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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

L-33006 December 8, 1982 NICANOR NACAR, petitioner, vs. CLAUDIO A. NISTAL as Municipal Judge of Esperanza, Agusan del Sur, PROVINCIAL SHERIFF of Agusan del Sur, ILDEFONSO JAPITANA and ANTONIO DOLORICON, respondents. Tranquilino O. Calo, Jr. for petitioner. Ildefonso Japitana and Antonio Boloricon for respondents.

GUTIERREZ, JR., J.: Nicanor Nacar filed this petition for certiorari, prohibition, and mandamus with preliminary injunction to annul an order of the respondent judge of the municipal court of Esperanza, Agusan del Sur directing the attachment of seven (7) carabaos, to effect the return of four (4) carabaos seized under the questioned order, and to stop the respondent judge from further proceeding in Civil Case No. 65. Respondent Ildefonso Japitana filed the complaint in Civil Case No. 65 and entitled it "Claim Against the Estate of the Late Isabelo Nacar With Preliminary Attachment:" On the basis of this complaint, including an allegation "that defendant are (sic) about to remove and dispose the abovenamed property (seven carabaos) with intent to defraud plaintiff herein", and considering that Mr. Japitana had given security according to the Rules of Court, Judge Nistal issued the order commanding the provincial sheriff to attach the seven (7) heads of cattle in the possession of petitioner Nicanor Nacar. Actually only four (4) carabaos were attached because three (3) carabaos had earlier been slaughtered during the rites preceding the burial of the late Isabelo Nacar. Nicanor Nacar filed a motion to dismiss, to dissolve writ of preliminary attachment, and to order the return of the carabaos. Private respondent Japitana filed an opposition to this motion while intervenor Antonio Doloricon filed a complaint in intervention asserting that he was the owner of the attached carabaos and that the certificates of ownership of large cattle were in his name. The respondent Judge denied the motion to dismiss prompting Mr. Nacar to come to the Supreme Court. In a resolution dated January 12, 1971, this Court, upon the posting of a bond in the amount of P1,000.00, directed the issuance of a preliminary mandatory injunction. The respondents were enjoined from further

enforcing the writ of attachment and to return the seized carabaos. The judge was restrained from further proceeding with Civil Case No. 65. We find the petition meritorious. The pertinent portions of the complaint filed by Mr. Japitana with the municipal court read as follows: ILDEFONSO JAPITANA Civil Case No. 65 Plaintiff, FOR: Versus CLAIM AGAINST THE ESTATE NICANOR NACAR THE LATE ISABELO NACAR WITH Defendant. PRELIMINARY ATTACHMENT x ---------------------------------x COMPLAINT COMES NOW the undersigned plaintiff and before this Honorable Court, respectfully avers: xxx xxx xxx That at various dates since the year 1968, the defendant have (sic) incurred indebtedness to the plaintiff in the total sum of TWO THOUSAND SEVEN HUNDRED NINETY ONE (P2,791.00) PESOS, which said amount had long been overdue for payment, and which the defendant up to this date have (sic) not been able to pay, despite repeated demands from the plaintiff; That the defendant Isabelo Nacar died last April, 1970 leaving among other things personal property consisting seven (7) heads of carabaos now in the possession of the defendant Nicanor Nacar; That plaintiff herein file a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of P2,791.99; That defendant are (sic) about to remove and dispose the above mentioned property with intent to defraud plaintiff herein; That plaintiff is willing to put up a bond for the issuance of a preliminary attachment in an amount to be fixed by the Court, not exceeding the sum of P 2,791.00 which is the plaintiff's claim herein; WHEREFORE, it is respectfully prayed that pending the hearing of this case, a writ of preliminary attachment be issued against the properties of the defendant to serve as security for the payment or satisfaction of any judgment that may be recovered herein; and that after due hearing on the principal against the defendant for the sum of P 2,791,00 with legal

interest from September 15, 1970 plus costs of this suit. (Annex "A", p. 7 rollo). In his motion to dismiss, the petitioner raised the issue of lack of jurisdiction and absence of a cause of action. Mr. Nacar averred that the indebtedness mentioned in the complaint was alleged to have been incurred by the late Isabelo Nacar and not by Nicanor Nacar. There was, therefore, no cause of action against him. The petitioner also stated that a municipal court has no jurisdiction to entertain an action involving a claim filed against the estate of a deceased person. The same grounds have been raised in this petition. Mr. Nacar contends: xxx xxx xxx 9. That the respondent judge acted without jurisdiction.The municipal courts or inferior courts have NO jurisdiction to settle the estate of deceased persons. The proper remedy is for the creditor to file the proper proceedings in the court of first instance and file the corresponding claim. But assuming without admitting that the respondent judge had jurisdiction, it is very patent that he committed a very grave abuse of discretion and totally disregarded the provisions of the Rules of Court and decisions of this honorable Court when he issued an exparte writ of preliminary attachment, when there is no showing that the plaintiff therein has a sufficient cause of action, that there is no other security for the claim sought to be enforced by the plaintiff; or that the amount claimed in the action is as much as the sum for which the order is prayed for above all legal counterclaims; There was no bond to answer for whatever damages that herein petitioner may suffer; (Rollo, pp. 3- 4). xxx xxx xxx The respondent judge tried to avoid the consequences of the issues raised in the motion to dismiss by stating that although the title of the complaint styled it a claim against the estate of the late Isabelo Nacar, the allegations showed that the nature of the action was really for the recovery of an indebtedness in the amount of P2,791.99. The rule cited by the judge is correctly stated but it is hardly relevant to the contents of the complaint filed by Mr. Japitana. It is patent from the portions of the complaint earlier cited that the allegations are not only vague and ambiguous but downright misleading. The second paragraph of the body of the complaint states that the defendant (herein petitioner Nicanor Nacar) at various dates since the year 1968 incurred debts to the plaintiff in the sum of P2,791.00. And yet, in the subsequent paragraphs, one clearly gathers that the debts were actually incurred by the late Isabelo Nacar, who died several months before the filing of the complaint. The complaint which the respondent judge reads as one for the collection of a sum of money and all the paragraphs of which are incidentally unnumbered, expressly states as a material averment:

