SIMPROSA VDA.

DE ESPINA, RECAREDO ESPINA, TIMOTEO

ESPINA, CELIA ESPINA, GAUDIOSA ESPINA and NECIFORA
ESPINA, petitioners,
vs.
THE HON. OTILIO ABAYA and SOFIA ESPINA and JOSE
ESPINA, respondents.
Cipriano C. Alvizo, Sr. for private respondents.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the issuance of a
writ of preliminary injunction seeking the nullification of the
orders issued by the respondent Judge Otilio Abaya, in his
capacity as the presiding judge of the Court of First Instance of
Surigao del Sur, Branch II, Lianga, Surigao del Sur in Civil Case
No. L-108, entitled "Simprosa Vda. de Espina, et. al. v. Sofia
Espina, et. al." dated May 9, 1975 dismissing the complaint for
partition; July 25, 1975 denying the motion for reconsideration;
August 13, 1975 denying the second motion for reconsideration
and March 15, 1976 denying plaintiffs' notice of appeal.
The antecedent facts are as follows:
Marcos Espina died on February 14, 1953 and was survived by his
spouses, Simprosa Vda. de Espina and their children namely,
Recaredo, Timoteo, Celia, Gaudiosa, Necifora, Sora and Jose, all
surnamed Espina. Decedent's estate comprises of four (4) parcels
of land located at the Municipality of Barobo Province of Surigao
del Sur.
On August 23, 1973 an action for partition of the aforementioned
parcels of land was filed by petitioners Simprosa and her children
Recaredo, Timoteo, Celia, Gaudencia and Necifora.
The complaint alleges that parcel No. 1 is the exclusive property
of the deceased, hence the same is owned in common by
petitioners and private respondents in eight (8) equal parts, while
the other three (3) parcels of land being conjugal properties, are
also owned in common, one-half (1/2) belongs to the widow
Simprosa and the other half is owned by her and her children in
eight (8) equal parts.
It also alleges that parcel No. 1 has been subdivided into two lots.
Lot No. 994 PL8-44 is covered by Original Certificate of Title No.
5570 in the name of one of the heirs, Sofia Espina, who acquired
the title as a trustee for the beneficiaries or heirs of Marcos

Espina, while lot No. 1329 PCS-44 is covered by Original

Certificate of Title No. 3732 issued in the name of one of the
heirs, Jose Espina as trustee for the heirs of Marcos Espina. Said
parcel of land is in the possession of petitioners and private
respondents who have their respective houses thereon.
Simprosa presently occupies parcel No. 2 while parcel No. 3 is
occupied by Timoteo, although the same is actually titled in the
name of Sofia. Parcel No. 4 is occupied by Recaredo.
Petitioners have several times demanded the partition of the
aforementioned properties, but notwithstanding such demands
private respondents refused to accede.
Private respondents alleged in their answer that in or about April,
1951, the late Marcos Espina and his widow, Simprosa, together
with their children made a temporary verbal division and
assignment of shares among their children. After the death of
Marcos, the temporary division was finalized by the heirs.
Thereafter the heirs took immediate possession of their
respective shares on April 20, 1952. Private respondents took
actual physical possession of their respective shares including the
portions ceded to them by Simprosa upon their payment of
P50.00 each per quarter starting April, 1952 until the latter's
death pursuant to their contract of procession The assignment of
shares was as follows:
(a) To the surviving spouses, (sic) Simprosa Vda. de Espina,
herein plaintiffs, one-half (1/2) of the parcel of land
adjudicated to each of said plaintiffs-heirs and defendants;
(b) To each of the following compulsory heirs, to wit:
1. To Recaredo (sic) Espina, one-half (1/2) portion which
contains an area of one and three-fourths (1 3/4) hectares
and which forms part of Parcel 4 whose description is given
in paragraph III of the complaint, the said Parcel IV has
been in the possession of both Recaredo Espina and
plaintiff Simprosa Vda. de Espina from April 20, 1952 until
the present time;
2. To Timoteo Espina, one half (1/2) portion which contains
an area of not less than one-half (1/2) hectare and which
forms part of Parcel 3 whose description is given in
paragraph III of the complaint, the said Parcel III was
originally assigned by Marcos Espina who thereupon
obtained an Original Certificate of Title in her (sic) name

but was finally adjudicated to said Timoteo Espina in April,

1952, the other half (1/2) portion of which parcel III was the
share of the surviving spouses (sic), Simprosa Vda. de
Espina, and said Parcel III has been in the possession of
said Timoteo Espina and Simprosa Vda. de Espina from
April, 1952 until the present time as their share;
3. To Cecilia (sic) Espina, Gaudiosa Espina and Necifora
Espina, one-half (1/2) portion, share and share alike which
contains two (2) hectares and which forms part of Parcel II
whose description is given in paragraph III of the complaint,
the other half (1/2) of said Parcel III (sic) is the share of the
surviving spouses (sic) Simprosa Vda. de Espina, and said
Parcel III (sic) has been in the possession of said Cecilia.
(sic) Espina, Gaudiosa Espina and Necifora Espina and
Simprosa Vda. de Espina from April, 1952 until the present
time;
4. To Sofia Espina, one-half (1/2) portion of the parcel of
land included in the deception of Parcel 1 in paragraph III of
the complaint, the other half (1/2) of said parcel being the
share of the surviving spouses (sic) Simprosa Vda. de
Espina and having been ceded by said Simprosa Vda. de
Espina to said Sofia Espina for a valuable consideration
payable quarterly at the rate of P50.00 beginning April,
1952 until her death, and said Sofia Espina has been
regularly paying to said Simprosa Vda. de Espina quarterly
from April, 1952 the said amount of P50.00 until the
present time, and by virtue of said agreement, Sofia Espina
obtained Original Certificate of Title in her name of said
parcel of land which is included in the description of said
parcel 1, as her exclusive property;
5. To Jose Espina, one-half (1/2) portion of the other parcel
of land included in the description of Parcel 1 in paragraph
1 of the complaint, the other half (1/2) of said parcel being
the share of the surviving spouses (sic) Simprosa Vda. de
Espina and having been coded (sic) by said Simprosa Vda.
de Espina to said Jose Espina for a valuable consideration
payable quarterly at the rate of P50.00 beginning April,
1952 until her death, and said Jose Espina has been
regularly quarterly paying to said Simprosa Vda. de Espina
from April, 1952 until the present time, the said amount of

