G.R. No.

L-29320 September 19, 1988

FELIPE SEGURA, ANTONIA SEGURA, NICANORA SEGURA, BERNANDINA SEGURA, ALIPIO SEGURA
and MONSERRAT SEGURA, plaintiffs-appellants,
vs.
NICOLAS SEGURA, 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.

CRUZ, J.:

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 co-
heirs.) This partition was not registered immediately, 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

4
obtained TCT No. 28336, with a reservation of the rights of the other heirs annotated therein.

3. On March 31, 1953, Amojido sold the land for P1,500.00 to Mirope Mascareñias 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 l5, 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 subse quent 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 courts 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 plaintiffs
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 extrajudicial 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 acknowledgement 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 acknowledgement 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.

G. R. No. 120864 - October 8, 2003

MANUEL T. DE GUIA, Petitioner, vs. COURT OF APPEALS (Former Sixth Division) and JOSE B.
ABEJO, represented by his Attorney-in-Fact, Hermenegilda Abejo-Rivera, Respondents.

DECISION

CARPIO, J.:

The Case

This is a Petition for Review on Certiorari1 assailing the 22 August 1994 Decision2 as well as the 27
June 1995 Resolution of the Court of Appeals in CA-G.R. CV No. 39875. The Court of Appeals
affirmed the Decision3 of the Regional Trial Court ("trial court") of Malolos, Bulacan, Branch 16, in
Civil Case No. 8796-M. The trial courts Decision ordered petitioner Manuel T. De Guia ("DE GUIA") to
turn over to private respondent Jose B. Abejo ("ABEJO") possession of the one half () undivided
portion of a fishpond and to pay actual damages and attorneys fees.

The Antecedents

On 12 May 1986, ABEJO4 instituted an action for recovery of possession with damages against DE
GUIA. In his complaint, ABEJO alleged that he is the owner of the undivided portion of a property
used as a fishpond ("FISHPOND") situated in Meycauayan, Bulacan and covered by TCT No. T-6358 of
the Bulacan Register of Deeds. He alleged ownership over approximately 39,611 square meters out
of the FISHPONDs total area of 79,220 square meters. ABEJO further averred that DE GUIA
continues to possess and use the FISHPOND without any contract and without paying rent to ABEJOs
damage and prejudice. ABEJO also complained that DE GUIA refuses to surrender ownership and
possession of the FISHPOND despite repeated demands to do so after DE GUIAs sublease contract
over the FISHPOND had expired. ABEJO asked the trial court to order DE GUIA to vacate an
approximate area of 39,611 square meters as well as pay damages.

DE GUIA, a lawyer by profession, appeared on his own behalf. He filed his Answer on 12 January
1990 after the Court of Appeals resolved several issues concerning the validity of the service of
summons on him. In his Answer, DE GUIA alleged that the complaint does not state a cause of
action and has prescribed. He claimed that the FISHPOND was originally owned by Maxima Termulo
who died intestate with Primitiva Lejano as her only heir. According to him, ABEJO is not the owner
of the entire FISHPOND but the heirs of Primitiva Lejano who authorized him to possess the entire
FISHPOND. He assailed ABEJOs ownership of the undivided portion of the FISHPOND as void and
claimed ownership over an undivided half portion of the FISHPOND for himself. DE GUIA sought
payment of damages and reimbursement for the improvements he introduced as a builder in good
faith.

The trial court set the pre-trial and required the parties to file their pre-trial briefs. ABEJO filed his
pre-trial brief5 on 05 April 1990. DE GUIA filed his pre-trial brief6 on 31 July 1990. DE GUIAs pre-
trial brief raised as the only issue in the case the amount of damages in the form of rent that DE
GUIA should pay ABEJO. DE GUIA also submitted an Offer to Compromise,7 offering to settle ABEJOs
claim for P300,000 and to lease the entire FISHPOND to any party of ABEJOs choice.

Hearing commenced on 30 July 1990. ABEJO rested his case on 4 December 1990. DE GUIAs last
witness completed her testimony on 22 November 1991. The trial court summarized the evidence
presented by ABEJO and DE GUIA as follows:

Evidence adduced from plaintiff shows that there are two parcels of land covering a fishpond with a
total area of 79,220 sq. m. more or less, situated at Ubihan, Meycauayan, Bulacan and covered by
TCT No. 6358 equally owned by Primitiva Lejano and Lorenza Araniego married to Juan Abejo (Exh.
A). The one half undivided portion owned by Lorenza Araniego corresponding to 39,611 sq. m. was
later purchased by plaintiff from his father Teofilo Abejo (Exh. B), the only heir of the original
owner on November 22, 1983. Prior to this sale on July 30, 1974 the whole fishpond (79,220) was
the subject of a "Salin ng Pamumusisyong ng Palaisdaan" executed by the heirs of Primitiva Lejano
with the knowledge and consent of Teofilo A. Abejo in favor of one Aniano Victa and defendant.
The contract provided that the period of lease shall be until November 30, 1979. When the contract
expired and defendant failed to surrender the fishpond, written demands the last of which was on
November 27, 1983 were made for defendants to pay back rental and to vacate the premises in
question (Exh. D & E). Defendant refused to deliver possession and also to pay the rentals due. In
anticipation, however, that defendant will vacate the fishpond, plaintiff, on December 21, 1983
entered into a two year "Kasunduan ng Buwisan ng Palaisdaan" with Ruperto C. Villarico for a
consideration of P50,000.00 (Exh. G). This contract, despite its execution and even already
notarized, had to be cancelled and the amount of P50,000.00 returned by plaintiff to Villarico when
the defendant did not heed the demand to vacate the fishpond. For unpaid rental, actual as well as
moral and exemplary damages, plaintiff asks payment of P450,000.00 and P20,000.00 attorneys
fees.

