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

Art. 488. Each co-owner shall have a right to compel the other co-owners to contribute
to the expenses of preservation of the thing or right owned in common and to the
taxes. Any one of the latter may exempt himself from this obligation by renouncing so
much of his undivided interest as may be equivalent to his share of the expenses and
taxes. No such waiver shall be made if it is prejudicial to the co-ownership.

The result is that the property remains to be in a condition of co-ownership. While a

vendee a retro, under Article 1613 of the Code, "may not be compelled to consent to a
partial redemption," the redemption by one co-heir or co-owner of the property in its
totality does not vest in him ownership over it. Failure on the part of all the co-owners
to redeem it entitles the vendee a retro to retain the property and consolidate title
thereto in his name (Supra,  art. 1607). But the provision does not give to the
redeeming co-owner the right to the entire property. It does not provide for a mode of
terminating a co-ownership.

Although petitioner Fanesa did not acquire ownership over the entire lot by virtue of the
redemption she made, nevertheless, she did acquire the right to reimbursed for half of
the redemption price she paid to the Provincial Government of Negros Occidental on
behalf of her co-owners. Until reimbursed, Fanesa hold a lien upon the subject
property for the amount due her. 17

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

WHEREFORE, the petition is DENIED and the decision of the Court of Appeals
AFFIRMED.
G.R. No. 133140 August 10, 1999
SO ORDERED.
JOSE MA. T. GARCIA, petitioner,
vs.
COURT OF APPEALS, SPS. LUISITO & MA. LUISA MAGPAYO AND PHILIPPINE BANK OF
COMMUNICATIONS, respondents.
PUNO, J.:
This is a petition for review under Rule 45 of the Rules of Court to set aside the decision
rendered by the Court of Appeals in CA-G.R. No. 44707 entitled "Jose Ma. T. Garcia, Plaintiff-
Appellee versus Spouses Luisito and Ma. Luisa Magpayo and Sheriff of Makati, Defendants,
Philippine Bank of Communications, Defendant-Appellant".1
The facts are as succinctly summarized by the appellate court, viz.:
Atty. Pedro V. Garcia, in whose name TCT No. S-31269 covering a parcel of land identified as
Lot 17 situated at Bel Air II Village, Makati, was registered, sold with the consent of his wife
Remedios T. Garcia, the same to their daughter Ma. Luisa Magpayo and her husband Luisito
Magpayo (the Magpayos).
On March 5, 1981, the Magpayos mortgaged the land to the Philippine Bank of
Communications (PBCom) to secure a loan, Five Hundred Sixty Four Thousand (P564,000.00)
Pesos according to them, One Million Two Hundred Thousand (P1,200,000.00) Pesos according
to PBCom.1âwphi1.nêt
On March 9, 1981, Atty. Garcia's Title was cancelled and in its stead Transfer Certificate of Title
No. S-108412/545 was issued in the name of the Magpayos.
The Deed of Real Estate Mortgage was registered at the Makati Register of Deeds and
annotated on the Magpayos title.
The Magpayos failed to pay their loan upon its maturity, hence, the mortgage was
extrajudicially foreclosed and at the public auction sale, PBCom which was the highest bidder
bought the land.
The redemption period of the foreclosed mortgage expired without the Magpayos redeeming
the same, hence, title over the land was consolidated in favor of PBCom which cancelled the
Magpayo's title and Transfer Certificate of Title No. 138233 was issued in its name.
On October 4, 1985, the Magpayos filed at the RTC of Makati a complaint seeking the
nullification of the extrajudicial foreclosure of mortgage, public auction sale, and PBCom's title
docketed as Civil Case No. 11891. This complaint was dismissed for failure to prosecute.
On October 15, 1985, PBCom filed at the Regional Trial Court (RTC) of Makati a petition for the
issuance of a writ of possession over the land, docketed as LRC Case No. M-731, which Branch
148 thereof granted.
Upon service of the writ of possession, Mrs. Magpayo's brother, Jose Ma. T. Garcia (Garcia),
who was in possession of the land, refused to honor it and filed a motion for Intervention in
the above-said PBCom petition, which motion was denied.
Garcia thereupon filed against PBCom, the Magpayos, and the RTC Sheriff the instant suit for
recovery of realty and damages wherein he alleged, inter alia, that he inherited the land as
one of the heirs of his mother Remedios T. Garcia, and that PBCom acquired no right
thereover.