P50.00, and by virtue of said agreement, Jose Espina

obtained Original Certificate of Title in his name of said
parcel of land which is included in the description of said
Parcel 1 as his exclusive property. (Rollo, pp. 27-28)
On February 13, 1974 private respondents filed a motion to
dismiss the complaint alleging the following grounds, to wit:
I
THAT THE FACTS ALLEGED IN THE COMPLAINT FAIL TO
CONFER UPON THE COURT COMPLETE AND LAWFUL
JURISDICTION OVER THE CASE FOR NON-COMPLIANCE
WITH THE CONDITION SINE QUA NON CONCERNING SUIT
BETWEEN MEMBERS OF THE SAME FAMILY.
xxx
xxx
xxx
II
THAT THE CAUSE OF ACTION IS BARRED BY . . . . STATUTE
OF LIMITATIONS.
xxx
xxx
xxx
III
THAT THE PLAINTIFFS HAS NO LEGAL CAPACITY TO SUE,
(Motion to Dismiss Complaint, pp. 1-5; Rollo, pp. 34-38)
xxx
xxx
xxx
On May 9, 1975 the trial court granted the motion and thereafter
dismissed the complaint. On May 23, 1975 petitioners filed a
motion for reconsideration on the following grounds, to wit:
1. THAT THE ORDER OF DISMISSAL HAS NO LEGAL BASIS IN
FACT AND IN LAW.
2. THAT THE STATUTE OF LIMITATIONS IS NOT APPLICABLE
IN THE CASE AT BAR. (Rollo, p. 50)
However, petitioners' motion was denied in an order dated July
23, 1975. On August 11, 1975 petitioners filed another motion for
reconsideration stressing that they were denied due process
when their motion was not heard. Again said motion was denied
on August 13, 1975.
Thereafter, petitioners filed their notice of appeal on September
11, 1975 and a motion for extension of time to file their Record on
Appeal on September 18, 1975.
On March 15, 1976, the respondent judge disapproved
petitioners' Record on Appeal and appeal bond on the ground that
the notice of appeal was filed out of time. Hence, this petition.
The petitioners raised four (,41) assignment of errors:

1. Whether or not an action for partition among co-heirs

prescribes.
2. Whether or not an oral partition among co-heirs is valid.
3. Whether or not a hearing on a motion for reconsideration
is indispensable the lack of which is a deal of due process.
4. Whether or not the second motion for reconsideration is
pro forma Rollo, p. 10)
Petitioners maintain that the present action is not for
reconveyance but one for partition. Hence, the rule insisted by
the private respondents on prescriptibility of an action for
reconcile conveyance of real property based on an implied trust is
not applicable in the case at bar. In addition, petitioners, argue
that private respondents cannot set up the defense of
prescription or laches because their possession of the property no
matter how long cannot ripen into ownership. (Memorandum for
Petitioners, p. 7)
However, the private respondents stress that 'any supposed right
of the petitioners to demand a new division or partition of said
estate of Marcos Espina has long been barred by the Statute of
Limitations and has long prescribed." (Memorandum for Private
Respondents, p. 5)
The petitioners claim that the alleged oral partition is invalid and
strictly under the coverage of the statute of Frauds on two
grounds, to wit:
Firstly, parcel No. 1 being an exclusive property of the deceased
should have been divided into eight (8) equal parts. Therefore,
Simprosa . could only cede her share of the land which is 1/8
portion thereof and cannot validly cede the shares of her then
minor children without being duly appointed as guardian.
Secondly, under Article 1358 of the New Civil Code, Simprosa
could not have ceded her right and that of her other children
except by a public document. (Memorandum of Petitioners, pp. 89)
On the other hand, private respondents insist that the oral
partition is valid and binding and does not fall under the coverage
of the Statute of Frauds.
Petitioners claim that they were denied due process when the
motion for reconsideration was denied without any hearing.

