G.R. No.
152766               June 20, 2003LILIA SANCHEZ, Petitioner,  5/6 of the lot and the other 1/6 remaining as the property of petitioner, on
vs.
COURT OF APPEALS, HON. VICTORINO S. ALVARO as Presiding
Judge, RTC-Br. 120, Caloocan City, and VIRGINIA
TERIA, Respondents.
DECISION
BELLOSILLO, J.:
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 19952 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
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.1âwphi1 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.
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 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 x x x x
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 x x x x
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.
10 
In People’s Homesite and Housing Corporation v. Tiongco 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 a short-cut of the
proceedings, it might foster, wittingly or unwittingly, dangerous collusions
to the detriment of justice. It would 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-ownership11 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 divided.12 Manresa 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
In co-ownership, the relationship of such co-owner to the other co-owners
is fiduciary in character and 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 or 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 lease his undivided interest to a third party independently
of the other 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 the thing is represented by a quota or ideal portion without any
physical adjudication.19
to the rights of private respondent Virginia Teria as buyer of the 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.

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
G.R. No. 133638             April 15, 2005
PERPETUA VDA. DE APE, Petitioner,  respondent. The receipt states:
vs.
THE HONORABLE COURT OF APPEALS and GENOROSA CAWIT VDA. DE
LUMAYNO, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari of the Decision of the Court of
1  Purchased, for FIVE THOUSAND PESOS – LOT #2319.
Appeals in CA-G.R. CV No. 45886 entitled, "Generosa Cawit de Lumayno,
accompanied by her husband Braulio Lumayno v. Fortunato Ape, including his
wife Perpetua de Ape."
The pertinent facts are as follows:
Cleopas Ape was the registered owner of a parcel of land particularly known as
Lot No. 2319 of the Escalante Cadastre of Negros Occidental and covered by
Original Certificate of Title (OCT) No. RP 1379 (RP-154 [300]). Upon Cleopas
2
Ape's death sometime in 1950, the property passed on to his wife, Maria Ondoy,
and their eleven (11) children, namely:  Fortunato, Cornelio, Bernalda,
Bienvenido, Encarnacion, Loreta, Lourdes, Felicidad, Adela, Dominador, and
Angelina, all surnamed Ape.
On 15 March 1973, Generosa Cawit de Lumayno (private respondent herein),
joined by her husband, Braulio, instituted a case for "Specific Performance of a
3
Deed of Sale with Damages" against Fortunato and his wife Perpetua (petitioner
herein) before the then Court of First Instance of Negros Occidental.  It was
alleged in the complaint that on 11 April 1971, private respondent and Fortunato
entered into a contract of sale of land under which for a consideration of
P5,000.00, Fortunato agreed to sell his share in Lot No. 2319 to private
respondent.  The agreement was contained in a receipt prepared by private
respondent's son-in-law, Andres Flores, at her behest.  Said receipt was attached
to the complaint as Annex "A" thereof and later marked as Exhibit "G" for private
April 11, 1971
TO WHOM IT MAY CONCERN:
This date received from Mrs. Generosa Cawit de Lumayno the sum of
THIRTY PESOS ONLY as Advance Payment of my share in Land
(Signed)
FORTUNATO APE
P30.00 WITNESS:
          (Illegible) 4
As private respondent wanted to register the claimed sale transaction, she
supposedly demanded that Fortunato execute the corresponding deed of sale
and to receive the balance of the consideration.  However, Fortunato unjustifiably
refused to heed her demands.  Private respondent, therefore, prayed that
Fortunato be ordered to execute and deliver to her "a sufficient and registrable
deed of sale involving his one-eleventh (1/11) share or participation in Lot No.
2319 of the Escalante Cadastre; to pay P5,000.00 in damages; P500.00
reimbursement for litigation expenses as well as additional P500.00 for every
appeal made; P2,000.00 for attorney's fees; and to pay the costs.5
Fortunato and petitioner denied the material allegations of the complaint and
claimed that Fortunato never sold his share in Lot No. 2319 to private respondent
and that his signature appearing on the purported receipt was forged.  By way of
counterclaim, the defendants below maintained having entered into a contract of
lease with respondent involving Fortunato's portion of Lot No. 2319.  This
purported lease contract commenced in 1960 and was supposed to last until
1965 with an option for another five (5) years.  The annual lease rental was
P100.00 which private respondent and her husband allegedly paid on installment
basis.  Fortunato and petitioner also assailed private respondent and her
husband's continued possession of the rest of Lot No. 2319 alleging that in the
event they had acquired the shares of Fortunato's co-owners by way of sale, he
was invoking his right to redeem the same.  Finally, Fortunato and petitioner
prayed that the lease contract between them and respondent be ordered
annulled; and that respondent be ordered to pay them attorney's fees; moral
damages; and exemplary damages. 6
In their reply, the private respondent and her husband alleged that they had
7 
purchased from Fortunato's co-owners, as evidenced by various written
instruments, their respective portions of Lot No. 2319.  By virtue of these sales,
8 
they insisted that Fortunato was no longer a co-owner of Lot No. 2319 thus, his
right of redemption no longer existed.
Prior to the resolution of this case at the trial court level, Fortunato died and was
substituted in this action by his children named Salodada, Clarita, Narciso,
Romeo, Rodrigo, Marieta, Fortunato, Jr., and Salvador, all surnamed Ape. 9
During the trial, private respondent testified that she and her husband acquired
the various portions of Lot No. 2319 belonging to Fortunato's co-owners.  For her part, petitioner insisted that the entire Lot No. 2319 had not yet been
Thereafter, her husband caused the annotation of an adverse claim on the
certificate of title of Lot No. 2319. The annotation states:
10 
Entry No. 123539 – Adverse claim filed by Braulio Lumayno. – Notice of adverse
claim filed by Braulio Lumayno affecting the lot described in this title to the extent
of 77511.93 square meters, more or less, the aggregate area of shares sold to
him on the basis of (alleged) sales in his possession.  Doc. No. 157, Page No.
33, Book No. XI, Series of 1967 of Alexander Cawit of Escalante, Neg. Occ. Date
of instrument. – June 22, 1967 at 8:30 a.m. (SGD) FEDENCIORRAZ, Actg.
Register of Deeds. 11
In addition, private respondent claimed that after the acquisition of those shares,
she and her husband had the whole Lot No. 2319 surveyed by a certain Oscar
Mascada who came up with a technical description of said piece of
land. Significantly, private respondent alleged that Fortunato was present when
12 
the survey was conducted. 13
Also presented as evidence for private respondent were pictures taken of some
parts of Lot No. 2319 purportedly showing the land belonging to Fortunato being
bounded by a row of banana plants thereby separating it from the rest of Lot No.
2319. 14
As regards the circumstances surrounding the sale of Fortunato's portion of the
land, private respondent testified that Fortunato went to her store at the time
when their lease contract was about to expire.  He allegedly demanded the rental
payment for his land but as she was no longer interested in renewing their lease
agreement, they agreed instead to enter into a contract of sale which Fortunato
acceded to provided private respondent bought his portion of Lot No. 2319 for
P5,000.00.  Thereafter, she asked her son-in-law Flores to prepare the
aforementioned receipt.  Flores read the document to Fortunato and asked the
latter whether he had any objection thereto.  Fortunato then went on to affix his
signature on the receipt.
formally subdivided; that on 11 April 1971 she and her husband went to private
15 
respondent's house to collect past rentals for their land then leased by the
former, however, they managed to collect only thirty pesos; that private
16 
respondent made her (petitioner's) husband sign a receipt acknowledging the
receipt of said amount of money; and that the contents of said receipt were
17 
never explained to them. She also stated in her testimony that her husband was
18 
an illiterate and only learned how to write his name in order to be employed in a
sugar central. As for private respondent's purchase of the shares owned by
19 
Fortunato's co-owners, petitioner maintained that neither she nor her husband
received any notice regarding those sales transactions. The testimony of
20 
petitioner was later on corroborated by her daughter-in-law, Marietta Ape Dino. 21
After due trial, the court a quo rendered a decision dismissing both the complaint
22 
and the counterclaim.  The trial court likewise ordered that deeds or documents
representing the sales of the shares previously owned by Fortunato's co-owners
be registered and annotated on the existing certificate of title of Lot No. 2319.  The Court of Appeals, in the decision now assailed before us, reversed and set
According to the trial court, private respondent failed to prove that she had
actually paid the purchase price of P5,000.00 to Fortunato and petitioner.  the portion of the court a quo's decision ordering the dismissal of petitioner and
Applying, therefore, the provision of Article 1350 of the Civil Code, the trial court
23 
concluded that private respondent did not have the right to demand the delivery
to her of the registrable deed of sale over Fortunato's portion of the Lot No. 2319.
The trial court also rejected Fortunato and petitioner's claim that they had the
right of redemption over the shares previously sold to private respondent and the
latter's husband, reasoning as follows:
Defendants in their counterclaim invoke their right of legal redemption under
Article 1623 of the New Civil Code in view of the alleged sale of the undivided
portions of the lot in question by their co-heirs and co-owners as claimed by the
plaintiffs in their complaint.  They have been informed by the plaintiff about said
sales upon the filing of the complaint in the instant case as far back as March 14,
1973.  Defendant themselves presented as their very own exhibits copies of the
respective deeds of sale or conveyance by their said co-heirs and co-owners in
favor of the plaintiffs or their predecessors-in-interest way back on January 2,
1992 when they formally offered their exhibits in the instant case; meaning, they
themselves acquired possession of said documentary exhibits even before they
formally offered them in evidence.  Under Art. 1623 of the New Civil Code,
defendants have only THIRTY (30) DAYS counted from their actual knowledge of
the exact terms and conditions of the deeds of sale or conveyance of their co-
heirs' and co-owners' share within which to exercise their right of legal
redemption. 24
Within the reglementary period, both parties filed their respective notices of
appeal before the trial court with petitioner and her children taking exception to
the finding of the trial court that the period within which they could invoke their
right of redemption had already lapsed. For her part, private respondent raised
25 
as errors the trial court's ruling that there was no contract of sale between herself
and Fortunato and the dismissal of their complaint for specific performance. 26
aside the trial court's dismissal of the private respondent's complaint but upheld
her children's counterclaim.  The dispositive portion of the appellate court's
decision reads:
WHEREFORE, the decision dated March 11, 1994, is hereby REVERSED
and SET ASIDE insofar as the dismissal of plaintiffs-appellants' complaint
is concerned, and another one is entered ordering the defendant-
appellant Fortunato Ape and/or his wife Perpetua de Ape and successors-
in-interest to execute in favor of plaintiff-appellant Generosa Cawit de
Lumayno a Deed of Absolute Sale involving the one-eleventh (1/11) share
or participation of Fortunato Ape in Lot No. 2319, Escalante Cadastre,
containing an area of 12,527.19 square meters, more or less, within (30)
days from finality of this decision, and in case of non-compliance with this
Order, that the Clerk of Court of said court is ordered to execute the deed
on behalf of the vendor.  The decision is AFFIRMED insofar as the
dismissal of defendants-appellants' counterclaim is concerned.
Without pronouncement as to costs. 27
The Court of Appeals upheld private respondent's position that Exhibit "G" had all
the earmarks of a valid contract of sale, thus:
Exhibit G is the best proof that the P5,000.00 representing the purchase price of
the 1/11th share of Fortunato Ape was not paid by the vendee on April 11, 1971,
and/or up to the present, but that does not affect the binding force and effect of
the document.  The vendee having paid the vendor an advance payment of the
agreed purchase price of the property, what the vendor can exact from the
vendee is full payment upon his execution of the final deed of sale.  As is shown,
the vendee precisely instituted this action to compel the vendor Fortunato Ape to
execute the final document, after she was informed that he would execute the
same upon arrival of his daughter "Bala" from Mindanao, but afterwards failed to
live up to his contractual obligation (TSN, pp. 11-13, June 10, 1992).
It is not right for the trial court to expect plaintiff-appellant to pay the balance of
the purchase price before the final deed is executed, or for her to deposit the
equivalent amount in court in the form of consignation.  Consignation comes into
fore in the case of a creditor to whom tender of payment has been made and
refuses without just cause to accept it (Arts. 1256 and 1252, N.C.C.; Querino vs.
Pelarca, 29 SCRA 1).  As vendee, plaintiff-appellant Generosa Cawit de
Lumayno does not fall within the purview of a debtor.
We, therefore, find and so hold that the trial court should have found that exhibit
G bears all the earmarks of a private deed of sale which is valid, binding and
enforceable between the parties, and that as a consequence of the failure and
refusal on the part of the vendor Fortunato Ape to live up to his contractual
obligation, he and/or his heirs and successors-in-interest can be compelled to
execute in favor of, and to deliver to the vendee, plaintiff-appellant Generosa
Cawit de Lumayno a registerable deed of absolute sale involving his one-
eleventh (1/11th) share or participation in Lot No. 2319, Escalante Cadastre,
containing an area of 12,527.19 square meters, more or less, within 30 days from
finality of this decision, and, in case of non-compliance within said period, this
Court appoints the Clerk of Court of the trial court to execute on behalf of the
vendor the said document. 28
The Court of Appeals, however, affirmed the trial court's ruling on the issue of
petitioner and her children's right of redemption.  It ruled that Fortunato's receipt
of the Second Owner's Duplicate of OCT (RP) 1379 (RP-154 ([300]), containing
the adverse claim of private respondent and her husband, constituted a sufficient
compliance with the written notice requirement of Article 1623 of the Civil Code
and the period of redemption under this provision had long lapsed.
Aggrieved by the decision of the appellate court, petitioner is now before us
raising, essentially, the following issues: whether Fortunato was furnished with a
written notice of sale of the shares of his co-owners as required by Article 1623
of the Civil Code; and whether the receipt signed by Fortunato proves the
existence of a contract of sale between him and private respondent.
In her memorandum, petitioner claimed that the Court of Appeals erred in
sustaining the court a quo's pronouncement that she could no longer redeem the
portion of Lot No. 2319 already acquired by private respondent for no written
notice of said sales was furnished them.  According to her, the Court of Appeals
unduly expanded the scope of the law by equating Fortunato's receipt of Second
Owner's Duplicate of OCT (RP) 1379 (RP-154 ([300]) with the written notice
requirement of Article 1623.  In addition, she argued that Exhibit "G" could not
possibly be a contract of sale of Fortunato's share in Lot No. 2319 as said
document does not contain "(a) definite agreement on the manner of payment of
the price." Even assuming that Exhibit "G" is, indeed, a contract of sale between
29 
private respondent and Fortunato, the latter did not have the obligation to deliver
to private respondent a registrable deed of sale in view of private respondent's
own failure to pay the full purchase price of Fortunato's portion of Lot No. 2319. 
Petitioner is also of the view that, at most, Exhibit "G" merely contained a
unilateral promise to sell which private respondent could not enforce in the
absence of a consideration distinct from the purchase price of the land.  Further,
petitioner reiterated her claim that due to the illiteracy of her husband, it was
incumbent upon private respondent to show that the contents of Exhibit "G" were
fully explained to him.  Finally, petitioner pointed out that the Court of Appeals
erred when it took into consideration the same exhibit despite the fact that only
its photocopy was presented before the court.
On the other hand, private respondent argued that the annotation on the second
owner's certificate over Lot No. 2319 constituted constructive notice to the whole
world of private respondent's claim over the majority of said parcel of land. 
Relying on our decision in the case of Cabrera v. Villanueva, private respondent
30 
insisted that when Fortunato received a copy of the second owner's certificate,
he became fully aware of the contracts of sale entered into between his co-
owners on one hand and private respondent and her deceased husband on the
other.
Private respondent also averred that "although (Lot No. 2319) was not actually
partitioned in a survey after the death of Cleopas Ape, the land was partitioned in
a 'hantal-hantal' manner by the heirs.  Each took and possessed specific portion
or premises as his/her share in land, farmed their respective portion or premises,
and improved them, each heir limiting his/her improvement within the portion or
premises which were his/her respective share." Thus, when private respondent
31
and her husband purchased the other parts of Lot No. 2319, it was no longer
undivided as petitioner claims.
The petition is partly meritorious.
Article 1623 of the Civil Code provides:
The right of legal pre-emption or redemption shall not be exercised except within
thirty days from the notice in writing by the prospective vendor, or by the vendor,
as the case may be.  The deed of sale shall not be recorded in the Registry of
Property, unless accompanied by an affidavit of the vendor that he has given
written notice thereof to all possible redemptioners.
Despite the plain language of the law, this Court has, over the years, been
tasked to interpret the "written notice requirement" of the above-quoted
provision.  In the case Butte v. Manuel Uy & Sons, Inc., we declared that –
32 
In considering whether or not the offer to redeem was timely, we think that the
notice given by the vendee (buyer) should not be taken into account.  The text of
Article 1623 clearly and expressly prescribes that the thirty days for making the
redemption are to be counted from notice in writing by the vendor.  Under the old
law (Civ. Code of 1889, Art. 1524), it was immaterial who gave the notice; so
long as the redeeming co-owner learned of the alienation in favor of the stranger,
the redemption period began to run.  It is thus apparent that the Philippine
legislature in Article 1623 deliberately selected a particular method of giving
notice, and that method must be deemed exclusive. (39 Am. Jur., 237; Payne vs.
State, 12 S.W. 2(d) 528).  As ruled in Wampler vs. Lecompte, 150 Atl. 458 (affd.
in 75 Law Ed. [U.S.] 275) –
why these provisions were inserted in the statute we are not informed, but
we may assume until the contrary is shown, that a state of facts in respect
thereto existed, which warranted the legislature in so legislating.
The reasons for requiring that the notice should be given by the seller, and not by
the buyer, are easily divined.  The seller of an undivided interest is in the best
position to know who are his co-owners that under the law must be notified of the
sale.  Also, the notice by the seller removes all doubts as to fact of the sale, its
perfection; and its validity, the notice being a reaffirmation thereof, so that the
party notified need not entertain doubt that the seller may still contest the
alienation.  This assurance would not exist if the notice should be given by the
buyer.33
The interpretation was somehow modified in the case of De Conejero, et al. v.
Court of Appeals, et al. wherein it was pointed out that Article 1623 "does not
34 
prescribe a particular form of notice, nor any distinctive method for notifying the
redemptioner" thus, as long as the redemptioner was notified in writing of the
sale and the particulars thereof, the redemption period starts to run.  This view
was reiterated in Etcuban v. The Honorable Court of Appeals, et al., Cabrera v.
35 
Villanueva, Garcia, et al. v. Calaliman, et al., Distrito, et al. v. The Honorable
36  37 
Court of Appeals, et al., and Mariano, et al. v. Hon. Court of Appeals, et al.
38  39
However, in the case of Salatandol v. Retes, wherein the plaintiffs were not
40 
furnished any written notice of sale or a copy thereof by the vendor, this Court
again referred to the principle enunciated in the case of Butte.  As observed by
Justice Vicente Mendoza, such reversion is only sound, thus:
… Art. 1623 of the Civil Code is clear in requiring that the written notification
should come from the vendor or prospective vendor, not from any other person. 
There is, therefore, no room for construction.  Indeed, the principal difference
between Art. 1524 of the former Civil Code and Art. 1623 of the present one is
that the former did not specify who must give the notice, whereas the present
one expressly says the notice must be given by the vendor.  Effect must be given
to this change in statutory language.41
In this case, the records are bereft of any indication that Fortunato was given any Q         To the north, whose share was that which is adjacent to your
written notice of prospective or consummated sale of the portions of Lot No. 2319 husband's assumed partition?
by the vendors or would-be vendors.  The thirty (30)-day redemption period
under the law, therefore, has not commenced to run. A         I do not know what [does] this "north" [mean].

Despite this, however, we still rule that petitioner could no longer invoke her right COURT
to redeem from private respondent for the exercise of this right "presupposes the
existence of a co-ownership at the time the conveyance is made by a co-owner (To Witness)
and when it is demanded by the other co-owner or co-owners." The regime of
42 

co-ownership exists when ownership of an undivided thing or right belongs to Q         To the place from where the sun rises, whose share was that?
different persons. By the nature of a co-ownership, a co-owner cannot point to
43 

specific portion of the property owned in common as his own because his share A         The shares of Cornelia, Loreta, Encarnacion and Adela.
therein remains intangible. As legal redemption is intended to minimize co-
44 

ownership, once the property is subdivided and distributed among the co-
45 
Q         How could you determine their own shares?
owners, the community ceases to exist and there is no more reason to sustain
any right of legal redemption. 46
A         They were residing in their respective assumed portions.
In this case, records reveal that although Lot No. 2319 has not yet been formally Q         How about determining their respective boundaries?
subdivided, still, the particular portions belonging to the heirs of Cleopas Ape had
already been ascertained and they in fact took possession of their respective A         It could be determined by stakes and partly a row of banana
parts.  This can be deduced from the testimony of petitioner herself, thus: plantations planted by my son-in-law.
Q         When the plaintiffs leased the share of your husband, were there Q         Who is this son-in-law you mentioned?
any metes and bounds?
A         Narciso Ape.
A         It was not formally subdivided.  We have only a definite portion. 
(hantal-hantal)
ATTY. CAWIT
Q         This hantal-hantal of your husband, was it also separate and
(Continuing)
distinct from the hantal-hantal or the share of the brothers and sisters of
your husband?
Q         You said that there were stakes to determine the hantal-hantal of
your husband and the hantal-hantal of the other heirs, did I get you right?
A         Well, this property in question is a common property.
ATTY. TAN
 Admitted, Your Honor.
…
ATTY. CAWIT
Q         Mrs. Ape, in 1960, Cleopas Ape was already dead, is that correct?
A         Certainly, since he died in 1950.
Q         By the manifestation of your counsel that the entire land (13
hectares) of your father-in-law, Cleopas Ape, was leased to Generosa
Lumayno, is this correct?
A         No, it is only the assumed portion of my husband [which] was
leased to Generosa Lumayno.
Q         For clarification, it was only the share of your husband [which] was
leased to Generosa Cawit Lumayno?
A         Yes. 47
ATTY. CAWIT
Q         My question: is that portion which you said was leased by your
husband to the Lumayno[s] and which was included to the lease by your
mother-in-law to the Lumayno[s], when the Lumayno[s] returned your
husband['s] share, was that the same premises that your husband leased
to the Lumayno[s]?
A         The same.
Q         In re-possessing this portion of the land corresponding to the
share of your husband, did your husband demand that they should re-
possess the land from the Lumayno[s] or did the Lumayno[s] return them
to your husband voluntarily?
A         They just returned to us without paying the rentals.
COURT
Q        Was the return the result of your husband's request or just
voluntarily they returned it to your husband?
A        No, sir, it was just returned voluntarily, and they abandoned the
area but my husband continued farming. 48
Similarly telling of the partition is the stipulation of the parties during the pre-trial
wherein it was admitted that Lot No. 2319 had not been subdivided nevertheless,
"Fortunato Ape had possessed a specific portion of the land ostensibly
corresponding to his share." 49
From the foregoing, it is evident that the partition of Lot No. 2319 had already
been effected by the heirs of Cleopas Ape.  Although the partition might have
been informal is of no moment for even an oral agreement of partition is valid and
binding upon the parties. Likewise, the fact that the respective shares of Cleopas
50 
Ape's heirs are still embraced in one and the same certificate of title and have not
been technically apportioned does not make said portions less determinable and
identifiable from one another nor does it, in any way, diminish the dominion of
their respective owners. 51
Turning now to the second issue of the existence of a contract of sale, we rule
that the records of this case betray the stance of private respondent that
Fortunato Ape entered into such an agreement with her.
A contract of sale is a consensual contract, thus, it is perfected by mere consent
of the parties.  It is born from the moment there is a meeting of minds upon the
thing which is the object of the sale and upon the price. Upon its perfection, the
52 
parties may reciprocally demand performance, that is, the vendee may compel Q         Mr. Witness, that receipt is in English, is it not?
the transfer of the ownership and to deliver the object of the sale while the
vendor may demand the vendee to pay the thing sold. For there to be a
53 
A         Yes, sir.
perfected contract of sale, however, the following elements must be present:
consent, object, and price in money or its equivalent.  In the case of Leonardo v. Q         When you prepared that receipt, were you aware that Fortunato
Court of Appeals, et al., we explained the element of consent, to wit:
54 
Ape doesn't know how to read and write English?