On the other hand, defendants evidence tends to show that the entire fishpond with an area of
79,200 sq. m. was leased to him by the heirs of Primitiva Lejano. Subsequently, defendant became
the absolute owner of one half of the undivided area of the fishpond and he questioned plaintiffs
ownership of the other half as void and fraudulent. As to the area pertaining to plaintiff, defendant
claimed that he introduced improvements worth P500,000 and being in good faith, he asked that he
should be reimbursed by plaintiff. In his pre-trial brief, however, defendant raised the only issue
which is the amount of damages plaintiff is entitled to in the form of rental. Hence, the thrust of
the testimonies of defendants witnesses particularly Ben Ruben Camargo and Marta Fernando Peña
was the amount of rental of fishponds in the same locality as the fishpond in question at a given
time. However, the documentary evidence (Exhs. 1 and 2) in support of their testimony were not
offered as evidence.8cräläwvirtualibräry

The trial court rendered its decision on 8 June 1992, disposing as follows:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against
the defendant and hereby orders that:

1. Defendant shall turn over possession to plaintiff one half undivided portion of the 79,200 sq. m.
fishpond who shall enjoy the benefits and fruits in equal share with the defendant effective
immediately until such time that partition of the property is effected;

2. Defendant shall pay to plaintiff the amount of P262,500.00 by way of actual or compensatory
damages;

3 Defendant shall pay plaintiff P20,000.00 as and for attorneys fees; and

4. To pay the costs.

SO ORDERED.9cräläwvirtualibräry

Aggrieved, DE GUIA went to the Court of Appeals insisting the trial court erred in ordering him to
vacate and surrender possession of the undivided portion of the FISHPOND and to pay actual
damages and attorneys fees. The Court of Appeals found DE GUIAs appeal without merit and
affirmed the trial courts decision. Upon DE GUIAs motion for reconsideration, the appellate court
reduced the compensatory damages from P262,500 to P212,500.

Hence, the instant petition.

The undisputed facts as found by the trial court and adopted in toto by the Court of Appeals are
restated as follows:

1. The subject of the dispute are two undivided parcels of land used as a fishpond situated in Barrio
Ubihan, Meycauayan, Bulacan, originally co-owned by Primitiva Lejano and Lorenza Araniego
married to Juan Abejo.
2. The FISHPOND is registered under the names of Primitiva Lejano and Lorenza Araniego under TCT
No. 6358 of the Bulacan Register of Deeds as follows:

PRIMITIVA LEJANO, Filipina, of legal age, single - share; and LORENZA ARANIEGO, Filipina, of legal
age, married to Juan Abejo, share, ---

3. The FISHPOND has a total land area of approximately 79,220 square meters. ABEJO is seeking to
recover possession of the undivided portion of the FISHPOND containing 39,611 square meters.

4. DE GUIA (along with a certain Aniano Victa) acquired possession of the entire FISHPOND by virtue
of a document captioned Salin ng Pamumusisyong ng Palaisdaan ("Lease Contract") executed
between him and the heirs of Primitiva Lejano. The Lease Contract was effective from 30 July 1974
up to 30 November 1979 for a consideration of P100,000.

5. The Lease Contract was executed with the knowledge and consent of Teofilo Abejo, sole heir of
Lorenza Araniego Abejo. Teofilo Abejo acquired Lorenza Araniego Abejos undivided share in the
FISHPOND by intestate succession.

6. Teofilo Abejo (now deceased) sold his undivided share in the FISHPOND to his son, ABEJO, on 22
November 1983.

7. DE GUIA continues to possess the entire FISHPOND and to derive income from the property
despite the expiration of the Lease Contract and several demands to vacate made by Teofilo Abejo
and by his successor-in-interest, ABEJO. The last demand letter was dated 27 November 1983.

8. ABEJO filed his complaint for recovery of possession with damages against DE GUIA on 12 May
1986.

9. DE GUIAs claim of ownership over the other undivided portion of the FISHPOND has not been
finally adjudicated for or against him.

DE GUIA offers the verified Complaint for Annulment of Real Estate Mortgage and Contract of
Lease with Preliminary Injunction signed by the heirs of Primitiva Lejano as proof of his ownership
of the other undivided half portion of the FISHPOND. Records show that DE GUIA filed the complaint
for himself and as attorney-in fact of the heirs of Primitiva Lejano ("Lejano Heirs")10 against Spouses
Teofilo Morte and Angelina Villarico, Spouses Ruperto and Milagros Villarico, et al. ("Defendants").
The case was raffled to Branch 12 of the Regional Trial Court of Malolos, Bulacan, and docketed as
Civil Case. No. 86-27-M. The complaint alleged that DE GUIA acquired his undivided share in the
FISHPOND from the Lejano Heirs in February 1986. DE GUIA and the Lejano Heirs sought to annul
the Kasulatan ng Sanglaan and Kasulatan ng Pagbubuwis ng Palaisdaan, executed on 10 November
1979 by Primitiva Lejano in favor of the Defendants. DE GUIA and the Lejano Heirs claimed that
Primitiva Lejano signed these documents under duress and without consideration.