In its answer, PBCom averred, inter alia, that Garcia's claim over the land is belied by the fact
that it is not among the properties owned by his mother listed in the Inventory of Real Estate
filed at the then CFI of Pasay City, Branch 27, in SP Proc. No. 2917-P, "In the Matter of the
Intestate Estate of Remedios T. Garcia Petition for Letters of Administration, Pedro V. Garcia
Petitioner-Administrator.
The Magpayos, on the other hand, asserted that title over the land was transferred to them by
Mrs. Magpayo's parents to enable them (Magpayos) to borrow from PBCom.
Garcia filed a Motion for Summary Judgment praying that judgment be rendered in his favor
to which PBCom counter-motioned that judgment should be rendered in its favor.
The court a quo denied the motion for summary judgment on the ground that PBCom raised in
its answer both factual and legal issues which could only be ventilated in a full-blown trial.
The court a quo, however, later issued a summary judgment.2
In its summary judgment, the lower court held that the mortgage executed by the Magpayo
spouses in favor of PBCom was void. It found that:
. . . [A]t the time that the defendants Magpayo spouses executed the mortgage in favor of the
defendant PBCom on March 5, 1981, the said spouses were not yet the owners of the
property. This finding is evident from the other undisputed fact that a new Torrens title was
issued to the defendants Magpayo spouses only on March 9, 1981 . . . . The Magpayo spouses
could not have acquired the said property merely by the execution of the Deed of Sale
because the property was in the possession of the plaintiff. The vendor, Pedro V. Garcia, was
not in possession and hence could not deliver the property merely by the execution of the
document (MANALILI V. CESAR, 39 PHIL. 134). The conclusion is therefore inescapable that the
said mortgage is null and void for lack of one of the essential elements of a mortgage as
required by Art. 2085 of our Civil Code . . . .3
Thus, it invalidated the foreclosure sale and nullified TCT No. 138233 issued to PBCom.
Dissatisfied, PBCom appealed. In reversing the trial court, the Court of Appeals held:
(P)laintiff-appellee's assertion that ownership over the disputed property was not transmitted
to his sister and her husband-Magpayo spouses at the time of the execution of the Deed of
Sale as he was still in actual and adverse possession thereof does not lie.
For in his complaint, plaintiff-appellee alleged that he entered into possession of the disputed
property only upon the demise of his mother, from whom he alleges to have inherited it but
who was not the registered owner of the property, that is, on October 31, 1980 (Certificate of
Death, p. 17, Records), by which admission he is bound. Since the execution of the deed of
sale by Atty. Pedro V. Garcia in favor of the Magpayos took place earlier or on August 1, 1980,
then contrary to his claim, plaintiff-appellee was not in possession of the property at the time
of the execution of said public instrument.
Furthermore, it appearing that the vendor Atty. Garcia had control of the property which was
registered in his name and that the deed of sale was likewise registered, then the sale was
consummated and the Magpayos were free to exercise the attributes of ownership including
the right to mortgage the land.
When the land is registered in the vendor's name, and the public instrument of sale is also
registered, the sale may be considered consummated and the buyer may exercise the actions
of an owner (Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines,
1992 Ed., p. 55).
That the Magpayos' title, TCT No. S-108412, was issued four (4) days following the execution
of the deed of real estate mortgage is of no moment, for registration under the Torrens
system does not vest ownership but is intended merely to confirm and register the title which
one may already have on the land (Municipality of Victorias v. Court of Appeals, 149 SCRA 32,
44-45 [1987]).
Petitioner Garcia moved for a reconsideration of above decision which was denied. He now
comes before us raising the following errors committed by the Court Appeals:
I
The respondent Court of Appeals has departed from the accepted and usual course of
proceedings when it decided the appeal subject of this case based on issues which were raised
neither in the trial court nor in the appellant's brief.
II
The Court of Appeals decided the appeal in a manner not in accord with applicable
jurisprudence when it disregarded the admissions of the private respondents and, despite
ruling that Summary Judgment was proper, made its own findings of facts which were contrary
to the said admissions.
III
The Decision of the respondent Court of Appeals was not in accord with established
jurisprudence and even contradicts itself, as far as the issue of the propriety of the Summary
Judgment is concerned.