The essence of consent is the agreement of the parties on the terms of the A         Yes, sir, I know.
contract, the acceptance by one of the offer made by the other.  It is the
concurrence of the minds of the parties on the object and the cause which Q         Mr. Witness, you said you were present at the time of the signing
constitutes the contract.  The area of agreement must extend to all points that the of that alleged receipt of P30.00, correct?
parties deem material or there is no consent at all.
A         Yes, sir.
To be valid, consent must meet the following requisites: (a) it should be
intelligent, or with an exact notion of the matter to which it refers; (b) it should be Q         Where, in what place was this receipt signed?
free and (c) it should be spontaneous.  Intelligence in consent is vitiated by error;
freedom by violence, intimidation or undue influence; spontaneity by fraud. 55
A         At the store.

In this jurisdiction, the general rule is that he who alleges fraud or mistake in a Q         At the time of the signing of this receipt, were there other person[s]
transaction must substantiate his allegation as the presumption is that a person present aside from you, your mother-in-law and Fortunato Ape?
takes ordinary care for his concerns and that private dealings have been entered
into fairly and regularly. The exception to this rule is provided for under Article
56 
A           In the store, yes, sir.
1332 of the Civil Code which provides that "[w]hen one of the parties is unable to
read, or if the contract is in a language not understood by him, and mistake or Q         When you signed that document of course you acted as witness
fraud is alleged, the person enforcing the contract must show that the terms upon request of your mother-in-law?
thereof have been fully explained to the former."
A         No, this portion, I was the one who prepared that document.
In this case, as private respondent is the one seeking to enforce the claimed
contract of sale, she bears the burden of proving that the terms of the agreement
Q         Without asking of (sic) your mother-in-law, you prepared that
were fully explained to Fortunato Ape who was an illiterate.  This she failed to do.
document or it was your mother-in-law who requested you to prepare that
While she claimed in her testimony that the contents of the receipt were made
document and acted as witness?
clear to Fortunato, such allegation was debunked by Andres Flores himself when
the latter took the witness stand.  According to Flores:

ATTY. TAN
A         She requested me to prepare but does not instructed (sic) me to
act as witness.  It was our opinion that whenever I prepared the
document, I signed it as a witness.
Q         Did it not occur to you to ask other witness to act on the side of
Fortunato Ape who did not know how to read and write English?
A         It occurred to me.
Q         But you did not bother to request a person who is not related to
your mother-in-law, considering that Fortunato Ape did not know how to
read and write English?
A         The one who represented Fortunato Ape doesn't know also how to
read and write English.  One a maid.
Q         You mentioned that there [was another] person inside the store,
under your previous statement, when the document was signed, there
[was another] person in the store aside from you, your mother-in-law and
Fortunato Ape, is not true?
A         That is true, there is one person, but that person doesn't know how
to read also.
… WHEREFORE, premises considered, the decision dated 25 March 1998 of the
Q         Of course, Mr. Witness, since it occurred to you that there was
need for other witness to sign that document for Fortunato Ape, is it not a
fact that the Municipal Building is very near your house?
A         Quite (near).
Q         But you could readily proceed to the Municipal Building and
request one who is knowledgeable in English to act as witness?
A         I think there is no need for that small receipt.  So I don't bother
myself to go.
Q         You did not consider that receipt very important because you said
that small receipt?
A         Yes, I know. 57
As can be gleaned from Flores's testimony, while he was very much aware of
Fortunato's inability to read and write in the English language, he did not bother
to fully explain to the latter the substance of the receipt (Exhibit "G").  He even
dismissed the idea of asking somebody else to assist Fortunato considering that
a measly sum of thirty pesos was involved.  Evidently, it did not occur to Flores
that the document he himself prepared pertains to the transfer altogether of
Fortunato's property to his mother-in-law.  It is precisely in situations such as this
when the wisdom of Article 1332 of the Civil Code readily becomes apparent
which is "to protect a party to a contract disadvantaged by illiteracy, ignorance,
mental weakness or some other handicap." 58
In sum, we hold that petitioner is no longer entitled to the right of redemption
under Article 1632 of the Civil Code as Lot No. 2319 had long been partitioned
among its co-owners. This Court likewise annuls the contract of sale between
Fortunato and private respondent on the ground of vitiated consent.
Court of Appeals is hereby REVERSED and SET ASIDE and the decision dated
11 March 1994 of the Regional Trial Court, Branch 58, San Carlos City, Negros
Occidental, dismissing both the complaint and the counterclaim, is hereby
REINSTATED.  No costs.
SO ORDERED.
G.R. No. L-4656            November 18, 1912RICARDO PARDELL Y CRUZ
and  real properties which, with their respective cash values, are as follows:
VICENTA ORTIZ Y FELIN DE PARDELL, plaintiffs-appellees, 
vs.
GASPAR DE BARTOLOME Y ESCRIBANO and  P6,000.00
MATILDE ORTIZ Y FELIN DE BARTOLOME, defendants-appellants.
Gaspar de Bartolome, in his own behalf.
B. Gimenez Zoboli, for appellees.
TORRES, J.:
This is an appeal by bill of exceptions, from the judgment of October 5, 1907,
whereby the Honorable Dionisio Chanco, judge, absolved the defendants
from the complaint, and the plaintiff from a counterclaim, without special
finding as to costs.
Counsel for the spouses Ricardo y Cruz and Vicente Ortiz y Felin de Pardell,
the first of whom, absent in Spain by reason of his employment, conferred
upon the second sufficient and ample powers to appear before the courts of
justice, on June 8, 1905, in his written complaint, alleged that the plaintiff,
Vicente Ortiz, and the defendant, Matilde Ortiz, are the duly recognized
natural daughters of the spouses Miguel Ortiz and Calixta Felin y Paula who
died in Vigan, Ilocos Sur, in 1875 and 1882, respectively; that Calixta Felin,
prior to her death, executed on August 17, 1876, a nuncupative will in Vigan
whereby she made her four children, named Manuel, Francisca, Vicenta, and
Matilde, surnamed Ortiz y Felin, her sole and universal heirs of all her
property; that, of the persons enumerated, Manuel died before his mother and
Francisca a few years after her death, leaving no heirs by force of law, and
therefore the only existing heirs of the said testatrix are the plaintiff Vicenta
Ortiz and the defendant Matilde Ortiz; that, aside from some personal
property and jewelry already divided among the heirs, the testatrix
possessed, at the time of the execution of her will, and left at her death the
1. A house of strong material, with the lot on which it is
built, situated on Escolta Street, Vigan, and valued at
2. A house of mixed material, with the lot on which it
1,500.00
stands, at No. 88 Washington Street, Vigan; valued at
3. A lot on Magallanes Street, Vigan; valued at 100.00
4. A parcel of rice land, situated in the barrio of San Julian,
60.00
Vigan; valued at
5. A parcel of rice land in the pueblo of Santa Lucia; valued
86.00
at
6. Three parcels of land in the pueblo of Candon; valued at 150.00
Total 7,896.00
That, on or about the first months of the year 1888, the defendants, without
judicial authorization, nor friendly or extrajudicial agreement, took upon
themselves the administration and enjoyment of the said properties and
collected the rents, fruits, and products thereof, to the serious detriment of the
plaintiffs' interest; that, notwithstanding the different and repeated demands
extrajudicially made upon Matilde Ortiz to divide the aforementioned
properties with the plaintiff Vicente and to deliver to the latter the one-half
thereof, together with one-half of the fruits and rents collected therefrom, the
said defendant and her husband, the self-styled administrator of the
properties mentioned, had been delaying the partition and delivery of the said
properties by means of unkept promises and other excuses; and that the
plaintiffs, on account of the extraordinary delay in the delivery of one-half of
said properties, or their value in cash, as the case might be, had suffered
losses and damages in the sum of P8,000. Said counsel for the plaintiffs
therefore asked that judgment be rendered by sentencing the defendants,
Gaspar de Bartolome, and Matilde Ortiz Felin de Bartolome, to restore and
deliver to the plaintiffs one-half of the total value in cash, according to
appraisal, of the undivided property specified, which one-half amounted
approximately to P3,948, or if deemed proper, to recognize the plaintiff
Vicenta Ortiz to be vested with the full and absolute right of ownership to the
said undivided one-half of the properties in question, as universal
testamentary heir thereof together with the defendant Matilde Ortiz, to
indemnify the plaintiffs in the sum of P8,000, for losses and damages, and to
pay the costs.
Counsel for the defendants, in his answer denied the facts alleged in
paragraphs 1, 4, 6, 7, and 8 thereof, inasmuch as, upon the death of the
litigating sister's brother Manuel, their mother, who was still living, was his heir
by force of law, and the defendants had never refused to give to the plaintiff
Vicente Ortiz her share of the said properties; and stated that he admitted the
facts alleged in paragraph 2, provided it be understood, however, that the
surname of the defendant's mother was Felin, and not Feliu, and that Miguel
Ortiz died in Spain, and not in Vigan; that he also admitted paragraph 3 of the
complaint, with the difference that the said surname should be Felin, and
likewise paragraph 5, except the part thereof relating to the personal property
and the jewelry, since the latter had not yet been divided; that the said jewelry
was in the possession of the plaintiffs and consisted of: one Lozada gold
chronometer watch with a chain in the form of a bridle curb and a watch
charm consisting of the engraving of a postage stamp on a stone mounted in
gold and bearing the initials M. O., a pair of cuff buttons made of gold coins,
four small gold buttons, two finger rings, another with the initials M. O., and a
gold bracelet; and that the defendants were willing to deliver to the plaintiffs,
in conformity with their petitions, one-half of the total value in cash, according
to appraisement, of the undivided real properties specified in paragraph 5,
which half amounted to P3,948.
In a special defense said counsel alleged that the defendants had never
refused to divide the said property and had in fact several years before
solicited the partition of the same; that, from 1886 to 1901, inclusive, there
was collected from the property on Calle Escolta the sum of 288 pesos,
besides a few other small amounts derived from other sources, which were
delivered to the plaintiffs with other larger amounts, in 1891, and from the
property on Calle Washington, called La Quinta, 990.95 pesos, which
proceeds, added together, made a total of 1,278.95 pesos, saving error or
omission; that, between the years abovementioned, Escolta, and that on
Calle Washington, La Quinta, 376.33, which made a total of 1,141.71, saving
error or omission; that, in 1897, the work of reconstruction was begun of the
house on Calle Escolta, which been destroyed by an earthquake, which work
was not finished until 1903 and required an expenditure on the part of the
defendant Matilde Ortiz, of 5,091.52 pesos; that all the collections made up to
August 1, 1905, including the rent from the stores, amounted to only
P3,654.15, and the expenses, to P6,252.32, there being, consequently, a
balance of P2,598.17, which divided between the sisters, the plaintiff and the
defendant, would make the latter's share P1,299.08; that, as shown by the
papers kept by the plaintiffs, in the year 1891 the defendant Bartolome
presented to the plaintiffs a statement in settlements of accounts, and
delivered to the person duly authorized by the latter for the purpose, the sum
of P2,606.29, which the said settlement showed was owing his principals,
from various sources; that, the defendant Bartolome having been the
administrator of the undivided property claimed by the plaintiffs, the latter
were owing the former legal remuneration of the percentage allowed by law
for administration; and that the defendants were willing to pay the sum of
P3,948, one-half of the total value of the said properties, deducting therefrom
the amount found to be owing them by the plaintiffs, and asked that judgment
be rendered in their favor to enable them to recover from the latter that
amount, together with the costs and expenses of the suit.
The defendants, in their counter claim, repeated each and all of the
allegations contained in each of the paragraphs of section 10 of their answer;
that the plaintiffs were obliged to pay to the administrator of the said property
the remuneration allowed him by law; that, as the revenues collected by the
defendants amounted to no more than P3,654.15 and the expenditures
incurred by them, to P6,252.32, it followed that the plaintiffs owed the
defendants P1,299.08, that is one-half of the difference between the amount
collected from and that extended on the properties, and asked that judgment
be therefore rendered in their behalf to enable them to collect this sum from
the plaintiffs, Ricardo Pardell and Vicenta Ortiz, with legal interest thereon
from December 7, 1904, the date when the accounts were rendered, together
with the sums to which the defendant Bartolome was entitled for the
administration of the undivided properties in question.
By a written motion of August 21, 1905, counsel for the plaintiffs requested
permission to amend the complaint by inserting immediately after the words
"or respective appraisal," fifth line of paragraph 5, the phrase "in cash in
accordance with the assessed value," and likewise further to amend the
same, in paragraph 6 thereof, by substituting the following word in lieu of the
petition for the remedy sought: "By reason of all the foregoing, I beg the court
to be pleased to render the judgment by sentencing the defendants, Gaspar
de Bartolome and Matilde Ortiz Felin de Bartolome, to restore and deliver to
the plaintiffs an exact one-half of the total vale of the undivided properties
described in the complaint, such value to be ascertained by the expert
appraisal of two competent persons, one of whom shall be appointed by the
plaintiffs and the other by the defendants, and, in case of disagreement
between these two appointees such value shall be determined by a third
expert appraiser appointed by the court, or, in a proper case, by the price
offered at public auction; or, in lieu thereof, it is requested that the court
recognize the plaintiff, Vicenta Ortiz, to be vested with a full and absolute right
to an undivided one-half of the said properties; furthermore, it is prayed that
the plaintiffs be awarded an indemnity of P8,000 for losses and damages, and
the costs." Notwithstanding the opposition of the defendants, the said
amendment was admitted by the court and counsel for the defendants were
allowed to a period of three days within which to present a new answer. An
exception was taken to this ruling.
The proper proceedings were had with reference to the valuation of the
properties concerned in the division sought and incidental issues were raised
relative to the partition of some of them and their award to one or the other of
the parties. Due consideration was taken of the averments and statements of
both parties who agreed between themselves, before the court, that any of
them might at any time acquire, at the valuation fixed by the expert judicial
appraiser, any of the properties in question, there being none in existence
excluded by the litigants. The court, therefore, by order of December 28,
1905, ruled that the plaintiffs were entitled to acquire, at the valuation
determined by the said expert appraiser, the building known as La Quinta, the
lot on which it stands and the warehouses and other improvements
comprised within the inclosed land, and the seeds lands situated in the
pueblos of Vigan and Santa Lucia; and that the defendants were likewise
entitled to acquire the house on Calle Escolta, the lot on Calle Magallanes,
and the three parcels of land situated in the pueblo of Candon.
After this partition had been made counsel for the defendants, by a writing of
March 8, 1906, set forth: That, having petitioned for the appraisement of the
properties in question for the purpose of their partition, it was not to be
understood that he desired from the exception duly entered to the ruling made
in the matter of the amendment to the complaint; that the properties retained
by the defendants were valued at P9,310, and those retained by the plaintiffs,
at P2,885, one-half of which amounts each party had to deliver to the other,
as they were pro indiviso properties; that, therefore, the defendants had to
pay the plaintiffs the sum of P3,212.50, after deducting the amount which the
plaintiffs were obliged to deliver to the defendants, as one-half of the price of
the properties retained by the former; that, notwithstanding that the amount of
the counterclaim for the expenses incurred in the reconstruction of the pro
indiviso property should be deducted from the sum which the defendants had
to pay the plaintiffs, the former, for the purpose of bringing the matter of the
partition to a close, would deliver to the latter, immediately upon the signing of
the instrument of purchase and sale, the sum of P3,212.50, which was one-
half of the value of the properties alloted to the defendants; such delivery,
however, was not to be understood as a renouncement of the said
counterclaim, but only as a means for the final termination of the pro
indiviso status of the property.
The case having been heard, the court on October 5, 1907, rendered
judgment holding that the revenues and the expenses were compensated by
the residence enjoyed by the defendant party, that no losses or damages
were either caused or suffered, nor likewise any other expense besides those
aforementioned, and absolved the defendants from the complaint and the
plaintiffs from the counterclaim, with no special finding as to costs. An
exception was taken to this judgment by counsel for the defendants who
moved for a new trial on the grounds that the evidence presented did not
warrant the judgment rendered and that the latter was contrary to law. This
motion was denied, exception whereto was taken by said counsel, who filed
the proper bill of exceptions, and the same was approved and forwarded to
the clerk of this court, with a transcript of the evidence.
Both of the litigating sisters assented to a partition by halves of the property
left in her will by their mother at her death; in fact, during the course of this
suit, proceedings were had, in accordance with the agreement made, for the
division between them of the said hereditary property of common ownership,
which division was recognized and approved in the findings of the trial court,
as shown by the judgment appealed from.
The issues raised by the parties, aside from said division made during the
trial, and which have been submitted to this court for decision, concern: (1)
The indemnity claimed for losses and damages, which the plaintiffs allege
amount to P8,000, in addition to the rents which should have been derived
from the house on Calle Escolta, Vigan; (2) the payment by the plaintiffs to
the defendants of the sum of P1,299.08, demanded by way of counterclaim,
together with legal interest thereon from December 7, 1904; (3) the payment
to the husband of the defendant Matilde Ortiz, of a percentage claimed to be
due him as the administrator of the property of common ownership; (4) the
division of certain jewelry in the possession of the plaintiff Vicenta Ortiz; and
(5) the petition that the amendment be held to have been improperly
admitted, which was made by the plaintiffs in their written motion of August
21, 1905, against the opposition of the defendants, through which admission
the latter were obliged to pay the former P910.50. lawphil.net
Before entering upon an explanation of the propriety or impropriety of the
claims made by both parties, it is indispensable to state that the trial judge, in
absolving the defendants from the complaint, held that they had not caused
losses and damages to the plaintiffs, and that the revenues and the expenses
were compensated, in view of the fact that the defendants had been living for
several years in the Calle Escolta house, which was pro indiviso property of
joint ownership.
By this finding absolving the defendants from the complaint, and which was
acquiesced in by the plaintiffs who made no appeal therefrom, the first issue
has been decided which was raised by the plaintiffs, concerning the
indemnity for losses and damages, wherein are comprised the rents which
should have been obtained from the upper story of the said house during the
time it was occupied by the defendants, Matilde Ortiz and her husband,
Gaspar de Bartolome.
Notwithstanding the acquiescence on the part of the plaintiffs, assenting to
the said finding whereby the defendants were absolved from the complaint,
yet, as such absolution is based on the compensation established in the
judgment of the trial court, between the amounts which each party is entitled
to claim from the other, it is imperative to determine whether the defendant
Matilde Ortiz, as coowner of the house on Calle Escolta, was entitled, with her
husband, to reside therein, without paying to her coowner, Vicenta Ortiz, who,
during the greater part of the time, lived with her husband abroad, one-half of
the rents which the upper story would have produced, had it been rented to a
stranger.
Article 394 of the Civil Code prescribes:
Each coowner may use the things owned in common, provided he
uses them in accordance with their object and in such manner as not
to injure the interests of the community nor prevent the coowners from
utilizing them according to their rights.
Matilde Ortiz and her husband occupied the upper story, designed for use as
a dwelling, in the house of joint ownership; but the record shows no proof
that, by so doing, the said Matilde occasioned any detriment to the interest of
the community property, nor that she prevented her sister Vicenta from
utilizing the said upper story according to her rights. It is to be noted that the
stores of the lower floor were rented and accounting of the rents was duly
made to the plaintiffs.
Each coowner of realty held pro indiviso exercises his rights over the whole
property and may use and enjoy the same with no other limitation than that he
shall not injure the interests of his coowners, for the reason that, until a
division be made, the respective part of each holder can not be determined
and every one of the coowners exercises, together with his other
coparticipants, joint ownership over the pro indiviso property, in addition to
his use and enjoyment of the same.
As the hereditary properties of the joint ownership of the two sisters, Vicenta
Ortiz, plaintiff, and Matilde Ortiz, defendant, were situated in the Province of
Ilocos Sur, and were in the care of the last named, assisted by her husband,
while the plaintiff Vicenta with her husband was residing outside of the said
province the greater part of the time between 1885 and 1905, when she left
these Islands for Spain, it is not at all strange that delays and difficulties
should have attended the efforts made to collect the rents and proceeds from
the property held in common and to obtain a partition of the latter, especially
during several years when, owing to the insurrection, the country was in a
turmoil; and for this reason, aside from that founded on the right of
coownership of the defendants, who took upon themselves the administration
and care of the properties of joint tenancy for purposes of their preservation
and improvement, these latter are not obliged to pay to the plaintiff Vicenta
one-half of the rents which might have been derived from the upper of the
story of the said house on Calle Escolta, and, much less, because one of the
living rooms and the storeroom thereof were used for the storage of some
belongings and effects of common ownership between the litigants. The
defendant Matilde, therefore, in occupying with her husband the upper floor of
the said house, did not injure the interests of her coowner, her sister Vicenta,
nor did she prevent the latter from living therein, but merely exercised a
legitimate right pertaining to her as coowner of the property.
Notwithstanding the above statements relative to the joint-ownership rights
which entitled the defendants to live in the upper story of the said house, yet
in view of the fact that the record shows it to have been proved that the
defendant Matilde's husband, Gaspar de Bartolome, occupied for four years a
room or a part of the lower floor of the same house on Calle Escolta, using it
as an office for the justice of the peace, a position which he held in the capital
of that province, strict justice, requires that he pay his sister-in-law, the
plaintiff, one half of the monthly rent which the said quarters could have
produced, had they been leased to another person. The amount of such
monthly rental is fixed at P16 in accordance with the evidence shown in the
record. This conclusion as to Bartolome's liability results from the fact that,
even as the husband of the defendant coowner of the property, he had no
right to occupy and use gratuitously the said part of the lower floor of the
house in question, where he lived with his wife, to the detriment of the plaintiff
Vicenta who did not receive one-half of the rent which those quarters could
and should have produced, had they been occupied by a stranger, in the
same manner that rent was obtained from the rooms on the lower floor that
were used as stores. Therefore, the defendant Bartolome must pay to the
plaintiff Vicenta P384, that is, one-half of P768, the total amount of the rents
which should have been obtained during four years from the quarters
occupied as an office by the justice of the peace of Vigan.
With respect to the second question submitted for decision to this court,
relative to the payment of the sum demanded as a counterclaim, it was
admitted and proved in the present case that, as a result of a serious
earthquake on August 15, 1897, the said house on Calle Escolta was left in
ruins and uninhabitable, and that, for its reconstruction or repair, the
defendants had to expend the sum of P6,252.32. This expenditure,
notwithstanding that it was impugned, during the trial, by the plaintiffs, was
duly proved by the evidence presented by the defendants. Evidence,
unsuccessfully rebutted, was also introduced which proved that the rents
produced by all the rural and urban properties of common ownership
amounted, up to August 1, 1905, to the sum of P3,654.15 which, being
applied toward the cost of the repair work on the said house, leaves a
balance of P2,598.17, the amount actually advanced by the defendants, for
the rents collected by them were not sufficient for the termination of all the
work undertaken on the said building, necessary for its complete repair and to
replace it in a habitable condition. It is therefore lawful and just that the
plaintiff Vicenta Ortiz, who was willing to sell to her sister Matilde for P1,500,
her share in the house in question, when it was in a ruinous state, should pay
the defendants one-half of the amount expanded in the said repair work,
since the building after reconstruction was worth P9,000, according to expert
appraisal. Consequently, the counterclaim made by the defendants for the
payment to them of the sum of P1,299.08, is a proper demand, though from
this sum a reduction must be made of P384, the amount of one-half of the
rents which should have been collected for the use of the quarters occupied
by the justice of the peace, the payment of which is incumbent upon the
husband of the defendant Matilde, as aforesaid, and the balance remaining,
P915.08, is the amount which the plaintiff Vicenta must pay to the defendants.
The defendants claim to be entitled to the collection of legal interest on the
amount of the counterclaim, from December 7, 1904. This contention can not
be sustained, inasmuch as, until this suit is finally decided, it could not be
known whether the plaintiffs would or would not be obliged to pay the sum
whatever in reimbursement of expenses incurred by the plaintiffs in the repair
work on the said house on Calle Escolta, whether or not the defendants, in
turn, were entitled to collect any such amount, and, finally, what the net sum
would be which the plaintiff's might have to pay as reimbursement for one-half
of the expenditure made by the defendants. Until final disposal of the case, no
such net sum can be determined, nor until then can the debtor be deemed to
be in arrears. In order that there be an obligation to pay legal interest in
connection with a matter at issue between the parties, it must be declared in a
judicial decision from what date the interest will be due on the principal
concerned in the suit. This rule has been established by the decisions of the
supreme court of Spain, in reference to articles 1108, 1109, and 1110 of the
Civil Code, reference on April 24, 1867, November 19, 1869, and February
22, 1901.
With regard to the percentage, as remuneration claimed by the husband of
the defendant Matilde for his administration of the property of common
ownership, inasmuch as no stipulation whatever was made in the matter by
and between him and his sister-in-law, the said defendant, the claimant is not
entitled to the payment of any remuneration whatsoever. Of his own accord
and as an officious manager, he administered the said pro indiviso property,
one-half of which belonged to his wife who held it in joint tenancy, with his
sister-in-law, and the law does not allow him any compensation as such
voluntary administrator. He is merely entitled to a reimbursement for such
actual and necessary expenditures as he may have made on the undivided
properties and an indemnity for the damages he may have suffered while
acting in that capacity, since at all events it was his duty to care for and
preserve the said property, half of which belonged to his wife; and in
exchange for the trouble occasioned him by the administration of his sister-in-
law's half of the said property, he with his wife resided in the upper story of
the house aforementioned, without payment of one-half of the rents said
quarters might have produced had they been leased to another person.
With respect to the division of certain jewelry, petitioned for by the defendants
and appellants only in their brief in this appeal, the record of the proceedings
in the lower court does not show that the allegation made by the plaintiff
Vicenta is not true, to the effect that the deceased mother of the litigant
sisters disposed of this jewelry during her lifetime, because, had she not done
so, the will made by the said deceased would have been exhibited in which
the said jewelry would have been mentioned, at least it would have been
proved that the articles in question came into the possession of the plaintiff
Vicenta without the expressed desire and the consent of the deceased
mother of the said sisters, for the gift of this jewelry was previously assailed in
the courts, without success; therefore, and in view of its inconsiderable value,
there is no reason for holding that the said gift was not made.
As regards the collection of the sum of P910.50, which is the difference
between the assessed value of the undivided real properties and the price of
the same as determined by the judicial expert appraiser, it is shown by the
record that the ruling of the trial judge admitting the amendment to the original
complaint, is in accord with the law and principles of justice, for the reason
that any of the coowners of a pro indiviso property, subject to division or sale,
is entitled to petition for its valuation by competent expert appraisers. Such
valuation is not prejudicial to any of the joint owners, but is beneficial to their
interests, considering that, as a general rule, the assessed value of a building
or a parcel of realty is less than the actual real value of the property, and this
being appraiser to determine, in conjunction with the one selected by the
plaintiffs, the value of the properties of joint ownership. These two experts
took part in the latter proceedings of the suit until finally, and during the
course of the latter, the litigating parties agreed to an amicable division of
the pro indiviso hereditary property, in accordance with the price fixed by the
judicial expert appraiser appointed as a third party, in view of the
disagreement between and nonconformity of the appraisers chosen by the
litigants. Therefore it is improper now to claim a right to the collection of the
said sum, the difference between the assessed value and that fixed by the
judicial expert appraiser, for the reason that the increase in price, as
determined by this latter appraisal, redounded to the benefit of both parties.
In consideration of the foregoing, whereby the errors assigned to the lower
court have been duly refuted, it is our opinion that, with a partial reversal of
the judgment appealed from, in so far as it absolves the plaintiffs from the
counterclaim presented by the defendants, we should and hereby do
sentence the plaintiffs to the payment of the sum of P915.08, the balance of
the sum claimed by the defendants as a balance of the one-half of the
amount which the defendants advanced for the reconstruction or repair of the
Calle Escolta house, after deducting from the total of such sum claimed by
the latter the amount of P384 which Gaspar de Bartolome, the husband of the
defendant Matilde, should have paid as one-half of the rents due for his
occupation of the quarters on the lower floor of the said house as an office for
the justice of the peace court of Vigan; and we further find: (1) That the
defendants are not obliged to pay one-half of the rents which could have been
obtained from the upper story of the said house; (2) that the plaintiffs can not
be compelled to pay the legal interest from December 7, 1904, on the sum
expanded in the reconstruction of the aforementioned house, but only the
interest fixed by law, at the rate of 6 per cent per annum, from the date of the
judgment to be rendered in accordance with this decision; (3) that the
husband of the defendant Matilde Ortiz is not entitled to any remuneration for
the administration of the pro indiviso property belonging to both parties; (4)
that, neither is he entitled to collect from the plaintiffs the sum of P910.50, the
difference between the assessed valuation and the price set by the expert
appraisal solicited by the plaintiffs in their amendment to the complaint; and,
(5) that no participation shall be made of jewelry aforementioned now in the
possession of the plaintiff Vicenta Ortiz. The said judgment, as relates to the
points appealed, is affirmed, in so far as its findings agree with those of this
decision, and is reversed, in so far as they do not. No special finding is made
regarding the costs of both instances. So ordered.
G.R. No. L-2812             October 18, 1906
LONGINOS JAVIER, plaintiff-appellee,  investigations into the question of ownership showed that there was
vs.
SEGUNDO JAVIER, ET AL., defendants-appellants.
Hartigan, Rohde and Gutierrez, for appellants.
Chicote, Miranda and Sierra, for appellee.
WILLARD, J.:
This case relates to the ownership of the lot, and of the house
standing thereon, No. 521 Calle Real, Malate, Manila. The court
below found that the land belonged to the plaintiff as administrator of
the estate of his father, Manuel Javier, and that the defendant Isabel
Hernandez and Manuel Ramon Javier, her son, are the owners of
the house standing on the lot. Judgment was rendered in favor of the
plaintiff for the possession of the property, but giving the defendants
a reasonable opportunity to remove the house.
The evidence sustains the findings of fact to the effect that the land
belongs to the estate represented by the plaintiff. There was
evidence to show that the land was, in 1860, in the possession of
Manuel Javier, the father of the defendant Segundo Javier, and that
since that time it has been occupied by his children and that no one
of these children ever made any claim to the ownership thereof, and
no one them ever occupied the property as owner.
Manuel Ramon Javier, testifying as a witness, made no claim to the
ownership of the land, and testified simply that the result of his
a great confusion in regard thereto.
The appellants claim that this action can not be maintained by the
administrator of the estate of Manuel Javier, but that it should be
maintained by all the heirs of the deceased. The right of judicial
administrator to recover the possession of real property belonging to
the estate of the deceased was recognized in the case of
Alfonso vs.Natividad 1 (4 Off. Gaz., 461; secs. 702, 703, and 704 of
the Code of Civil Procedure).
The appellants claim in their brief that they were possessors in good
faith, and by reason thereof and of the provisions of article 451 of the
Civil Code they can not be compelled to pay rent. It is to be
observed, however, that the appellants do not come within the
definition of a possessor in good faith found in article 433 of the Civil
Code cited in their brief. As said by the appellants themselves in that
brief, the two defendants, Segundo Javier and his wife, Isabel
Hernandez, always believed that the land did not belong to them but
belonged to the estate of Manuel Javier. It is to be observed,
moreover, that the judgment of the court does not allow any recovery
at all for the use or occupation of the house, and the recovery of rent
for the use of the land is limited to the time elapsed since April 24,
1904, when a demand was made upon the defendants for the
possession of the property.
It is also claimed by the appellants that, in accordance with article
453 of the Civil Code, they are entitled to be reimbursed for the
expenses of constructing the house. These expenses are only After the expiration of twenty days from the date hereof let judgment
allowed in accordance with the article cited by the appellants to a be entered in accordance herewith and ten days thereafter let the
possession in good faith, and the appellants were not such case remanded to the court below for proper action. So ordered.
possessors. lawphil.net