The trial court rendered judgment11 on 28 February 1992 against DE GUIA and the Lejano Heirs as
follows:

WHEREFORE, the evidence having shown the plaintiffs, particularly Manuel De Guia, their
successor-in-interest, not entitled upon the facts and the law to the relief prayed for in the
amended complaint, the same is hereby DISMISSED with costs against said plaintiff. Instead, as
prayed for by defendants, judgment is hereby rendered:

1. Declaring the "Kasulatan ng Sanglaan" (Exhs. "A" & "1") dated November 10, 1979, and the
"Kasulatan ng Pagbubuwis ng Palaisdaan" (Exhs. "C" &"3") also dated November 10, 1979, as valid for
all legal intents and purposes;

2. Ordering the Ex-Officio Sheriff, RTC, Bulacan, to proceed with the extrajudicial foreclosure of
the subject real estate mortgage; and

3. Ordering plaintiffs to pay defendants attorneys fees in the amount of P20,000.00.

SO ORDERED.12cräläwvirtualibräry

The Court of Appeals affirmed the trial court in a Decision dated 30 August 2002 in CA-G.R. CV No.
38031. The Court of Appeals found the claim of force and intimidation in the execution of the
documents as highly improbable since Primitiva Lejanos son, Renato Davis, witnessed the signing of
the documents and found nothing irregular at the time. The appellate court also held that assuming
Defendants threatened DE GUIA and the Lejano Heirs with immediate foreclosure, Defendants were
merely exercising their legitimate right of foreclosing the mortgaged property for non-payment of
the loan. In addition, Primitiva Lejanos lawyer and notary public, Atty. Mamerto Abaño, testified
that the parties appeared before him to affirm the contents of the documents. He also stated that
he was present when Defendants paid Primitiva Lejano Davis and her son Renato. As of this writing,
DE GUIA has a pending motion for reconsideration before the Court of Appeals. In the event the
Court of Appeals Decision attains finality, DE GUIA may lose whatever right he claims over the
FISHPOND.

The Trial Courts Ruling

The trial court ruled that ABEJO has the right to demand that DE GUIA vacate and surrender an
area equivalent to ABEJOs undivided share in the FISHPOND. The trial court explained that DE
GUIAs sublease contract expired in 1979 and ABEJO acquired his fathers share in 1983. However,
the trial court pointed out that ABEJO failed to present evidence of the judicial or extra-judicial
partition of the FISHPOND. The identification of the specific area pertaining to ABEJO and his co-
owner is vital in an action to recover possession of real property. Nevertheless, the trial court
declared that pending partition, it is only just that DE GUIA pay ABEJO a reasonable amount as
rental for the use of ABEJOs share in the FISHPOND. DE GUIA admitted this obligation when he
raised as sole issue in his pre-trial brief how much rent he should pay ABEJO. DE GUIA even
proposed P300,000 as the reasonable amount but under certain conditions which ABEJO found
unacceptable.

In determining the reasonable rent due to ABEJO, the trial court considered the Lease Contract
between ABEJO and a certain Ruperto C. Villarico which provided for a yearly rent of P25,000 for
undivided portion of the FISHPOND. The trial court declared that the total amount of rent due
is P212,500, computed from November 1983 when ABEJO became a co-owner of the FISHPOND up to
199113 or a period of eight and one half years. The trial court further ordered DE GUIA to pay an
additional P50,000 which represents the amount ABEJO returned to Ruperto C. Villarico when they
cancelled the Lease Contract between them due to DE GUIAs refusal to vacate the FISHPOND.

Lastly, the trial court ruled that pending partition, ABEJO as co-owner has the right to possess the
FISHPOND and to receive an equal share in the benefits from the FISHPOND effective immediately.
Until there is a partition, and while there is no contract of lease, the Civil Code provisions on co-
ownership shall govern the rights of the parties.

The Court of Appeals Ruling

The Court of Appeals affirmed the trial courts decision. The Court of Appeals debunked DE GUIAs
claim that partition and not recovery of possession was the proper remedy under the
circumstances. The Court of Appeals pointed out that DE GUIAs failure to respect ABEJOs right over
his undivided share in the FISHPOND justifies the action for recovery of possession. The trial courts
decision effectively enforces ABEJOs right over the property which DE GUIA violated by possession
and use without paying compensation. According to the Court of Appeals, partition would
constitute a mechanical aspect of the decision just like accounting when necessary.

The Court of Appeals likewise rejected DE GUIAs claim that the award of compensatory damages
of P242,000, computed based on the rent stipulated in the Lease Contract between ABEJO and
Ruperto C. Villarico, is grossly exorbitant. The Court of Appeals clarified that the amount the trial
court awarded was P262,500 and not P242,000 as erroneously alleged by DE GUIA. The Court of
Appeals pointed out that the notarized Lease Contract between ABEJO and Ruperto C. Villarico
carries more evidentiary weight than the testimonies of DE GUIAs witnesses, Ben Ruben Camargo
and Marta Fernando Peña. The Court of Appeals also upheld the award of attorneys fees since the
parties could have avoided litigation had DE GUIA heeded the justifiable demands of ABEJO.
On motion for reconsideration, the Court of Appeals reduced the compensatory damages
from P262,500 to P212,500. The Court of Appeals explained that the trial court correctly computed
the total amount of rent due at P212,500. The trial court erred, however, in adding the sum
of P50,000 representing the rent for 1983 and 1984 which ABEJO returned to Ruperto C. Villarico.
The appellate court clarified that the sum of P212,500 was arrived at by multiplying the rent
of P25,000 by 8 years. The 8 year period already included the two months rent received from and
then subsequently reimbursed to Ruperto C. Villarico.

The Issues

DE GUIA raises the following issues in his Memorandum:

I.

THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURTS DECISION DENYING PETITIONERS
PLEA FOR DISMISSAL OF THE COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION;

II.

THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURTS ORDER DIRECTING PETITIONER TO
TURN OVER THE ONE-HALF UNDIVIDED PORTION OF THE FISHPOND WHICH IS STILL UNDER A STATE
OF CO-OWNERSHIP;

III.

THE COURT OF APPEALS ERRED IN AFFIRMING, IN PART, THE AWARD OF ACTUAL OR COMPENSATORY
DAMAGES DESPITE LACK OF CREDIBLE EVIDENCE TO SUPPORT THE SAME;

IV.

THE COURT OF APPEALS ERRED IN AFFIRMING THE AWARD OF ATTORNEYS FEES IN PRIVATE
RESPONDENTS FAVOR.14

In essence, this Court is asked to resolve: (1) whether an action for recovery of possession and turn-
over of the undivided portion of a common property is proper before partition; and (2) whether
there is sufficient basis for the award of compensatory damages and attorneys fees.

