her pro-indiviso share in Lot 162, she
could not validly sell an undivided part thereof by metes
and bounds to Soledad, from whom petitioners derived
their title. The trial court also reasoned that petitioners
could not have a better right to the property even if they
were in physical possession of the same and declared the
property for taxation purposes, because mere possession
cannot defeat the right of the Regalados who had
a Torrens title over the land.
On appeal, the Court of Appeals affirmed the
trial court's judgment, with no pronouncement as to
costs. 8
Petitioners now seek relief from this Court and
maintain that:
I.
THE FACT THAT THE SALE OF THE
SUBJECT PORTION CONSTITUTES A
SALE OF A CONCRETE OR DEFINITE
PORTION OF LAND OWNED IN
COMMON DOES NOT ABSOLUTELY
DEPRIVE HEREIN
PETITIONERS OF ANY RIGHT OR TITLE
THERETO;
II.
IN ANY EVENT, HEREIN PRIVATE
RESPONDENTS ARE ALL ESTOPPED
FROM DENYING THE RIGHT AND
TITLE OF HEREIN PETITIONERS. 9
In resolving petitioners' appeal, we must answer
the following questions: Would the sale by a co-owner of a
physical portion of an undivided property held in common
be valid? Is respondent estopped from denying petitioners'
right and title over the disputed area? Under the facts and
circumstances duly established by the evidence, are
petitioners entitled to 'repartition, resurvey and
reconveyance' of the property in question?
On the first issue, it seems plain to us that the
trial court concluded that petitioners could not have
acquired ownership of the subject land which originally
formed part ofLot 162, on the ground that their alleged
right springs from a void sale transaction between Salome
and Soledad. The mere fact that Salome purportedly
transferred a definite portion of the co-owned lot by metes
and bounds to Soledad, however, does not per se render
the sale a nullity. This much is evident under Article
493 10 of the Civil Code and pertinent jurisprudence on the
matter. More particularly in Lopez vs. Vda. De Cuaycong, et
al. 11 which we find relevant, the Court, speaking through
Mr. Justice Bocobo, held that:
. . . The fact that the
agreement in question purported to
sell a concrete portion of the
hacienda does not render the sale
void, for it is a well-established
principle that the binding force of a
contract must be recognized as far as
it is legally possible to do so. "Quando
res non valet ut ago, valeat quantum
valere potest." (When a thing is of no
force as I do it, it shall have as much
force as it can have.) 12
Applying this principle to the instant case, there
can be no doubt that the transaction entered into by
Salome and Soledad could be legally recognized in its
entirety since the object of the sale did not even exceed the
ideal shares held by the former in the co-ownership. As a
matter of fact, the deed of sale executed between the
parties expressly stipulated that the portion of Lot 162 sold
to Soledad would be taken from Salome's 4/16 undivided
interest in said lot, which the latter could validly transfer in
whole or in part even without the consent of the other co-
owners. Salome's right to sell part of her undivided interest
in the co-owned property is absolute in accordance with the
well-settled doctrine that a co-owner has full
ownership of his pro-indiviso share and has the right to
alienate, assign or mortgage it, and substitute another
person in its enjoyment 13 Since Salome's clear intention
was to sell merely part of her aliquot share in Lot 162, in our
view no valid objection can be made against it and the sale
can be given effect to the full extent.
We are not unaware of the principle that a co-
owner cannot rightfully dispose of a particular portion of a
co-owned property prior to partition among all the co-
owners. However, this should not signify that the vendee
does not acquire anything at all in case a physically
segregated area of the co-owned lot is in fact sold to him.
Since the co-owner/vendor's undivided interest could
properly be the object of the contract of sale between the
parties, what the vendee obtains by virtue of such a sale are
the same rights as the vendor had as co-owner, in an ideal
share equivalent to the consideration given under their
transaction. In other words, the vendee steps into the
shoes of the vendor as co-owner and acquires a
proportionate abstract share in the property held in
common.
Resultantly, Soledad became a co-owner of Lot-
162 as of the year 1940 when the sale was made in her
favor. It follows that Salome, Consorcia and Alfredo could
not have sold the entire Lot 162 to Jose Regalado, Sr. on
April 14, 1948 because at that time, the ideal shares held by
the three co-owners/vendors were equivalent to only
10/16 of the undivided property less the aliquot share
previously sold by Salome to Soledad. Based on the principle
that "no one can give what he does not have," 14 Salome,
Consorcia and Alfredo could not legally sell the shares
pertaining to Soledad since a co-owner cannot alienate
more than his share in the co-ownership. We have ruled
many times that even if a co-owner sells the whole property
as his, the sale will affect only his own share but not
those of the other co-owners who did not consent to the
sale. Since a co-owner is entitled to sell his undivided share,
a sale of the entire property by one co-owner will only
transfer the rights of said co-owner to the buyer, thereby
making the buyer a co-owner of the property. 15
In this case, Regalado merely became a new co-
owner of Lot 162 to the extent of the shares which Salome,
Consorcia and Alfredo could validly convey. Soledad
retained her rights as co-owner and could validly transfer
her share to petitioners in 1951. The logical effect of the
second disposition is to substitute petitioners in the
rights of Soledad as co-owner of the land. Needless to say,
these rights are preserved notwithstanding the
issuance of TCT No. 14566 in Regalado's name in 1977.
Be that as it may, we find that the area subject
matter of this petition had already been effectively
segregated from the 'mother lot' even before title was
issued in favor ofRegalado. It must be noted that 26 years
had lapsed from the time petitioners bought and took
possession of the property in 1951 until Regalado procured
the issuance of TCT No. 14566. Additionally, the intervening
years between the date of petitioners' purchase of the
property and 1987 when petitioners filed the instant
complaint, comprise all of 36 years. However, at no
instance during this time did respondents or Regalado, for
that matter, question petitioners' right over the land in
dispute. In the case of Vda. de
Cabreravs. Court of Appeals, 16 we had occasion to hold
that where the transferees of an undivided portion of the
land allowed a co-owner of the property to occupy a
definite portion thereof and had not disturbed the same for
a period too long to be ignored, the possessor is in a better
condition or right than said transferees. (Potior est
condition possidentis). Such undisturbed possession had the
effect of a partial partition of the co-owned property which
entitles the possessor to the definite portion which he
occupies. Conformably, petitioners are entitled to the
disputed land, having enjoyed uninterrupted possession
thereof for a total of 49 years up to the present.
The lower court's reliance on the doctrine that
mere possession cannot defeat the right of a holder of a
registered Torrens title over property is misplaced,
considering that petitioners were deprived of their
dominical rights over the said lot through fraud and with
evident bad faith on the part of Regalado. Failure and
intentional omission to disclose the fact of actual physical
possession by another person during registration
proceedings constitutes actual fraud. Likewise, it is fraud to
knowingly omit or conceal a fact, upon which benefit is
obtained to the prejudice of a third person. 17 In this case,
we are convinced that Regalado knew of the fact that he did
not have a title to the entire lot and could not, therefore,
have validly registered the same in his name alone because
he was aware of petitioners' possession of the subject
portion as well as the sale between Salome and Soledad.
That Regalado had notice of the fact that the
disputed portion of Lot 162 was under claim of ownership
by petitioners and the latter's predecessor is beyond
question. Records show that the particular area
subject of this case was mortgaged by Soledad and her
husband to Jose Regalado, Sr. as early as May 1, 1947 or one
year prior to the alienation of the whole lot in favor of the
latter. Regalado never questioned the ownership of the lot
given by Soledad as security for the P400.00 debt and he
must have at least known that Soledad bought the subject
portion from Salome since he could not have reasonably
accepted the lot as security for the mortgage debt if such
were not the case. By accepting the said portion of Lot 162
as security for the mortgage obligation, Regalado had in fact
recognized Soledad's ownership of this definite
portion of Lot 162. Regalado could not have been
ignorant of the fact that the disputed portion is being
claimed by Soledad and subsequently, by petitioners, since
Regalado even executed a Release ofMortgage on May 4,
1951, three years after the entire property was supposedly
sold to him. It would certainly be illogical for any mortgagee
to accept property as security, purchase the mortgaged
property and, thereafter, claim the very same property as
his own while the mortgage was still subsisting.
Consequently, respondents are estopped from
asserting that they own the subject land in view of the
Deed of Mortgage and Discharge of Mortgage executed
between Regalado and petitioners' predecessor-in-interest.
As petitioners correctly contend, respondents are barred
from making this assertion under the equitable
principle of estoppel by deed, whereby a party to a deed
and his privies are precluded from asserting as against the
other and his privies any right or title in derogation of the
deed, or from denying the truth of any material fact
asserted in it. 18 A perusal of the documents evidencing the
mortgage would readily reveal that Soledad, as mortgagor,
had declared herself absolute owner of the piece of land
now being litigated. This declaration of fact was accepted
by Regalado as mortgagee and accordingly, his heirs cannot
now be permitted to deny it.