However, private respondents maintain that the hearing of a

motion for reconsideration in oral argument is a matter which rest
upon the sound discretion of the Court.
Finally, petitioners stress that the second motion for
reconsideration is not pro forma, thus, it suspends the running of
the period of appeal. Hence, the notice of appeal was timely filed.
On this point, private respondent maintain that the order of
respondent judge dated March 1 5, 1976 disapproving petitioners'
Record on Appeal and appeal bond may not properly be a subject
of a petition for certiorari. (Memorandum of Private Respondents,
p. 13)
We find the petition devoid of merit.
We already ruled in Lebrilla, et al. v. Intermediate Appellate
Court (G.R. No. 72623, December 18, 1989, 180 SCRA 188; 192)
that an action for partition is imprescriptible. However, an action
for partition among co-heirs ceases to be such, and becomes one
for title where the defendants allege exclusive ownership.
In the case at bar, the imprescriptibility of the action for partition
cannot be invoked because two of the co-heirs, namely private
respondents Sora and Jose Espina possessed the property as
exclusive owners and their possession for a period of twenty one
(21) years is sufficient to acquire it by prescription. Hence, from
the moment these co-heirs claim that they are the absolute and
exclusive owners of the properties and deny the others any share
therein, the question involved is no longer one of partition but of
ownership.
Anent the issue of oral partition, We sustain the validity of said
partition.1wphi1 "An agreement of partition may be made orally
or in writing. An oral agreement for the partition of the property
owned in common is valid and enforceable upon the parties. The
Statute of Frauds has no operation in this kind of agreements, for
partition is not a conveyance of property but simply a segregation
and designation of the part of the property which belong to the
co-owners." (Tolentino, Commentaries and Jurisprudence on the
Civil Code of the Philippines, Vol. II, 1983 Edition, 182183 citing Hernandez v. Andal, et. al., G.R. No. L275, March 29,
1957)
Time and again, the Court stresses that the hearing of a motion
for reconsideration in oral argument is a matter which rests upon
the sound discretion of the Court. Its refusal does not constitute a

denial of due process in the absence of a showing of abuse of

discretion. (see Philippine Manufacturing Co. v. Ang Bisig ng PMC
et. al., 118 Phil. 431, 434)
The absence of a formal hearing on the petitioners' motion for
reconsideration is thoroughly explained in the order of the
respondent judge dated August 13, 1975, which is hereunder
quoted as follows:
When the court issued its order of June 5, 1975 requiring
counsel for defendants to answer plaintiffs' motion for
reconsideration, the court opted to resolve plaintiffs'
motion based on the pleadings of the parties, without
further oral arguments. The court considered the
arguments of the parties stated in their pleadings as
already sufficient to apprise the court of the issues involved
in said motion.
Plaintiffs' allegation that the Clerk of Court failed to
calendar their motion for reconsideration for oral argument
has not deprived the plaintiffs of any substantial right or
his right to due process.
SO ORDERED. (Memorandum of Private Respondents, pp.
1213)
A cursory reading of the aforequoted order will show that there
was indeed no formal hearing on the motion for reconsideration.
There is no question however, that the motion is grounded on the
lack of basis in fact and in law of the order of dismissal and the
existence or lack of it is determined by a reference to the facts
alleged in the challenged pleading. The issue raised in the motion
was fully discussed therein and in the opposition thereto. Under
such circumstances, oral argument on the motion is reduced to
an unnecessary ceremony and should be overlooked (see Ethel
Case, et al. v. Jugo, 77 Phil. 517, 522).
We adhere to the findings of the trial court that the second
motion for reconsideration dated August 11, 1975 ispro forma, to
it
The grounds stated in said motion being in reiteration of
the same grounds alleged in his first motion, the same is
pro-forma. (Order dated March 15, 1976, p. 2, Rollo, p. 74)
xxx
xxx
xxx
Furthermore, the second motion for reconsideration has not
stated new grounds considering that the alleged failure of

the Clerk of Court to set plaintiffs' motion for

reconsideration, although seemingly a different ground
than those alleged in their first motion for reconsideration,
is only incidental to the issues raised in their first motion
for reconsideration, as it only refers to the right of plaintiffs'
counsel to argue his motion in court just to amplify the
same grounds already deed by the court. (Ibid, p. 3, Rollo,
p. 75)
Therefore, it is very evident that the second motion for
reconsideration being pro-forma did not suspend the running of
the period of appeal. Thus, the lower court committed no error
when it held that the notice of appeal was filed after the lapse of
thirty five (35) days, which is clearly beyond the period of thirty
(30) days allowed by the rules.
Finally, it has been a basic rule that certiorari is not a substitute
for appeal which had been lost. (see Edra v. Intermediate
Appellate Court, G.R. No. 75041, November 13, 1989, 179 SCRA
344) A special civil action under Rule 65 of the Rules of Court will
not be a substitute or cure for failure to file a timely petition for
review oncertiorari (appeal) under Rule 45 of the Rules of Court.
(Escudero v. Dulay, G.R. No. 60578, February 23, 1988, 158 SCRA
69, 77)
The application of the abovecited rule should be relaxed where it
is shown that it will result in a manifest failure or miscarriage of
justice. (Ibid, p. 77) However, as emphasized earlier, the case at
bar is totally devoid of merit, thus, the strict application of the
said file will not in any way override sub-substantial justice.
Therefore, the delay of five (5) days in filing a notice of appeal
and a motion for extension to file a record on appeal cannot be
excused on the basis of equity.
All premises considered, the Court is convinced that the acts of
respondent judge, in dismissing the action for partition and in
subsequently denying the motions for reconsideration of the
petitioners, does not amount to grave abuse of discretion.
ACCORDINGLY, the petition is DISMISSED.
SO ORDERED.

Aniceta Minor, in consideration of the amount of one thousand

pesos (P1,000). 3
PEDRO OLIVERAS, TEODORA GASPAR, MELECIO OLIVERAS
and
ANICETA
MINOR, plaintiffs-appellees,
vs.
CANDIDO LOPEZ, SEVERO LOPEZ, HIPOLITO LOPEZ,
EUGENIA LOPEZ, PRIMITIVO GASPAR, CORAZON LOPEZ,
ALEJANDRO CACAYURIN, FAUSTINA BOTUYAN, MODESTO
SALAZAR, ADORACION BOTUYAN, CLAUDIO GANOTICE and
ENONG BOTUYAN, defendants-appellants.
Venancio B. Fernando for defendants-appellants.