The Courts Ruling

The petition is partly meritorious.

First and Second Issues: Cause of Action and Turn-Over of Possession

DE GUIA contends that a co-owner cannot claim a definite portion from the property owned in
common until there is a partition. DE GUIA argues that ABEJO should have filed an action for
partition instead of recovery of possession since the court cannot implement any decision in the
latter case without first a partition. DE GUIA contends that an action for recovery of possession
cannot prosper when the property subject of the action is part of an undivided, co-owned property.
The procedural mode adopted by ABEJO, which is recovery of possession, makes enforcement
difficult if not impossible since there is still no partition of the subject property.

Under Article 484 of the Civil Code, "there is co-ownership whenever the ownership of an undivided
thing or right belongs to different persons." A co-owner of an undivided parcel of land is an "owner
of the whole, and over the whole he exercises the right of dominion, but he is at the same time the
owner of a portion which is truly abstract."15 On the other hand, there is no co-ownership when the
different portions owned by different people are already concretely determined and separately
identifiable, even if not yet technically described. 16cräläwvirtualibräry
Article 487 of the Civil Code provides, "[a]ny one of the co-owners may bring an action in
ejectment." This article covers all kinds of actions for the recovery of possession. Article 487
includes forcible entry and unlawful detainer (accion interdictal), recovery of possession (accion
publiciana), and recovery of ownership (accion de reivindicacion). The summary actions of forcible
entry and unlawful detainer seek the recovery of physical possession only. These actions are
brought before municipal trial courts within one year from dispossession. However, accion
publiciana, which is a plenary action for recovery of the right to possess, falls under the jurisdiction
of the proper regional trial court when the dispossession has lasted for more than one year. Accion
de reivindicacion, which seeks the recovery of ownership, also falls under the jurisdiction of the
proper regional trial court.17cräläwvirtualibräry

Any co-owner may file an action under Article 487 not only against a third person, but also
against another co-owner who takes exclusive possession and asserts exclusive ownership of
the property.18 In the latter case, however, the only purpose of the action is to obtain recognition
of the co-ownership. The plaintiff cannot seek exclusion of the defendant from the property
because as co-owner he has a right of possession. The plaintiff cannot recover any material or
determinate part of the property.19cräläwvirtualibräry

In Hermogena G. Engreso with Spouse Jose Engreso v. Nestoria De La Cruz and Herminio De La
Cruz,20 we reiterated the rule that a co-owner cannot recover a material or determinate part of a
common property prior to partition as follows:

It is a basic principle in civil law that before a property owned in common is actually partitioned,
all that the co-owner has is an ideal or abstract quota or proportionate share in the entire
property. A co-owner has no right to demand a concrete, specific or determinate part of the thing
owned in common because until division is effected his right over the thing is represented only by
an ideal portion.

As such, the only effect of an action brought by a co-owner against a co-owner will be to obtain
recognition of the co-ownership; the defendant cannot be excluded from a specific portion of the
property because as a co-owner he has a right to possess and the plaintiff cannot recover any
material or determinate part of the property. Thus, the courts a quo erred when they ordered the
delivery of one-half () of the building in favor of private respondent.

Indisputably, DE GUIA has been in exclusive possession of the entire FISHPOND since July 1974.
Initially, DE GUIA disputed ABEJOs claim of ownership over the undivided portion of the FISHPOND.
Subsequently, he implicitly recognized ABEJOs undivided share by offering to settle the case
for P300,000 and to vacate the property. During the trial proper, neither DE GUIA nor ABEJO
asserted or manifested a claim of absolute and exclusive ownership over the entire FISHPOND.
Before this Court, DE GUIA limits the issues to the propriety of bringing an action for recovery of
possession and the recovery of compensatory damages.

Following the inherent and peculiar features of co-ownership, while ABEJO and DE GUIA have equal
shares in the FISHPOND quantitatively speaking, they have the same right in a qualitative sense as
co-owners. Simply stated, ABEJO and DE GUIA are owners of the whole and over the whole, they
exercise the right of dominion. However, they are at the same time individual owners of a portion,
which is truly abstract because until there is partition, such portion remains indeterminate or
unidentified.21 As co-owners, ABEJO and DE GUIA may jointly exercise the right of dominion over
the entire FISHPOND until they partition the FISHPOND by identifying or segregating their
respective portions.

Since a co-ownership subsists between ABEJO and DE GUIA, judicial or extra-judicial partition is the
proper recourse. An action to demand partition is imprescriptible and not subject to laches. 22 Each
co-owner may demand at any time the partition of the common property unless a co-owner has
repudiated the co-ownership under certain conditions.23 Neither ABEJO nor DE GUIA has repudiated
the co-ownership under the conditions set by law.

To recapitulate, we rule that a co-owner may file an action for recovery of possession against a co-
owner who takes exclusive possession of the entire co-owned property. However, the only effect of
such action is a recognition of the co-ownership. The courts cannot proceed with the actual
partitioning of the co-owned property. Thus, judicial or extra-judicial partition is necessary to
effect physical division of the FISHPOND between ABEJO and DE GUIA. An action for partition is also
the proper forum for accounting the profits received by DE GUIA from the FISHPOND. However, as a
necessary consequence of such recognition, ABEJO shall exercise an equal right to possess, use and
enjoy the entire FISHPOND.

DE GUIA further claims that the trial and appellate courts erred when they ordered the recovery of
rent when the exact identity of the portion in question had not yet been clearly defined and
delineated. According to DE GUIA, an order to pay damages in the form of rent is premature before
partition.

We disagree.

The right of enjoyment by each co-owner is limited by a similar right of the other co-owners. A co-
owner cannot devote common property to his exclusive use to the prejudice of the co-
ownership.24 Hence, if the subject is a residential house, all the co-owners may live there with
their respective families to the extent possible. However, if one co-owner alone occupies the entire
house without opposition from the other co-owners, and there is no lease agreement, the other co-
owners cannot demand the payment of rent. Conversely, if there is an agreement to lease the
house, the co-owners can demand rent from the co-owner who dwells in the house.