It is claimed finally by the appellants that the case should be decided

by an application of the principles of law meant that community of
property existed because the house was owned by the appellants
and the land by the plaintiff, the contention can not be maintained, for
such a condition of affairs does not create a community of property
within the meaning of that term as it is used in title 3, book 2 of the
Civil Code. If, on the other hand, it is itself belonged to the heirs of
Manuel Javier, and that two of the defendants were such heirs, it can
be said that the decision of the court below was fully as favorable to
the appellants as it could be.

Article 397 of the Civil Code relates to improvements made upon the
common property by one of the coowners. The burden of proof was
on the appellants to show that the house was built with the consent
of their cotenants. Even if a tacit consent was shown this would not
require such cotenants to pay for the house. (8 Manresa,
Commentaries on Civil Code, p. 396.)

The judgment of the court below allowed the appellants to remove

the house within a reasonable time. Whether this judgment was
erroneous as far as the appellee is concerned, we need not inquire,
because he has not appealed from the judgment.

The judgment of the court below is affirmed, with the costs of this
instance against the appellants.
G.R. No. L-7180             March 30, 1912
RAFAEL ENRIQUEZ, ET AL., plaintiffs-appellants,  said wall and was on the date of the filing of this complaint actually
vs.
A.S. WATSON & CO. LTD., defendant-appellee.
Rohde and Wright for appellants.  form and substance of the leased premises. The plaintiffs therefore prayed
W. A. Kincaid and Thomas L. Hartigan for appellee.
TRENT, J.:
This action was brought on April 12, 1911, by Rafael, Antonio, Trinidad,
Cayetano, Rosario, Gertrudis and Carmen Enriquez, and Antonio Gascon
(the latter being a minor, was represented by his guardian ad litem), as
owners and lessors of the property Nos. 72, 74, an 76 Escolta, city of
Manila, against A. S. Watson & Company, Ltd., as lessee of said property.
The plaintiffs allege that on June 22, 1906, Rafael, Carmen, Antonio, and
Trinidad Enriquez and Antonio Gascon executed to the defendant a
contract of mortgage and lease upon their participation in that property;
that on January 19, 1907, the other plaintiffs executed the same mortgage
and lease in favor of the defendant upon their interest in the same
property; that the said contract of lease has been terminated by the
payment by the plaintiffs to the defendant of the principal and interest of
the mortgage; that the said contract of lease is null and of no effect by
reason of the minority of the plaintiff Antonio Gascon, who is still a minor;
that the defendant, after June 22, 1906, made all the repairs necessary to
its business with the approval of the plaintiffs.
The plaintiffs further allege that there exists in that building a principal wall
about one meter in thickness and five meters in height, which extends
from the front of the building on the Escolta to the rear of the same; that
upon this wall rests the second floor of the building and that it is necessary
to safely maintain the building against earthquakes and typhoons; that on
11th of April, 1911, the defendant commenced to destroy and remove the
engaged in the destruction and removal of the same; and unless
restrained, would continue such destruction and removal, to the
irreparable injury of the plaintiffs; and that the defendant has varied the
that the defendant be prohibited from destroying and removing said wall;
that it be ordered to rebuild or replace that part which it had removed or
destroyed; and that the contract of lease be declared terminated and
rescinded.
On the 12th day of April, 1911, a preliminary injunction was issued by the
Court of First Instance, prohibiting and restraining the defendant from
continuing the removal and destruction of the wall in question, and
requiring it to appear in court on the 17th of that month to show cause why
such preliminary injunction should not be continued in force during the
pendency of this action.
On the 21st of that month, the defendant company answered, admitting
the allegations as to the ownership, mortgage, and lease, contained in
paragraphs 1, 2, an 3 of the complaint, and denying all the other
allegations therein. The defendant set up by way of special defense that
the wall in question was not a principal wall and did not extend the entire
length of the building; that said wall consisted of two shells filled with
mortar; that it was very old, deteriorated, and weak; that it was necessary,
in order to conserve the property, to remove said wall and to substitute it
with other material; that the wall in question is so located that it and its
subtenant are deprived of the use of a large part of the ground floor
fronting on the Escolta; that under Clause M of the contract of lease, the
defendant has the right to remove the wall, substituting in lieu thereof other
material, this being required by the business established in said building.
As a second special defense, the defendant admits the payment of the
mortgage by the plaintiffs, but alleges that the contract of lease is
independent of the mortgage contract, and that in satisfying the mortgage
of the defendant, the leasehold was specifically continued in force by all
parties.
As a third special defense, the defendant alleges that under the provisions
of Paragraph M of the contract of lease, it has expended the sum of over
sixty thousand pesos in improving the leased premises, and that on
making such expenditure it believed that it would be reimbursed by
enjoying the occupancy and subrenting of the premises.
On the 24th day of May, 1911, The Philippines Drug Company, a
corporation organized under the laws of the Philippine Islands, appeared
and asked leave to intervene as an interested party. This leave being
granted, it alleged that it is the actual owner of the pharmacy situated in
the leased premises, which formerly belonged to the defendant A. S.
Watson & Company, Ltd.; and that the defendant sublet to it the ground
floor of the leased property under the same conditions as are expressed in
the original contract of lease. The intervener further alleged, as did the
defendant, the necessity for the removal of the wall in question in order to
give it more space as required by its business, and that the removal of this
wall was authorized in Paragraph M of the original lease.
The trial court, after considering the evidence presented, making a
personal inspection of the leased premises, and hearing the arguments of
counsel for both parties, and after making its findings of facts and
conclusions of law, entered the following decree, to wit:
The court denies the rescission and declaration of nullity of the
contract of lease demanded by the plaintiffs, declaring such contract
of lease to be valid and subsisting and binding upon the parties
thereto, and upon the sublessee and intervener, the Philippine Drug
Company, and continues and declares final the preliminary writ of
injunction issued herein on the 12th day of April, 1911, but
modifying the same by permitting the defendant, A. S. Watson & Co.
Ltd., or the intervener, the Philippines Drug Company, to remove the
wall in question on the condition that they substitute it with properly
constructed concrete pillars and arches and such other work as may
be necessary as specified in Finding No. 17 of this judgment using
such temporary shoring and bracing as shall be necessary to insure
the safety of the building while such change is being made, which
work of removal and substitution may be commenced and carried
out upon the defendant or intervener, or both, filing herein an
undertaking in the sum of P10,000 with sureties approved by the
court, conditioned that it or they will reimburse the plaintiff lessors
for any and all damage that may be caused the leased premises by
a failure to take proper precautions and employ proper means to
safeguard and protect the building while such work of removal and
substitution is being accomplished.
From this judgment the plaintiffs appealed and make the following
assignment of errors:
1. The judgment is erroneous in not having declared rescinded the
contract of lease.
2. The judgment is erroneous in finding that the lessee and
sublessee have the right to change the form and substance of the
property leased.
3. The judgment is erroneous in finding that the lessee acted in
good faith in beginning the destruction of the wall. believing that
under the contract of lease it had the right to do this.
 4. The judgment is erroneous in not finding that the building is
weakened by the destruction of the wall.
5. The judgment is erroneous is so far as it modifies the preliminary
injunction.
6. The judgment is erroneous in not declaring perpetual the
preliminary injunction.
7. The judgment is erroneous in the dispositive part thereof relating
to the form and manner of making the modifications in the property
because it does not relate to anything at issue in the case.
8. The judgment is erroneous in the part relating to the form and
manner of making the modifications in the property because it does
not dispose of anything judicially, but, on the contrary, gives
permission to the opposing parties without commanding them to do
anything.
9. The judgment is erroneous because it does not order the repair of
the destruction made in the wall.
10. The judgment is erroneous because it declares valid the
contract of lease.
11. The court erred in denying the motion for a new trial.
All the questions in this case may be merged into one, and that is: Did the
trial court err in failing to declare the contract of lease voidable or
rescinded for one of two reasons: first, because of the minority of one of
the lessors; and second, because neither the defendant nor intervener had
authority under the contract of lease to remove the wall in question?
Plaintiffs do not now insist that the contract of lease was terminated on the
payment of the mortgage.
The eight plaintiffs each have a one-eight undivided interest in the leased
premises. The property was leased to the defendant for a period of twelve
years with permission to renew the lease for a further period of six years.
Seven of these plaintiffs were of age when they executed this contract of
lease. The other, Antonio Gascon, was a minor. At the time this contract of
lease was executed, the minor was represented by his judicial guardian.
The guardian having obtained authority or permission of the court to enter
into this contract of lease for and on behalf of his ward, the action of the
guardian in executing said contract was approved by the probate court.
Article 1548 of the Civil Code reads:
ART. 1548. The husband can not give in lease the property of the
wife, the father and guardian, that of the son or minor, and the
administrator of property, not having a special power, for a period
exceeding six years.
Article 398 of the same code provides:
ART. 398. The decision of a majority of the coowners as to the
management and better enjoyment of the thing owned in common
shall be obligatory.
There shall be no majority, unless the resolution has been adopted
by the coowners representing a majority of the interests which
constitute the object of the community.
Should there be no majority, or the resolution of the latter is
seriously prejudicial to the parties interested in the thing owned in
 common, the judge, at the instance of a party, shall decree what
may be proper, including the appointment of an administrator.
xxx      xxx      xxx
Counsel for the plaintiffs do not claim that the contract of lease which was
made for a period of more than six years is seriously prejudicial to the
interests of the minor, nor do they claim that said contract, of itself,
prejudices in any way the minor's interest.
The supreme court of Spain had under consideration this very question in
its resolution of April 26, 1907 (vol. 15 Jurisprudencia referente al Codigo
Civil, p. 194). In this case, a contract of lease for twelve years, executed
by one of the coowners of a certain property, one of whom was a minor,
had been presented for registry. Registry was refused for the reason,
among others, the majority of the coowners lacked authority to execute
said contract of lease. It was argued that the majority of the coowners, in
their enjoyment of the control of the management and administration of the
thing, acted in a representative or an administrative capacity in regard to
the minority. In determining the questions presented in this case, the court
said:
That for the administration and better enjoyment of the thing, the
decision of the majority of the coowners is obligatory, and that there
is no majority, unless the decision is made by the coowners, that
represent the majority of the interests that constitute the object of
the community, are general rules laid down in article 398 of the Civil
Code, governing community of property.
The contract of lease is by its nature and purpose one of the means
of enjoyment or development of nonfungible property, and, in this
concept, may be agreed upon by the coowners of a thing, provided
always that they represent a majority of the interests of the
community, the decision being obligatory for all by virtue of the
powers that are expressly conferred upon them by virtue of said
provisions.
If, indeed, the contract of lease of real property for a period
exceeding six years, or in which the rents are advanced for more
than three years, constitutes a real right inasmuch as it is subject to
registry, according to the decision of this court in various
resolutions, this principle of law, which has been applied in the
sense of not permitting the execution of such a contract to those
who administer the goods of others, and especially to prevent
agents from executing such a contract without special authority for
the same, in accordance with the provisions of article 1713 of the
said code, is not opposed to the principle of law laid down in said
article 398; taking into consideration the legal character and peculiar
attributes of community of property, which makes it convenient and
necessary that those who have less interest therein should submit
to those who have a greater participation therein, in all that refers to
the exploitation and ordinary enjoyment of the same, the rule is
established that the enjoyment of the common thing must be subject
to the will of the majority, without distinguishing and limiting the
period or the form of the enjoyment; therefore, the contract of lease
being the same in essence whatever the term for which it is
constituted, such a contract must be considered as an act of mere
administration, and subject to contract by the decision of the
majority of coowners, the other interested parties always having the
right to appeal to the court when the decision is gravely prejudicial
to them according to the provisions of the same article 398.
This doctrine was recognized by the supreme court in its decision of
June 30, 1897, and of the 8th of July, 1902, and by this court in its
 resolution of May 29, 1906, considering as included in the powers
conferred in said article, leases exceeding a period of six years,
decided upon by a majority of the coowners of a property possessed
in common.
The contract of lease of the property referred to in these
proceedings, having been agreed upon by the coowners
representing the majority of the interests in the same, they were
possessed of sufficient legal capacity by virtue of what is already
said, and it is, therefore, subject to registry.
In the execution of the contract of lease under consideration, the minor
was, as we have said, represented by his judicial guardian, who not only
asked the court for and obtained authority to execute this contract of lease
on behalf of this ward, but his act, after the execution, was approved by
the court. The interest of the minor has not been prejudiced by reason of
the fact that this contract of lease was executed for a term of more than six
years. Under the doctrine laid down by the supreme court of Spain, it
would appear that this contract of lease would be valid if the minor had not
been represented by his guardian. The minor having been represented by
his duly appointed guardian, there can be no question about the validity of
this contract of lease.
The principal question is whether or not the appellees have violated the
terms of the contract of lease and thereby entitle appellants to have said
contract of lease rescinded.
Before considering the contract in question, it might be well to examine the
right of the lessee to make changes in the property leased, if there were
no express stipulation therefor in the contract.
Article 1573 of the Civil Code provides:
A lessee shall have, with regard to the useful and voluntary
improvements, the same rights which are granted the usufructuary.
Article 487 of the same code reads:
The usufructuary may make on the property which is the object of
the usufruct any improvements, useful or for recreation, which he
may deem proper, provided he does not change its form or
substance; but he shall have no right to be indemnified therefor. He
may, however, remove said improvements, should it be possible to
do so without injury to the property.
The result is that the lessee may make any improvements, useful or for
recreation, in the property leased that he may deem proper, provided that
he does not change its form or substance. The same obligation is
expressed in articles 487 and 489, and in so far as the form of the thing is
concerned, in article 1557. According to article 487 and 1557, the
obligations of the lessee and the lessor are the same in the absence of
any agreement to the contrary, in so far as the conservation of the form of
the thing leased is concerned. This question of conserving the form and
substance of the thing leased or the object of the usufruct has been
passed upon at various times by the courts.
In the case of the Manila Building and Loan Association and Peñalosa (13
Phil. Rep., 575), this court said:
If the object leased were a house, it is evident that the lessee might
effect such improvements for use, recreation or comfort as would
not change its form or substance as he deemed fit; he could build a
tower or luxurious pavilion more expensive than the house itself, to
which, at the expiration of the lease, the owner of the house would
have no right whatever, unless the lessee could not remove the
 same without injury to the house to which it was attached as an
improvement, excepting of course the right to cause the same to be
demolished so that the house might be returned to him in the same
condition that the lessee received it; . . . .
The supreme court of Spain, in its judgment of June 24, 1905, volume 14
of the Jurisprudencia referente al Codigo Civil, page 38, had under
consideration the interpretation of this phrase in a case in which the lessee
asked for the rescission of the lease because the lessor had altered the
form of the thing leased. The facts were that the lessee had leased the
house for the period of ten years, and at the time of the execution of the
contract of lease, there was a vacant lot next to the house and 13 windows
of the house lease overlooked this lot. Thereafter the owner of the
adjacent lot constructed an edifice thereon which gave rise to litigation
between the lessor and the owner of the adjacent lot, which litigation was
settled by the lessor and the owner of the said lot, the latter being
permitted to cover the windows of the leased property, and the former
allowed to open in the partition wall of the latter's garden two large and two
small windows of specified dimensions, under certain conditions. The
construction was continued, with the result that such construction
effectually closed and covered the 13 windows and the balcony, depriving
the property leased of the light previously received by the same. For the
purpose of obtaining better light, many changes were made and much
work done in the interior of the leased house, the final result being that
some of the rooms of the house were darkened completely, others
receiving poor and indirect ventilation. The court, in refusing to rescind the
contract of lease, said:
It does not appear that there is error committed by the trial court in its
decision as set out in the first assignment of error, because, even though
the noncompliance by the lessor of his obligations, among which was that
of maintaining the lessee in the peaceable enjoyment of the lease during
the period of the contract, and the prohibition to change the form of the
thing leased, confers upon the lessee the right to ask for the rescission of
the contract, such circumstances are not found in the present case since
the trial court says that the appellant was not disturbed in the possession
of the house, the object of the lease, nor was he impeded from using the
premises as a tavern, for which use he had intended the same, and these
findings of fact have not been legally impugned.
The decision also states that the changes made in the property did not
change the form of the same in the sense and concept covered by article
1557 of the Civil Code. Notwithstanding that the findings on the point
contain legal reasoning now corresponding to this court, the interpretation
of this article can not be made in general and absolute terms not defined
by law, because as a circumstantial fact depending in each case on the
peculiar conditions of the thing leased, there exists no reason in the case
at bar upon which to base the conclusion that the trial court erred, having
in mind that the particular use of the same as a tavern was not interfered
with, as held in its decision, and also the fact set out in its decision, and
not contradicted in any manner, namely, that the changes and alterations
made were beneficial, tolerated by Sabay, and consented to by the person
to whom Sabay transferred his rights under the contract of sublease.
The two last reasons given for the rescission of the contract lack
force and weight, because, in accordance with the sense and
concept of article 1561 of the said Civil Code, the property must be
returned at the expiration of the term of lease with the changes
made in the same, and these do not involve, as has already been
said, any variation or change of form or any interruption of the
peaceable enjoyment of the lease and because it does not appear
from the facts that the trial court accepted as proven that the
appellant suffered disturbance of his rights for which he had been
compelled to become responsible to the lessor, and he, not having
 done so, there is no legal reason to apply, as is attempted, the
provisions of article 1560 of the code referred to.
Manresa, in volume 10 of his commentaries on the Civil Code, pages 534,
535, [488, 489] says:
The question was discussed very energetically as to whether the
lessee of a city property leased for a stated industrial purpose, could
install machinery propelled by steam in substitution for the utilities,
implements, and contrivances which were used before the general
adoption of such machinery. The installation of modern machinery
and its ordinary operation, at once caused a deterioration to the
estate much greater than the use of the former apparatus, besides
the accidents which might occur and which produce very great
damage to the thing leased. Therefore, based upon this
consideration, it was said that the lessee could not make this
substitution because it implied a bad and prejudicial use of the thing
and therefore very different from that diligence of a good father in its
use to which he had obligated himself.
As Laurent says, there arise here two contrary interests and two
diverse tendencies. The owner has in view the stability of the
structure and fears every innovation which may compromise its
preservation. The manufacturer finds himself obliged to keep
abreast of the development of his industry, to make changes, if he
does not wish to perish, and his interests demand that he put into
practice the inventions which increase his profits, even though the
edifice may suffer. The owner commences to resist, adds this writer,
but competition forces the manufacturer, and the owner ends by
yielding, if he does not wish to remain unproductive.
This is the essence of the policy pursued by foreign decisions,
where the question has been so much more important than in our
own country. Until the year 1860, judicial decisions were inclined to
favor the owner of the property. But from that year the rights of
industry have been recognized with ever increasing clearness. It