The petition has no merit.
Anent the first assignment of error, petitioner alleged that the Court of Appeals resolved the
issues "ownership" and "possession" though they were not raised by PBCom in its appellant's
brief. The allegation is belied by page 17 of PBCom's appellate brief, viz.:
Due to the wrong cited case, the trial court opined erroneously that "Magpayo Spouses could
not have acquired the property merely by the execution of the deed of sale because the
property was in the possession of the plaintiff" (Order, p. 10).
Again, the trial court could not distinguish ownership from possession. Ownership and
possession are two entirely different legal concepts.
Plaintiff-appellee's possession as found by the trial court, started only "at the time of the filing
of the complaint in this present case up to the present." (page 2, Summary Judgment).
Assuming that to be true, plaintiff-appellee's possession which started only in 1986 could not
ripen into ownership. He has no valid title thereto. His possession in fact was that of an
intruder, one done in bad faith (to defeat PBCom's Writ of Possession). His possession is
certainly not in the concept of an owner. This is so because as early as 1981, title thereto was
registered in the name of the Magpayo Spouses which title was subsequently cancelled when
the property was purchased by PBCom in a public auction sale resulting in the issuance of title
in favor of the latter in 1985.
Anent the second-assignment of error, petitioner contends that the following facts were
admitted by the parties in the trial court:
1. The petitioner is a compulsory heir of the late spouses Atty. Pedro V. Garcia and Remedios
Tablan Garcia;
2. The property subject of this dispute was previously the conjugal property of the said
spouses;
3. The petitioner and his family have been and are continuously to the present in actual
physical possession of the property. At the time of the alleged sale to the Magpayo spouses,
petitioner was in possession of the property;
4. When his mother Remedios Tablan (sic) Garcia died, sometime in October, 1980, he
became, by operation of law, a co-owner of the property;
5. Atty. Pedro V. Garcia, at the time of the execution of the instrument in favor of the
Magpayo spouses was not in possession of the subject property.4
We reject the contention of petitioner for a perusal of the records shows that these alleged
admitted facts are his own paraphrased portions of the findings of fact listed by the trial court
in the summary judgment.5 Indeed petitioner did not cite any page number of the records or
refer to any documentary Exhibit to prove how and who admitted the said facts.
Petitioner's third assignment of error that he alone as plaintiff in the trial court is entitled to a
summary judgment merits scant attention. A summary judgment is one granted by the court,
upon motion by either party, for an expeditious settlement of the case, there appearing from
the pleadings, depositions, admissions, and affidavits that no important questions or issues of
fact are involved (except the determination of the amount of damages) and that therefore the
moving party is entitled to a judgment as a matter of law.6 Under Rule 34, either party may
move for a summary judgment — the claimant by virtue of Section 1 and the defending party
by virtue of Section 2, viz.:
Sec. 1. Summary judgment for claimant. — A party seeking to recover upon a claim, counter-
claim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in
answer thereto has been served, move with supporting affidavits for a summary judgment in
his favor upon all or any part thereof.
Sec. 2. Summary judgment for defending party. — A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time,
move with supporting affidavits for a summary judgment in his favor as to all or any part
thereof.
It is true that petitioner made the initial move for summary judgment. Nonetheless, PBCom
likewise moved for a summary judgment with supporting affidavit and documentary exhibits,
to wit:
COUNTER-MOTION FOR SUMMARY JUDGMENT
PBCom Is Entitled To A Summary Judgment
The procedure for summary judgment may be availed of also by the defending parties who
may be the object of unfounded claims as clearly shown in Sections 1 and 2 of Rule 34.
xxx xxx xxx
WHEREFORE, it is respectfully prayed of this Honorable Court to render summary judgment in
PBCom's favor by DISMISSING plaintiff's Complaint as well as Sps. Magpayo's Cross-Claim for
being sham and frivolous.7
Needless to state, there was no error on the part of the appellate court in resorting to
summary judgment as prayed for by both parties.