xxx xxx xxx That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of P2,791.00; xxx xxx xxx Under the circumstances of this case, respondent Japitana has no cause of action against petitioner Nacar.Mathay v. Consolidated Bank and Trust Company (58 SCRA 559) gives the elements of a valid cause of action: A cause of action is an act or omission of one party in violation of the legal right of the other. Its essential elements are, namely: (1) the existence of a legal right in the plaintiff, (2) a correlative legal duty in the defendant, and (3) an act or omission of the defendant in violation of plaintiff's right with consequential injury or damage to the plaintiff for which he may maintain an action for the recovery of damages or other appropriate relief. ( Ma-ao Sugar Central Co., Inc. vs. Barrios, et al., 79 Phil. 666, 667; Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 251, 255). On the other hand, Section 3 of Rule 6 of the Rules of Court provides that the complaint must state the ultimate facts constituting the plaintiff's cause of action. Hence, where the complaint states ultimate facts that constitute the three essential elements of a cause of action, the complaint states a cause of action; (Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215, 218) otherwise, the complaint must succumb to a motion to dismiss on that ground. Indeed, although respondent Japitana may have a legal right to recover an indebtedness due him, petitioner Nicanor Nacar has no correlative legal duty to pay the debt for the simple reason that there is nothing in the complaint to show that he incurred the debt or had anything to do with the creation of the liability. As far as the debt is concerned, there is no allegation or showing that the petitioner had acted in violation of Mr. Japitana's rights with consequential injury or damage to the latter as would create a cause of action against the former. It is also patent from the complaint that respondent Japitana filed the case against petitioner Nacar to recover seven (7) heads of carabaos allegedly belonging to Isabelo Nacar which Japitana wanted to recover from the possession of the petitioner to answer for the outstanding debt of the late Isabelo Nacar. This matter, however, is only ancillary to the main action. The ancillary matter does not cure a fatal defect in the complaint for the main action is for the recovery of an outstanding debt of the late lsabelo Nacar due respondent Japitana, a cause of action about which petitioner Nacar has nothing to do. In fact the fatal defect in the complaint was noticed by the respondent court when it advised respondent Japitana to amend his complaint to conform with his evidence and from the court's admission that it was inclined to dismiss the case were it not for the complaint in intervention of respondent Doloricon. Respondent Doloricon filed his complaint for intervention on the

ground that the four carabaos, subject of the writ of attachment, were actually his carabaos. Thus, the respondent court in its Order denying the petitioner's motion to dismiss, to dissolve writ of preliminary attachment and in order the return of the carabaos said: ... Antonio Doloricon manifested before this Court that he is filing a third-party complaint alleging that he is the true and lawful owner of the carabaos in questions. IN VIEW OF ALL THE FOREGOING, this Court for the interest of both parties will not for the meantime dismiss this case. Antonio Doloricon is hereby given 10 days from receipt hereof within which to file his third-party complaint. The plaintiff who in his opposition to defendant's motion to dismiss pray (sic) for the custody of the carabaos. This Court further requires plaintiff to put up the additional bond of P I,000.00 after which the latter may be entitled of (sic) the custody of the carabaos subject of litigation pending final termination of this case. (Rollo, pp. 1819) The respondent court's reason for not dismissing the case is contrary to applicable precedents on the matter. We ruled in Mathay v. Consolidated Bank and Trust Company, supra: Section I, Rule 16 of the Rules of Court, providing in part that: Within the time for pleading a motion to dismiss may be made on any of the following grounds; ... (g) That the complaint states no cause of action. ... explicitly requires that the sufficiency of the complaint must be tested exclusively on the basis of the complaint itself and no other should be considered when the ground for motion to dismiss is that the complaint states no cause of action. Pursuant thereto this Court has ruled that: As a rule the sufficiency of the complaint, when challenged in a motion to dismiss, must be determined exclusively on the basis of the facts alleged therein' (Uy Chao vs. De La Rama Steamship Co., Inc., L-14495, September 29, 1962, 6 SCRA 69, 72. See also De Jesus, et al. vs. Belarmino et al., 95 Phil. 365, 371; Dalandan, et at. vs. Julio, et al., L- 19101, February 29, 1964, 10 SCRA 400; Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 250, 254; Acuna vs. Batac Producers Cooperative Marketing Association, Inc., et al., L-20338, June 30, 1967, 20 SCRA 526, 531) Hence, it was error for the respondent court not to dismiss the case simply because respondent Doloricon filed the complaint for intervention alleging that he owned the carabaos.

Moreover, even assuming that respondent Japitana had a legal right to the carabaos which were in the possession of petitioner Nacar, the proper procedure would not be to file an action for the recovery of the outstanding debts of the late Isabelo Nacar against his stepfather, the petitioner Nacar as defendant. As we said in Maspil v. Romero(61 SCRA 197): Appropriate actions for the enforcement or defense of rights must be taken in accordance with procedural rules and cannot be left to the whims or caprices of litigants. It cannot even be left to the untrammeled discretion of the courts of justice without sacrificing uniformity and equality in the application and effectivity thereof. Considering the foregoing, the respondent court's denial of the motion to dismiss the complaint and its issuance of a writ of attachment based on the allegations of the complaint are improper. With this conclusion, we find no need to discuss the other issue on whether or not the procedural rules on the issuance of a writ of attachment were followed by the respondent court in issuing the subject writ of attachment. WHEREFORE, the petition is hereby granted. The preliminary mandatory injunction issued on January 13, 1971 is made permanent and the cash bond filed by the petitioner in connection therewith is ordered returned to him. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana and Relova, JJ., concur.

Separate Opinions

VASQUEZ, J., concurring: I concur in the result. The fundamental error committed by the private respondents was in pursuing their claim in an ordinary action; and that by the respondent municipal judge in entertaining the same. As can be seen from the caption and the body of the complaint filed in Civil Case No. 65, the claim of the private respondents was not against herein petitioner Nicanor Nacar but against the estate of the deceased Isabelo Nacar. It is a claim for money arising from unpaid indebtedness granted on various dates. Isabelo Nacar died before the said complaint was filed. It does not appear that any proceeding has been filed to settle his estate. Under these facts, the filing of an ordinary action to recover said claim is not allowed in any court. Even if settlement proceedings had been taken to settle the estate of Isabelo Nacar, the suit to recover the claim of the

private respondents may not be filed against the administrator or executor of his estate. This is expressly provided for in Section 1 of Rule 87 of the Rules of Court, as follows: No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; ... . The claim of private respondents, being one arising from a contract, may be pursued only by filing the same in the administration proceedings that may be taken to settle the estate of the deceased Isabelo Nacar. If such a proceeding is instituted and the subject claim is not filed therein within the period prescribed, the same shall be deemed "barred forever." (Sec. 5, Rule 86, Rules of Court). Even if this action were commenced during the lifetime of Isabelo Nacar, the same shall have to be dismissed, and the claim prosecuted in the proper administration proceedings (Sec. 21, Rule 3, Ibid.). It would seem that the main purpose of the private respondents in filing Civil Case No. 65 was to attach the seven carabaos owned by Isabelo Nacar. A case had to be filed in order to justify the issuance of a writ of attachment, unfortunately, said remedy may not be allowed. The carabaos, if really owned by Isabelo Nacar, pertained to his estate upon his death. The claim of the private respondents may only be satisfied by a voluntary act on the part of the heirs of Isabelo Nacar, or pursued in the appropriate settlement proceedings. A municipal court may not entertain such a proceeding, it not being vested, under the law then in force, with probate jurisdiction. Civil Case No. 65 should accordingly be dismissed and the writ of attachment issued therein dissolved.