The co-owners can either exercise an equal right to live in the house, or agree to lease it. If they
fail to exercise any of these options, they must bear the consequences. It would be unjust to
require the co-owner to pay rent after the co-owners by their silence have allowed him to use the
property.25cräläwvirtualibräry

In case the co-owners agree to lease a building owned in common, a co-owner cannot retain it for
his use without paying the proper rent.26 Moreover, where part of the property is occupied
exclusively by some co-owners for the exploitation of an industry, the other co-owners become co-
participants in the accessions of the property and should share in its net
profits.27cräläwvirtualibräry

The Lejano Heirs and Teofilo Abejo agreed to lease the entire FISHPOND to DE GUIA. After DE GUIAs
lease expired in 1979, he could no longer use the entire FISHPOND without paying rent. To allow DE
GUIA to continue using the entire FISHPOND without paying rent would prejudice ABEJOs right to
receive rent, which would have accrued to his share in the FISHPOND had it been leased to
others.28 Since ABEJO acquired his undivided share in the FISHPOND on 22 November 1983, DE GUIA
should pay ABEJO reasonable rent for his possession and use of ABEJOs portion beginning from that
date. The compensatory damages of P25,000 per year awarded to ABEJO is the fair rental value or
the reasonable compensation for the use and occupation of the leased property, 29 considering the
circumstances at that time. DE GUIA shall continue to pay ABEJO a yearly rent of P25,000
corresponding to ABEJOs undivided share in the FISHPOND. However, ABEJO has the option either
to exercise an equal right to occupy the FISHPOND, or to file a new petition before the trial court
to fix a new rental rate in view of changed circumstances in the last 20 years.

ABEJO made an extrajudicial demand on DE GUIA by sending the 27 November 1983 demand letter.
Thus, the rent in arrears should earn interest at 6% per annum from 27 November 1983 until finality
of this decision pursuant to Article 220930 of the Civil Code. Thereafter, the interest rate is 12% per
annum from finality of this decision until full payment.31cräläwvirtualibräry

Third Issue: Lack of Credible Evidence to Support Award of Compensatory Damages

DE GUIA contends the P212,500 in rent awarded to ABEJO is exorbitant. He assails as doubtful and
self-serving evidence the Lease Contract between ABEJO and Ruperto C. Villarico that served as
basis for the yearly rent of P25,000 for ABEJOs share in the FISHPOND.

DE GUIA says the trial and appellate courts should have given credence to the testimonies of his
witnesses, Ben Ruben Camargo ("Camargo") and Marta Fernando Peña ("Peña") that rentals of
fishponds in the same vicinity are for much lesser considerations.
This issue involves calibration of the whole evidence considering mainly the credibility of witnesses.
As a rule, a party may raise only questions of law in an appeal by certiorari under Rule 45 of the
Rules of Court. The Supreme Court is not duty-bound to analyze and weigh again the evidence
considered in the proceedings below.32 More so in the instant case, where the Court of Appeals
affirmed the factual findings of the trial court.33cräläwvirtualibräry

It is not true that the trial court disregarded the testimonies of Camargo and Peña because DE GUIA
failed to present documentary evidence to support their testimonies. Actually, the trial and
appellate courts found the testimonies of Camargo and Peña unconvincing. Judges cannot be
expected to rely on the testimonies of every witness. In ascertaining the facts, they determine who
are credible and who are not. In doing so, they consider all the evidence before
them.34cräläwvirtualibräry

We find no cogent reason to overturn the trial and appellate courts evaluation of the witnesses
testimonies. We likewise find reasonable the P25,000 yearly compensation for ABEJOs undivided
share in the FISHPOND. Indeed, being a question of fact, it is for the trial and appellate courts to
decide and this Court will not disturb their findings unless clearly baseless or irrational. The
exception does not obtain in this case.

Fourth Issue: Attorneys Fees

The trial court did not err in imposing attorneys fees of P20,000. Attorneys fees can be awarded in
the cases enumerated in Article 2208 of the Civil Code specifically:

xxx

(2) Where the defendants act or omission has compelled the plaintiff to litigate with third persons
or to incur expenses to protect his interest;

xxx

DE GUIA is a lawyer and he should have known that a co-owner could not take exclusive possession
of a common property. Although DE GUIA offered to settle the case out of court, such offer was
made under conditions not acceptable to ABEJO. Certainly, ABEJO was still put to unnecessary
expense and trouble to protect his interest under paragraph (2), Article 2208 of the Civil Code.

WHEREFORE, the Decision dated 22 August 1994 and Resolution dated 27 June 1995 of the Court of
Appeals in CA-G.R. CV No. 39875 is AFFIRMED with respect to that portion ordering Manuel T. De
Guia to pay Jose B. Abejo compensatory damages of P212,500 and attorneys fees of P20,000, and
MODIFIED as follows:

1. The co-ownership between Manuel T. De Guia and Jose B. Abejo over the entire FISHPOND
covered by TCT No. 6358 of the Bulacan Register of Deeds is recognized without prejudice to the
outcome of CAG.R. CV No. 38031 pending before the Court of Appeals and other cases involving the
same property;

2. Manuel T. De Guia and Jose B. Abejo shall equally enjoy possession and use of the entire
FISHPOND prior to partition;

3. The compensatory damages of P25,000 per annum representing rent from 27 November 1983
until May 1992 shall earn interest at 6% per annum from 27 November 1983 until finality of this
decision, and thereafter at 12% per annum until full payment;

4. Manuel T. de Guia shall pay Jose B. Abejo a yearly rent of P25,000 from June 1992 until finality
of this decision, with interest at 6% per annum during the same period, and thereafter at 12%
interest per annum until full payment;

5. After finality of this decision and for as long as Manuel T. de Guia exclusively possesses the
entire FISHPOND, he shall pay Jose B. Abejo a yearly rental of P25,000 for the latters undivided
share in the FISHPOND, unless Jose B. Abejo secures from the proper court an order fixing a
different rental rate in view of possible changed circumstances.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, Ynares-Santiago and Azcuna, JJ., concur.