Although Regalado's certificate of title became

indefeasible after the lapse of one year from the date of the
decree of registration, the attendance of fraud in its
issuance created an implied trust in favor of petitioners and
gave them the right to seek reconveyance of the parcel
wrongfully obtained by the former. An action for
reconveyance based on an implied trust ordinarily
prescribes in ten years. But when the right of the true and
real owner is recognized, expressly or implicitly such as
when he remains undisturbed in his possession, the said
action is imprescriptible, it being in the nature of a suit for
quieting of title. 19 Having established by clear and
convincing evidence that they are the legal owners of the
litigated portion included in TCT No. 14566, it is only proper
that reconveyance of the property be ordered in
favor of petitioners. The alleged
incontrovertibility ofRegalado's title cannot be successfully
invoked by respondents because certificates of title merely
confirm or record title already existing and cannot be used
to protect a usurper from the true owner or be used as a
shield for the commission of fraud. 20

WHEREFORE, the petition is GRANTED. The

assailed decision of the Court of Appeals in CA-G.R. CV No.
30438 is REVERSED and SET ASIDE. The parties are directed
to cause a SURVEY for exact determination of their
respective portions in Lot 162-C-6. Transfer
Certificate of Title No. 14566 is declared CANCELLED and
the Register of Deeds of Capiz is ordered to ISSUE a new
title in accordance with said survey, upon finality of this
decision.

Costs against respondents.

SO ORDERED.

||| (Sps. Del Campo v. Court of Appeals, G.R. No. 108228,

[February 1, 2001], 403 PHIL 706-721)