We stress again that possession and ownership are distinct legal concepts. Ownership exists
when a thing pertaining to one person is completely subjected to his will in a manner not
prohibited by law and consistent with the rights of others.8 Ownership confers certain rights
to the owner, one of which is the right to dispose of the thing by way of sale.9 Atty. Pedro
Garcia and his wife Remedios exercised their right to dispose of what they owned when they
sold the subject property to the Magpayo spouses. On the other hand, possession is defined as
the holding of a thing or the enjoyment of a right.10 Literally, to possess means to actually and
physically occupy a thing with or without right. Possession may be had in one of two ways:
possession in the concept of an owner and possession of a holder.11 "A possessor in the
concept of an owner may be the owner himself or one who claims to be so."12 On the other
hand, "one who possesses as a mere holder acknowledges in another a superior right which he
believes to be ownership, whether his belief be right or wrong."13 The records show that
petitioner occupied the property not in the concept of an owner for his stay was merely
tolerated by his parents. We held in Caniza v. Court of Appeals 14 that an owner's act of
allowing another to occupy his house, rent-free does not create a permanent and indefeasible
right of possession in the latter's favor. Consequently, it is of no moment that petitioner was in
possession of the property at the time of the sale to the Magpayo spouses. It was not a
hindrance to a valid transfer of ownership. On the other hand, petitioner's subsequent claim
of ownership as successor to his mother's share in the conjugal asset is belied by the fact that
the property was not included in the inventory of the estate submitted by his father to the
intestate court. This buttresses the ruling that indeed the property was no longer considered
owned by petitioner's parents. We also uphold the Court of Appeals in holding that the
mortgage to PBCom by the Magpayo spouses is valid notwithstanding that the transfer
certificate of title over the property was issued to them after the mortgage contract was
entered into. Registration does not confer ownership, it is merely evidence of such ownership
over a particular property.15 The deed of sale operates as a formal or symbolic delivery of the
property sold and authorizes the buyer to use the document as proof of ownership.16 All said,
the Magpayo spouses were already the owners when they mortgaged the property to
PBCom.17

IN VIEW WHEREOF, the decision of the Court of Appeals in CA-G.R. No. 44707 is AFFIRMED.
Costs against petitioner.1âwphi1.nêt

SO ORDERED.

G.R. No. 119870 December 23, 1999

DR. BIENVENIDO B. GESMUNDO, VEDASTO B. GESMUNDO, OLIVER B. GESMUNDO, LIGAYA G.

LUALHATI, AMOR G. CARLOS and BELEN G. ROXAS, petitioners,
vs.
COURT OF APPEALS, 13th Division, JUDGE ZORAYDA H. SALCEDO, RTC-Br. 31, San Pablo City,
MAXIMINA BRIZ, (LEANDRO and ELPIDIO REYES both defaulted), and RODRIGO, LOPE and
CASIMIRA, all surnamed BRION, respondents.
BELLOSILLO, J.:
DR. BIENVENIDO B. GESMUNDO, VEDASTO B. GESMUNDO, OLIVER B. GESMUNDO, LIGAYA G.
LUALHATI, AMOR G. CARLOS and BELEN G. ROXAS, petitioner herein, filed on 4 March 1983 a
complaint against the spouses Maximina Briz and Santiago Reyes and the City Assessor of San
Pablo City before the Regional Trial Court of San Pablo City for annulment of certain falsified
affidavits and tax declarations. On 25 July 1983 petitioners amended their complaint by
deleting the name of the deceased Santiago Reyes as defendant and substituting for him his
children Leandro and Elpidio Reyes. On 28 February 1984 petitioners again amended their
complaint by adding the names of Rodrigo, Lope and Casimira, all surnamed Brion, as
defendants and adding quieting of title as another cause of action. The disputed property is
particularly described as "[A] parcel of cocal land located at Brgy. Dolores, San Pablo City,
bounded on the North by Marcelo Briñas, South by Ricardo Exconde, East by Domingo
Sarmiento and West by Mariano Rivera, containing an area of 7,091 square meters." 1
Petitioners alleged that the aforementioned property was originally declared in 1937 under
Tax Declaration No. 2239 in the name of their father Anastacio Gesmundo who died on 20
June 1974. 2 Petitioners also submitted in evidence Tax Declarations Nos. 5557, 6470, 64015,
41163 and 112963 issued for the period covering 1948 to 1979 to substantiate their claim of
ownership. They further claimed that Crispin Briz, uncle of respondent Maximina Briz, was the
administrator of their father, whereas Lucio Brion, cousin of respondents Brion, was
subsequently designated caretaker thereon. Still further, they asserted that on account of a
series of record tampering in the City Assessor's Office, Tax Declaration No. 11296 was
cancelled.