Separate Opinions VASQUEZ, J., concurring: I concur in the result. The fundamental error committed by the private respondents was in pursuing their claim in an ordinary action; and that by the respondent municipal judge in entertaining the same. As can be seen from the caption and the body of the complaint filed in Civil Case No. 65, the claim of the private respondents was not against herein petitioner Nicanor Nacar but against the estate of the deceased Isabelo Nacar. It is a claim for money arising from unpaid indebtedness granted on various dates. Isabelo Nacar died before the said complaint was filed. It does not appear that any proceeding has been filed to settle his estate. Under these facts, the filing of an ordinary action to recover said claim is not allowed in any court. Even if settlement proceedings had been taken to settle the estate of Isabelo Nacar, the suit to recover the claim of the private respondents may not be filed against the administrator or executor

of his estate. This is expressly provided for in Section 1 of Rule 87 of the Rules of Court, as follows: No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; ... . The claim of private respondents, being one arising from a contract, may be pursued only by filing the same in the administration proceedings that may be taken to settle the estate of the deceased Isabelo Nacar. If such a proceeding is instituted and the subject claim is not filed therein within the period prescribed, the same shall be deemed "barred forever." (Sec. 5, Rule 86, Rules of Court). Even if this action were commenced during the lifetime of Isabelo Nacar, the same shall have to be dismissed, and the claim prosecuted in the proper administration proceedings (Sec. 21, Rule 3, Ibid.). It would seem that the main purpose of the private respondents in filing Civil Case No. 65 was to attach the seven carabaos owned by Isabelo Nacar. A case had to be filed in order to justify the issuance of a writ of attachment, unfortunately, said remedy may not be allowed. The carabaos, if really owned by Isabelo Nacar, pertained to his estate upon his death. The claim of the private respondents may only be satisfied by a voluntary act on the part of the heirs of Isabelo Nacar, or pursued in the appropriate settlement proceedings. A municipal court may not entertain such a proceeding, it not being vested, under the law then in force, with probate jurisdiction. Civil Case No. 65 should accordingly be dismissed and the writ of attachment issued therein dissolved.

G.R. No. L-29541 January 27,1989 CARLOS GABILA, plaintiff-appellant, vs. PABLO PEREZ, RAMON PEREZ & MERCEDES PEREZ, defendantsappellees. Isidra M. Ampig for plaintiff-appellant. Castillo Law Offices for defendants-appellees.

GRIO-AQUINO, J.: This is an appeal from a decision of the Court of First Instance of Davao dated January 21, 1961 dismissing plaintiff-appellant's complaint, which the Court of Appeals certified to this Court because only a question of law is involved. On September 16, 1948, in the City of Davao, defendants-appellees Pablo, Ramon and Mercedes, all surnamed Perez, executed in favor of plaintiffappellant Carlos Gabila, a Deed of Sale of a parcel of land registered in the name of their deceased father Mariano Perez under Transfer Certificate of Title No. 899 of the Registry of Deeds of Davao, which they inherited upon his demise. The deed of Sale (Exh. A) reads: KNOW ALL MEN BY THESE PRESENTS: This CONTRACT, made and executed in the place and date mentioned hereinbelow by and between PABLO PEREZ, married; RAMON PEREZ, married, Filipina citizen, and MERCEDES PEREZ, married, Filipino, all of legal age, and all residents of Bunawan, Davao City, Philippines, hereinafter referred to as the VENDORS, and CARLOS S. GABILA, also of legal age, married to Leonarda P. Gabila and a resident of Ponciano St., Davao City, Philippines, hereinafter referred to as the VENDEE, witnesseth: WHEREAS, the VENDORS are the owners of one parcel of agricultural land situated in Bunawan, City of Davao, Philippines, with all the improvements, which is more particularly bounded and described as follows: A parcel of land (Lot No. 603 of the cadastral survey of Davao, Cadastral Case No. 1, G.L.R.O. Cadastral Record No. 317), situated in the municipality of Davao. Bounded on the NW and NE, by Lot No. 511; on the SE, by the Licanan River and Lot No. 602; and on the W, by Lot No. 502 and the Bunawan River, containing an area of eighty-one thousand nine hundred and three square meters (81,903), more or less. their ownership thereto being evidenced by transfer Certificate of Title No. 899 of the Office of the Register of Deeds of Davao, issued in the name of the deceased, MARIANO PEREZ, the

father of the VENDORS, who died on October 11, 1942 and the herein vendors inherited said land from their deceased father, being the legitimate children; WHEREAS, the VENDEE has agreed to purchase the abovedescribed property and the VENDORS have agreed to sell the same to the VENDEE, subject to the terms and conditions hereinbelow specified; NOW, THEREFORE, for and in consideration of the sum of TWO THOUSAND FIVE HUNDRED PESOS (P2,500.00) Philippine Currency, to be paid in the manner hereinbelow specified, the VENDORS hereby sell, transfer and convey unto the said VENDEE, his heirs, executors, administrators and assigns, the above-described one parcel of land, together with the buildings and improvements thereon, belonging to the VENDORS, the aforementioned sum of P2,500.00 shall be paid in the manner as follows: a) P l,500.00 Philippine Currency, upon the signing of this contract; b) The balance of P1,000.00, Philippine Currency, to be paid in ten (10) monthly installments of ONE HUNDRED PESOS (P100.00) each the first installment to become due and payable on October 14, 1948, and the succeeding monthly installments to be paid on the same date every month thereafter until the total amount is fully paid. It is hereby agreed, covenanted and stipulated by and between the parties hereto that the Vendors will execute immediately an Extra-Judicial Partition of all the properties of their deceased father, and pay the corresponding estate and inheritance taxes so that the above-described title could be cancelled and in its stead a new transfer Certificate of title be issued in favor of the Vendee. It is finally agreed, covenanted and stipulated that immediately upon the execution of this document, the VENDEE takes immediate possession of the property sold and will harvest the improvements inside of this land. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands this 16th day of September, 1948 at Davao City, Philippines. (Italics ours.) (p. 1, Folder of Exhibits.) The Deed of Sale was duly signed and ratified before Notary Public Isidro Bastida of Davao City on the same date, September 16, 1958, and possession of the land was immediately delivered to the vendee. The monthly installments of the price of the sale were completely paid in due time. However, the vendors took no steps to comply with their promise to execute an extrajudicial partition of their father's properties so that his title to the land in question can be transferred in their names and from them, to the vendee Gabila.

So, on August 28, 1958, Gabila filed this action praying that the defendants be ordered: 1) To execute an extra-judicial partition of all the properties of their deceased father or otherwise settle his estate and pay the corresponding estate and inheritance taxes, and execute the requisite instruments for the registration and transfer of the title to him; and 2) To pay him Pl,000 as attorney's fees and expenses of the suit, plus costs. The defendants alleged in their Answer that the deed of sale was intended merely to guarantee a loan of P2,500 contracted by one of the defendants; that Mercedes Perez, one of the vendors, was a minor when the deed of sale was made; that the deed of sale was not approved by the Secretary of Agriculture; and, that the consideration of P2,500 was unconscionable. In Reply, the plaintiff alleged that at the time of the execution of the deed of sale, Mercedes Perez stated that she was of age, and plaintiff had no reason to doubt that statement. But, assuming that she was under age at the time, she ratified the sale by her failure to repudiate it in due time; that the allegation that the deed was only a guarantee for a P2,500 loan was not true because a part of the purchase price was paid to the defendants in ten (10) monthly installments; that the price agreed upon in 1948 was fair and reasonable; and, that the approval of the sale by the Secretary of Agriculture and Natural Resource was not necessary. After several continuances, the case was set for trial on November 12, 1960. Neither defendants nor their counsel appeared despite due notice. For that reason, the lower court allowed the plaintiff to adduce evidence ex partebefore a commissioner. On January 21, 1961, the trial court rendered the assailed decision, dismissing the complaint. It held that the defendants could not be ordered to execute an extrajudicial partition of all the properties of their deceased father because the properties to be partitioned are not Identified in the complaint, and, the defendants can no longer partition the land described in TCT No. 899, because it has been sold to the plaintiff. The court held that the extrajudicial partition of the property should have been done at the time of the sale, in the same instrument (Record on Appeal, pp. 20-21). The appeal is meritorious. This action is not one for specific performance of the sale of the property to the appellant, for the sale had been consummated by the payment of the price to the vendors-appellees as stipulated in the deed, and by the delivery of the peaceful possession of the land to the plaintiff-vendee. What the plaintiff seeks merely is the transfer of the title of the land in his name. It is indubitable that the appellant, as vendee of the land, has a right to receive, and the appellees the corresponding obligation to transfer to him, not only the possession and enjoyment of the land but also the certificate of title. The trial court recognized that right of the appellant, but it professed to be helpless to enforce it. In dismissing his complaint and, in effect, denying