has been considered that from the moment the lease is drawn up, in
which is stated the industrial use to which the lessee desires to put
the thing leased, the claims of the industry to which the object of the
lease is to be devoted have been determined, and the lessee can
not be condemned to a stagnation which would be uneconomical,
and, these facts admitted, the logical consequences must
necessarily follow: the lessor can not prevent the lessee from
adopting the improvements of his industry; the acts of the parties in
making the stipulations in the lease will do the rest.
The lessee may make on the property which is the object of the lease any
improvements, useful or for recreation, which may be deem proper,
provided he does not change its form or substance. He is obligated to use
the thing leased as a diligent father of a family would, and to return the
thing leased at the expiration of the lease in the same condition in which
he received it, except what may have been destroyed or impaired by time
or unavoidable reasons. (Arts. 1573, 487, 1555, and 1561, Civil Code.)
The supreme court of Spain recognizes the fact that no ironclad rules for
the interpretation of these articles can be laid down which would govern all
cases. These provisions must be applied according to the facts and
circumstances of each case. Manresa is inclined to the view that industrial
development should be taken into consideration in the determination of
questions involved in the application of said articles. The provisions of
these articles are general rules of law, and, like most general propositions,
are not to be accepted without limitation or reserve, under any and all
circumstances. They must be interpreted in the light of the growth of
civilization and varying conditions. Certain obligations are placed upon the
lessee to prevent lawless acts which would result in waste or destruction.
The importance of these obligations to the lessor cannot be denied.
Especially are they valuable and essential to the protection of a landlord
who rents his premises for a short time. Suppose he has fitted his
premises for certain uses and leases them for such uses for a short term.
He would then be entitled to receive them back at the end of the term still
fitted for those same uses, and he may well say that he does not choose
to have a different property returned to him from that which he leased,
even if it be found to be of greater value of reason of the change. But
suppose that a usufructuary who has a life interest in an estate should
receive as such a hemp hacienda, and that in a short time this hacienda
should become permanently unproductive through disease or death of the
plants, or by change of the market conditions, and the land to have
become far more valuable, by reason of new conditions, as rice or sugar
land. Is the usufructuary to be compelled to preserve or renew the useless
hemp fields and forego the advantages to be derived from a different use?
Or, suppose a life tenant should change warehouses into dwelling houses
on the ground that by change of conditions the demand for warehouses
had ceased and the property had become worthless, whereas it would be
very valuable when fitted for dwelling houses. Would this be such a
change in the form or substance of the thing leased as to forfeit the
interest of the tenant? Again, a lessee for a long term received, during very
prosperous times, a hemp hacienda upon which were constructed large
and valuable storehouses in which were the old style hand-presses, but
new. Later, on account of a complete change in conditions due to the
market and the method of pressing hemp by steam, the lessee allowed the
buildings and presses, which had become useless, to fall into decay rather
than incur the expense of repair. Would a prudent owner of the fee, if in
possession, have done the same? These questions naturally suggest their
own answer. The radical and permanent changes of surrounding
conditions must always be an important consideration in the determination
of such questions. The interpretation that "if the man is too long for the bed
his head should be chopped off rather than enlarge the old bed or
purchase a new one" should not be given those provisions of the Civil
Code regarding the obligations of lessees.
Let us now turn to the contract of lease and the evidence presented. In this
contract of lease there are two clauses which deserve careful
consideration.
Clause K:
All the expenditures for cleaning, painting, and repairs which the
building may require and all that is ordered done by the Board of
Health, will be at the expense of the lessee, A. S. Watson and
Company, Limited.
Clause M:
The lessee may make such works on the building as the business
which it has established therein requires, provided always that
neither the strength nor the value of the said building is impaired.
It will be noted that the word "reparaciones" is used in Clause K, and the
word "obras" in Clause M. Counsel for the appellants insist that the word
"obras" as thus used means the same as "reparaciones." The
Encyclopedic Dictionary of the Castilian Language (Diccionario
Enciclopedico de la Lengua Castellana) defines these words as follows:
OBRA:
1. A thing made or produce by an agent.
xxx      xxx      xxx
4. A building in course of construction.
REPARACION:
1. The action an effect of repair. (Reparar-verb: To mend, to
straighten, or correct the damage suffered by something.)
The New Dictionary of the Castilian Language (Nuevo Diccionario de la
Lengua Castellana) defines the same words as follows:
OBRA:
Anything made, created, or produced by the some power or agent.
Any construction of architecture, masonry, or carpentry, applied
especially to buildings in course of construction or repair, as: "There
are three jobs in Calle Hortaleza. Everything in my house is
disordered and topsy-turvy because of the work."
REPARACION:
The act or effect of repairing or of being repaired. The fact of the
repairing, in the sense of renewing or improving something.
The only synonym given in this work for "obra" is produccion."
It may be that repairs are included in the definition of "obras."
Nevertheless, it cannot be denied that the word "obras," used in its general
sense, has a far more comprehensive meaning than just simple repairs.
Sections 290 and 293 of the Code of Civil Procedure, provide:
SEC. 290. Terms of a writing presumed to be in their ordinary
sense. — The terms of a writing are presumed to have been used in
their primary and general acceptation, but evidence is nevertheless
admissible that they have a local, technical or otherwise peculiar
signification, and were so used and understood in the particular
instance, in which case the agreement must be construed
accordingly.
SEC. 293. Where intention of different parties to instrument not the
same. — When the terms of an agreement have been intended in a
different sense by the different parties to it, that sense is to prevail
against either party in which he supposed the other understood it;
and when different constructions of a provision are otherwise
equally proper, that is to be taken which is the most favorable to the
party in whose favor the provision was made.
In the case at bar no proof has been presented tending to show that the
word "obras" was used in a technical or special sense, or that it has a local
signification, and therefore, it must be considered as used in its ordinary
and general sense. If there exist any ambiguity and if the meaning that the
appellants give to the word "obras" is proper, the meaning given by the
appellees is likewise proper, consequently, we must apply the rule laid
down in section 293, above quoted, for the reason that the stipulation
contained in Clause M of the contract is a stipulation in the favor of the
lessee.
Counsel for appellants insist that in order to define the meaning of the
word "obras" we should refer to the articles of the Civil Code that deal with
contracts of lease. This might be done in those cases where the intention
of the parties could not be ascertained from either the contract itself or
from the conduct of the parties in executing and carrying out the same. In
the case at bar, all that is necessary is to give a fair and reasonable
interpretation to the meaning of clause M of the contract of lease. This
clause contains certain limitations on the exercise of the right to make
alterations (obras): first, the alterations (obras) proposed to be made must
be required by the business; second, such alterations must not injure the
solidity of the building; and third, the same must not prejudice the value of
the building. But it is insisted, as we have said, that the word "obras" in
clause M must be interpreted to mean "reparaciones" as used in Clause K.
Clause K imposes upon the lessee the obligation to make the repairs
required by the building for its conservation. If the words have exactly the
same meaning and were intended by the parties to mean the same thing,
then the insertion of clause M would only have had the effect of giving to
the lessee the right to keep the building in repair, when, as a matter of fact,
Clause K made it its duty to repair the building. As we understand the
contract, in Clause K a duty is imposed upon the lessee, while in Clause M
a right is given to it. In Clause K the word "reparaciones" is used in
connection with the duty, and in clause M the word "obras" is used in
connection with the right. If the contracting parties had intended that the
two words be used in the same sense they would have so stated, or they
would have eliminated Clause M entirely as being useless, as it is
meaningless to say that when a duty is imposed upon a person it is
necessary to expressly give him a right to perform that duty. If he did not
have the right to perform that duty, the same would not have been
imposed upon him. The stipulations in Clause M are expressed as clearly
and explicitly as they could have been under the circumstances. At the
time of the execution of this contract of lease, it was impossible to know
what would be the requirements of the business during its term of eighteen
years. It was likewise impossible for the parties to have then agreed in
detail as to the changes that might be necessary. The lessee wished to
reserve to itself the right to make the changes in the property required by
its business, and none of the parties could anticipate what might be
required during this long period of time. This right was conferred upon the
lessee by the lessors, but the right, as we have said, had its limitations:
that is, the lessee could not prejudice the solidity or the value of the
building without breaking the contract.
The question was raised as to whether the conduct of the parties in
carrying out the terms of this lease has been such as to show or indicate
their intention or understanding of the meaning of the word "obras" when
they inserted this word in Clause M. Upon this point the trial court said:
That under and by virtue of the said contract of lease, the defendant
company entered into possession of the leased premises, making
therein alterations and repairs at a cost of some P60,000, including
the removal of the whole front of the building facing upon the
Escolta and replacing the same upon the new street line,
established by the city of Manila, with a modern and a decorative
commercial front; the removal of the heavy tiled roof and the
replacing of the same with a light galvanized roof; the removal of
various walls and replacing the same with steel columns and
girders; the tearing down and rebuilding of a part of the building and
the adding thereto of a camarin upon the Pasig River; and the
building of a river wall and reclamation of a considerable amount of
ground; and which alteration included the removal of that part of the
wall in question which extended from point A to point G on the plan
of the premises introduced in evidence as defendant's Exhibit No. 9,
all of which repairs, alterations and improvements, were made with
final approval of the plaintiffs, although after much controversy and
many disagreements, and to which alterations and improvements
the plaintiffs contributed the sum of about eighteen hundred pesos
paid by the city of Manila for the expropriation for street purposes of
the small strip along the front of the building heretofore mentioned.
These findings of fact are, we think, fully supported by the evidence. The
result is that these important and material changes, which include the
removal of a great portion of the very wall in question, were made by virtue
of the contract of lease itself. It is true that the owners objected at first, but
afterwards consented in accordance with the provisions of Clause M, and
not by reason of any subsequent specific agreement. After all, that the
defendants have the right under the law and the provisions of Clause M of
the contract of lease to remove the wall in question, cannot be seriously
doubted, provided always that neither the solidity of the building nor its
value be impaired.
Let us now determine whether or not a removal of the wall in question (1)
will prejudice either the solidity of the building or its value, and (2) if it is
required by the business of the defendants.
The walls which the defendants and interveners propose to remove and
substitute in lieu thereof other material is composed of two outer shells of
Guadalupe or Meycauayan stone, filled with lime, plaster and rubber, the
two shells being bound together by stones laid transversely, the whole wall
was so formed being about one meter thick and extending from the front of
the building a distance of about 38 meters toward the Pasig River. This
wall is about four meters high, extending from the ground floor to the
second floor. The joists and girders supporting the second floor are
embedded in said wall. There are two actual openings in this wall, with
three doors and an arch, which have been walled up. The wall is in good
condition, except that part removed by the defendants before the
commencement of this action, and said wall is one of the longitudinal
walls, all being approximately of the same thickness. The wall in question
divides the east half of the ground floor of the building approximately in its
center and sustains a part of the weight of the second floor of this east
half, together with a partition forming one of the divisions of the second
floor. But it does not sustain any of the weight of the roof, this weight being
distributed by means of trusses to the outer walls of the building. About
one-third of this wall, or that part nearest the Pasig has already been
removed, and the removal of the same was approved by the owners. The
interveners now propose to remove the remaining two-thirds and
substitute in lieu thereof other material, using the material of the old wall
for filing up certain openings in other walls of the building. This old wall,
according to the experts, offers very little resistance to lateral shocks or
motions. Practically all of the resistance of lateral shocks or motions is
furnished by the cross-walls. Again, according to the opinion of the experts
the building will be greatly strengthened against earthquakes or unusual
shocks or force, and its durability increased by the removal of the
remaining part of the wall in question and the substitution in lieu thereof of
reinforced concrete posts or pillars and arches, taking the material and
filing, as the interveners propose to do, the openings in some of the other
walls. Such proposed removal, if carried out, will practically double the
floor space of the drug store and greatly increase its rental value, and also
greatly increase the actual value of the building. This extra floor space is
absolutely essential to the business carried on in this part of the building.
The foregoing are substantially the findings of the trial court, based upon
the testimony of expert witnesses, and an ocular inspection of the
premises. These facts show clearly and beyond a question that the
removal of the remainder of this old wall will not only prejudice the solidity
of the building, but greatly increase its solidity and durability, as, according
to the opinion of the experts, the reinforced concrete posts and arches will
offer greater resistance to earthquakes or bagious than the old wall; that
both the intrinsic and rental value of the building will be increased; and that
this removal is required by the business.
Lastly, counsel for the appellants say:
The plaintiffs contend that a contract is only binding on the parties
thereto as provided in article 1257 of the Civil Code and that,
although a sublessee is bound to the lessor as provided in articles
1551 and 1552 yet this is not an obligation arising out of contract
 but one founded in law and the relation of the parties to property,
and that the lessor has no obligation towards the sublessee as such
at all either legal or of contract and that therefore even if by clause
(m) of the lease of the plaintiffs had the obligation to permit the
defendant to take out the wall to suit the convenience of its own
business, that such an obligation was purely personal between the
parties to the lease and since the contract of lease is not assignable
this right could not be transferred by the defendant or made use of
by the defendant for the benefit of other persons.
A lease may be of things, works, or services. (Art. 1542, Civil Code.) In a
lease of things, one of the parties thereto binds himself to give to the other
the enjoyment or use of a thing for a specified time and for a fixed price.
(Art. 1543, idem.)
Article 1550 of the Civil Code reads:
Should it not be expressly forbidden in the contract of the lease of
things, the lessee may sublet the whole or a part of the things
leased without prejudice to his liability for the fulfillment of the
contract executed with the lessor.
There is nothing in the contract of lease in the case at bar which even
tends to prohibit the lessee from subletting the whole or any part of the
leased premises. The lessee's right to do this cannot be questioned, and
his subtenant is not only obligated to carry out his part of the contract with
the sublessor, but he is also bound to the lessors for all of the acts which
refer to the use and preservation of the premises, in the manner agreed
upon between the lessors and the lessee. The lessors can compel the
subtenant to comply with these conditions. This sets up the privity between
the lessors and the subtenant. But it is said that the contract of lease in
question is not assignable. This contract is an ordinary one, under which
the lessee as we have said, has a perfect right to sublet the whole of the
premises for the entire time. Should the lessee do this, would it not amount
to an assignment of the contract of the lease? The power of assignment is
incident to the state of every lessee of things, unless he has been
restrained by the terms of his lease. In the contract of lease in question,
the lessors, by Clause M, agree that the lessee may make such changes
as its business requires, provided that neither the solidity nor the value of
the building is prejudiced. This is a specific right granted to the lessee.
This right is a part of the lease itself and affects directly the thing leased. It
is not, therefore, a personal obligation between the lessors and the lessee.
We are, therefore, of the opinion that the judgment appealed from should
be affirmed with costs against the appellant.
Johnson, Carson and Moreland, JJ., concur. 
Arellano, C.J. and Mapa, J., dissent.
Separate Opinions
TORRES, J., dissenting:
Notwithstanding the respect the opinion of the majority deserves, I regret
that I can not agree with the foregoing decision in so far as it follows the
defendant, A. S. Watson & Co., or the intervener, The Philippines Drug
Company, to remove the wall in question on condition that they replace it
by pillars and arches of reinforced concrete, with the remaining
circumstance set forth.
In my opinion this point in the judgment appealed from should be reversed
by sustaining the injunction issued by the court and ordering the destroyed
wall to be restored to the form and condition it previously had. The
destruction of this wall amounts to a change in form and an essential
modification of the condition of solidity the property had before it was
removed. The best proof that it was not expedient to remove the wall in
question is the fact that immediately, and as the wall was being torn down,
the building was propped up and another wall erected to replace the one
taken out.
Article 1557 of the Civil Code prescribes:
The lessor can not change the form of the thing leased.
Article 1551 thereof says:
The lessee must return the estate at the expiration of the lease in
the same condition in which he receive it, except what may have
been destroyed or impaired by time or by unavoidabe reasons.
In the contract of the lease appears the following Clause M:
The leasing company may perform on the property the work
required by the business it has established therein, provided that the
solidity of the building is not damaged or its value affected.
The defendants proceeded to tear down said wall in violation of the
provisions of law and the agreement in the contract of the lease, for the
clause quoted does not authorize them to destroy the central wall of the
building, even with the intention of replacing it by another wall of concrete,
and in doing so they changed in the form of the building and performed
work not authorized in the contract, and which essentially affects the
solidity of the building.
Even though said clause provides that the leasing company may perform
the work required by the business it has established therein, yet the same
clause says: provided that the solidity of the building is not damaged or its
value affected. By tearing down the wall in question and changing its form
as the central support of the whole weight of the second story and of the
framework of the roof, the defendant company undoubtedly performed
work which essentially affects the solidity and value of the structure.
The convenience of the tenant, not admitted by the owner, is no legal
reason or cause whereby the former may alter the condition of the
property, and as there was no express stipulation that said wall might be
torn down, it is impossible to assert that the leasing company has not
violated the contract and the legal provision which protects the rights of the
owner, who should in no sense be at the mercy of the caprice and
convenience of the tenant, for that would give rise to a genuine
transgression upon the right property.
One of the obligations of the lease under Article 1555 is to used the thing
leased like a careful householder by applying it to the use agreed upon,
and, in default of agreement, to the use that may be inferred from the
nature of the thing leased according to the custom of the land. There is no
custom in this country whereby a tenant may without permission of the
owner tear down in this way a central wall that upholds a building.
In a country like this, where the ground is frequently shaken by an
enormous internal force, causing violent earthquakes, it is customary to
build for the solidity of the structure walls of size and extent such as that of
the property in question, which was destroyed by the defendant party by
and for itself. In spite of the defects ascribed thereto, it is sufficient to
assert that said wall has withstood all the violent earthquakes that have
occurred during the latter half of the past century, and yet it was arbitrarily
torn down without the knowledge and consent of the owners and in spite of
an injunction of the court, not because it was not solid but because it was
thick and wide and took up a good deal of space in the place which the
defendant company wished to use to its full extent. A concrete wall, with
which the destroyed stone was replaced, would be more convenient for
the interests of the defendant because it would take up less room, but the
solidity of concrete walls in this land of earthquakes has not yet received
the stamp of conclusive test in one of those violent phenomena, happily
not yet experienced since concrete buildings have been erected here. But
if the will of the parties is the law in contracts not contrary to law, morality
and public order, and in cases not foreseen by the interested parties, the
rules and provisions of law that protect the reciprocal rights and duties of
the contracting parties, the leasing company unquestionably had no right
to tear down the wall in question and replace it by another of concrete
without the consent and against the express objection of the owners of the
property.