ECOND DIVISION

[G.R. No. 184454 : August 03, 2011]

CO GIOK LUN, AS SUBSTITUTED BY HIS LEGAL HEIRS NAMELY: MAGDALENA D. CO, MILAGROS D.
CO, BENJAMIN D. CO, ALBERT D. CO, ANGELITA C. TENG, VIRGINIA C. RAMOS, CHARLIE D. CO,
AND ELIZABETH C. PAGUIO, PETITIONERS, VS. JOSE CO, AS SUBSTITUTED BY HIS LEGAL HEIRS
NAMELY: ROSALINA CO, MARLON CO, JOSEPH CO, FRANK CO, ANTONIO CO, NELSON CO, ROLAND
CO, JOHNSON CO, CORAZON CO, ADELA CO, SERGIO CO, PAQUITO CO, JOHN CO, NANCY CO,
AND TERESITA CO, RESPONDENTS.

DECISION

CARPIO, J.:

The Case

Before the Court is a petition[1] for review on certiorari assailing the Decision[2] dated 23 April 2008
and Resolution[3] dated 10 September 2008 of the Court of Appeals (CA) in CA-G.R. CV. No. 85920.

The Facts

This case involves two lots allegedly co-owned by two brothers, petitioner Co Giok Lun (Lun) and Co
Bon Fieng (Fieng), the father of respondent Jose Co (Co). The lots, which are situated in Sorsogon
province, one in the town of Gubat and the other in the town of Barcelona, are described as:

Gubat Property

A parcel of commercial/residential land, located at Poblacion, Gubat, Sorsogon, containing an area

of 720.68 square meters, more or less, bounded on the North by Angel Camara, on the East by
Rodolfo Rocha, on the South by Guariña Street and on the West by Zulueta Street declared under
Tax Declaration No. 11379 in the name of Co Bon Fieng and assessed at P12,370.00.[4]

Barcelona Property

Terreno cocal radicada en el sitio de Telegrafo barrio de Luneta, Barcelona, Sorsogon, I. F. cabida
de sesenta y cinco (65 a.) lindates por Norte Hertrudes Casulla, por sur Antonio Evasco, por Este
con los manglares y por Oeste Atanacio Espera y Eugenio Esteves.

Terreno cocalero ubicado en el barrio de Luneta, Barcelona, Sorsogon, I.F. cabida de una hectaria
dies y ocho areas y sesenta y ciete centiarias (1 hects. 18 hareas 67 centiareas) lindantes al Norte
Cementerio Municipal antes Eugenio Esteves, al Este Gabriel Gredoña y Laudia Asis, al Sur
Amando Torilla y Florentino Mercader, y al Oeste Carretera Provincial.

Terreno solar con doce ponos de coco situada en el barrio de Luneta, Barcelona, Sorsogon, I.F.
cabida de dos riales y quevalente a trienta y cuatro areas y un camarin de materiales fuertes y
deficada dentro de la misma lindante al Norte Camino para S. Antonio, al Sur Eugenio Esteves, al
Este Carretera Provincial y al Oeste a los herederos del defunto Feliciano Fontelar.[5]

Petitioners, the legal heirs of Lun who died on 12 January 1997, filed a complaint [6] for partition
and damages against Co with the Regional Trial Court (RTC) of Gubat, Sorsogon, Branch 54.

Claim of Petitioners
Petitioners claimed that Lun and Fieng came to the Philippines from China in 1929. Lun allegedly
acquired the Gubat property from the P8,000.00 capital the brothers inherited from their father,
Co Chaco (Chaco), before Chaco returned to China in 1926 due to old age. The Gubat property was
named under Fieng only since it has been a common practice and custom in China that properties
intended for the children are placed in the name of the eldest child. The Barcelona property, on
the other hand, was acquired by Chaco in 1923 while he was still doing his business in Gubat.

Lun and Fieng set up a business, selling and trading of dry goods, called the Philippine Honest and
Company. Using the company's funds, they rented the property of Crispina Rocha (Rocha), which
was mortgaged and finally sold to them in 1935. Later, from the income of the business, they
acquired the two adjoining residential and commercial lots which increased the size of the Gubat
property to its present area of 720.68 square meters.

In 1946, Lun and Fieng dissolved and liquidated the business. After receiving his share of P26,000
from the liquidation, Lun established his own dry goods business called Shanghai Trading. Fieng, on
the other hand, entered into other businesses with different partners.

Petitioners claimed that Lun stayed at the Gubat property from the time he arrived in China in
1929. Lun was the one who religiously paid for the realty taxes and made several repairs on the
building to make the Gubat property habitable. It was only sometime in 1946 when Lun and Fieng
decided to divide the two lots. However, the partition did not push through on the insistence of
their mother, Po Kiat, who wanted to preserve and maintain close family ties.

Petitioners also alleged that Lun prevented the Gubat property from being appropriated when the
lot was used by Fieng as a loan guarantee. Fieng incurred the P4,500 obligation from Erquiaga
Corporation which Lun assumed and paid without any contribution from respondents, specifically
Co. After Fieng suffered financial bankruptcy in Manila, he went back to Gubat. Upon the request
of their mother, Lun lent his brother P30,000 which Fieng used to start up a business. However,
until Fieng's death on 8 July 1958, the amount which Lun lent was never returned to him.