On the same day, Tomasa and Candido executed another deed of

absolute sale of the "undivided" four thousand two hundred and
fifty-seven (4,257) square meters of the "eastern part" of Lot
4685 in favor of the spouses Pedro Oliveras and Teodora Gaspar,
also in consideration of P1,000. 4 Each of the said documents bear
the thumbmark of Tomasa and the signature of Candido.
In his affidavit also executed on February 11, 1953, Candido
stated that a month prior to the execution of the deed of sale in
favor of Melecio Oliveras, he offered his: "undivided portion" of
Lot 4685 to his "adjacent owners" but none of them was "in a
position to purchase" said property. 5

FERNAN, C.J.:
This case exemplifies the Filipino custom of keeping inherited
property in a prolonged juridical condition of co-owner ship.
Lorenzo Lopez owned Lot 4685 of the Cadastral survey of Villasis,
Pangasinan with an area of 69,687 square meters as evidenced
by Original Certificate of Title No. 15262. 1 In December, 1931,
Lorenzo Lopez died, 2 leaving said property to his wife, Tomasa
Ramos and six (6) children. From that time on, the heirs of
Lorenzo Lopez did not initiate any moves to legally partition the
property.
More than twenty-one years later, or on February 11, 1953,
Tomasa Ramos and her eldest son, Candido Lopez, executed a
deed of absolute sale of the "eastern undivided four thousand two
hundred and fifty seven-square meters (4,257) more or less, of
the undivided portion of (their) interests, rights and participation"
over Lot 4685, in favor of the spouses Melecio Oliveras and

Since the execution of the two deeds of absolute sale, the

vendees, brothers Melecio and Pedro, had been paying the real
property taxes for their respectively purchased properties. 6 They
also had been in possession of their purchased properties which,
being planted to palay and peanuts, were segregated from the
rest of Lot 4685 by dikes. 7
More than thirteen years later or on November 21, 1966, the
counsel of the Oliveras brothers wrote the heirs of Lorenzo Lopez
reminding them of the Oliverases' demands to partition the
property so that they could acquire their respective titles thereto
without resorting to court action, and that, should they fail to
respond, he would be forced to file a case in court. 8 Apparently,
the Lopezes did not answer said letter since on December 15,
1966, the Oliveras brothers and their wives filed a complaint for
partition and damages 9 in the Court of First Instance of
Pangasinan.10

The Oliverases stated in their complaint that possession of the

disputed properties was delivered to them with the knowledge
and consent of the defendants; that they had been paying the
real estate taxes thereon; that prior to the sale, said properties
were offered to the other co-owners for sale but they refused to
buy them; that on February 18, 1953, the transactions were duly
annotated and entered in the Memorandum of encumbrances of
OCT No. 15262 as adverse claims; and that their desire to
segregate the portions of Lot 4685 sold to them was frustrated by
defendants' adamant refusal to lend them the owner's duplicate
of OCT No. 15262 and to execute a deed of partition of the whole
lot.
In claiming moral damages in the amount of P2,000.00 plaintiffs
alleged that defendants also refused to allow them to survey and
segregate the portions bought by them. Plaintiffs prayed that the
court order the defendants to partition Lot 4685 and to allow
them to survey and segregate the portions they had purchased.
They also demanded payment of P800.00 as attorney's fees and
cost of the suit.
In their answer, the defendants alleged that no sale ever
transpired as the alleged vendors could not have sold specific
portions of the property; that plaintiffs' possession and
occupation of specific portions of the properties being illegal, they
could not ripen into ownership; and that they were not under any
obligation to lend their copy of the certificate of title or to accede
to plaintiffs' request for the partition or settlement of the
property. As special and affirmative defenses, the defendants
contended that the deeds of sale were null and void and hence,
unenforceable against them; that the complaint did not state a
cause of action and that the cause or causes of action if any, had
prescribed.

Defendants averred in their counterclaim that despite repeated

demands, plaintiffs refused and failed to vacate the premises;
that the properties occupied by the plaintiffs yielded an average
net produce in palay and peanuts in the amount of P1,600.00
annually, and that the complaint was filed to harass them. They
prayed for the dismissal of the complaint and the payment of
P1,600.00 per year from 1953 until plaintiffs shall have vacated
the premises and P1,000.00 for attorney's fees.
Plaintiffs filed an answer to defendants' counterclaim, denying all
the allegations therein and stating that defendants never
demanded that plaintiffs vacate the portions of Lot 4685 they had
bought.
The lower court explored the possibility of an amicable settlement
between the parties without success. Hence, it set the case for
trial
and
thereafter,
it
rendered
a
decision 11 declaring valid the deeds of absolute sale 12 and
ordering the defendants to allow the segregation of the sold
portions of Lot 4685 by a licensed surveyor in order that the
plaintiffs could obtain their respective certificates of title over
their portions of said lot.
In resolving the case, the lower court passed upon the issue of
whether the two deeds of absolute sale were what they purported
to be or merely mortgage documents. It considered as indicia of
plaintiffs' absolute dominion over the portions sold to them their
actual possession thereof without any opposition from the
defendants until the filing of the complaint, their payment of
taxes thereon and their having benefited from the produce of the
land. The court ruled that the defendants' testimonial evidence
that the deeds in question were merely mortgage documents
cannot overcome the evidentiary value of the public instruments
presented by the plaintiffs.