him a remedy, the trial court forgot a maxim which is as old as the law itself. Ubi jus ibi remedium. Where there is a right, there is a remedy (Ballentine's Law Dictionary, 1948 Ed., p. 1307). The defendants-appellees, as the only legal heirs of their father, the deceased Mariano Perez, became the owners of the property in question upon his demise. The rights to the succession were transmitted to them from the moment of his death (Art. 77, Civil Code). Their sale to the appellant of the property described in TCT No. 899, which they inherited from their father put an end to their co-ownership over it (Art. 1082 Civil Code). Consequently there is no further need for them to partition it, the purpose of partition being to separate, divide, and assign a thing held in common among those to whom it may belong (Art. 1079, Civil Code). The trial court correctly observed that the defendants-appellees may no longer partition the land in question because they had already sold it. A careful examination of the deed of sale (Exh. A) reveals that it also serves the purpose of an affidavit of adjudication of the lot in question to the defendants-appellees as heirs of the former owner Mariano Perez. Their declaration therein that the registered owner of the land described in TCT No. 899 Mariano Perez, who died on October 11, 1942, is the father of the vendors, that "the vendors inherited said land from their deceased father, being the legitimate children" and that "the Vendors are the owners" of said land (Exh. A) is, in effect, an adjudication of the land to themselves. Such adjudication renders the stipulation in the deed of sale that "the Vendors will execute immediately an Extrajudicial Partition of all the properties of their deceased father" (Exhibit A-1), superfluous and unnecessary. It may be overlooked or deemed not written at all. All that needs to be done now is to register on the TCT No. 899 of the late Mariano Perez the deed of sale (Exh. A) which may also be treated as an affidavit of adjudication of the land to the vendors in order that their father's title may be cancelled and a new one can be issued to their vendee, Carlos Gabila. WHEREFORE, the appealed decision is hereby set aside. The defendantsappellees, they have not done so yet, are ordered to surrender and/or deliver TCT No. 899 to the plaintiff-appellant in order that the latter may present it to the Register of Deeds of Davao for cancellation upon the registration of the Deed of Sale dated September 16, 1948 made in his favor by the appellees. The Register of Deeds of Davao shall thereupon cancel said TCT No. 899 of the late Mariano Perez and issue a new title in the name of the plaintiff-appellant Carlos Gabila, subject to a lien in favor of any deprived heirs under Rule 74 of the Rules of Court. The defendantsappellees are ordered to pay the estate and inheritance taxes, if any, and they should present proof of such payment to the Register of Deeds within sixty (60) days after the finality of this decision. SO ORDERED. Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

G.R. No. 92436 July 26, 1991 MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-TIMBOL, ERLINDA REYES-VALERIO, ERNESTO REYES, ELIZABETH REYES, ALEX, RAFAEL II, EMELINA and EVELYN, all surnamed REYES, represented by their mother, MARIA VDA. DE REYES, petitioners, vs. THE COURT OF APPEALS AND SPOUSES DALMACIO GARDIOLA and ROSARIO MARTILLANO respondents. De Lara, De Lunas & Rosales for petitioners. Santos, Pilapil & Associates for private respondents.

DAVIDE, JR., J.:p Assailed before Us in this appeal by certiorari under Rule 45 of the Rules of Court is the decision of the respondent Court of Appeals in C.A.-G.R. CV No. 11934, promulgated on 20 October 1989, 1 reversing the decision of 1 October 1986 of Branch 21 (Imus, Cavite) of the Regional Trial Court of the Fourth Judicial Region in Civil Case No. RTC-BCV-83-17 entitled Maria vda. de Reyes, et al. vs. Spouses Dalmacio Gardiola and Rosario Martillano, and Spouses Ricardo M. Gardiola and Emelita Gardiola, 2 and the resolution of 1 March 1990 denying the petitioner's motion for reconsideration. As culled from both decisions and the pleadings of the parties, the following facts have been preponderantly established: During his lifetime, one Gavino Reyes owned a parcel of land of approximately 70 hectares, more or less, located at Sangayad, UlongTubig, Carmona, Cavite. He sought to bring said land under the operation of the Torrens System of registration of property. Unfortunately, he died in 1921 without the title having been issued to him. The application was prosecuted by his son, Marcelo Reyes, who was the administrator of his property. In 1936 the above property was surveyed and subdivided by Gavino's heirs (Exh. "6"). In the subdivision plan, each resultant lot was earmarked, indicated for and assigned to a specific heir. It appears therein that two lots, one of which is Lot No. I A-14 (Exh. "6-A"), were allotted to Rafael Reyes, Sr., one of Gavino's children. Per testimony of Juan Poblete, the children thereafter secured tax declarations for their respective shares. In 1941, or about twenty (20) years after the death of Gavino, the original certificate of title for the whole property OCT No. 255 was issued. It was, however, kept by Juan Poblete, son-in-law of Marcelo Reyes, who was by then already deceased. The heirs of Gavino were not aware of this fact. On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land with an area of 23,431 square meters, more or less, to private respondent Dalmacio Gardiola (Exh. "5"). According to the vendee, this parcel corresponds to Lot