Lun even extended financial assistance to Co amounting to no less than P30,000 which remained
unpaid. Later, when Lun already refused to lend money to Co, the latter made himself the
administrator of the Gubat property without Lun's knowledge. Thereafter, Co filed a case for
unlawful detainer against Lun with the Municipal Trial Court (MTC) of Gubat, docketed as Civil Case
No. 210. This case was decided by the MTC in favor of Co but was reversed by the RTC in its
Decision dated 28 April 1994. The RTC's decision was later affirmed by the CA and this Court.

Claim of Respondents

On the other hand, respondents, in their Amended Answer, maintained that the Gubat property is
the exclusive property of their father. They asserted that Fieng acquired the lot by purchase from
Rocha in 1935 or nine years after Chaco left for China in 1926. While Lun was still in China, Fieng
and Rocha entered into an agreement for the use of the lot where Fieng built a "camalig" and
started his sari-sari store business. On 13 March 1929, Fieng and Rocha entered into another
contract extending Fieng's right to occupy the lot until 17 August 1938. On 16 March 1930, another
extension was given until 19 August 1940. On 13 October 1935, Fieng and Rocha executed a Deed of
Absolute Sale where Rocha sold the lot to Fieng for P3,000. On 6 August 1936, Ireneo Rocha also
sold a parcel of the adjoining land to Fieng which increased the size of the Gubat property to its
present area. Both documents had been properly notarized.

Fieng used the property not only as the family's residence but also for business and trade purposes
until his death in 1958. It was even Fieng who had constructed the commercial building on the
property in 1928. From 1937 to 1983, the land and tax declarations of the property was in the sole
name of their father. In 1983, Co became the administrator of the Gubat property and had the
property declared in his own name in substitution of his father without any objection from Lun.

Respondents denied that Lun and Fieng entered into any business together. Respondents claim that
it was only in 1956 or 1957 when Lun was taken in by Fieng, who was then ill and could not manage
his general merchandising business. Fieng allowed Lun to use the lower portion of the Gubat
property and let him manage his business and properties as administrator. Lun was in possession of
the property even after Fieng's death in 1958 because of the consent and tolerance of the
respondents who were still young at that time.
Respondents further insisted that Chaco gave the Barcelona property to Fieng exclusively as
advance inheritance and denied that Co ever borrowed money from Lun. As a counterclaim,
respondents asked for the payment of rent for the use by Lun of the Gubat property, as well as
moral damages, attorney's fees and litigation expenses.

The RTC's Ruling

In a Decision[7] dated 21 July 2004, the RTC decided the case in favor of petitioners. The RTC stated
that the documentary evidence presented in court showed that the Gubat property is indeed under
Fieng's name. However, the chain of events prior to the purchase of the property and the evidence
submitted by the petitioners prove the presence of co-ownership. The dispositive portion of the
decision states:

WHEREFORE, in view of all the foregoing and by preponderance of evidence, judgment is hereby
rendered that the Heirs of Co Chaco are pro indiviso owners of the Gubat and Barcelona properties
which are to be partitioned among these heirs. They are hereby directed to cause the survey of the
property and to submit to this Court the plan of partition for approval.

No costs.

SO ORDERED.[8]

The Court of Appeals' Ruling

Respondents appealed to the CA. In a Decision dated 23 April 2008, the CA reversed the decision of
the RTC and ruled in favor of the respondents. The dispositive portion states:

WHEREFORE, in view of the foregoing, the instant appeal is GRANTED. The assailed decision of the
Regional Trial Court of Gubat, Sorsogon (Branch 54) in Civil Case No. 1601, is REVERSED. The order
of the trial court to cause the survey of the subject properties for the partition thereof is SET
ASIDE. The subject properties are declared exclusively owned by Co Bon Fieng, and now by his legal
heirs, herein appellants.

SO ORDERED.[9]

Petitioners filed a motion for reconsideration which the CA denied in a Resolution dated 10
September 2008.

Hence, this petition.

The Issue

The main issue is whether the CA erred in holding that no co-ownership existed between Lun and
Fieng over the Gubat and Barcelona properties and in declaring Fieng as the exclusive owner of
both properties.

The Court's Ruling

The petition lacks merit.

The original complaint filed by Lun involves an action for partition and damages. A division of
property cannot be ordered by the court unless the existence of co-ownership is first established.
In Ocampo v. Ocampo,[10] we held that an action for partition will not lie if the claimant has no
rightful interest over the property. Basic is the rule that the party making an allegation in a civil
case has the burden of proving it by a preponderance of evidence.

Article 484 of the Civil Code which defines co-ownership, states:

Art. 484. There is co-ownership whenever the ownership of an undivided thing or right belongs to
different persons. x x x
In the present case, petitioners insist that their predecessor-in-interest Lun co-owned the Gubat
and Barcelona properties with his brother Fieng. To prove co-ownership over the Gubat property,
petitioners presented: (1) tax declarations from 1929 to 1983 under the name of Fieng but paid by
Lun; (2) the renewal certificate from Malayan Insurance Company Inc.; (3) the insurance contract;
and (4) the statements of account from Supreme Insurance Underwriters which named Lun as
administrator of the property. Likewise, to prove their right over the Barcelona property as legal
heirs under intestate succession, petitioners presented a Deed of Sale dated 24 August 1923
between Chaco, as buyer, and Gabriel Gredona and Engracia Legata, as sellers, involving a price
consideration of P1,200.

On the other hand, respondents presented notarized documents: (1) Deed of Sale dated 13 October
1935, and (2) Sale of Real Property dated 6 August 1936 showing that the former owners of the
Gubat property entered into a sale transaction with Fieng, as buyer and Lun, as a witness to the
sale. They also presented tax declarations in the name of Fieng from 1937 to 1958. After Fieng's
death, Co declared the Gubat property in his name in the succeeding tax declarations. Likewise,
the respondents presented documents proving the declaration of the Barcelona property in the
name of Co.