On the issue of whether the two deeds of absolute sale were null
and void considering that the land subject thereof had not yet
been partitioned, the court observed that the total area of 8,514
square meters sold to plaintiffs by Candido was less than his
share should Lot 4685 with an area of 69,687 square meters be
divided among the six children of Lorenzo Lopez and their mother.
In this connection, the lower court also found that during his
lifetime, and before Candido got married, Lorenzo Lopez had
divided Lot 4685 among his children who then took possession of
their respective shares. *

a thing or property undivided should be for a ten-year period only.

Where the parties stipulate a definite period of in division which
exceeds the maximum allowed by law, said stipulation shall be
void only as to the period beyond such maximum. 15

The defendants appealed said decision to this Court contending

that the lower court erred in declaring the two deeds of absolute
sale as valid, in ordering the segregation of the sold portions of
Lot 4685 to enable the plaintiffs to obtain their respective
certificates of title, and in not considering their defense of
prescription.

In the instant case, the heirs of Lorenzo Lopez maintained the coownership for more than twenty years. We hold that when
Candido and his mother (who died before the filing of the
complaint for partition) sold definite portions of Lot 4685, they
validly exercised dominion over them because, by operation of
law, the co-ownership had ceased. The filing of the complaint for
partition by the Oliverases who, as vendees, are legally
considered as subrogated to the rights of Candido over portions
of Lot 4685 in their possession, 16 merely served to put a stamp of
formality on Candido's otherwise accomplished act of terminating
the co-ownership.

The extrinsic validity of the two deeds of absolute sale is not in

issue in this case in view of the finding of the trial court that the
defendants
admittedly
do
not
question
their
due
13
execution. What should pre-occupy the Court is the intrinsic
validity of said deeds insofar as they pertain to sales of
designated portions of an undivided, co-owned property.
In a long line of decisions, this Court has held that before the
partition of a land or thing held in common, no individual coowner can claim title to any definite portion thereof. All that the
co-owner has is an Ideal or abstract quota or proportionate share
in the entire land or thing. 14
However, the duration of the juridical condition of co-ownership is
not limitless. Under Article 494 and 1083 of the Civil Code, coownership of an estate should not exceed the period of twenty
(20) years. And, under the former article, any agreement to keep

Although the Civil Code is silent as to the effect of the in division

of a property for more than twenty years, it would be contrary to
public policy to sanction co-ownership beyond the period set by
the law. Otherwise, the 20-year limitation expressly mandated by
the Civil Code would be rendered meaningless.

The action for partition has not prescribed. Although the

complaint was filed thirteen years from the execution of the
deeds of sale and hence, as contended by the defendantsappellants, prescription might have barred its filing under the
general provision of Article 1144 (a) of the Civil Code, Article 494
specifically
mandates
that
each
co-owner may demand at any time the partition of the thing
owned in common insofar as his share is concerned. Hence,
considering the validity of the conveyances of portions of Lot
4685 in their favor and as subrogees of Candido Lopez, the
Oliverases' action for partition was timely and properly filed. 17

We cannot write finis to this decision without commenting on the

compliance with the resolution of September 1, 1986 of counsel
for defendants-appellants. In said resolution, the court required
the parties to move in the premises "considering the length of
time that this case has remained pending in this Court and to
determine whether or not there might be supervening events
which may render the case moot and academic. 18 In his
manifestation and motion dated August 12, 1987, said counsel
informed the Court that he had contacted the defendantsappellants whom he advised "to move in the premises which is
the land in question and to maintain the status quo with respect
to their actual possession thereon" and that he had left a copy of
said resolution with the defendants-appellants" for their guidance
in the compliance of their obligations (sic) as specified in said
resolution." 19
Obviously, said counsel interpreted literally the Court's directive
"to move in the premises." For the enlightenment of said counsel
and all others of similar perception, a "move in the premises"
resolution is not a license to occupy or enter the premises subject
of litigation especially in cases involving real property. A "move in
the premises" resolution simply means what is stated therein: the
parties are obliged to inform the Court of developments pertinent
to the case which may be of help to the Court in its immediate
disposition.
WHEREFORE, the decision of the lower court insofar as it declares
the validity of the two deeds of sale and directs the partition of
Lot 4685, is AFFIRMED. The lower court is hereby ordered to
facilitate with dispatch the preparation of a project of partition
which it should thereafter approve. This decision is immediately
executory. No costs.
SO ORDERED.

IRENE TAC-AN-DANO, FELIPE G. TAC-AN, DIOSDADO G. TACAN

and
SOCORRO
TAC-AN
GENOBATEN,petitioners,
vs.
THE COURT OF APPEALS and ALFONSO G. TACAN, respondents.
Felipe G. Tac-an for petitioners.

Adelino B. Sitoy for private respondent.