Therefore, I think that the first part of the judgment appealed from should
be affirmed and that the second part, referring to the authorization therein
conferred upon the defendant party to remove the wall in question and
replace it by another of concrete with the conditions set forth, ought to be
reserved and the defendant party ordered to replace the destroyed wall in
the form and condition it formerly had, with the costs against the defendant
party.
G.R. No. L-32047             November 1, 1930
MANUEL MELENCIO, MARIANO MELENCIO, PURA MELENCIO, and
CARIDAD MELENCIO, plaintiffs-appellants,  of court the sum of P20.20 every month as rent thereof and that as a
vs.
DY TIAO LAY, defendant-appellee.
Jose V. Valladolid, Jose P. Melencio and Camus and Delgado for appellants.
Araneta and Zaragoza for appellee.
OSTRAND, J.:
On August 1,1927, the plaintiffs, Manuel, Mariano, Pura and Caridad
Melencio, brought the present action against the defendant-appellee, Dy Tiao
Lay for the recovery of the possession of a parcel of land situated in the town
of Cabanatuan, Nueva Ecija, and containing an area of 4,628.25 square
meters. The plaintiffs further demand a monthly rental of P300 for the use and
occupation of the parcel from May, 1926, until the date of the surrender to
them of the possession thereof; and that if it is found that the said appellee
was occupying the said parcel of land by virtue of a contract of lease, such
contract should be declared null and void for lack of consent, concurrence,
and ratification by the owners thereof.
In his answer, the defendant pleaded the general issue, and as special
defenses, he alleged in substance that he was occupying the said tract of
land by virtue of a contract of lease executed on July 24,1905, in favor of his
predecessor in interest, by Ruperta Garcia, Pedro Melencio, Juliana
Melencio, and Ruperta Melencio under the terms specified therein, and which
contract is still in force; that Liberata Macapagal, the mother of the plaintiffs,
in her capacity as judicial administratrix of the estate of Ramon Melencio, one
of the original coowners of the parcel of land in question, actually recognized
and ratified the existence and validity of the contract aforesaid by virtue of the
execution of a public document by her on or about November 27,1920, and
by collecting from the assignees of the original lessee the monthly rent for the
premises until April 30, 1926; and that said defendant deposits with the clerk
counterclaim, he seeks the recovery of P272 for goods and money delivered
by him to the plaintiffs.
The plaintiffs filed a reply to the answer alleging, among other things, that
Ruperta Garcia was not one of the coowners of the land in question; that the
person who signed the alleged contract of lease never represented
themselves as being the sole and exclusive owners of the land subject to the
lease as alleged by the defendant in his answer; that the said contract of
lease of July 24,1905, is null and void for being executed without the
intervention and consent of two coowners, Ramon Melencio and Jose P.
Melencio, and without the marital consent of the husbands of Juliana and
Ruperta Melencio; that the lessee has repeatedly violated the terms and
conditions of the said contract; and that Liberata Macapagal, in her capacity
as administratrix of the property of her deceased husband, could not lawfully
and legally execute a contract of lease with the conditions and terms similar
to that of the one under consideration, and that from this it follows that she
could not ratify the said lease as claimed by the defendant.
On January 21,1928, Liberata Macapagal Viuda de Melencio, duly appointed
and qualified as administratrix of the estate of her deceased husband, Ramon
Melencio, filed a petition praying to be allowed to join the plaintiffs as party to
the present case, which petition was granted in open court on January
31,1928. Her amended complaint of intervention of February 14,1928,
contains allegations similar to those alleged in the complaint of the original
plaintiffs, and she further alleges that the defendant-appellee has occupied
the land in question ever since November, 1920, under and by virtue of a
verbal contract of lease for a term from month to month. To this complaint of
intervention, the defendant-appellee filed an answer reproducing the
allegations contained in his answer reproducing the allegations contained in
his answer to the complaint of the original plaintiffs and setting up prescription
as a further special defense.
It appears from the evidence that the land in question was originally owned by
one Julian Melencio. He died prior to the year 1905 leaving his widow,
Ruperta Garcia, and his five children, Juliana, Ramon, Ruperta, Pedro R.,
and Emilio Melencio. Emilio Melencio also died before 1905, his son Jose P.
Melencio, then a minor, succeeding to his interest in the said parcel of land by
representation. A question has been raised as to whether the land was
community property of the marriage of Julian Melencio and Ruperta Garcia,
but the evidence is practically undisputed that Ruperta Garcia in reality held
nothing but a widow's usufruct in the land.
On July 24,1905, Ruperta Garcia, Pedro R. Melencio, Juliana Melencio, and
Ruperta Melencio executed a contract of lease of the land in favor of one Yap
Kui Chin, but neither Jose P. Melencio nor Ramon Melencio were mentioned
in the lease. The term of the lease was for twenty years, extendible for a like
period at the option of the lessee. The purpose of the lessee was to establish
a rice mill on the land, with the necessary buildings for warehouses and for
quarters for the employees, and it was further stipulated that at the
termination of the original period of the lease, or the extension therof, the
lessors might purchase all the buildings and improvements on the land at a
price to be fixed by experts appointed by the parties, but that if the lessors
should fail to take advantage of that privilege, the lease would continue for
another and further period of twenty years. The document was duly
acknowledged but was never recorded with the register of deeds. The original
rent agreed upon was P25 per month, but by reason of the construction of a
street through the land, the monthly rent was reduced of P20.20.
Shortly after the execution of the lease, the lessee took possession of the
parcel in question and erected the mill as well as the necessary buildings, and
it appears that in matters pertaining to the lease, he dealt with Pedro R.
Melencio, who from 1905 until his death in 1920, acted as manager of the
property held in common by the heirs of Julian Melencio and Ruperta Garcia.
The original lessee, Yap Kui Chin, died in 1912, and the lease, as well as the
other property, was transferred to Uy Eng Jui who again transferred it to Uy
Eng Jui & Co., an unregistered partnership. Finally the lease came into the
hands of Dy Tiao Lay, the herein defendant-appellee.
Ramon Melencio died in 1914, and his widow, Liberata Macapagal, was
appointed administratrix of his estate. In 1913 the land which includes the
parcel in question was registered under the Torrens system. The lease was
not mentioned in the certificate of title, but it was stated that one house and
three warehouses on the land were the property of Yap Kui Chin.
In 1920 the heirs of Julian Melencio made an extrajudicial partition of parts of
the inheritance, and among other things, the land here in question fell to the
share of the children of Ramon Melencio, who are the original plaintiffs in the
present case. Their mother, Liberata Macapagal, as administratrix of the
estate of her deceased husband, Ramon, collected the rent for the lease at
the rate of P20.20 per month until the month of May,1926, when she
demanded of the lessee that the rent should be increased to P300 per month,
and she was then informed by the defendant that a written lease existed and
that according to the terms thereof, the defendant was entitled to an
extension of the lease at the original rental. The plaintiffs insisted that they
never had any knowledge of the existence of such a contract of lease and
maintained that in such case the lease was executed without their consent
and was void. It may be noted that upon careful search, a copy of the contract
of lease was found among the papers of the deceased Pedro R, Melencio.
Thereafter the present action was brought to set aside the lease and to
recover possession of the land. Upon trial, the court below rendered judgment
in favor of the defendant declaring the lease valid and ordering the plaintiffs to
pay the P272 demanded by the defendant in his counterclaim. From this
judgment the plaintiffs appealed.
The contention of the appellants is that the aforesaid contract of lease (Exhibit
C) is null and void for the following reasons:
1. That Exhibit C calls for an alteration of the property in question and
therefore ought to have been signed by all the coowners as by law
required in the premises.
2. That the validity and fulfillment of the said agreement of lease were
made to depend upon the will of the lessee exclusively.
3. That the said contract of lease being for a term of over six years, the
same is null and void pursuant to the provision of article 1548 of the
Civil Code.
4. That the duration of the same is unreasonably long, thus being
against public policy.
5. That the defendant-appellee and his predecessors in interest
repeatedly violated the provisions of the agreement.
The first proposition is based on article 397 of the Civil Code which provides
that "none of the owners shall, without the consent of the others, make any
alterations in the common property even though such alterations might be
advantageous to all." We do not think that the alterations are of sufficient
importance to nullify the lease, especially so since none of the coowners
objected to such alterations until over twenty years after the execution of the
contract of lease. The decision of this court in the case of Enriquez vs. A. S.
Watson and Co. (22 Phil., 623), contains a full discussion of the effect of
alterations of leased community property, and no further discussion upon the
point need here be considered.
The second proposition is likewise of little merit. Under the circumstances, the
provision in the contract that the lessee, at any time before he erected any
building on the land, might rescind the lease, can hardly be regarded as a
violation of article 1256 of the Civil Code.
The third and fourth proposition are, in our opinion, determinative of the
controversy. The court below based its decision principally on the case of
Enriquez vs. A.S. Watson & Co. (22 Phil., 623), and on the resolution of
the Direccion General de los Registros dated April 26,1907. (Jurisprudencia
Civil, vol.107, p. 222.) An examination of the Enriquez case will show that it
differs materially from the present. In that case all of the coowners of a lot and
building executed a contract of lease of the property for the term of eighteen
years in favor of A. S. Watson & Co.; one of the owners was minor, but he
was represented by his legally appointed guardian, and the action of the latter
in signing the lease on behalf of the minor was formally approved by the
Court of First Instance. In the present case only a small majority of the
coowners executed the lease here in question, and according to the terms of
the contract the lease might be given a duration of sixty years; that is widely
different from a lease granted by all of the coowners for a term of only
eighteen years.
The resolution of April 26,1907, is more in point. It relates to the inscription or
registration of a contract of lease of some pasture grounds. The majority of
the coowners of the property executed the lease for the term of twelve years
but when the lessees presented the lease for inscription in the registry of
property, the registrar denied the inscription on the ground that the term of the
lease exceeded six years and that therefore the majority of the coowners
lacked authority to grant the lease. The Direccion General de
los Registros held that the contract of lease for a period exceeding six years,
constitutes a real right subject to registry and that the lease in question was
valid.
The conclusions reached by the Direccion General led to considerable
criticism and have been overruled by a decision of the Supreme Court of
Spain dated June 1,1909. In that decision the court made the following
statement of the case (translation):
The joint owners of 511 out of 1,000 parts of the realty denominated El
Mortero, leased out the whole property for twelve years to Doña
Josefa de la Rosa; whereupon the Count and Countess Trespalacios
together with other coowners brought this suit to annul the lease and,
in view of the fact that the land was indivisible, prayed for its sale by
public auction and the distribution of the price so obtained; they alleged
that they neither took part nor consented to the lease; that the decision
of the majority of part owners referred to in article 398 of the Code,
implies a common deliberation on the step to be taken , for to do
without it, would, even more than to do without the minority, be nothing
less than plunder; and that, even if this deliberation were not absolutely
necessary, the power of the majority would still be confined to
decisions touching the management and enjoyment of the common
property, and would not include acts of ownership, such as a lease for
twelve years, which according to the Mortgage Law gives rise to a real
right, which must be recorded, and which can be performed only by the
owners of the property leased.
The part owners who had executed the contract prayed in
reconvention that it held valid for all the owners in common, and if this
could not be, then for all those who had signed it, and for the rest, for
the period of six years; and the Audiencia of Caceres having rendered
judgment holding the contract null and void, and ordering the sale of
the realty and the distribution of the price, the defendants appealed
alleging under the third and fourth assignments of error, that the
judgment was a violation of article 398 of the Civil Code, which is
absolute and sets no limit of time for the efficacy of the decisions
arrived at by the majority of the part owners for the enjoyment of the
common property, citing the decisions of June 30th, 1897, of July
8th,1902, and of October 30th, 1907; under the fifth assignments of
error the appellants contended that in including joint owners among
those referred to in said article, which sets certain limits to the power of
leasing, in the course of the management of another's property, the
court applied article 1548 unduly; and by the seventh assignments of
error, they maintained the judgment appealed from also violated article
1727, providing that the principal is not bound where his agent has
acted beyond his authority; whence it may be inferred that if in order to
hold the contract null and void, the majority of the part owners are
looked upon as managers or agents exercising limited powers, it must
at least be conceded that in so far as the act in question lies within the
scope of their powers, it is valid; the contract cannot be
annulled in toto.
The Supreme Court held that the appeal from the decision of the Audiencia of
Caceres was not well taken and expressed the following consideranda:
Considering that, although as a rule the contract of lease constitutes
an act of management, as this court has several times held, cases may
yet arise, either owing to the nature of the subject matter, or to the
period of duration, which may render it imperative to record the
contract in the registry of property, in pursuance of the Mortgage Law,
where the contract of lease may give rise to a real right in favor of the
lessee, and it would then constitute such a sundering of the ownership
as transcends mere management; in such cases it must of necessity
be recognized that the part owners representing the greater portion of
the property held in common have no power to lease said property for
a longer period than six years without the consent of all the coowners,
whose propriety rights, expressly recognized by the law, would by
contracts of long duration be restricted or annulled; and as under
article 1548 of the Civil Code such contracts cannot be entered into by
the husband with respect to his wife's property, by the parent or
guardian with respect to that of the child or ward, and by the manager
in default of special power, since the contract of lease only produces
personal obligations, and cannot without the consent of all persons
interested or express authority from the owner, be extended to include
stipulations which may alter its character, changing it into a contract of
partial alienation of the property leased;
Considering that, applying this doctrine to the case before us, one of
the grounds upon which the judgment appealed from, denying the
validity of the lease made by the majority of the part owners of the
pasture land El Mortero is based, must be upheld; to wit, that the
period of duration is twelve years and the consent of all the coowners
has not been obtained; hence, the third, fourth. and fifth assignments
of error are without merit; firstly, because article 398 of the Civil Code,
alleged to have been violated, refers to acts decided upon by the
majority of the part owners, touching the management and enjoyment
of the common property, and does not contradict what we have stated
in the foregoing paragraph; secondly because although the cases cited
were such as arose upon leases for more than six years, yet this point
was not raised on appeal, and could not therefore be passed upon;
and thirdly, because it cannot be denied that there is an analogy
between a manager without special authority, who is forbidden by
article 1548 of the Code to give a lease for a period of over six years,
and the joint owners constituting a legal majority, who may decide to
lease out the indivisible property, with respect to the shares of the
other coowners; and having come to the conclusion that the contract is
null and void, there is no need to discuss the first two assignments of
error which refer to another of the bases adopted, however
erroneously, by the trial court;
Considering that the sixth assignment of error is without merit,
inasmuch as the joint ownership of property is not a sort of agency and
cannot be governed by the provisions relating to the latter contract;
whence, article 1727 of the Code alleged to have been violated, can no
more be applied, than, the question of the validity or nullity of the lease
being raise, upon the contract as celebrated, it would be allowable to
modify a posteriorisome one or other of the main conditions stipulated,
like that regarding the duration of the lease, for this would amount to a
novation; still less allowable would it be to authorize diverse periods for
the different persons unequally interested in the fulfillment.
Taking into consideration articles 398,1548, and 1713 of the Civil Code and
following the aforesaid decision of June 1,1909, we hold that the contract of
lease here in question is null and void.
It has been suggested that by reason of prescription and by acceptance of
benefits under the lease, the plaintiffs are estopped to question the authority
for making the lease.To this we may answer that the burden of proof of
prescription devolved upon the defendant and that as far as we can find,
there is no proof that Ramon Melencio and his successors ever had
knowledge of the existence of the lease in question prior to 1926. We cannot
by mere suspicion conclude that they were informed of the existence of the
document and its terms; it must be remembered that under a strict
interpretation of the terms of the lease, the lessees could remain indefinitely
in their tenancy unless the lessors could purchase the mill and the buildings
on the land. In such circumstances, better evidence than that presented by
the defendant in regard to the plaintiff's knowledge of the lease must be
required.
The fact that Ramon during his lifetime received his share of the products of
land owned in common with his coheirs is not sufficient proof of knowledge of
the existence of the contract of lease when it is considered that the land in
question was only a small portion of a large tract which Pedro R. Melencio
was administering in connection with other community property.
The appealed judgment as to the validity of the lease is therefore reversed,
and it is ordered that the possession of the land in controversy be delivered to
the intervenor Liberata Macapagal in her capacity as administratrix of the
estate of the deceased Ramon Melencio. It is further ordered that the
defendant pay to said administratrix a monthly rent of P50 for the occupation
of the land from May 1st, 1926, until the land is delivered to the administratrix.
The sum of P272 demanded by the defendant in his counterclaim may be
deducted from the total amount of the rent due and unpaid. The building
erected on the land by the defendant and his predecessors in interest may be
removed by him, or otherwise disposed of, within six months from the
promulgation of this decision. Without costs. So ordered.
Avanceña, C.J., , Malcolm, Johns, Romualdez, and Villa-Real, JJ., concur.
Jonhson, J., I reserve my vote.
Separate Opinions
STREET and VILLAMOR, JJ., dissenting:
Although the name of Ramon Melencio, father of the plaintiffs in this action,
was not in fact signed to the lease in question, and the lease did not even so
much as mentioned him as one of the coowners, the undersigned are
nevertheless of the opinion that Ramon Melencio, and his children after him,
are estopped from questioning said lease, for the reason that, from 1905 to
the time of his death in 1914, Ramon Melencio enjoyed the benefits of the
lease, as did his widow and children after him until May,1926, when the
widow repudiated the lease, as a preliminary to the bringing of this action by
the plaintiffs. By their acceptance of the benefits of the lease over so long a
period, the persons now questioning the lease and their father, their
predecessor in interest, are estopped to question the authority for making the
lease. This estopped cures the want of the special power contemplated in
article 1548 of the Civil Code.
In addition to the estopped arising from the acceptance of benefits under the
lease, an estoppel further arises from the fact that Ramon Melecio, during the
years following the execution of the lease, stood by and saw the lessees
place upon the property improvements of a value of more than P100,000, for
which reason, also, equity will not permit the lease to be disturbed to the
prejudice of the lessee.
To exhibit the foregoing proposition fully, it is necessary to understand the
facts relative to the controversy. These are substantially as follows:
The land covered by the original lease, having an area of some 6,000 square
meters, is located in the town of Cabanatuan and was formerly the property of
one Julian Melencio, married to Ruperta Garcia. After the death of Julian
Melencio, his widow, Ruperta Garcia, united in 1905, with three of their
children, namely, Pedro R., Juliana, and Ruperta, in executing, in favor of Yap
Kui Chin, as lessee, the lease which is the subject of this controversy. The
consideration mentioned in the lease was the sum P25 per month. On August
2,1907, at the request of Pedro R. Melencio, another document was drawn
changing the superficial configuration of the leased land but preserving its
original extension of 6,000 square meters. This change was made for the
purpose of giving Pedro R. Melencio space upon which to construct a house
on the part segragated from the original mass. In 1915 a new street, passing
through the leased property, was opened in Cabanatuan; and Pedro R.
Melencio, acting for the lessors, reduced the monthly rent from P25 to P20, to
correspond with the reduction in the area of the leased land resulting from the
occupation of part of it by the street.lawphil.net
At the time the lease was made there was living one Ramon Melencio, son of
Julian Melencio and Ruperta Garcia and brother of the heirs who signed the
lease. Also before this time there had been another brother named Emilio
Melencio. But Emilio was dead and his only surviving son, Jose P. Melencio,
was a small boy then under the tutelage of his uncle Pedro R. Melencio. The
lease referred to is not and never has been questioned by any of the persons,
or descendants of the persons, who signed the instrument. Neither has it
been questioned by Jose P. Melecio, son of Emilio. Nor was the lease
questioned in life by Ramon Melencio, who died in 1914; and the only
persons raising a question as to its validity are four of the five children of
Ramon, the same being the plaintiffs in this case.
By series of changes, not, necessary to be here recounted, the rights of the
original lessee became vested in the defendant, Dy Tiao Lay. At the time of
the institution of the present action the defendant, Dy Tia lay, had a rice mill,
consisting of valuable buildings and improvements, constructed on the land,
and valued, it is alleged, at P160,000; but during the time of the pendency of
this action a fire occurred which seems to have destroyed the mill and
improvements with the exception of a camarin valued at some P15,000.
In November, 1920, the children of Julian Melencio and Ruperta Garcia
executed a partial extra-judicial partition of the properties belonging to their
father's estate; and the land covered by this lease was assigned to Liberata
Macapagal, widow of Ramon Melencio, in right of her deceased husband
Ramon and as representative of the children. It will be noted that the land
encumbered by the lease was thus assigned precisely to the family of the
deceased brother, Ramon Melencio, who at the same time was the sole living
brother whose name was not signed to the lease.
At the time the lease was executed, Pedro R. Melencio was in fact the
manager of the common ancestral estate belonging to himself and his
brothers and sisters; and he continued as such until 1920. After the partition,
or partial partition, of the fraternal estate in 1920, Liberata Macapagal Viuda
de Ramon Melencio succeeded to the office of manager, or guardian, of the
estate of her children, at least with respect to the parcel now in question.
It will be noted as an important fact that every dollar due as rent from the
leased land was paid by the lessee, from the time when rent first became
due, and these payments were made first to Pedro R. Melencio as manager
of the common estate pertaining to himself and his brothers and sisters, until
1920, when the rents began to be paid to Liberata Macapagal in the right to
herself and children. In April, 1926, Liberata ceased to collect the rent, and in
May, thereafter, she refused to accept payment of the monthly instalment of
rent then due. For this reason the defendant has been making a consignation
of the corresponding rent for the benefit of the lessors in the office of the
provincial treasurer. No question is made that during the life of Ramon
Melencio he received his share of the monthly rental from the property in
question; nor is there any question that thereafter his widow and children
received their share of the same until the property was assigned in partition to
Liberata Macapagal and her children, after which they received all of the rent,
until Liberata refused longer to accept it.
The undersigned concur in the proposition that the lease signed in 1905 was
not per se binding on Ramon Melencio, first, because he was not a party to
that lease; and, secondly, because the making of a lease for twenty years,
extendible under certain circumstances for a second and third period of equal
duration, was an act of rigorous alienation and not a mere act of management
and enjoyment such as is contemplated in article 398 of the Civil Code.
(Sentencia, June 1,1909; Ruiz, Cod. Civ., vol. 4. p. 502) Neither do we pause
to argue that the contract might have been considered valid under the
doctrine of this court stated in Eleizegui vs. Manila Lawn Tennis Club (2 Phil.,
309). At any rate the lease did not purport to bind Ramon, and he was not
even mentioned therein as one of the coowners.
But it is to be noted that none of the parties signatory to the lease have at any
time sought to abrogate the contract; and some of the children of Ramon
Melencio only are before the court as actors in this case seeking to set the
contract aside. Under these circumstances the undersigned are of the opinion
that Ramon Melencio was at the time of his death bound by the lease, from
his having participated for years in the benefits derived from the contract, and
that his children, who derive their rights from him, are likewise bound.
It is well established that an estate in land may be virtually transferred from
one man to another without a writing, by the failure of the owner to give notice
of his title to the purchaser under circumstances where the omission to do so
would operate as a fraud (Kirk vs. Hamilton, 102 U. S., 68,77; 26 Law. ed.,
79). This doctrine is so universally accepted that a bare reference to general
treatises on the subject of estopped is necessary (10 R.C. L., p.694; 21 C. J.,
pp.1154, 1160, 1206, 1207, 1209); and the estoppel is as effective with
respect to a lease as it is with respect to a deed of absolute conveyance (21
C.J., 1213).
In the case before us Ramon Melencio lived in the town where the land
covered by this lease was located, and every time he went abroad he must
have seen the valuable improvements which the original lessee, or his
successors in interest, were erecting and had erected upon part of the
common ancestral estate. But from the date the lease was executed until his
death Ramon Melencio did nothing except to receive such portion of the rent
as pertained to him. Under these circumstances, even if his brother Pedro R.
Melencio had conveyed the property away by deed of absolute alienation,
Ramon would have been legally bound. It is but natural that so long as he
lived after the lease was made, no complaint was ever registered by him
against its validity.
And if Ramon Melencio was estoppel, of course his children are estopped, for
their rights are of a purely derivative character. In the case before us a period
of more than twenty-one years elapsed between the time the lease was made
and the date when it was first called in question by the widow.
But Manuel Melencio, the oldest of the heirs who are suing in this case, says
that he did not know the terms of the lease until a short while before this
action was instituted, when he called upon the widow of his uncle Pedro and
found a copy of the lease after searching among his uncle's papers. It is not
surprising that this plaintiff, who was hardly more than a baby when the lease
was made, should not have known about the terms of the contract. But it was
all the time safely kept among the papers of his uncle Pedro, who, as already
stated, was manager of the common estate of the brothers and sisters.
Ramon Melencio is now dead and of course cannot speak as to whether he
knew the terms of the agreement. But he should be presumed to have known
its terms, because he was enjoying benefits from month to month under it,
and he had the means of knowledge immediately at hand, namely by
recourse to a trusted brother in whose custody the contract was preserved. In
addition to this, we note that when partition was effected about the year 1920
the fact that the property in question was subject to a lease in favor of the
defendant was noted in the document by which the property was assigned to
Liberata Macapagal and her children. The suggestion that the terms of the
lease were unknown to the plaintiffs is of little weight and of no legal merit.
We note that the lease was never registered, but this fact makes no
difference in a lawsuit between the parties to the lease, or their successors in
interest.
We are of the opinion that the judgment should be affirmed.