No. 1-A-14 of the subdivision plan aforestated. The deed of sale, however, did not specifically mention Lot No. 1-A-14. The vendee immediately took possession of the property and started paying the land taxes therein. In 1945 or thereabouts, Juan Poblete "revalidated" the original Certificate of Title. As reconstituted, the new title isOCT (0-4358) RO-255 (Exhs. "4" to "4-A"). On 21 October 1967, when the heirs of Gavino Reyes executed a Deed of Extrajudicial Settlement of Estate (Exh. "D") based on the aforestated subdivision plan (Exh. "6"), the lot that was intended for Rafael Reyes, Sr., who was already deceased, was instead adjudicated to his only son and heir, Rafael Reyes, Jr. (the predecessor-in-interest of the petitioners herein). Private respondent Rosario Martillano signed the deed in representation of her mother, Marta Reyes, one of the children of Gavino Reyes. As a result of the Extrajudicial Settlement, OCT RO-255 was cancelled and in lieu thereof, several transfer certificates of title covering the subdivided lots were issued in the names of the respective adjudicatees. One of them is TCT No. 27257 in the name of Rafael Reyes, Jr. covering Lot No. 1-A14. The Transfer Certificates of Title were, however, kept by one Candido Hebron. On 10 January 1969, some of the heirs of Gavino Reyes filed a case of Annulment of Partition and Recovery of Possession before the Court of First Instance of Cavite City, which was docketed therein as Civil Case No. 1267. One of the defendants in said case is herein private respondent Rosario Martillano. The case was dismissed on 18 September 1969, but Candido Hebron was ordered by the trial court to deliver to the heirs concerned all the transfer certificates of title in his possession. 3 After obtaining the Transfer Certificate of Title for Lot No. 1-A-14 from Hebron, pursuant to the aforesaid order in Civil Case No. 1267, petitioners herein, as successors-in-interest of Rafael Reyes, Jr., filed on 14 March 1983 with the Regional Trial Court the above-mentioned Civil Case No. RTC-BCV-83-17 against private respondents (defendants therein) for recovery of possession or, in the alternative, for indemnification, accounting and damages. They allege therein that after "having definitely discovered that they are the lawful owners of the property," (Lot No. 1-A-14), they, "including Rafael Reyes, Jr., during his lifetime, made repeated demands to (sic) defendants to surrender the possession of and vacate the parcel of land belonging to the former, but defendants refused to vacate and surrender the possession of the said land to herein plaintiffs;" the last of the demands was allegedly made on 8 October 1982. They further allege that they have been deprived by said defendants of the rightful possession and enjoyment of the property since September 1969 which coincides with the date of the order in Civil Case No. 1267. 4 In their answer, private respondents deny the material averments in the complaint and assert that they are the owners of the lot in question, having bought the same from Rafael Reyes, Sr., that the issuance of TCT No. 27257 is null and void, for such sale was known to Rafael Reyes, Jr.; that they have been in possession of the property and have been paying the land taxes thereon; and that petitioners are barred by prescription and/or laches. 5

Petitioners amended their complaint on 21 March 1985 to implead as additional defendants the spouses Ricardo M. Gardiola and Emerita Gardiola, on the basis of the following claims: xxx xxx xxx 9. Meanwhile, during the presentation of the defendants spouses Dalmacio Gardiola and Rosario Martillano's evidence the former testified that they mortgaged the subject land to the Rural Bank of Carmona Inc. For their failure to redeem the mortgage the same was foreclosed by the bank.
10. However, within the period of one(1) year from such foreclosure the questioned land was redeemed by the original defendants' son in the person of Ricardo M. Gardiola, who was knowledgeable/aware of the pendency of the above captioned case. The 6 corresponding redemption was effected through a deed of conveyance, . . . .

The prayer of the amended complaint now contains the alternative relief for indemnification for the reasonable value of the property "in the event restitution of the property is no longer possible." 7 In its decision of 1 October 1986, 8 the trial court concluded that petitioners' "title over the subject property is valid and regular and thus they are entitled to its possession and enjoyment," and accordingly decided thus: WHEREFORE, the defendants or anyone acting for and in their behalf are hereby ordered to relinguish possession or vacate the property in question which is covered by Transfer Certificate of Title No. T-27257 in favor of the plaintiffs. All other claims and/or counterclaims of the parties relative to this case are dismissed for lack of proper substantiation. The conclusion of the trial court is based on its finding that (a) there is no evidence that the heirs of Gavino Reyes entered into any written agreement of partition in 1936 based on the subdivision plan; (b) there is no identity between Lot No. 1-14-A and the land sold to private respondents by Rafael Reyes, Sr., or otherwise stated, the description of the latter as indicated in the deed of sale (Exh. "5") does not tally with the description of the former; and (c) moreover: Granting, arguendo, that the sale made by Rafael Reyes, Sr. to the defendants covered the land in question Lot No. 1-A-14 and that Transfer Certificate of Title No. T-27257 was obtained by means of fraud, the claim of the defendants over the said property is already barred. Action for reconveyance prescribes in four (4) years from the discovery thereof. If there was fraud, the defendant could have discovered the same in 1967 when the partition was made in as much as defendant Rosario Martillano was a party to that partition. Let us grant further that the issuance of Transfer Certificate of Title No. T27257 to Rafael Reyes, Jr. created a constructive or implied trust in favor of the defendants, again, the claim of the defendants is also barred. From 1967 to the filing of their answer (let us consider this as an action for reconveyance) to

this case sometime in July, 1983, a period of about sixteen (16) years had already elapsed. Prescriptibility of an action for reconveyance based on implied or constructive trust is ten (10) years. The trial court further held that the continued possession by private respondents, which it found to have started in 1943, did not ripen into ownership because at that time, the property was already registered, hence it cannot be acquired by prescription or adverse possession. 9 Private respondents appealed the said decision to the Court of Appeals which docketed the appeal as C.A.-G.R. CV No. 11934. In its decision of 20 October 1989, the respondent Court of Appeals formulated the issues before it as follows: I Whether or not the lower court erred in declaring that the property of the late Gavino Reyes consisting of 70 hectares was partitioned only in 1967 by his grandchildren after discovery of the existence of OCT No. 255 and that no actual partition was made in 1936 by the decedent's children. II
Whether or not the lower court erred in concluding that the parcel of land sold by the appellees' predecessor-in-interest, the late Rafael Reyes, Sr. to appellant Dalmacio 10 Gardiola was not the same parcel of land under litigation.

and resolved such issues, thus: On the first issue, We believe that the lower court committed a reversible error when it declared that the landed estate of the late Gavino Reyes was partitioned only in 1967 by the latter's grandchildren; and that no actual partition was made in 1936 by the decedents' (sic) children. The evidence on record bears out the existence of a subdivision plan (Exh. 6) which was not controverted nor denied by the appellees. In like manner, the lower court itself recognized the fact that the property of the late Gavino Reyes consisting of 70 hectares was surveyed and subdivided in 1936 as evidenced by the said subdivision plan (Exh. 6). With the existence of a subdivision plan, and from the uncontroverted testimony of appellants' witness, We can only infer that at least an oral partition, which under the law is valid and binding, was entered into by the heirs of Gavino Reyes regarding his properties in 1936. As held in a long line of decisions, extrajudicial partition can be done orally, and the same would be valid if freely entered into (Belen v. Belen, 49 O.G. 997, March 1953). The reason for this is because a partition is not exactly a conveyance for the reason that it does not involve transfer of property from one to the other but rather a confirmation by them of their ownership of the property. It must also be remembered that when Gavino Reyes died on March 7, 1921, his property was admittedly not yet covered by a torrens title, as it was only in 1941 when said properties were