MELENCIO-HERRERA, J.:
Petitioners herein seek to reverse the Decision of the then Court
of Appeals 1 in CA-G.R. No. 63057-R, as well as its Resolution
which denied their Motion for Reconsideration, and to reinstate in
toto the Decision of the then Court of First Instance of Misamis
Occidental, Branch III, Oroquieta City, in Civil Case No. 3092, for
Recovery of Ownership of Coconut Trees and Damages filed by
private respondent against them.
Petitioners Irene Tac-an Dano, Felipe G. Tac-an, Diosdado G. Tacan and Socorro Tac-an Genobaten, and private respondent
ALFONSO G. Tac-an, are brothers and sisters, children of the
deceased spouses Pio Tac-an and Luisa Guzman. Upon the demise
of Pio Tac-an on March 12, 1948, his wife, Luisa, managed the
entire estate, including an agricultural land of approximately 89
hectares at San Isidro, Misamis Occidental, until her death on
April 18, 1971.
On September 28, 1971, intestate proceedings for the settlement
of Luisa's estate were instituted by petitioner Diosdado Tac-an
before the Court of First instance of Misamis Occidental, Branch
III, docketed as Special Proceedings No. 615. ALFONSO opposed
the petition contending that one-half of the new 6,159 coconut
trees at the San Isidro property belonged to him in accordance
with his agreement with his late mother. Ultimately, on January
29, 1973, partition was ordered by the intestate Court pursuant to
a Compromise Agreement arrived at among the heirs. ALFONSO
claimed, however, that the partition was without prejudice to the
prosecution of his claim in a separate suit.

On January 31, 1975, ALFONSO filed a complaint for Recovery of

Ownership of Coconut Trees and Damages against petitioners
with the then Court of First Instance of Misamis Occidental,
Branch III, Oroquieta City, docketed as Civil Case No. 3092, which
he amended on April 3, 1975. He alleged that sometime in 1944,
upon the request of his late mother, and with the consent of
petitioners, he planted coconut trees on an agricultural land of
their late father at San Isidro Seor Sinacaban, Misamis
Occidental, with an area of 89.7033 hectares: that part of the
land was planted with sugar cane which he gradually replaced
with coconut trees, completing the work in 1957; that he and his
mother, during her lifetime, agreed, without objection from
petitioners, that the coconut trees including the fruits and
produce thereof, would be equally divided between them; that
their equal sharing continued for fifteen (15) years; that upon the
death of their mother, petitioner Diosdado Tac-an filed in
September 1971, Special Proceeding No. 615 with the Court of
First Instance of Misamis Occidental, Branch III, for the partition of
the real and personal properties left by their parents, which he
opposed.
Petitioners, in their Answer, stated that ALFONSO's claim for
improvements is barred by prior judgment in Special Proceedings
No. 615 rendered by the intestate Court on the basis of the
amicable compromise agreement entered into by the parties after
concessions were given to respondent for the settlement of said
claim; that by virtue of said Decision, the land in San Isidro was
subdivided and adjudicated in equal shares among them; that the
claim of respondent for one-half () of the produce of the coconut
trees was denied by the intestate Court in its Order of April 18,
1972, which had already became final; that the complaint states
no cause of action; that the claim is unenforceable under the
Statute of Frauds, and is barred by the Statute of Limitations
and/or prescription.

On September 12, 1977, the trial Court, through Judge Mariano M.

Florido, dismissed ALFONSO's Complaint and rendered judgment,
thus:
ACCORDINGLY, judgment is hereby rendered
dismissing the plaintiff's complaint for lack of merit;
and ordering the plaintiff, under the Counterclaim, to
pay and deliver to the defendants:
1. The amount of P21,000.00, representing the share
of the defendants which the plaintiff failed to give
and deliver to the defendants from May, 1971 to
September, 1971, with interest thereon at six (6) per
cent per annum from the filing of defendants'
Counterclaim on July 3, 1975, until the amount is
fully paid;
2. The forty (40) heads of cows representing the
shares of the defendants in the amicable settlement
dated January 29, 1973 in Special Proc. No. 615, and
the additional forty (40) heads of cows representing
the offsprings, which the cows of the defendants
would ordinarily have produced but which they failed
to do so, to the prejudice of the defendants, on
account of the default of the plaintiff, or for a total of
eighty (80) heads of cows; or in case of failure of
plaintiff to deliver the eighty (80) heads of cows to
the defendants, to pay to the defendants the amount
of P80,000.00, representing the value of the eighty
(80) heads of cows at P1,000.00 per head. plus
interest thereon at six (6%) per cent per annum from
the filing of defendants' counterclaim on July 3,
1975, until fully paid;
3. The amount of P15,000.00 as moral damages;

4. The amount of P20,000.00 as attorney's fees; and

in the further amount of P5,000.00, as expenses of
litigation; and
5. With costs against the plaintiff.
On appeal, the then Court of Appeals modified the judgment of
the trial Court by allowing ALFONSO to receive one-half of the
produce of the coconut trees, reducing the number of cows, and
eliminating the award of damages and attorney's fees, as follows:
WHEREFORE, with the modifications that the plaintiff
is entitled to receive one-half (1/2) of the produce of
coconuts in the land at San Isidro, Sinacaban,
Misamis Occidental to resume upon finality of this
decision; that plaintiff should only return to
defendants 40 cows and if not possible the
equivalent in value at the rate of P500.00 per head
or a total of P20,000.00 with legal rate of interest at
6% from the filing of defendants' counterclaim on
July 3, 1975 until fully paid; the elimination of moral
damages, attorney's fees and expenses of litigation;
the decision appealed from is hereby AFFIRMED in all
other respects, without pronouncement as to costs in
this instance.
Before us now, petitioners, as defendants below, impugn the
Decision of the Appellate Court assigning to it the following
errors:
I
The Court of Appeals committed serious error of law
and grave abuse of discretion amounting to lack of
jurisdiction in not holding that the claim for

improvements of Alfonso Tac-an is barred by a prior

final order in Special Proceeding No. 615 Res
Judicata.