[G.R. No. 2426. January 24, 1906. ]
FERNANDO MONTANO LOPEZ, Plaintiff-Appellee, v. PEDRO
MARTINEZ ILUSTRE, Defendant-Appellant.  the property within one year from December 26, 1902. He did not
Hartigan, Marple, Rohde & Gutierrez, for Appellant.  proper marginal entry to be made upon the books in the registry of
Carlos Casademunt, for Appellee.  afterwards brought this action in March, 1904, asking for a partition of the
SYLLABUS
1. REALTY; TENANTS IN COMMON; SALE OF UNDIVIDED INTEREST;
PARTITION. — M. and the defendant were owners as tenants in common
of twenty-eight separate tracts of land. M. sold to the plaintiff his undivided
one-half interest in two of these tracts by contract with pacto de retro.
Before the right to repurchase had expired M. and the defendant made a
voluntary partition between themselves of the twenty-eight tracts, by which
partition the two tracts in which the plaintiff was interested fell to the
defendant. M. did not exercise his right of repurchase. Held, That the
partition between M. and the defendant did not affect the plaintiff, and that
he was the owner of an undivided one-half of the two lots in question.
DECISION
WILLARD, J. :
On the 26th day of December, 1902, Francisco Martinez and the
defendant, Pedro Martinez, his son, were the owners as tenants in
common of two separate parcels of land in Calle Dulumbayan, in the city
of Manila, each being the owner of an undivided one-half of each of said
tracts of land. On the 26th day of December, 1902, Francisco Martinez
conveyed to the plaintiff his undivided half interest in both said tracts of
land. This deed contained a clause giving Martinez the right to repurchase
repurchase it, and on the 28th of December, 1903, the plaintiff caused the
property in which registry the conveyance had been recorded, and
two lots of land, between himself and the defendant, and that defendant
account for and pay to the plaintiff his part of the rents of the said
properties from the 26th day of December, 1903. 
It appeared that Francisco Martinez and the defendant, his son, were the
owners as tenants in common of twenty-six other parcels of land; that in
June, 1903, before the expiration of the year in which Francisco Martinez
had the right to repurchase the property so conveyed to the plaintiff, he
and the defendant, his son, made a voluntary partition of these twenty-
eight tracts of land, which partition was approved by the Court of First
Instance of Manila on the 15th day of June, 1903. These twenty-eight
tracts of land had been acquired by Francisco Martinez during his
marriage with his wife, Dona Germana Ilustre. The wife having died, her
estate was in process of administration in the Court of First Instance of
Manila, and the partition above mentioned was made on the theory that
these lands were the property of the conjugal partnership existing between
Francisco Martinez and his wife. In this partition the two parcels of land in
question in this case fell to the defendant, and his claim is that by this
partition plaintiff lost all his interest in the property. Judgment was entered
in the court below in favor of plaintiff as prayed for in his complaint, and
the defendant has brought the case here by bill of exceptions.  it. It would be absurd to say that after such conveyance the grantor, who
had lost all his interest in the property, could by agreement with the other
Article 399 of the Civil Code is as follows:jgc:chanrobles.com.ph owner make a partition of property in which he had no interest that would
be binding upon his grantee. 
"Every coowner shall have full ownership of his part and in the fruits and
benefits derived therefrom, and he therefore may alienate, assign, or We do not see how the fact that Francisco Martinez and his son were the
mortgage it, and even substitute another person in its enjoyment, unless owners of other pieces of property as tenants in common can affect the
personal rights are in question. But the effect of the alienation or question presented in this case. Each tract was separate and distinct from
mortgage, with regard to the coowners, shall be limited to the share which all others. The parties had a right to deal with one lot without any reference
may be awarded him in the division on the dissolution of the to the other twenty-seven. The fact that the defendant acquired title to all
community."cralaw virtua1aw library of them by inheritance from his mother did not make them physically one
tract of land, so that a conveyance by the son of his undivided half interest
This article gives the owner of an undivided interest in the property the in one of these lots would amount to a conveyance of a divided part of a
right to freely sell and dispose of it - that is, of his undivided interest. He tract of land held by him in common with his father. 
has no right to sell a divided part of the real estate. If he is the owner of an
undivided half of a tract of land, he has a right to sell and convey an The judgment of the court below is affirmed, with the costs of this instance
undivided half, but he has no right to divide the lot into two parts, and against the appellant, and after the expiration of twenty days judgment
convey the whole of one part by metes and bounds. All that Francisco should be entered in accordance herewith and the case remanded to the
Martinez undertook to do in this case was to convey his undivided interest court below for execution. So ordered. 
in these two properties. This he had a perfect right to do, in accordance
with the terms of said article. There is nothing in the last clause of the Arellano, C.J., Mapa, Johnson and Carson, JJ., concur.
article inconsistent with this position. That declares simply that when the
property is divided the purchaser gets an interest only in that part which
may be assigned to him. For the purposes of this case we see no
difference between it and a case in which the tenant in common makes an
absolute conveyance of his undivided interest in the property, without
reserving the right to repurchase. In the case of an absolute conveyance
of that character, the relation between the grantor in the deed and his
cotenant is terminated. They are no longer cotenants. The grantee in the
deed takes the place of the grantor, and he and the other owner of the
property become cotenants. In such a case the grantor loses all interest in
the property, and of course has no right to take any part in the partition of

[G.R. No. 5075. December 1, 1909. ]
MAURICIO RAMIREZ, administrator of the state of Moises Ramirez,
deceased, Plaintiff-Appellee, v. SIMEON BAUTISTA, ET
AL., Defendants-Appellants. 
Perfecto J. Salas Rodriguez for Appellants. 
Teodore Gonzalez for Appellee. 
SYLLABUS
1. ESTATES; RIGHT OF COHEIRS TO ALIENATE COMMUNITY
PROPERTY. — Every coheir 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.
DECISION
ARELLANO, C.J. :
The subject of this complaint is two fish ponds, left by Moises Ramirez
on his demise, and subsequently illegally sold. This action was brought
for the purpose of having the sale declared to be void, to secure the
recovery of possession of the fish ponds, their restitution to the
administrator of the estate of the deceased owner, and indemnity for
damages. 
Moises Ramirez, who died intestate in February, 1900, was married
twice. By the first marriage he had five children, named Rosa, Carmen,
Francisco, Mauricia, and Ignacia; by the second marriage three, to wit,
Cirila, Isabel, and Serapio, of whom Isabel alone survives. At the time
of his death he left two fish ponds in the sitio of Tagalag, in the
municipality of Polo, Province of Bulacan, the specific details of which
are described and admitted in the case. The two wives are also dead. 
The children of the first marriage, Rosa, Carmen, Francisco, Mauricia,
and Ignacia, sold the two fish ponds on the 28th of November, 1901, to
Simeon Bautista and Raymundo Duran for the sum of 1,100 pesos. The
only surviving child of the second marriage, Isabel, was not a party of
said sale, hence the suit now filed by the administrator of the intestate
estate to have the sale declared null and void and the fish ponds
restored to the intestate estate of Moises Ramirez. 
The two purchasers proved their purchase by two documents, one of
which was a private and the other a notarial one executed for the
purpose. When summoned to answer the complaint they requested that
the vendors be cited also, but the latter although so summoned did not
appear at the trial. 
The action was proceeded with against the purchasers, and the Court
of First Instance of Bulacan, before whom the matter was heard,
rendered judgment holding that the fish ponds in question pertained to
the intestate estate of the late Moises Ramirez, and that the sale
effected by the said Rosa, Carmen, Francisco, Mauricia, and Ignacia to
the defendants, Simeon Bautista and Raymundo Duran, was null and
void. The court decreed that the possession of the fish ponds be
restored to the plaintiff, Mauricio Ramirez, as administrator of the
property of the late Moises Ramirez, and accorded him the right to
recover from the defendants 200 pesos per annum, as loss and
damages, to commence from the day they were notified of the
complaint, without prejudice to their right, which was reserved to them,
of action against the said vendors; the court also sentenced the
defendants to pay the costs.  and Ignacia Ramirez.
IV. In that it was not found that as a result of the evidence, the plaintiff
had no legal capacity to bring suit. 
The appeal having been heard and the evidence reviewed, the
following facts must be held to have been proven:chanrob1es virtual
1aw library
That Moises Ramirez was first married to Apolinaria Guillermo and by
her had the above-mentioned five children, Rosa, Carmen, Francisco,
 

From the above judgment the defendants appealed. The appeal having That by his second wife, Alejandra Capistrano, he had three children,
been heard before this court, together with the respective allegations of as already stated, named Cirila, Isabela, and Serapio Ramirez. 
the parties, it appears that the appellants have made the following
assignments of error to the judgment of the lower court:chanrob1es That Moises Ramirez and his two wives are now dead, as are also the
virtual 1aw library two children of the second marriage, Cirila, and Serapio. Isabel, a girl of
about eight years of age, alone survives. 
I. In that it was not held in the judgment that the children of the late
Moises Ramirez, of both the first and the second marriage, had become That the two fish ponds in question were acquired by Moises Ramirez
owners in common of the two fish ponds in question by reason of the during the time of his first marriage with Apolinaria Guillermo, on the 7th
death of their ancestor.  of March, 1895, which is the date of the title by composition with the
Spanish Government that constitutes his title of ownership. 
II. In that it was found therein that, without a partition having been made
of the property left by Moises Ramirez, the children of his first marriage On this supposition, the two fish ponds in litigation belonged to the
could not validly have transmitted their rights of partition in common to conjugal partnership between Moises Ramirez and Apolinaria
the property which is the subject of its suit.  Guillermo. (Civil Code, art. 1401, par. 1.) 

III. In that the sale of the thirteen-sixteenths of the two parcels of land in By virtue of the conjugal partnership, these two fish ponds belonged
question was not declared valid, and void only as to three-sixteenths half to the husband and half to the wife upon the dissolution of the
thereof.  marriage by reason of the death of either of them. (Civil Code, art.
1392.) 
 which actually constitute his share in the community of property
Consequently, upon the death of Apolinaria Guillermo one-half of the maintained by him with his children of the first marriage, Rosa, Carmen,
fish ponds belonged to Moises Ramirez, and the other half, that Francisco, Mauricia, and Ignacia, since the death of his first wife. 
belonging to Apolinaria Guillermo, to the children of the said married
couple, Rosa, Carmen, Francisco, Mauricia, and Ignacia, as the lawful The above five children of the first marriage, upon the death of Moises
heirs of their mother. (Civil Code, art. 931.)  Ramirez, continued the aforesaid community of property with their three
half sisters and brother, Cirila, Isabel, and Serapio; that is to say, now
Inasmuch as the said property continued undivided between the father with Isabel their share being thirteen-sixteenths, and that of Isabel
on the one hand and the children on the other, and as the conjugal three-sixteenths. 
partnership had terminated, a community of property maintained the
father and the children in the joint dominion. (Civil Code, art. 392.)  The present status of the two fish ponds in question is that of
community of property. 
By the second marriage three additional children survived the father,
and upon his death the first five children, together with the latter three, "It is certain that when two or more heirs appear at the opening of a
became his heirs, and all are entitled to divide the said half share testamentary succession, or during the progress of the settlements of
belonging to their father into eight parts.  an intestate estate, and each turns out to be an owner pro indiviso of
the inheritance, by reason of the share he may be entitled to receive, a
By the death of two of these last three children, their respective shares community of property then exists between the participants as long as
fell to Isabel as their sole heir, inasmuch as they were children of the the estate remains undivided . . . and nothing more tangible can be
same parents. (Civil Code, art. 947.)  imagined than this necessary community, which arose at the moment
when the coheirs assumed the entire representation of the person of
In view of these considerations, the claim of the appellants is entirely the deceased with respect to all of his property, rights, and actions, both
legal that thirteen-sixteenths should be apportioned among the children active and passive." (3 Manresa, 357.) 
of the first marriage — to wit, eight as their own, already inherited from
their mother, Apolinaria Guillermo, and five subsequently inherited from With regard to the community of property the Civil Code provides that
their deceased father, Moises Ramirez — and three-sixteenths should —
be the share of the three children of the second marriage, which
accrued to Isabel Ramirez.  "Every coowner shall have full ownership of his part and in the fruits
and benefits derived therefrom, and he therefore may alienate, assign,
Therefore, in the succession of Moises Ramirez that is now opened the or mortgage it, and even substitute another person in its enjoyment,
whole of these fractional parts can not be included, but only the eight unless personal rights are in question. But the effect to the alienation or
mortgage, with regard to the owners, shall be limited to the share which dissolution of the community of property now existing between the
may be awarded him in the division on the dissolution of the purchasers, Simeon Bautista and Raymundo Duran, on the one hand
community." (Art. 399, Civil Code.)  and Isabel Ramirez on the other, can the fruits, rents, or benefits
received, and the part thereof, as well as of the expenses,
If Rosa, Carmen, Francisco, Mauricia, and Ignacia Ramirez could corresponding to the coowner Isabel Ramirez in maintaining the
lawfully alienate their respective shares in the joint ownership of the two community, be considered, as well as of the rights and actions that may
parcels of land sold to the defendants, Simeon Bautista and Raymundo pertain to the purchasers as against the vendors (who have taken no
Duran, it is evident that the sale of thirteen-sixteenths of the said two part in these proceedings), by reason of the total consideration paid for
lands could not be void; the sale of the three-sixteenths which the two properties, and other obligations which may have arisen
assignment of error.  because of the sale. 