After a careful scrutiny of the records, we hold that the evidence of petitioners were insufficient or
immaterial to warrant a positive finding of co-ownership over the Gubat and Barcelona properties.
The CA correctly observed that petitioners failed to substantiate with reasonable certainty that (1)
Chaco gave Fieng a start-up capital of P8,000 to be used by Lun and Fieng in setting up a business,
(2) that the Philippine Honest and Company was a partnership between Lun and Fieng, and (3) that
the Deed of Sale dated 24 August 1923 involving the Barcelona property is sufficient to establish co-
ownership. Also, petitioners were not able to prove the existence of the alleged Chinese custom of
placing properties in the name of the eldest child as provided under Article 12 [11] of the Civil Code.

In contrast, respondents were able to show documents of sale from the original owners of the
Gubat property rendering the claim of custom as immaterial.[12] Also, respondents sufficiently
established that Fieng was the registered owner of the Gubat and Barcelona properties while Lun
was merely an administrator.

The relevant portions of the CA decision provide:

x x x As to the Gubat property, appellee (petitioner Co Giok Lun in this case) failed to establish
the following with reasonable certainty: a) that Co Chaco gave Co Bon Fieng P8,000.00 as
business capital for him and his brother; and b) that Philippine Honest and Company is a
partnership between him and Co Bon Fieng. Appellee's testimony is that his father told him that
the latter gave Co Bon Fieng P8,000.00 is hearsay since he had no personal knowledge of the fact
that Co Chaco gave Co Bon Fieng said amount. Even if the trial court admitted said testimony, it
remains without probative value. x x x Allegedly, this amount was the contribution of appellee and
Co Bon Fieng to the capital of their partnership - Philippine Honest and Company. Nevertheless, by
reason of appellee's failure to prove the existence of this amount, the existence of the partnership
remains doubtful. Appellee present[ed] the certification of registration of the Philippine Honest
and Company to prove the existence of the partnership but the registration indicates only the name
of Co Bon Fieng as the owner thereof. Without the capital contribution and the partnership,
appellee's claim of co-ownership over the Gubat property does not have any basis.

To further prove his claim of co-ownership over the Gubat property, appellee presents Tax
Declarations pertaining to the subject property from 1929 to 1983, renewal certificate from
Malayan Insurance Company, Inc., insurance contract and statements of accounts from Supreme
Insurance Underwriters. These documents, however, uniformly indicate Co Bon Fieng as the owner
of the subject property and appellee as mere administrator thereof. Too, appellee proffers utility
bills and receipts indicating payment to Erquiaga, Inc., a creditor of Co Bon Fieng, in support of his
claim of co-ownership. These documents however, find no relevance in this case. Appellee's
assumption of Co Bon Fieng's liabilities and his payment of utilities without getting any contribution
from appellants are kind acts but certainly do not prove his claim of co-ownership. Neither do the
court declarations in Civil Case No. 210 prove appellee's claim of co-ownership, for only issues
concerning possession were resolved in said unlawful detainer suit. Lastly, contrary to the claim of
appellee, the affidavit of Co Che Bee, which recognizes appellee as a co-owner of the subject
property, cannot bind Co Bon Fieng, for well-settled is the rule that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another. Hence, appellee's claim of co-ownership
over the Gubat property must fail.

Concerning the Barcelona property, appellee proffers a deed of sale dated 24 August 1923 to
support his claim that he and Co Bon Fieng are co-owners thereof. Under said deed, the subject
property was sold to Co Chaco. Nevertheless, the deed proves just that - Co Chaco purchased the
subject property. It does not establish subsequent events or validly dispute the transfer of the
subject property by Co Chaco to Co Bon Fieng. Moreover, said document does not have any
probative value to refute the real property tax declarations of the subject property in the name of
appellant Jose Co. This document is inadequate to establish co-ownership between appellee and Co
Bon Fieng over the Barcelona property.

In fine, appellee's evidence in support of his claim is either insufficient or immaterial to warrant
the finding that the subject properties fall under the purview of co-ownership. Appellee failed to
prove that he is a co-owner of the subject properties.

In contrast, appellants offer convincing evidence that their father, Co Bon Fieng owns the subject
properties exclusively. In the "Deed of Sale" dated 13 October 1935 and the "Sale of Real Property"
dated 6 August 1936, the former owners of the Gubat property sold the same to Co Bon Fieng only.
Although appellee's signature appears in the first document as a witness to its execution, there is
no indication in said document or in the other that he was purchasing the subject property together
with Co Bon Fieng. Appellee interjects that the foregoing deeds indicate Co Bon Fieng as the owner
of the subject property because of the Chinese custom that in similar transactions, the eldest son
of the family is normally placed as the purchaser of a property. Appellee, however, failed to prove
this custom as a fact; hence cannot be given weight.

xxx

After purchasing the Gubat property, Co Bon Fieng declared the same in tax declarations from 1937
to 1958 as his property. After the death of Co Bon Fieng, appellant Jose Co declared the Gubat
property in his name in ensuing tax declarations over the same. As well, the Barcelona property is
declared in the name of Jose Co. The Barcelona property was even surveyed for the benefit of
appellants, as heirs of Co Bon Fieng.

xxx

x x x Here, we find compelling reasons to reverse the findings of the trial court and hold that the
subject properties were owned exclusively by Co Bon Fieng, and now by his legal heirs. [13]

We see no reason to disturb the findings of the CA. Petitioners failed to substantiate their claim of
co-ownership over the Gubat and Barcelona properties. The action for partition cannot be acted
upon since petitioners failed to establish any rightful interest in the properties. Petitioners also
failed to prove that co-ownership existed between the parties' predecessors-in-interest. Thus,
respondents, as legal heirs of Fieng, are entitled to the exclusive ownership of the Gubat and
Barcelona properties.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 23 April 2008 and Resolution
dated 10 September 2008 of the Court of Appeals in CA-G.R. CV. No. 85920.

SO ORDERED.

Leonardo-De Castro,* Brion, Perez, and Sereno, JJ., concur.