Respondent Maximina Briz presented the same Tax Declaration No.
2239 4 but declared in the name of her grandmother Anastacia Gesmundo who died on 21
September 1909 leaving five (5) children: Rufina Briz, Crispin Briz (married to Micaela
Escondo), Petra Briz (mother of Valentin Briz), Vicenta Briz and Fruto Briz (married to Petronila
Javier and father of respondent Maximina Briz). Her uncle Crispin Briz, who died in 1949, was
the administrator of the property. Respondent Briz also offered in evidence the same Tax
Declarations Nos. 5557, 6470, 64015, 41163 and 11296 5 in the name of Anastacio Gesmundo
but contended that "Anastacio" actually referred to her grandmother "Anastacia." Respondent
Maximina Briz claimed that she inherited one-fifth (1/5) portion thereof from her father in
1940 and subsequently acquired the rest by way of sale transactions. She paid the real estate
taxes thereon from 1945 to 1991. On 16 March 1956 her husband Santiago Reyes entered into
an agreement with Crispulo Exconde for the latter to act as caretaker of their property then
covered by Tax Declaration No. 6470. Their agreement was embodied in a notarized
document. 6
Respondents Brion asserted that their property with an area of 11,094 square meters was
originally covered by Tax Declaration No. 5691 7 issued in 1948 in the name of their
grandfather Esteban Maranan. In 1952, Tax Declaration No. 6606 8 was issued in lieu thereof
still in the name of Esteban Maranan. When their grandfather died, the property was
transferred in the name of their mother Francisca Maranan under Tax Declaration No. 11443 9
issued in 1980. Their mother paid real estate taxes thereon from 1972 to 1984. 10 Upon the
death of their mother 11 and of their father Gervacio Brion on 28 October 1984, respondents
Brion possessed the property.
At the pre-trial the parties raised among others the issue as to who of them possessed the
subject property and gathering the fruits therefrom. On 23 March 1984 the trial court
conducted an ocular inspection of the premises. As it turned out, the land being claimed by
petitioners was located outside of the property, on the west thereof, being claimed and
possessed by respondent Briz and with visible natural boundaries separating the properties.
The land pointed to by petitioners was actually being occupied by respondents Brion. On 25
January 1985 the trial court nevertheless issued an order setting the case for trial as the tax
declarations presented by petitioners and respondent Briz appeared to contain conflicting
entries.
On 29 September 1992 the trial court rendered judgment declaring: (a) respondent Maximina
Briz and the heirs of her deceased husband Santiago Reyes or their legal successors-in-interest
the lawful owners of the property with an area of 7,091 square meters located in Brgy.
Dolores, San Pablo City; (b) respondents Rodrigo, Lope and Casimira Brion the lawful owners
of the property with an area of 11,094 square meters, also located in Brgy. Dolores, San Pablo
City; (c) petitioners liable, jointly and severally, to respondent Maximina Briz or her successors-
in-interest P5,000.00 for attorney's fees and another P5,000.00 to respondents Brion; and, (d)
petitioners liable for the
costs. 12
On 24 February 1995 respondent Court of Appeals affirmed the ruling of the trial court, 13 and
on 6 April 1995 denied reconsideration thereof. 14
Petitioners now allege that respondent Maximina Briz failed to prove that the Deed of Sale
dated 9 December 1950 marked Exh. "11" 15 and her supposed "affidavit of self-adjudication"
were registered or that the latter document was published in any newspaper of general
circulation as required under par. 2, Sec. 1, Rule 74, of the Rules of Court. They also claim that
respondents Brion failed to prove that their property was registered and that the affidavits of
Clemente Maranan and Lucio Brion were hearsay, they not having testified on the metes and
bounds of the property being claimed by the Brions.