brought into the application of the torrens system. With this factual milieu, it can also be concluded that his heirs have indeed settled, subdivided and partitioned Gavino Reyes' landed estate without formal requirements of Rule 74 of the Rules of Court when a parcel of land is covered by a torrens title. As told earlier, the Subdivision Plan (Exh. 6) undisputedly showed on its face that the 70 hectares of land belonging to the late Gavino Reyes was subdivided and partitioned by his children in 1936. On this score, the partition of the said property even without the formal requirements under the rule is valid as held in the case of Hernandez vs. Andal, 78 Phil. 176, which states: xxx xxx xxx Moreover, in the Deed of Sale dated December 3, 1943 (Exh. 5) executed by Rafael Reyes, Sr. in favor of appellant Dalmacio Gardiola, the land sold therein was described as "na aking minana sa aking ama." This alone would confirm the contention of the appellants that there was already an actual partition (at least an oral partition) of the property of Gavino Reyes in 1936. As aforestated, the presence of the Subdivision Plan (Exh. 6) is an (sic) evidence of such partition which appellees failed to controvert not to mention the fact that the lower court itself recognized the existence of said plan, in the same manner that it concluded that the property was already surveyed and actually subdivided in 1936 (page 3, pars. 3 and 4, Decision). From the foregoing considerations it is evident that the Deed of Extrajudicial Settlement of Estate (Exh. D) executed by the grandchildren of the late Gavino Reyes in 1967 is of no moment considering that the property subject of the partition in the deed was already partitioned in 1936 by the children of Gavino Reyes. It is for this reason that the lots supposedly inherited by the grandchildren named in the deed of 1967 were the same lots inherited and given to their respective fathers or mothers in 1936 while the land was not yet covered by the torrens system. Hence, in the case of Rafael Reyes, Sr., the land inherited by him was two (2) parcels of land known as Lots Nos. 1-A-3 and 1-A-14 described in the Subdivision plan of 1936 (Exh. 6), which were the same parcels of land allegedly inherited by Rafael Reyes, Jr. from Gavino Reyes in representation of his father, pursuant to the Deed of Extrajudicial Settlement of Estate for which TCT No. 27257 was issued.
Coming to the second issue, the lower court likewise erred when it concluded that the parcel of land sold by appellee's predecessor-in-interest to appellant Dalmacio Gardiola was not the same parcel of land under litigation. It must be pointed out that the identity of the parcel of land which the appellees sought to recover from the appellants was never an issue in the lower court, because the litigants had already conceded that the parcel identified as Lot No. 1-A-14 in TCT No. 27257 was the same parcel of land identified as Cadastral Lot No. 1228 and 1235 described in Tax Declaration No. 4766. Despite this admission, however, the lower court declared that "as described in the deed of sale (Exh. 5), the land's description does not tally with the description of Lot No. 1-A-14, the land in litigation." As correctly pointed out by the appellants however, the discrepancy in the description was due to the fact that the description of the land sold in the Deed of Sale was expressed in layman's language whereas the description of Lot No. 1-A-14 in TCT

No. 27257 was done in technical terms. This was so because, when Rafael Reyes, Sr. sold the property in dispute to appellant Dalmacio Gardiola on December 3, 1943, the only evidence of title to the land then available in so far as Rafael Reyes, Sr. was concerned was Tax Declaration No. 4766, because at that time, neither he nor appellant Dalmacio Gardiola was aware of the existence of OCT No. 255 as in fact TCT No. 27257 was issued only in 1967. Consequently, the land subject of the Deed of Sale was described by the vendor in the manner as described in Tax Declaration No. 4766. However, the description of the land appearing in the Deed of Sale (Exh. 5) was exactly the same land identified as Lot No. 1-A-14 in the Subdivision Plan (Exh. 6) of 1936. Accordingly, the assumption of the lower court that "if the land sold by Rafael Reyes, Sr. was the one now in litigation, he could have easily indicated Lot No. 1-A-14" is bereft of merit under the foregoing circumstances. Interestingly enough, the appellees never denied the identity of the subject lot during the hearing at the lower court. What they were denying only was the sale made by Rafael Reyes, Sr. to appellant Dalmacio Gardiola which does not hold true because of the document denominated as Deed of Sale (Exh. 11 5).

It concluded that the trial court erred when it ordered the private respondents or anyone acting in their behalf to relinquish the possession or vacate the property in question. It thus decreed:
WHEREFORE, the appealed Judgment is ordered REVERSED and SET ASIDE and a new one is rendered declaring appellants to be the lawful owners of the lot identified as Lot No. 1-A-14 in TCT No. 27257. No 12 costs.

Their motion to reconsider the above decision having been denied by the Court of Appeals in its resolution of 1 March 1990, 13 petitioners filed the instant petition on 6 April 1990 after having obtained an extension of time within which to file it. The petition does not implead original new defendants Ricardo Gardiola and Emelita Gardiola. As ground for their plea for the review of the decision of the Court of Appeals, petitioners allege that said court has decided questions of substance in a way not in accord with law or applicable jurisprudence when it held that "the deed of extrajudicial settlement of estate (Exh. "D") executed by the grandchildren of the late Gavino Reyes in 1967 is of no moment considering that the property subject of the partition was already partitioned in 1936 by the children of Gavino Reyes." In support thereof, they claim that (a) TCT No. 27257 covers two parcels of land; the lot described in paragraph 1 thereof is owned by petitioners and that ownership was confirmed by this Court in G.R. No. 79882, hence, the Court of Appeals should have affirmed the decision of the trial court; (b) private respondent Rosario Martillano was a party to the extrajudicial settlement of estate which was duly registered in the Registry of Deeds in 1967; said registration is the operative act that gives validity to the transfer or creates a lien upon the land and also constituted constructive notice to the whole world. The court cannot disregard the binding effect thereof Finally, the pronouncement of the Court of Appeals that private respondents are the lawful owners of the lot in question "militates against the indefeasible and incontrovertible character of the torrens title," 14 and allows reconveyance which is not tenable since the action therefor had already prescribed, as stated in the decision of the trial court. In the resolution of 7 May 1990, We required respondents to comment on the petition. But even before it could do so, petitioner, without obtaining prior leave of the Court, filed on 29 May 1990 a so-called Supplemental

Arguments in Support of The Petition For Review On certiorari 15 wherein they assert, among others, that: (a) the findings of facts of respondent Court are contrary to those of the trial court and appear to be contradicted by the evidence on record thus calling for the review by this Court; 16 (b) it also committed misapprehension of the facts in this case and its findings are based on speculation, conjecture and surmises; (c) private respondents' attack on petitioners' title is a collateral attack which is not allowed; even if it is allowed, the same had already prescribed and is now barred. It was only on 15 June 1990 that private respondents filed their Comment. 17 We required petitioners to reply thereto, which they complied with on 8 August 1990. 18 A rejoinder was filed by private respondents on 29 August 1990. We gave due course to the petition on 19 September 1990 and required the parties to submit simultaneously their respective memoranda which they complied with. Attached as Annex "A" to private respondent's Memorandum, which was filed on 10 December 1990, is the Resolution of this Court (Third Division) of 20 August 1990 in G.R. No. 92811 entitled Spouses Artemio Durumpili and Angustia Reyes vs. The Court of Appeals and Spouses Dalmacio Gardiola and Rosario Martillano, which also involves the property of Gavino Reyes, the partition thereof among his children in 1936, and the extrajudicial settlement in 1967. In said resolution, this Court held: . . . The partition made in 1936, although oral, was valid. The requirement in Article 1358 of the Civil Code that acts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property must appear in a public instrument is only for convenience and not for validity or enforceability as between the parties themselves. [Thunga Hui vs. Que Bentec, 2 Phil. 561 (1903)] The subsequent execution by the heirs of the Extrajudicial Partition in 1967 did not alter the oral partition as in fact the share pertaining to Angustia Reyes corresponded to that previously assigned to her father. Considering that Angel Reyes sold this property to Basilio de Ocampo who, in turn, sold the same to respondents, we agree with the Court of Appeals that the latter lawfully acquired the property and are entitled to ownership and possession thereof. In answer to the charge of private respondents that petitioners deliberately failed to cite this resolution, the latter, in their reply-memorandum dated 15 March 1991 and filed three days thereafter, allege: Our failure to mention the aforementioned resolution before this Honorable Court is not deliberate nor with malice aforethought. The reason is that to date, we have not yet received any resolution to our Motion For Leave of Court To Refer Case To The Honorable Supreme Court En Banc. Moreover, we