Therefore, the sale described in the public instrument of the 29th of The present cause of action and the complaint based thereon being
November, 1901, of the thirteen-sixteenths of the lands belonging to the limited to the recovery of the two properties in question, and the
vendors is valid, and that of the three-sixteenths which pertain to Isabel, restitution of the possession thereof to the administrator of the intestate
who neither by herself no by means of another took part in said sale, in of Moises Ramirez, in consequence of the latter’s hereditary
null.  succession, it is evident that neither the recovery of possession nor the
restitution asked for can be granted, as the defendants are the
Simeon Bautista and Raymundo Duran succeed to the vendors and are legitimate proprietors and possessors in joint ownership of the greater
subrogated thereto in the joint ownership of the two fish ponds sold; portion of the common property claimed. 
their shares are the same that were owned by the vendors, that is,
thirteen-sixteenths.  While the question of the nullity of the entire sale was previously raised
in the action, the illegality of the sale of the three-sixteenths of the
The whole of the two fish ponds can not pertain to the intestate estate common property made by the vendors is evident. 
of Moises Ramirez, but merely the half that belonged to him and which
at his death became a part of his intestate estate.  In view of the foregoing, it is our opinion that the judgment appealed
from should only be affirmed in so far as it declares that the laws made
Intestate succession can not disturb the lawful holder in his possession by Rosa, Carmen, Francisco, Mauricia, and Ignacia Ramirez of the
of property, which it is thought should constitute a part of the hereditary three-sixteenths parts belonging to Isabel Ramirez in the two fish ponds
property.  claimed is null and void; in all other respects the said judgment is
hereby reversed, without any special ruling as to the costs of both
Only in the event of a division of the common property, or upon instances. So ordered. 

Torres, Mapa, Johnson, Carson and Moreland, JJ., concur.
G.R. No. L-3404             April 2, 1951
ANGELA I. TUASON, plaintiff-appellant,  The pertinent terms of the contract (Exh. 6) may be briefly stated as follows:
vs.
ANTONIO TUASON, JR., and GREGORIO ARANETA, INC., defendants-
appellees.
Alcuaz & Eiguren for appellant.
Araneta & Araneta for appellees.
MONTEMAYOR, J.:
In 1941 the sisters Angela I. Tuason and Nieves Tuason de Barreto and their
brother Antonio Tuason Jr., held a parcel of land with an area of 64,928.6 sq.
m. covered by Certificate of Title No. 60911 in Sampaloc, Manila, in common,
each owning an undivided 1/3 portion. Nieves wanted and asked for a
partition of the common property, but failing in this, she offered to sell her 1/3
portion. The share of Nieves was offered for sale to her sister and her brother
but both declined to buy it. The offer was later made to their mother but the
old lady also declined to buy, saying that if the property later increased in
value, she might be suspected of having taken advantage of her daughter.
Finally, the share of Nieves was sold to Gregorio Araneta Inc., a domestic
corporation, and a new Certificate of Title No. 61721 was issued in lieu of the
old title No. 60911 covering the same property. The three co-owners agreed
to have the whole parcel subdivided into small lots and then sold, the
proceeds of the sale to be later divided among them. This agreement is
embodied in a document (Exh. 6) entitled "Memorandum of Agreement"
consisting of ten pages, dated June 30, 1941.
Before, during and after the execution of this contract (Exh. 6), Atty. J.
Antonio Araneta was acting as the attorney-in-fact and lawyer of the two co-
owners, Angela I. Tuason and her brother Antonio Tuason Jr. At the same
time he was a member of the Board of Director of the third co-owner, Araneta,
Inc.
The three co-owners agreed to improve the property by filling it and
constructing roads and curbs on the same and then subdivide it into small lots
for sale. Araneta Inc. was to finance the whole development and subdivision;
it was prepare a schedule of prices and conditions of sale, subject to the
subject to the approval of the two other co-owners; it was invested with
authority to sell the lots into which the property was to be subdivided, and
execute the corresponding contracts and deeds of sale; it was also to pay the
real estate taxes due on the property or of any portion thereof that remained
unsold, the expenses of surveying, improvements, etc., all advertising
expenses, salaries of personnel, commissions, office and legal expenses,
including expenses in instituting all actions to eject all tenants or occupants
on the property; and it undertook the duty to furnish each of the two co-
owners, Angela and Antonio Tuason, copies of the subdivision plans and the
monthly sales and rents and collections made thereon. In return for all this
undertaking and obligation assumed by Araneta Inc., particularly the financial
burden, it was to receive 50 per cent of the gross selling price of the lots, and
any rents that may be collected from the property, while in the process of
sale, the remaining 50 per cent to be divided in equal portions among the
three co-owners so that each will receive 16.33 per cent of the gross receipts.
Because of the importance of paragraphs 9, 11 and 15 of the contract (Exh.
6), for purposes of reference we are reproducing them below:
(9) This contract shall remain in full force and effect during all the time
that it may be necessary for the PARTY OF THE SECOND PART to
fully sell the said property in small and subdivided lots and to fully
 collect the purchase prices due thereon; it being understood and
agreed that said lots may be rented while there are no purchasers
thereof;
(11) The PARTY OF THE SECOND PART (meaning Araneta Inc.) is
hereby given full power and authority to sign for and in behalf of all the
said co-owners of said property all contracts of sale and deeds of sale
of the lots into which this property might be subdivided; the powers
herein vested to the PARTY OF THE SECOND PART may, under its
own responsibility and risk, delegate any of its powers under this
contract to any of its officers, employees or to third persons;
(15) No co-owner of the property subject-matter of this contract shall
sell, alienate or dispose of his ownership, interest or participation
therein without first giving preference to the other co-owners to
purchase and acquire the same under the same terms and conditions
as those offered by any other prospective purchaser. Should none of
the co-owners of the property subject-matter of this contract exercise
the said preference to acquire or purchase the same, then such sale to
a third party shall be made subject to all the conditions, terms, and
dispositions of this contract; provided, the PARTIES OF THE FIRST
PART (meaning Angela and Antonio) shall be bound by this contract
as long as the PARTY OF THE SECOND PART, namely, the
GREGORIO ARANETA, INC. is controlled by the members of the
Araneta family, who are stockholders of the said corporation at the
time of the signing of this contract and/or their lawful heirs;
On September 16, 1944, Angela I. Tuason revoked the powers conferred on
her attorney-in-fact and lawyer, J. Antonio Araneta. Then in a letter dated
October 19, 1946, Angela notified Araneta, Inc. that because of alleged
breach of the terms of the "Memorandum of Agreement" (Exh. 6) and abuse
of powers granted to it in the document, she had decided to rescind said
contract and she asked that the property held in common be partitioned.
Later, on November 20, 1946, Angela filed a complaint in the Court of First
Instance of Manila asking the court to order the partition of the property in
question and that she be given 1/3 of the same including rents collected
during the time that the same including rents collected during the time that
Araneta Inc., administered said property.
The suit was administered principally against Araneta, Inc. Plaintiff's brother,
Antonio Tuason Jr., one of the co-owners evidently did not agree to the suit
and its purpose, for he evidently did not agree to the suit and its purpose, for
he joined Araneta, Inc. as a co-defendant. After hearing and after considering
the extensive evidence introduce, oral and documentary, the trial court
presided over by Judge Emilio Peña in a long and considered decision
dismissed the complaint without pronouncement as to costs. The plaintiff
appealed from that decision, and because the property is valued at more than
P50,000, the appeal came directly to this Court.
Some of the reasons advanced by appellant to have the memorandum
contract (Exh. 6) declared null and void or rescinded are that she had been
tricked into signing it; that she was given to understand by Antonio Araneta
acting as her attorney-in-fact and legal adviser that said contract would be
similar to another contract of subdivision of a parcel into lots and the sale
thereof entered into by Gregorio Araneta Inc., and the heirs of D. Tuason,
Exhibit "L", but it turned out that the two contracts widely differed from each
other, the terms of contract Exh. "L" being relatively much more favorable to
the owners therein the less favorable to Araneta Inc.; that Atty. Antonio
Araneta was more or less disqualified to act as her legal adviser as he did
because he was one of the officials of Araneta Inc., and finally, that the
defendant company has violated the terms of the contract (Exh. 6) by not
previously showing her the plans of the subdivision, the schedule of prices
and conditions of the sale, in not introducing the necessary improvements into
the land and in not delivering to her her share of the proceeds of the rents
and sales.
We have examined Exh. "L" and compared the same with the contract (Exh.
6) and we agree with the trial court that in the main the terms of both
contracts are similar and practically the same. Moreover, as correctly found
by the trial court, the copies of both contracts were shown to the plaintiff
Angela and her husband, a broker, and both had every opportunity to go over
and compare them and decide on the advisability of or disadvantage in
entering into the contract (Exh. 6); that although Atty. Antonio Araneta was an
official of the Araneta Inc.; being a member of the Board of Directors of the
Company at the time that Exhibit "6" was executed, he was not the party with
which Angela contracted, and that he committed no breach of trust. According
to the evidence Araneta, the pertinent papers, and sent to her checks
covering her receive the same; and that as a matter of fact, at the time of the
trial, Araneta Inc., had spent about P117,000 in improvement and had
received as proceeds on the sale of the lots the respectable sum of
P1,265,538.48. We quote with approval that portion of the decision appealed
from on these points:
The evidence in this case points to the fact that the actuations of J.
Antonio Araneta in connection with the execution of exhibit 6 by the
parties, are above board. He committed nothing that is violative of the
fiduciary relationship existing between him and the plaintiff. The act of
J. Antonio Araneta in giving the plaintiff a copy of exhibit 6 before the
same was executed, constitutes a full disclosure of the facts, for said
copy contains all that appears now in exhibit 6.
Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing
the terms of the contract in that the defendant corporation has failed
(1) to make the necessary improvements on the property as required
by paragraphs 1 and 3 of the contract; (2) to submit to the plaintiff from
time to time schedule of prices and conditions under which the
subdivided lots are to be sold; and to furnish the plaintiff a copy of the
subdivision plans, a copy of the monthly gross collections from the sale
of the property.
The Court finds from the evidence that he defendant Gregorio Araneta,
Incorporated has substantially complied with obligation imposed by the
contract exhibit 6 in its paragraph 1, and that for improvements alone,
it has disbursed the amount of P117,167.09. It has likewise paid taxes,
commissions and other expenses incidental to its obligations as denied
in the agreement.
With respect to the charged that Gregorio Araneta, Incorporated has
failed to submit to plaintiff a copy of the subdivision plains, list of prices
and the conditions governing the sale of subdivided lots, and monthly
statement of collections form the sale of the lots, the Court is of the
opinion that it has no basis. The evidence shows that the defendant
corporation submitted to the plaintiff periodically all the data relative to
prices and conditions of the sale of the subdivided lots, together with
the amount corresponding to her. But without any justifiable reason,
she refused to accept them. With the indifferent attitude adopted by the
plaintiff, it was thought useless for Gregorio Araneta, Incorporated to
continue sending her statement of accounts, checks and other things.
She had shown on various occasions that she did not want to have any
further dealings with the said corporation. So, if the defendant
corporation proceeded with the sale of the subdivided lots without the
approval of the plaintiff, it was because it was under the correct
impression that under the contract exhibit 6 the decision of the majority
co-owners is binding upon all the three.
The Court feels that recission of the contract exhibit 6 is not minor
violations of the terms of the agreement, the general rule is that
"recission will not be permitted for a slight or casual breach of the
contract, but only for such breaches as are so substantial and
fundamental as to defeat the object of the parties in making the
agreement" (Song Fo & Co. vs. Hawaiian-Philippine Co., 47 Phil. 821).
As regards improvements, the evidence shows that during the Japanese
occupation from 1942 and up to 1946, the Araneta Inc. although willing to fill
the land, was unable to obtain the equipment and gasoline necessary for
filling the low places within the parcel. As to sales, the evidence shows that
Araneta Inc. purposely stopped selling the lots during the Japanese
occupantion, knowing that the purchase price would be paid in Japanese
military notes; and Atty. Araneta claims that for this, plaintiff should be
thankfull because otherwise she would have received these notes as her
share of the receipts, which currency later became valueles.
But the main contention of the appellant is that the contract (Exh. 6) should be
declared null and void because its terms, particularly paragraphs 9, 11 and 15
which we have reproduced, violate the provisions of Art. 400 of the Civil
Code, which for the purposes of reference we quote below:
ART. 400. No co-owner shall be obliged to remain a party to the
community. Each may, at any time, demand the partition of the thing
held in common.
Nevertheless, an agreement to keep the thing undivided for a specified
length of time, not exceeding ten years, shall be valid. This period may
be a new agreement.
We agree with the trial court that the provisions of Art. 400 of the Civil Code
are not applicable. The contract (Exh., 6) far from violating the legal provision
that forbids a co-owner being obliged to remain a party to the community,
precisely has for its purpose and object the dissolution of the co-ownership
and of the community by selling the parcel held in common and dividing the
proceeds of the sale among the co-owners. The obligation imposed in the
contract to preserve the co-ownership until all the lots shall have been sold, is
a mere incident to the main object of dissolving the co-owners. By virtue of
the document Exh. 6, the parties thereto practically and substantially entered
into a contract of partnership as the best and most expedient means of
eventually dissolving the co-ownership, the life of said partnership to end
when the object of its creation shall have been attained.
This aspect of the contract is very similar to and was perhaps based on the
other agreement or contract (Exh. "L") referred to by appellant where the
parties thereto in express terms entered into partnership, although this object
is not expressed in so many words in Exh. 6. We repeat that we see no
violation of Art. 400 of the Civil Code in the parties entering into the contract
(Exh. 6) for the very reason that Art. 400 is not applicable.
Looking at the case from a practical standpoint as did the trial court, we find
no valid ground for the partition insisted upon the appellant. We find from the
evidence as was done by the trial court that of the 64,928.6 sq. m. which is
the total area of the parcel held in common, only 1,600 sq. m. or 2.5 per cent
of the entire area remained unsold at the time of the trial in the year 1947,
while the great bulk of 97.5 per cent had already been sold. As well observed
by the court below, the partnership is in the process of being dissolved and is
about to be dissolved, and even assuming that Art. 400 of the Civil Code were
applicable, under which the parties by agreement may agree to keep the thing
undivided for a period not exceeding 10 years, there should be no fear that
the remaining 1,600 sq. m. could not be disposed of within the four years left
of the ten-years period fixed by Art. 400.
We deem it unnecessary to discuss and pass upon the other points raised in
the appeal and which counsel for appellant has extensively and ably
discussed, citing numerous authorities. As we have already said, we have
viewed the case from a practical standpoint, brushing aside technicalities and
disregarding any minor violations of the contract, and in deciding the case as
we do, we are fully convinced that the trial court and this Tribunal are carrying
out in a practical and expeditious way the intentions and the agreement of the
parties contained in the contract (Exh. 6), namely, to dissolve the community
and co-ownership, in a manner most profitable to the said parties.
In view of the foregoing, the decision appealed from is hereby affirmed. There
is no pronouncement as to costs. So ordered.
G.R. No. L-10104            February 10, 1916
ROMANA CORTES, ET AL., plaintiffs-appellants,  on the smaller machine, and he kept both machines under shelter until
vs.
FLORENCIO G. OLIVA, defendant-appellee.
Leodegario Azarraga for appellants.
Jose Agoncillo for appellee.
CARSON, J.:
This is an action for the recovery of personal property and for the
damages incident to its alleged unlawful conversion.
The plaintiffs are the heirs of one Pio Oliva, deceased, who during his
lifetime was the owner of a large machine used for grinding sugar cane;
he was also the joint owner with his brother, Florencio Oliva, the
defendant herein, of another smaller machine used for the same
purpose. Throughout the record the machine owned outright by Pio
Oliva is referred to as the large machine or mill (trapiche grande) while
the other is referred to as the small or partnership machine.
In 1896 defendant was the manager of an hacienda in Nasugbu,
Batangas, and Pio Oliva was a tenant on the hacienda. The two
machines in question were installed and in use on the hacienda at the
time of the breaking out of the revolution against Spain. Owing to the
unsettled conditions incident to the revolution, the hacienda was
abandoned together with the two machines in question and various
other agricultural implements. Pio Oliva died in 1898 in the pueblo of
Calawang, Laguna, P. I., leaving as his heirs the plaintiffs herein. The
defendant, Florencio Oliva, returned to Nasugbu in 1899. In 1901 he
took them in an abandoned condition and badly in need of repairs. On
the large machine he expended approximately P163 and a less amount
work was received on the hacienda. In 1906 the large machine was
again used for grinding cane and it appears to have been used for that
purpose ever since. The smaller machine, the one owned in
partnership, has never been used since 1896, and unsuccessful efforts
have been made to sell it. The record is very unsatisfactory and
inconclusive as to the value of the two machines. One of the plaintiffs
testified that the large machine was worth P1,200, while the defendant
put its value at P400. There is no direct evidence in the record as to
what the value of the smaller machine is, but it is very clear that its
market value must be small indeed.
The plaintiffs contend that the defendant unlawfully took possession of
these machines in the year 1906 without their knowledge or consent;
that from that date until the year 1912 he had ground cane in the large
machine to the value of P42,000, and that they, as the heirs of the true
owner of the machine, are entitled to P14,000 for the use of this
machine, that being one third the estimated value of the output; that the
profits which would have accrued to them from the use of the small
machine during that period amounts to P3,500; that they are entitled to
a judgment for the recovery of the machines of their value; and further
to a judgment for the sum of P17,500 for the profits which should have
accrued to them for the use of these machines from the year 1906 to
the year 1912.
The defendant contends that he took possession of the machines in
1901, and has them in his possession since that date under a claim of
ownership; that he took possession because his brother, Pio Oliva, was
indebted to him at the time of his death, and in view of conditions
existing at that time, 1901, he took this mode of indemnity himself
against loss of the amount of the indebtedness which exceeded the
value of both machines at the time when he took possession.
This action was instituted on the 6th day of June, 1913, and the trial
judge was of opinion that it had prescribed under the provisions of
section 43 of the new Code of Civil Procedure (Act No. 190), the
evidence of record disclosing that the defendant had been in
possession of both the mills under a claim of ownership for a period of
more than four years prior to the date of the institution of the action.
As to larger machine, we are of opinion that the ruling of the trial judge
was unquestionably correct. We find nothing in the record which would
justify us in disturbing the findings of fact by the trial judge and there
can be no doubt that accepting his finding of facts as correct, the
plaintiff's action for possession had prescribed long before the action
was instituted (sec. 43 Act No. 190).
The plaintiff contend that the defendant did not take and keep
possession of this machine under a claim of ownership; and that in truth
and in fact he originally took possession of this machine in the year
1906, and that since that time he has kept possession merely as
security for his claim of indebtedness against their father. In support of
their contentions, they rely on certain statements made by the
defendant in a letter written to one of the plaintiffs. This letter appears to
have been written partly with a view to secure some compromise of the
threatened litigation over the machines, and partly by way of
justification and defense of the defendant's conduct in taking
possession of the machines after his brother's death. In the course of
the letter he insists that the plaintiffs were not wronged by his action in
taking possession, because, as he indicates, their claim of ownership in
the machine and of profits from its operation is fully met by his claim of
indebtedness and of interest on the debt. Plaintiffs insist that this
statement demonstrates that the defendant was not asserting a right of
ownership in the machine at the time when the letter was written, but
only the right to payment of the amount of the alleged indebtedness
with interest.
Without stopping to consider the question of the admissibility in
evidence of the contents of his letter, which seems to have been written
with some view to a compromise of threatened litigation, we hold that,
read in connection with all the evidence of record, it falls far short of
sustaining the contentions of the plaintiffs. We agree with the trial judge,
who carefully reviewed the letter together with all the rest of the
evidence, and held that the letter, as a whole, clearly discloses that
defendant regarded himself as the lawful owner of the machine at the
time when the letter was written; and that the references to the principal
and interest of the debt for which it was taken was made by the
defendant merely for the sake of showing that he had not wronged his
brother or his brother's heirs by taking the machines for the debt.
With reference to the smaller machine, which was originally owned
jointly by the defendant and his brother, the claim of prescription of the
action brought by the plaintiffs is not satisfactorily established.
This machine having been originally the joint property of the defendant
and his brother, the fact that he held it in his possession for a long
period of years, and exercised acts of ownership with reference to it
does not afford a sufficient ground for the inference he had possession against the appellants, without prejudice, nevertheless, to the right of
under a claim of exclusive ownership, and adverse to the claims of his the plaintiffs to bring another action asserting any right they may have
brother's estate. Ordinarily possession by one joint owner will not be in the small machine, originally owned jointly by the defendant and his
presumed to be adverse to the others, but will, as a rule, be held to be brother, their predecessor in interest, or in profits arising from the use of
for the benefit of all. Much stronger evidence is required to show an this machine since the date of the institution of this action. So ordered.
adverse holding by one of several joint owners than by a stranger; and
in such cases, to sustain a plea of prescription, it must always clearly Arellano, C.J., Torres, Johnson, Moreland and Trent, JJ., concur.
appear that one who was originally a joint owner has repudiated the
claims of his coowners, and that his coowners were apprised or should
have been apprised of his claim of adverse and exclusive ownership
before the alleged prescriptive period began to run. We do not think that
the evidence or record is sufficient to sustain a finding to that effect with
reference to the small machine.

On their own allegations, however, plaintiffs cannot maintain an action

for possession of this machine against the defendant, who was
originally a joint with his brother, their predecessor in interest.
Doubtless they have a right to have the machine sold and to a partition
of the proceeds of the sale, and an accounting for profits while in the
exclusive possession of the defendant; and liberally construed, the
allegations of their complaint would seem to be sufficient, if supported
by competent evidence to entitle them to a judgment for such profits.

But there is no direct evidence in the record as to profits gained by the

defendant from the use of this machine, though there are indications in
the record that in fact he made no such profits, and that the machine,
which was practically worthless, has lain idle ever since it came into his
possession.