Preliminarily, we shall dwell on the evidence of petitioners. Tax Declaration No. 2239 in the
name of Anastacio Gesmundo describes subject property as a coconut land in Brgy. Dolores,
San Pablo City, bounded on the north by the property of Marcelo Briñas, on the south by the
property of Ricardo Exconde, on the east by the property of Domingo Sarmiento, and on the
west by the property of Mariano Rivera. It contains an area of 7,091 square meters and is
being administered by "Crispin Briz and others." Tax Declaration No. 5557 contains the same
entries and so does Tax Declaration No. 6470 except the notation that it was cancelled by Tax
Declaration No. 64014 in the name of spouses Maximina Briz and Santiago Reyes effective
1974. Tax Declaration No. 64015 is still in the name of Anastacio Gesmundo but with a
reduced area of 2,837 square meters starting in 1974 and the eastern boundary was changed
to the property of spouses Maximina Briz and Santiago Reyes. We deduce therefrom that Tax
Declaration No. 64014 covered the bigger area of 4,254 square meters. Tax Declaration No.
41163 contained the same entries as Tax Declaration No. 64015 which were carried over to
Tax Declaration No. 11296 but now with the notation that it was cancelled by Tax Declaration
No. 46358 in the name of the spouses Maximina Briz and Santiago Reyes effective 1979 and by
Tax Declaration No. 46359 in the name of Maximina Briz effective 1980.
We now shift to the evidence of respondent Maximina Briz. Her Tax Declaration No. 2239
shows the same description of the property as the copy of petitioners except that the first
name of the owner is "Anastacia," her grandmother. Petitioner Vedasto Gesmundo admitted
that he knew Anastacia Gesmundo to be the grandmother of respondent Briz. However it
appears that petitioners are not related at all to Anastacia Gesmundo. The spouses Maximina
Briz and Santiago Reyes established that on 9 December 1950 they bought the one-fifth (1/5)
share of Crispin Briz in the 7,091-square meter property from his surviving spouse Micaela
Escondo or 1,418 square meters of the property then covered by Tax Declaration No. 5557.
The transaction was evidenced by a notarized deed of sale marked Exh. "11." 16
On 7 July 1954 the spouses Maximina Briz and Santiago Reyes bought the two-fifths (2/5)
share of Petra Briz, maternal aunt of Maximina Briz, from Petra's surviving son Valentin Briz
consisting of 2,836 square meters then covered by Tax Declaration No. 6470. The transaction
was contained in a notarized deed of sale as well. 17 On 10 April 1959 the spouses Reyes
bought through another notarized deed of sale a 1,418-square meter portion of the land
covered by Tax Declaration No. 6470, this time from Jose, Delfina and Raymunda, all surnamed
Reyes. 18 By virtue of these two (2) later sale transactions, Tax Declaration No. 64014 19 was
issued in the name of the spouses Maximina Briz and Santiago Reyes for the year 1974 with a
total area of 4,254 square meters. The remaining 1,419 square meters were adjudicated by
respondent Maximina Briz to herself representing her share of the inheritance on 30 August
1979 as she has been in actual possession thereof since 1940. This self-adjudication resulted in
the issuance of Tax Declaration No. 46358 in
1979, 20 and the sale by Micaela Escondo to the spouses Reyes the issuance of Tax
Declaration No. 46359 in 1980. 21 We thus agree with the trial court that the testimonial and
documentary evidence of respondent Briz adequately establish that the 7,091-square meter
property formerly belonged to Anastacia Gesmundo, thereafter transferred to her children by
inheritance until ownership thereof was consolidated in respondent Maximina Briz both as a
consequence of inheritance and by sale.
The name "Anastacio" in several tax declarations appears to be a typographical error by the
City Assessor's Office. We note that Tax Declaration No. 2239 of respondent Briz names
Anastacia Gesmundo as owner. We find plausible the explanation of respondent Briz that she
understood "Anastacio" in subsequent tax declarations to be Anastacia because she did not
know Anastacio Gesmundo. 22 We likewise note that Crispin Briz was mentioned in Tax
Declarations Nos. 2239, 5557 and 6470 as administrator of the 7,091-square meter property.
Crispin Briz was one of the children of Anastacia Gesmundo. It was thus logical that he was
given such task.
Petitioners claim that the same Crispin Briz was the administrator of their father over the
same property until Lucio Brion took over as caretaker. We are not persuaded. As found by the
trial court, Crispin Briz was a total stranger to petitioners and Lucio Brion was not even
presented as a witness.
Prescription is another mode of acquiring ownership and other real rights over immovable
property. It is concerned with lapse of time in the manner and under conditions laid down by
law, namely, that the possession should be in the concept of an owner — public, peaceful,
uninterrupted and adverse. Acquisitive prescription is either ordinary or extraordinary.