honestly feel that the resolution that will be issued therein will not be applicable to the case before this Honorable Court's Second Division. It should be mentioned that in the Durumpili case before the Third Division, the Court of Appeals relied on the alleged confirmation of the sale executed by Angustia Reyes, while in the Reyes case before this Second Division, there was no sale that was executed by the petitioners Reyes' predecessor-in-interest, Rafael Reyes, Jr. The foregoing claim is not supported by the rollo of G.R. No. 92811, which reveals the following: (a) On 18 September 1990, petitioners therein, represented by De Lara, De Lunas and Rosales, who are the lawyers of petitioners in the instant case, filed a motion for the reconsideration of the resolution of 20 August 1990. 19 b) This motion was denied in the resolution of 1 October 1990. 20 c) On 17 November 1990, petitioners therein, through the same lawyers, filed a Motion For Leave Of Court To Refer Case To The Honorable Supreme Court En BancAnd/Or Motion For Reconsideration 21 wherein they specifically admit that said case and the instant petition have "identity and/or similarity of the parties, the facts, the issues raised," even going to the extent of "graphically" illustrating where such similarities lie. 22 d) This motion was denied in the resolution of 28 November 1990. Copy thereof was furnished the attorneys for petitioners. 23 e) Entry of judgment had already been made therein and a copy thereof was sent to petitioner's counsel per Letter of Transmittal of the Deputy Court and Chief of the Judicial Records Office dated 20 December 1990. What comes out prominently from the disquisitions of the parties is this simple issue: whether or not respondent Court of Appeals committed any reversible error in setting aside the decision of the trial court. We find none. The reversal of the trial court's decision is inevitable and unavoidable because the legal and factual conclusions made by the trial court are unfounded and clearly erroneous. The Court of Appeals was not bound to agree to such conclusions. The trial court erred in holding that: (a) there was no partition among the children of Gavino Reyes in 1936 since there is no written evidence in support thereof; yet, it admits that there was a survey and subdivision of the property and the adjudication of specific subdivision lots to each of the children of Gavino; (b) the land sold by Rafael Reyes, Sr. to private respondents is not identical to Lot No. 1-A-14, the lot specified for and adjudicated to Rafael Reyes, Jr. in the partition agreement; and (c) if the land sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is indeed Lot No. 1-A-14 and that TCT No. T-27257 was obtained through fraud, the remedy open to the vendee was an action for reconveyance, which should have been brought within four (4) years from the discovery thereof in 1967 when the Extrajudicial Settlement was executed since private respondent Rosario Martillano, wife of Dalmacio, was a party thereto. The Court of Appeals correctly held that the partition made by the children of Gavino Reyes in 1936, although oral, was valid and binding. There is no law that requires partition among heirs to be in writing to be valid. 24 InHernandez vs. Andal, supra, this Court, interpreting Section 1 of Rule 74 of the Rules of Court, held that the requirement that a partition be

put in a public document and registered has for its purpose the protection of creditors and at the same time the protection of the heirs themselves against tardy claims. The object of registration is to serve as constructive notice to others. It follows then that the intrinsic validity of partition not executed with the prescribed formalities does not come into play when there are no creditors or the rights of creditors are not affected. Where no such rights are involved, it is competent for the heirs of an estate to enter into an agreement for distribution in a manner and upon a plan different from those provided by law. There is nothing in said section from which it can be inferred that a writing or other formality is an essential requisite to the validity of the partition. Accordingly, an oral partition is valid. Barcelona, et al. vs. Barcelona, et al., supra, provides the reason why oral partition is valid and why it is not covered by the Statute of Frauds: partition among heirs or renunciation of an inheritance by some of them is not exactly a conveyance of real property for the reason that it does not involve transfer of property from one to the other, but rather a confirmation or ratification of title or right of property by the heir renouncing in favor of another heir accepting and receiving the inheritance. Additionally, the validity of such oral partition in 1936 has been expressly sustained by this Court in the Resolution of 20 August 1990 in G.R. No. 92811. 25 But even if We are to assume arguendo that the oral partition executed in 1936 was not valid for some reason or another, We would still arrive at the same conclusion for upon the death of Gavino Reyes in 1921, his heirs automatically became co-owners of his 70-hectare parcel of land. The rights to the succession are transmitted from the moment of death of the decedent. 26 The estate of the decedent would then be held in coownership by the heirs. The co-heir or co-owner may validly dispose of his share or interest in the property subject to the condition that the portion disposed of is eventually allotted to him in the division upon termination of the co-ownership. Article 493 of the Civil Code provides: Each co-owner shall have the full ownership of his part and the fruits and benefits pertaining thereto, and he may even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. In Ramirez vs. Bautista, 27 this Court held that every co-heir has the absolute ownership of his share in the community property and may alienate, assign, or mortgage the same, except as to purely personal rights, but the effect of any such transfer is limited to the portion which may be awarded to him upon the partition of the property. In the case at bar, the lot sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is his share in the estate of his deceased father, Gavino Reyes. It is the same property which was eventually adjudicated to his son and heir, Rafael Reyes, Jr., represented in turn by his heirs-petitioners herein-in the extrajudicial settlement of 1967.