declared and held that no agreement existed

between plaintiff and his mother.
V

II
The Court of Appeals committed serious error of law
and grave abuse of discretion amounting to want of
jurisdiction in not holding that the claim for
improvements of Alfonso Tac-an was likewise settled
and adjudicated by the final decision embodying the
amicable compromise agreement of the parties for
the partition of the estate in Special Proceeding No.
615 Res Judicata.
III
The Court of Appeals committed grave abuse of
discretion amounting to lack of jurisdiction when it
sanctioned the filing of this present independent civil
action relying mainly on the clarificatory orders
(erroneously referred to by the Court of Appeals as
"decision") of Judge Melecio Genato which are
contrary to the amicable compromise agreement
embodied and approved in the decision of Judge
Mariano Florido.
IV
The Court of Appeals committed grave abuse of
discretion amounting to lack of jurisdiction in
modifying the lower court decision by declaring that
Alfonso Tac-an is entitled to receive one-half () of
the produce despite the fact that it emphatically

Assuming arguendo that there was such agreement

the Court of Appeals gravely erred in enforcing it
against petitioners.
VI
The Court of Appeals committed grave abuse of
discretion amounting to lack of jurisdiction in
resolving the claim of Alfonso Tac-an by entitling him
to one-half () of the produce based on equity,
justice and human considerations instead of applying
clear and specific provisions of law (positive laws).
VII
The Court of Appeals committed grave abuse of
discretion amounting to lack of jurisdiction in
applying laches and estoppel against defendants.
VIII
The Court of Appeals gravely erred in not resolving
the issue that this action is barred by prescription
relying on the illegal clarificatory orders of Judge
Melecio Genato.
IX
The Court of Appeals likewise gravely erred in
resolving the issue that this action is barred by the

Statute of Frauds also relying on the clarificatory

orders of Judge Genato.
X
The Court of Appeals gravely erred in modifying the
decision of the lower Court by ordering plaintiff to
return to defendants only 40 heads of cows or if not
possible the equivalent in value at the rate of
P500.00 per head or a total sum of P20,000.00
instead of the valuation of the trial Court.
XI
The Court of Appeals gravely erred in eliminating the
award of P21,000.00 representing the share of
petitioners which plaintiff failed to give or deliver for
the period from May 1971 to September 1971.
XII
The Court of Appeals gravely erred in deleting the
award of moral damages, attorney's fees and
expenses of litigation.
On July 27, 1983, we denied the petition for lack of merit, and
likewise denied on January 11, 1984, petitioners' Motion for
Reconsideration of said Resolution. However, upon petitioners'
Second Motion for Reconsideration, we resolved to reconsider our
Resolutions of July 27, 1983 and January 11, 1984 and gave due
course to the Petition.
On res judicata and prescription

Petitioners contend that ALFONSO's suit for recovery of ownership

of coconut trees is barred by prior judgment in Special
Proceedings No. 615. While it may be that the said intestate
proceedings did attain finality, it was subject to the clarificatory
Order, dated April 24, 1973, issued by Judge Melecio Genato
reading:
The decision dated January 29, 1973, rendered by
this Court based on the amicable settlement of the
heirs in this case is amended to be without prejudice
to whatever claim oppositor Alfonso Tac-an has over
the improvements he had personally introduced or
caused to be introduced into the estate situated at
Seor Sinacaban, Misamis Occidental.
In his Order, dated June 19, 1973, resolving petitioners' Motion for
Reconsideration, the same Judge held that there was "no
amendment" to the Decision dated January 29, 1973. 2
Those Orders were elevated on certiorari to this Court in G.R. No.
L-37298 entitled Irene Tac-an Dano, etc. vs. Hon. Melecio Genato,
et al., which petition this Court dismissed for lack of merit on
February 12, 1974. 3
Premised on the foregoing, the defense of res judicata must fail
and it has to be held that the right was reserved to ALFONSO to
pursue his claim for recovery of ownership of coconut trees.
Prescription can neither be invoked as against ALFONSO by
reason of that reservation in his favor. He filed suit two years after
the Decision in the intestate proceedings had been rendered.
Under Article 1144 of the Civil Code, he had ten (10) years from
the time the right of action accrued within which to file suit upon
a judgment.

On the Alleged Agreement

ALFONSO's complaint, filed in the trial Court, was completely
based on an alleged oral agreement between himself, as coowner, and his mother as another co-owner, whereby he would be
receiving benefits from the mentioned coconut land more than he
would be entitled to as co-owner. Both the trial Court and the
Appellate Court made the factual finding that the arrangement if
at all, could have referred only to the produce, with the difference
that the former Court held that its effectivity ceased after the
mother's death and could not bind the other heirs; whereas the
latter Court ruled that since petitioners acquiesced in the
arrangement during their mother's lifetime, they are now
estopped from asserting the contrary.
It is not disputed that the San Isidro property was the capital
property of the father of the opposing parties, and that Luisa,
their mother, was not authorized by petitioners upon the death of
their father, to enter into contract with ALFONSO concerning the
produce of their respective shares of said property. It has been
established, too, that the expenses incurred in planting coconut
trees in said land came from the common fund 4 and that
concessions were given ALFONSO in the partition for his work in
converting the property into coconut land. So, whatever
agreement the mother had with ALFONSO regarding the produce
of the coconut trees, could legally bind her share only, and
chased upon her death. Petitioners merely tolerated such sharing
arrangement in deference to their mother's commitment. This is
shown by the fact that five months after her death, petitioners
instituted the proceedings for the partition of the estate of their
deceased parents including the San Isidro property. Accordingly,
the doctrine of laches and estoppel as against petitioners cannot
be successfully invoked. Absent was any element of turpitude or
negligence connected with the silence by which another is misled
to his injury. 5