The judgment entered in the court below dismissing the complaint at

costs of the plaintiffs should be affirmed with the costs of this instance

G.R. No. L-38544             November 18, 1933
PAZ DE SANTOS, CONSUELO DE SANTOS and JOSE MARIANO DE
SANTOS, petitioners-appellants,  nothing with reference to liens in favor of third persons who are
vs.
BANK OF THE PHILIPPINE ISLANDS, oppositor-appellee.
Vicente J. Francisco for appellants.
Feria and La O for appellee.
VILLA-REAL, J.:
This is an appeal taken by the petitioners herein Paz, Consuelo and Jose
Mariano de Santos, from the order of the Court of First Instance of Manila,
which reads as follows:
Upon consideration of the petition filed by Paz, Consuelo and
Jose Mariano de Santos praying that this court order the
cancellation of the lien annotated on their certificates of title
consisting in the preliminary attachment of the properties
described therein, in favor of the Bank of the Philippine Islands;
it appearing that this same motion had already been previously
filed, that is on July 6, 1931, and denied by this same court; it
appearing likewise, that a similar petition had been filed in civil
case No. 39435 of the Court of First Instance of Manila, entitled
"Bank of the Philippine Islands vs. Isidoro de Santos et al.,
which petition was also denied by the said court which heard the
motion in question on September 30, 1931; and it appearing
further that aid order have not been appealed from and have
therefore become final on the ground that the period fixed by
law within which they might have been again considered by this
court has elapse; and it appearing furthermore that the
provisions of the Civil Code and of the Code of Civil Procedure
cited by the petitioners in their motion under consideration by
this court are not applicable to nor can serve as a ground for the
aforesaid motion filed by them, inasmuch as they contain
not a party to the partition in question;
Wherefore, the petition of the aforesaid petitioners herein is
hereby denied. It is so ordered.
In support of their appeal, the petitioner-appellants assign the following
alleged errors in the decision of the court a quo, to wit:
1. In not ordering the cancellation of the preliminary attachment noted
at the back of the new certificates of title Nos. 39885, 39879 and
39880 issued respectively to each of the three herein appellants for
their respective shares in the community property.
2. In holding the orders of the court of July 31, and of September 30,
1931 mentioned in the appealed order, as binding and conclusive in
the instant case.
3. In ordering the appellants to include in their bill of exceptions the
aforementioned order of September 30, 1931, which was issued in the
case of the Bank of the Philippine Islands vs. Isidoro de Santos et al.,
No. 39435, by the judge of the Sala other than the one in which the
present case was heard.
The following pertinent facts are necessary for the solution of the questions
raised in this appeal:
The petitioner-appellants herein Paz, Consuelo and Jose Mariano de Santos,
together with their brothers Felipe and Isidoro de Santos, were owners pro
indiviso of nine parcels of land described in the transfer certificates of title
Nos. 34394, 34395, 34396, 34397, 34398, 34399, 34400, 34403 and 34530.
On March 26, 1930, Isidoro de Santos and Paulino Candelaria executed
jointly and severally in favor of the herein oppositor-appellee, Bank of the
Philippine Islands, a promissory note for the sum of P45,000 payable within
ninety days with interest at the rate of 9 per cent per annum, delivering the
promissory note in question (Appendix B) to the aforesaid bank.
Inasmuch as Isidoro de Santos and Paulino Candelaria failed to pay the
amount of the said promissory note upon maturity and after demand had
been made upon them therefore the aforesaid oppositor-appellee, Bank of the
Philippine Islands, on April 18, 1931, filed a complaint against Isidoro de
Santos and Paulino Candelaria with the Court of First Instance of Manila,
praying for the issuance of a writ of preliminary attachment against their
properties, which was issued and annotated on the back of each and every
one of the transfer certificates of the hereinbefore enumerated.
Three days after the issuance of said writ of attachment and the annotation
thereof on the back of the aforesaid transfer certificates of title, that is on April
21, 1931, the herein petitioner-appellants, together with Isidoro and Felipe de
Santos executed an extrajudicial partition of the parcels of land in question.
On July 6, 1931, Felipe de Santos filed a motion in Cadastral Case No. 3 and
others, G.L.R.O. Record No. 63 and others, of the Court of First Instance of
Manila, praying among other things, (1) that the aforesaid extrajudicial
partition be approved by the court, and (2) that the preliminary attachment of
the interest of Isidoro de Santos in each and every one of the nine parcels of
land described in the transfer certificates of the title hereinbefore enumerated,
be consolidated into parcels of land adjudicated to him by virtue of the
aforesaid extrajudicial partition.
Although the petitioner-appellants herein and Isidoro de Santos were duly
notified of the hearing of the aforesaid motion which was set for July 14,
1931, as evidenced by the notice and the note of Attorney Javier appearing at
the foot thereof, none of them appeared at the hearing.
On July 31, 1931, the Court of First Instance of Manila, in deciding the
aforesaid motion of Felipe de Santos, stated the following:
The petition is hereby denied with respect to the properties described
in the transfer certificates of title Nos. 34396, 34398 and 34403, on the
ground that the first two properties are mortgaged to Luis Mirasol and
the last to the Philippine Guaranty Co., Inc., inasmuch as the mortgage
constituted thereon is subscribed to jointly and severally by all the
coowners thereof. The motion to the effect that all the attachments
issued against Isidoro de Santos be consolidated exclusively on the
properties adjudicated to him by virtue of the aforesaid deed of
partition is, likewise hereby denied.
Neither the petitioner Felipe de Santos nor the herein petitioner-appellants
Paz, Consuelo and Jose Mariano de Santos, nor Isidoro de Santos excepted
to nor appealed from the order above-mentioned.
On September 30, 1931, the Court of First Instance of Manila denied the
motion filed by Felipe de Santos in civil case No. 39435 of the said court,
wherein he prayed, among other things, that the said court order the register
of deeds of the City of Manila to note on the back of transfer certificates of
title Nos. 34397 and 34530 the preliminary attachment in favor of the Bank of
the Philippine Islands, referring to that portion of the property described in
subdivision plan Psd 7299, and to cancel the preliminary attachments noted
on the back of transfer certificates of title Nos. 34394, 34395, 34396, 34398,
34400 and 34403, and on the back of transfer certificate of title No. 34530
with respect to the portion of the property described therein, which was ]
adjudicated to the said petitioner. The court has based its aforesaid decision
of the ground that neither the said petitioner Felipe de Santos nor the
defendant therein, Isidoro de Santos, has the right to compel the plaintiff Bank
of the Philippine Islands to conform to the attachment of only those properties
adjudicated to the said defendant Isidoro de Santos by virtue of the deed of
partition, in lieu of his right to an undivided one-fifth of each of the nine
parcels of land hereinbefore enumerated.lawphil.net
Neither the petitioner Felipe de Santos nor the defendant therein, Isidoro de
Santos, appealed from the above order.
On August 3, 1932, one-year after the motion of Felipe de Santos was filed in
the said civil case No. 39435, the herein petitioner-appellants filed a motion in
the cadastral cases aforementioned, praying for the cancellation of the
annotation of the preliminary attachments levied on the interest of Isidoro de
Santos before the partition, appearing on the back of the new transfer
certificates of title issued in their name after the partition, said annotation
having been made pursuant to the order of the court issued in said cadastral
cases on July 31, 1931.
On September 17, 1932, the court denied the motion in question by the
aforesaid order from which this appeal was taken.
It being procedural in nature, we shall first pass upon the question raised in
the second assignment of error, to wit; that the trial court erred in holding the
orders of the court of July 31, and September 30, 1931, as binding and
conclusive in the instant case.
It can be inferred from the order of September 17, 1932, appealed from, that
in denying the motion for the cancellation of the preliminary attachments filed
by the herein petitioner-appellants on August 5, 1932, the court a quo based
its decision on the ground that a similar motion for the cancellation of the
preliminary attachments in question had already been filed in the said case on
July 6, 1931, and denied by the order of July 31, 1931; and another in civil
case No. 39435 of the Court of First Instance of Manila, entitled "Bank of the
Philippine Islands vs. Isidoro de Santos et al.", which was likewise denied on
September 30, 1931. Inasmuch as the orders denying the aforesaid motions
have not been appealed from, they have therefore become final and
conclusive.
The order of the court a quo denying the motions in question is based,
therefore, on the assumption that the question regarding the cancellation of
the preliminary attachment sought by the petitioner-appellants has
become res judicata. This court has constantly held that in order that res
judicata may exist, it is necessary that there be identity of parties, of grounds
or causes of action and of things or subject matter under litigation (Aquino vs.
Director of Lands, 39 Phil., 850; Isaac vs. Padilla, 31 Phil., 496; Donato vs.
Mendoza, 25 Phil., 57; Roman Catholic Archbishop of Manila vs. Director of
Lands, 35 Phil., 339).
The motion for cancellation dated July 6, 1931, was filed by Felipe de Santos
alone, and the fact that the herein petitioner-appellants were notified thereof
has not made them parties to the said motion, inasmuch as they were not
included in the motion in question in accordance with section 114 of the Code
of Civil Procedure.
Neither were the herein petitioner-appellants made parties to the motion for
cancellation of the preliminary attachment filed by Felipe de Santos in civil
case No. 39435 of the Court of First Instance of Manila, on August 5, 1931,
wherein the Bank of the Philippine Islands was plaintiff and Isidoro de Santos
et al. were defendants.
In the motion under consideration, the denial of which is the subject matter of
this appeal, Felipe de Santos is not a party-petitioner. Therefore, there is no
identity between the petitioner in the motions of July 6, and of August 5, 1931,
respectively, and the parties to the motion under consideration.
In the two motions of July 6, and August 5, 1931, mentioned above, wherein
Felipe de Santos alone was the petitioner, the subject matter thereof could
not be other that the properties adjudicated to him by virtue of the deed of
partition, which properties he wished to free from the attachment, inasmuch
as he neither acted nor could act in representation of his coowners for the
reason that he was not authorized to do so. In the motion under
consideration, the petitioner-appellants pray for the cancellation of the
annotation of the preliminary attachment on the back of the new transfer
certificates of title issued in their respective names, by virtue of the order of
the court in the cadastral case, on July 31, 1931. If the properties which
Felipe de Santos sought to free from the preliminary attachment in his
motions of July 6, and of August 5, 1931, were those which had been
adjudicated to him by virtue of the partition, and the properties which the
herein petitioner-appellants seek to free from the same attachment in their
motion to that effect are those which corresponded to them by virtue of the
aforesaid partition, which properties are separate and distinct from those
adjudicated to Felipe de Santos, neither is there identity of subject matter
under litigation herein. The only point where there is identity is in the cause or
ground of action for cancellation, which is the same in the aforestated motions
of July 6, and of August 5, 1931, as well as in the motion under consideration,
which ground consists in the partition of the properties owned in
common.lawphi1.net
Therefore, there being no identity either of parties, or of subject matter or
thing under litigation, there is no res judicata.
The second question to decide in this appeal, which is raised in the first
assignment of error, is whether or not it is proper to order the cancellation of
the preliminary attachment annotated on the back of the new transfer
certificates of title Nos. 39885, 39879 and 39880, issued respectively in the
names of the herein petitioner-appellants for their respective shares in the
community property.
Inasmuch as article 403 of the Civil Code authorizes creditors to contest a
partition already made in case of fraud, or when it has been made to the
prejudice of existing rights and interest, and inasmuch as the oppositor-
appellee herein, bank of the Philippine Islands, was not notified of the
partition made among the herein petitioner-appellants and their coowners
Felipe de Santos and Isidoro de Santos, and was not given an opportunity to
contest the partition already made, nor the approval thereof by the cadastral
court, the case should be remanded to the court a quo in order to permit the
said oppositor-appellee, Bank of the Philippine Islands, to file the objection it
may deem convenient, in accordance with the provisions of article 403 of the
Civil Code cited above.
In view of the foregoing considerations, we are of the opinion and so hold that
inasmuch as the partition of the properties held under title of common
ownership was made without notifying the creditors thereof, said creditors
may contest the partition in question in case of fraud, or when it has been
made to the prejudice of existing rights or interests.
Wherefore, the order appealed from is hereby reversed and the case ordered
remanded to the court a quo in order to give the herein oppositor-appellee,
Bank of the Philippine Islands, and opportunity to contest the partition in
accordance with the provisions of article 403 of the Civil Code, without special
pronouncement as to costs. So ordered.
Avanceña, C.J., Malcolm, Hull, and Imperial JJ., concur.
G.R. No. 1111            May 16, 1903
FELICIDAD GARCIA DE LARA, plaintiff-appellant, 
vs.
JOSE GONZALEZ DE LA RAMA, ET AL., defendants-appellees.
Emilio Martinez Llanos for appellant.
No appearance for appellees.
COOPER, J.:
This is an appeal by the plaintiff from a judgment of the Court of First
Instance, brought here by bill of exceptions which purports to have been
prepared under section 143 of the Code of Civil Procedure of 1901, but which
in reality bears a very small resemblance to a bill of exceptions properly
prepared under the Code. It contains arguments of counsel, unintelligible
statements, and sets forth much that is irrelevant. The real nature of the suit,
the rulings of the court from which the appeal has been taken, and the
character of the judgment rendered, after a careful reading of the bill of
exceptions, are left in doubt and largely to conjecture.
The Code of Civil Procedure is based upon American practice and has
superseded the Spanish Code of Procedure, and since the practice now in
force is in a large measure different from that under the Spanish practice,
many difficulties present themselves to those not familiar with the American
practice.
As a general rule, excepting which are not presented in the course of the
proceedings in the Court of First Instance can not be presented and urged on
appeal to this court. The purpose of the rule is to require a party desiring to
review in the appellate court the action of the trial court to call the attention of
the trial court by timely objections to the proceedings complained of. This rule
serves the interest of litigants and conduces to produce the orderly
administration of justice in the courts.
An exception has been defined as an objection taken to the decision of the
trial court upon a matter of law, and is a notice that the party taking it
preserves for the consideration of the appellate court a ruling deemed
erroneous. (8 Am. Enc. P. and P., 157.)
An objection alone is not sufficient to preserve the question for review on
appeal. To save the objection an exception is necessary.
We will indicate briefly when and how objections are made and exceptions
taken. This will depend upon the character of the question.
They are taken sometime by demurrer, sometimes by answer, or by some
objection raised during the progress of the trial, or by objections to the
judgment after its rendition. The defendant may demur to the complaint when
it appears upon the face thereof, either —
1. That the court has no jurisdiction of the person of the defendant, or the
subject of the action; or
2. That the plaintiff has no legal capacity to sue; or
3. That there is another action pending between the same parties for the
same cause; or
4. That there is a defect or misjoinder of parties, plaintiff or defendant; or
5. That the complaint does not state facts sufficient to constitute a cause of
action; or
6. That the complaint is ambiguous, unintelligible, or uncertain.
The demurrer must distinctly specify the grounds upon which any of the
objections to the complaint are taken.
(Sec. 91 Code of Civil Procedure.)
When any of the matters enumerated in this section do not appear upon the
fact of the complaint, the objection to the complaint can only be taken by
answer. (Sec. 92.)
If no objection be taken to the complaint, either by demurrer or answer, the
defendant shall be deemed to have waived all the above-named objections,
excepting only the objection to the jurisdiction of the court over the subject-
matter, and that the complaint does not state facts sufficient to constitute a
cause of action. (Sec. 93, Code of Civil Procedure.)
If the ruling of the court upon a demurrer be adverse to the party making the
same, he should except to the ruling of the court, and, in order that the court
may determine the force of the objection, it will be necessary to incorporate in
the bill of exceptions the complaint demurred to, the demurrer, and the
judgment or ruling of the court upon the demurrer.
If the objection is raised by the answer, the exception must necessarily come
after proofs which are made in support of it. The sufficiency and the validity of
the objection thus raised must be determined by the sufficiency of the
evidence which has been offered in support of the allegation contained in the
answer. This requires a review or retrial of the questions of fact and can only
be made in the cases which are provided for in section 497 of the Code of
Civil Procedure.
The manner of making objections and taking exceptions to rulings, such as
rulings upon admissibility or exclusion of evidence and other questions arising
during the course of the trial, is provided for in section 142, which reads as
follows:
The party excepting to the ruling, order, or judgment shall forthwith
inform the court that he excepts to the ruling, order, or judgment, and
the judge shall thereupon minute the fact that the party has so
excepted; but the trial shall not be delayed thereby. The exception
shall also be recorded by the stenographer, if one is officially
connected with the court.
The Code has not made any specific provisions as to the manner and time of
taking exceptions to the final judgment which has been rendered in a case. It
would seem that the objection should be taken at the time of the rendition of
the final judgment, or as soon thereafter as may be practicable, and before
the ending of the term of court at which the final judgment is rendered.
With reference to the character of objections which may be taken to a
judgment of the court, the American rule is stated as follows:
Errors in a judgment or decree will not be noticed on appeal in the
absence of objections and exceptions taken below, and they should be
sufficiently specific to direct the attention of the court to the alleged
defects. (8 Enc. Pl. and Pr., 289.)
If objection to the judgment arises upon the insufficiency of the proof to
support the judgment or the findings of fact made by the judge, it will also be
necessary to bring the case within the first or third clause of section 497 of the
Code of Civil Procedure, and if under the latter clause, the excepting party
should file a motion in the Court of First Instance for a new trial based upon
the ground that the findings of fact are plainly and manifestly against the
weight of evidence.
The manner of perfecting a bill of exceptions is governed by section 143 of
the Code and need no be here repeated.
In preparing and presenting a bill of exceptions under this section it is
necessary that counsel should carefully read and follow the plain directions of
the statute. These directions are sufficiently explicit to enable those who will
carefully consider the section to comply with them.
In preparing a case for this court, counsel should also carefully consider the
rules of the Supreme Court for sending up the bill of exceptions and for the
making of briefs and assignments of errors.
By reason of the failure of the appellants in this case to comply with the plain
statutory provisions with reference to bills of exceptions, it is largely a matter
of conjecture to determine the nature of the suit, the rulings of the court
complained of, or the character of the judgment which has been rendered.
For this failure we might well refuse to consider the case.
It seems probable that the suit was an action for the partition of a tract of land,
being the undivided half of the hacienda de Angono, situated in the Province
of Rizal, and which the plaintiff and defendants in the suit has inherited from
their deceased father, Don Eugenio Gonzalez de Lara; that Eugenio
Gonzalez de Lara had acquired this undivided half interest by purchase from
Doña Dominga Santa Ana; that the court refused to partition the land because
the tract sought to be partitioned was itself an undivided interest, the other
being owned by the parties the names of whom are not disclosed in the
record; that the court declined to make the partition on the ground that the
demarcation and boundaries of the land sought to be partitioned had not been
set forth in the partition, and by reason of the interest which is sought to be
partitioned being an undivided interest.
If this was the character of the suit, the Court of First Instance did not err in so
holding.
Partition proceedings are now governed, and were at the time of the
institution of this suit, by the Code of Civil Procedure, 1901, and must be
determined by the provisions of this Code. Section 183 requires that the
complaint in an action for partition shall set forth the nature and extent of the
plaintiff's title, and shall contain an adequate description of the real estate of
which partition is demanded, and name each tenant in common, coparcener,
or other person interested therein as defendants.
This provision requires that all persons interested in the land sought to be
partitioned must be made a party to the suit. If the land sought to be
partitioned was an undivided interest held by the father of the plaintiffs and
defendants, in order to comply with the requirements of statute those who
were interested in the other half interest should have been made parties to
the suit.
This is not according to the requirements of the Code, but the very nature of a
partition suit renders it necessary; otherwise the proceedings in the suit may
become wholly ineffectual.
This proceeds from the general principle of law that a litigation can never
result in an adjudication which will be binding upon others than the parties to
the suit and their privies in blood or in estate. The other owners were persons
who not only had an interest in the controversy but an interest of such a
nature that a final decree could not be made without affecting that interest.
The decree, therefore, would not bind such parties, and upon another suit for
partition brought by them the very half that had been partitioned in this case
might be assigned as the portion belonging to such other joint owners.
The Code provides that if, upon trial in a partition suit, the court finds that the
plaintiff has a legal right to any part of such estate, it shall order partition
thereof in favor of the plaintiff, among all parties in interest, and if the parties
to the suit are not able to agree amongst themselves to the making of
partition, the court shall appoint three commissioners to make the partition
and set off to the plaintiff and each party in interest such part and proportion
of the estate as the court shall order.
When it is made to appear to the commissioner that the estate, or a portion Torres, J., concurs.
thereof, can not be divided without great inconvenience to the parties
interested, the court may order it assigned to one of the parties, provided he
pays to the other party sum of money as the commissioners judge equitable. Separate Opinions
But if no one of the parties interested will take such assignment and pay such
sum, the court shall order the commissioners to sell such estate at public or WILLARD, J., concurring:
private sale. Where the estate can not be divided, the court may direct the
sale of the property at public or private sale. At this public or private sale third I agree with the result in this case, but I dissent from all that is said about
parties may become the purchasers. exceptions to judgments. We have repeatedly passed upon cases in which
the exception simply states that the party excepted to the judgment without
A suit brought by the persons interested who were not made parties to the pointing out any specific defects therein, and have impliedly held that such an
suit, and who are not bound by the partition proceedings, would deprive such exception is sufficient to remove the case to this court.
purchaser of the title to the land acquired at public sale under the judgment of
a court. Both the purchaser at such sale and the heirs who had received their Arellano, C. J., Mapa and Ladd., JJ., concur.
specific portion by metes and bounds, or the heirs who had compensated the
other heirs by the payment of the value of the land, by reason of land not
being divisible, would be deprived of the rights which they had acquired under
the proceedings. This would not only create confusion and inconvenience but
the time of the court would have been uselessly consumed in the proceedings
thus rendered ineffectual, at the suit of the persons who were not made
parties to the action. Such result is avoided by the provision of the statute
which requires each tenant in common, coparcener, or other person
interested in the land to be made a party to the suit.

The judgment will be affirmed with costs of both instances against appellants.
This affirmance, however, will be without prejudice to the rights of the plaintiff
should he desire to institute a partition proceeding against all parties at
interest and effect a partition of the lands.

By the provisions of section 181 of the Code of Civil Procedure, a person

having or holding real estate with others, in any form of joint tenancy or
tenancy in common, may compel partition thereof.