Ordinary acquisitive prescription requires possession in good faith and with just title for ten
(10) years. In extraordinary prescription ownership and other real rights over immovable
property are acquired through uninterrupted adverse possession thereof for thirty (30) years
without need of title or of good faith. 23
Even assuming that the deeds of sale and "affidavit of self-adjudication" in favor of respondent
Briz did not exist and that she was only equipped with tax declarations and receipts, the
important consideration then is that she has been in possession of the 7,091-square meter
property since 1956 through Crispulo Exconde as caretaker. Her possession was in the concept
of owner. Her acts of harvesting coconuts therefrom were manifest and visible to all. She
possessed the property peacefully as she was never ousted therefrom nor prevented from
enjoying the fruits thereof. Her possession was uninterrupted and in good faith as she
believed that her grandmother previously owned the property. Ordinary acquisitive
prescription had definitely set in ten (10) years from 1956. While tax declarations and receipts
are not conclusive evidence of ownership, yet, when coupled with proof of actual possession,
as in the present case, tax declarations and receipts are strong evidence of ownership. 24
Aside from the utter failure of petitioners to prove their ownership of the 7,091-square meter
property, they were uncertain as to the identity thereof. During the ocular inspection,
petitioners pointed to a property different from the one being claimed by respondent
Maximina Briz; it was the property being claimed by respondents Brion. A person who claims
ownership of real property is duty bound to clearly identify the land being claimed in
accordance with the document on which he anchors his right of ownership. When the record
does not show that the land subject matter of the action has been exactly determined, such
action cannot prosper. Proof of ownership together with identity of the land is the basic rule.
25
On the part of respondents Brion, the property over which they assert ownership was
declared in 1948 by their grandfather Esteban Maranan under Tax Declaration No. 5691 and in
1952 under Tax Declaration No. 6606 with an area of 11,094 square meters. The property was
described therein as bounded on the north by the property of Policarpio Empamano, on the
south by the property of Florentino Mariño, on the west by the property of Maximo Briñas,
and on the east by the property of Anastacio Gesmundo. In 1961, Tax Declaration No. 6606
was cancelled by Tax Declaration No. 11443 in the name of Francisca Maranan, mother of
respondents Brion, who paid the real estate taxes thereon from 1972 to 1984. Upon the death
of their mother, and later of their father Gervacio Brion on 28 October 1984, respondents
Brion possessed the property. As already adverted to earlier, the date of death of Francisca
Maranan does not appear in the record.
In this regard we cannot sustain the ownership of respondents Brion as ruled by the trial court
since it relied merely on the tax declarations and tax receipts in the name of the predecessors-
in-interest of respondents Brion and on the affidavit of Clemente Maranan, their uncle, stating
that subject property was bought by his father Esteban Maranan from Mariano Rivera before
the Second World War and that they have been in possession thereof since then. As
mentioned earlier, tax declarations and receipts are strong evidence of ownership only when
coupled with proof of actual possession which must be clear, complete and conclusive in order
to establish prescription. 26 Unfortunately, respondents Brion were only able to prove their
own possession which began in 1984 up to the time respondent Casimira testified on 25 May
1992. They failed to establish the possession of their predecessors-in-interest. Moreover, the
affidavit of Clemente Maranan who did not take the witness stand has no probative value; it is
hearsay. 27 Sworn statements taken ex parte are generally considered to be inferior to the
testimony given in open court. 28 Clearly, ownership by acquisitive prescription of the 11,094-
square meter property has not yet accrued in favor of respondents Brion at the time the case
was heard by the trial court.
WHEREFORE, the petition is PARTIALLY GRANTED. The Decision of respondent Court of
Appeals affirming that of the Regional Trial Court of San Pablo City-Br. 31 is MODIFIED. The
declaration of ownership by the trial court in favor of respondent Maximina Briz and the heirs
of her deceased husband Santiago Reyes or their legal successors-in-interest of the disputed
property containing an area of 7,091 square meters located in Brgy. Dolores, San Pablo City, is
AFFIRMED. However, the declaration of ownership by respondents Rodrigo, Lope and
Casimira, all surnamed Brion, of the adjoining property containing an area of 11,094 square
meters is SET ASIDE. The other portions of the trial court's decision ordering petitioners Dr.