In respect to the issue as to whether the property sold by Rafael Reyes, Sr. is identical to Lot No. 1-14-A, the trial court based its conclusion that it is not, on his observation that the description of the former does not tally with that of the latter, moreover, if Rafael did intend to sell Lot No. 1-14-A, he should have specifically stated it in the deed since at that time, the property had already been partitioned and said lot was adjudicated to him. In addition to the contrary findings and conclusion of the respondent Court on this issue to which We fully agree, it is to be stressed that Rafael had this property declared for taxation purposes and the tax declaration issued was made the basis for the description of the property in the deed of sale. Upon the execution of the deed of sale, vendee herein private respondent Dalmacio Gardiola immediately took possession of the property. This is the very same property which is the subject matter of this case and which petitioners seek to recover from the private respondents. The main evidence adduced for their claim of ownership and possession over it is TCT No. T-27257, the certificate of title covering Lot No. 1-14-A. They therefore admit and concede that the property claimed by private respondent, which was acquired by sale from Rafael Reyes, Sr., is none other than Lot No. 1-14-A. The participation of private respondent Rosario Gardiola in the Extrajudicial Settlement did not place private respondents in estoppel to question the issuance of TCT No. T-27257. As correctly maintained by private respondents, she signed it in representation of her deceased mother, Marta Reyes, a daughter and an heir of Gavino Reyes. She did not sign for and in behalf of her husband, Dalmacio Gardiola, vendee of the share of Rafael Reyes, Sr. The same did not operate to divest the vendee of the share of Rafael Reyes, Sr. in the estate of Gavino. Petitioners, as mere successors-ininterest of Rafael Reyes, Jr., son of Rafael Reyes, Sr., can only acquire that which Rafael, Jr. could transmit to them upon his death. The latter never became the owner of Lot No. 1-A-14 because it was sold by his father in 1943. The issuance of TCT No. T-27257 in the name of Rafael Reyes, Jr., in so far as Lot No. 1-14-A is concerned, was clearly erroneous because he never became its owner. An extrajudicial settlement does not create a light in favor of an heir. As this Court stated in the Barcelona case, 28 it is but a confirmation or ratification of title or right to property. Thus, since he never had any title or right to Lot No. 1-14-A, the mere execution of the settlement did not improve his condition, and the subsequent registration of the deed did not create any right or vest any title over the property in favor of the petitioners as heirs of Rafael Reyes, Jr. The latter cannot give them what he never had before. Nemo dare potest quod non habet. There is one more point that should be stressed here. Petitioners' immediate predecessor-in-interest, Rafael Reyes, Jr., never took any action against private respondents from the time his father sold the lot to the latter. Neither did petitioners bring any action to recover from private respondents the ownership and possession of the lot from the time Rafael Reyes, Jr. died. As categorically admitted by petitioners in their complaint and amended complaint, it was only in or about September 1969 when, after the delivery of TCT No. 27257 by Candido Hebron to them, that they definitely discovered that they were the owners of the property in question.

And yet, despite full knowledge that private respondents were in actual physical possession of the property, it was only about thirteen and one-half (13 1/2) years later that they decided to file an action for recovery of possession. As stated earlier, the original complaint was filed in the trial court on 14 March 1983. There was then absolutely no basis for the trial court to place the burden on private respondents to bring an action for reconveyance within four (4) years from their discovery of the issuance of the transfer certificate of title in the name of Rafael Reyes, Jr. The instant petition then is without merit. WHEREFORE, judgment is hereby rendered DENYING the petition with costs against petitioners. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

[G.R. No. 94918, September 02, 1992] DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE LEON AND REGINIO I. SUAREZ, PETITIONERS, VS. THE COURT OF APPEALS, VALENTE RAYMUNDO, VIOLETA RAYMUNDO, MA. CONCEPCION VITO AND VIRGINIA BANTA RESPONDENTS. DECISION
NOCON, J.:

The ultimate issue before Us is whether or not private respondents can validly acquire all the five (5) parcels of land co-owned by petitioners and registered in the name of petitioner's deceased father, Marcelo Suarez, whose estate has not been partitioned or liquidated, after the said properties were levied and publicly sold en masse to private respondents to satisfy the personal judgment debt of Teofista Suarez, the surviving spouse of Marcelo Suarez, mother of herein petitioners. The undisputed facts of the case are as follows: Herein petitioners are brothers and sisters. Their father died in 1955 and since then his estate consisting of several valuable parcels of land in Pasig, Metro Manila has not been liquidated or partitioned. In 1977, petitioners widowed mother and Rizal Realty Corporation lost in the consolidated cases for rescission of contract and for damages, and were ordered by Branch 1 of the then Court of First Instance of Rizal (now Branch 151, RTC of Pasig) to pay, jointly and severally, herein respondents the aggregate principal amount of about P70,000 as damages.[1] The judgment against petitioner's mother and Rizal Realty Corporation having become final and executory, five (5) valuable parcels of land in Pasig, Metro Manila, (worth to be millions then) were levied and sold on execution on June 24, 1983 in favor of the private respondents as the highest bidder for the amount of P94,170.00. Private respondents were then issued a certificate of sale which was subsequently registered on August 1, 1983. On June 21, 1984, before the expiration of the redemption period, petitioners filed a reinvindicatory action[2] against private respondents and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case No. 51203, for the annulment of the auction sale and the recovery of the ownership of the levied pieces of property. Therein, they alleged, among others, that being strangers to the case decided against their mother, they cannot be held liable therefor and that the five (5) parcels of land, of which they are co-owners, can neither be levied nor sold on execution. On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a final deed of sale[3] over the properties. On October 22, 1984, Teofista Suarez joined by herein petitioners filed with Branch 151 a Motion for Reconsideration[4] of the Order dated October 10, 1984, claiming that the parcels of land are co-owned by them and further informing the Court the filing and pendency of an action to annul the auction sale (Civil Case No. 51203), which motion however, was denied.

On February 25, 1985, a writ of preliminary injunction was issued enjoining private respondents from transferring to third parties the levied parcels of land based on the finding that the auctioned lands are co-owned by petitioners. On March 1, 1985, private respondent Valente Raymundo filed in Civil Case No. 51203 a Motion to Dismiss for failure on the part of the petitioners to prosecute, however, such motion was later denied by Branch 155, Regional Trial Court, Pasig. On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte Motion to Dismiss complaint for failure to prosecute. This was granted by Branch 155 through an Order dated May 29, 1986, notwithstanding petitioner's pending motion for the issuance of alias summons to be served upon the other defendants in the said case. A motion for reconsideration was filed but was later denied. On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-21739 an Order directing Teofista Suarez and all persons claiming right under her to vacate the lots subject of the judicial sale; to desist from removing or alienating improvements thereon; and to surrender to private respondents the owner's duplicate copy of the torrens title and other pertinent documents. Teofista Suarez then filed with the then Court of Appeals a petition for certiorari to annul the Orders of Branch 151 dated October 10, 1984 and October 14, 1986 issued in Civil Case Nos. 21736-21739. On December 4, 1986, petitioners filed with Branch 155 a Motion for reconsideration of the Order[5] dated September 24, 1986. In an Order dated June 10, 1987,[6]Branch 155 lifted its previous order of dismissal and directed the issuance of alias summons. Respondents then appealed to the Court of Appeals seeking to annul the orders dated February 25, 1985,[7] May 19, 1989[8] and February 26, 1990[9] issued in Civil Case No. 51203 and further ordering respondent judge to dismiss Civil Case. No. 51203. The appellate court rendered its decision on July 27, 1990,[10] the dispositive portion of which reads: WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled; further respondent judge is ordered to dismiss Civil Case No. 51203.[11] Hence, this appeal. Even without touching on the incidents and issues raised by both petitioner and private respondents and the developments subsequent to the filing of the complaint. We cannot but notice the glaring error committed by the trial court. It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse subject properties for auction. To start with, only one-half of the 5 parcels of land should have been the subject of the auction sale. The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case:

The rights to the succession are transmitted from the moment of the death of the decedent. Article 888 further provides: The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. Article 892 par. 2 likewise provides: If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child. The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of their mother but through their own right as children of their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest. WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion. SO ORDERED. Narvasa, C.J., (Chairman), Padilla, and Regalado, JJ., concur. Melo, J., no part.