Bienvenido B. Gesmundo, Vedasto B. Gesmundo, Oliver B. Gesmundo, Ligaya G. Lualhati, Amor
G. Carlos and Belen G. Roxas to pay, jointly and severally, to respondent Maximina Briz
attorney's fees of P5,000.00 and another P5,000.00 to respondents Brion, are also AFFIRMED.
No costs.
SO ORDERED.
HEMEDES VS. CA
G.R. No. 108472 October 8, 1999
Facts: The disagreement involves a question of ownership over an unregistered parcel of land.
The late Jose Hemedes originally owned the land, father of Maxima Hemedes and Enrique D.
Hemedes. On March 22, 1947 Jose Hemedes executed a document entitled “Donation Inter
Vivos With Resolutory Conditions” whereby he conveyed ownership over the subject land,
together with all its improvements, in favor of his third wife, Justa Kausapin. Maxima
Hemedes, through her counsel, filed an application for registration and confirmation of title
over the subject unregistered land. Subsequently, an Original Certificate of Title (OCT) was
issued in the name of Maxima Hemedes married to Raul Rodriguez by the Registry of Deeds of
Laguna on June 8, 1962, with the annotation that “Justa Kausapin shall have the usufructuary
rights over the parcel of land herein described during her lifetime or widowhood.”
However, Enrique D. Hemedes subsequently sold the property to Dominium Realty and
Construction Corporation (Dominium). Justa Kausapin also executed and affidavit confirming
the conveyance of the subject property in favor of Enrique D. Hemedes as embodied in the
“Kasunduan” dated May 27, 1971, and at the same time denying the conveyance made to
Maxima Hemedes.
A complaint was filed by Enrique D. Hemedes for the annullment of the TCT issued in favor of
R&B Insurance and/or the reconveyance to Dominium of the subject property. Specifically, the
complaint alleged that Dominium has become the absolute owner of the subject property by
virtue of the February 28, 1979 deed of sale executed by Enrique D. Hemedes, who in turn
obtained ownership of the land from Justa Kausapin, as evidenced by the “Kasunduan”. The
Plaintiffs contend that Justa Kausapin never transferred the land to Maxima Hemedes and that
Enrique D. Hemedes had no knowledge of the registration proceedings initiated by Maxima
Hemedes.
The trial court rendered judgment in favor of the plaintiffs Dominium and Enrique D.
Hemedes. Both R&B Insurance and Maxima Hemedes appealed from the trial court’s decision.
The Court of Appeals affirmed the assailed decision in toto. Hence, this petition.
Issue: Whether or not the conveyance by Justa Kausapin in favour of Enrique D. Hemedes
transferred ownership over the subject land?
Ruling: The Supreme Court held that petitioner R & B Insurance’s assertion of ownership over
the property in dispute, as evidenced by TCT No. 41985, subject to the usufructuary rights of
Justa Kausapin, which encumbrance has been properly annotated upon the said certificate of
title.
The finding of the public respondent’s that the “Deed of Conveyance of Unregistered Real
Property By Reversion” executed by Justa Kausapin in favor of Maxima Hemedes is false and
not supported by the factual findings in this case. It is grounded upon the mere denial of the
same by Justa Kausapin. A party to a contract cannot just evade compliance with his
contractual obligations by the simple expedient of denying the execution of such contract. If,
after a perfect and binding contract has been executed between the parties, it occurs to one of
them to allege some defect therein as a reason for annulling it, the alleged defect must be
conclusively proven, since the validity and fulfilment of contracts cannot be left to the will of
one of the contracting parties. In upholding the deed of conveyance in favor of Maxima
Hemedes, the Court must concomitantly rule that Enrique D. Hemedes and his transferee,
Dominium, did not acquire any rights over the subject property.
Justa Kausapin sought to transfer to her stepson exactly what she had earlier transferred to
Maxima Hemedes – the ownership of the subject property pursuant to the first condition
stipulated in the deed of donation executed by her husband. Thus, the donation in favor of
Enrique D. Hemedes is null and void for the purported object thereof did not exist at the time
of the transfer, having already been transferred to his sister. Similarly, the sale of the subject
property by Enrique D. Hemedes to Dominium is also a nullity for the latter cannot acquire
more rights than its predecessor-in-interest and is definitely not an innocent purchaser for
value since Enrique D. Hemedes did not present any certificate of title upon which it relied.