Moreover, the agreement between mother and son must be

deemed superseded, for, on September 29, 1953, even during the
lifetime of the mother, Original Certificate of Title No. 28 (Lot No.
1) in the name of the deceased father, was cancelled and
replaced by TCT No. RT-121 issued in the names of "Felipe Tac-An
Irene Tac-an, Alfonso Tac-an, Catalina Tac-an, Diosdado Tac-an,
Socorro Tac-an and Luisa Guzman, in pro indiviso share of oneseventh (1/7) each", the last named being the surviving spouse
(Exhibit "12"). It will be seen, therefore, that, after 1953, it was
expressly made of record that ALFONSO, his mother, and five (5)
siblings (Catalina has since passed away) were co-owners in
equal shares. If, in fact, ALFONSO, had an agreement as to
ownership of the trees and produce with his mother, that was the
time for him to have insisted on a lien to be specifically included
in the title. His mother, too, would have been in a position to
confirm or deny the existence of the agreement.
Additionally, as petitioners contend, to give ALFONSO the right to
receive one-half () of the produce of coconuts, as respondent
Court did, would be to perpetuate a state of co-ownership,
contrary to Article 494 of the Civil Code, which limits coownership to a period of ten (10) years or at most twenty (20)
years.
On the Partition
It follows that ALFONSO's claim for recovery of ownership of the
coconut trees and of the produce thereof must fail. He should only
be entitled to the share alloted to him in the "share raffle"
embodied in their compromise agreement and approved by the
Court in Special Proceeding No. 615, dated January 29, 1973, as
follows:
5. The share raffle was conducted with respect to the
"Coconut Lands" mentioned on page 3 of the said

partition proposal and the following result was

registered:
1. Lot 1 was drawn in favor of Mrs. Socorro Tac-an
Genobatan; Lot 2 was drawn in favor of Mrs. Irene
Tac-an Dano; Lot 3 was drawn in favor of oppositor
Alfonso Tac-an; Lot 4 was drawn in favor of Atty.
Felipe Tac-an, and Lot 5 was drawn in favor of
Diosdado Tac-an.
xxx xxx xxx
7. ... The administrator of the estate is hereby
ordered to make a tentative partition of the coconut
land located at Seor Sinacaban into five (5) shares
based not only on the area, but also on the value of
the improvements thereon within a period of ten (10)
days from today, and that the heirs hereby agree to
draw another raffle in order to determine the share
that would correspond to them in the drawing of
lots, except the share of Alfonso Tac-an, the
oppositor, which is agreed by the heirs to be that
area where his house is standing and that the farm
house be adjudicated to him. 6 (Emphasis ours)
The sharing in the Compromise Agreement submitted before the
intestate Court with respect to the partition of the cows should
also be maintained. The Courts, as a rule may not impose upon
the parties a judgment different from their Compromise
Agreement. 7 The pertinent sharing agreement reads:
7. With respect to the number of cows, as of today,
there are seventy-one (71) heads of cows. It has
been agreed by the parties and their counsel that
Alfonso Tac-an will get 3/7 of this number or of

whatever number of cows there are belonging to the

estate, and the remainder 4/7 of the cows shall be
divided equally by the four (4) remaining heirs which
would give them the equivalent of 1/7 share of the
said cows. If actually the number of cows as counted
by the administrator is only 71, let it be divided in
accordance with the agreement of the parties and
the remaining one head of cow be turned over to the
administrator for evaluation and the administrator
may sell it and distribute the actual proceeds among
the heirs. ... 8
Consonant, therefore, with our finding that ALFONSO is not entitled
to one-half () of the produce of the San Isidro property, he should
give to petitioners, as ruled by the trial court, their share which he
failed to deliver from May 1971 to September 1971, or the amount of
P21,000.00 plus interest thereon at six (6) per cent per annum from
the filing of petitioners' counterclaim on July 3, 1975, until the
amount is fully paid.
As to the award of damages, there being no evidence of fraud and
bad faith committed by ALFONSO, the elimination by respondent
Appellate Court of the award of moral damages, attorney's fees and
expenses of litigation to petitioners should be affirmed.
WHEREFORE, modifying the judgment under review, this court
RESOLVES:
1] The elimination of the award of moral damages, attorney's fees
and expenses of litigation to petitioners is hereby AFFIRMED.
2] The award in favor of private respondent, Alfonso G. Tac-an, of
one-half of the produce of the coconut trees from the coconut lands
situated at San Isidro Seor Sinacaban, Misamis Occidental, is
hereby SET ASIDE;

3] Private respondent, Alfonso G. Tac-an, is hereby ordered to pay to

petitioners the amount of P21,000.00 representing the latter's share
in the produce of the coconuts from May 1971 to September 1971
with six (6) per cent interest thereon per annum from the filing of the
counterclaim on July 3, 1975 until the amount is fully paid; and
4] The parties are enjoined to abide by the terms of their
Compromise Agreement in the partition of the heads of cattle.
No costs.
SO ORDERED.

AURORA DEL BANCO, EVELYN DEL BANCO, FEDERICO

TAINO, SOLEDAD TAINO, JOVENCIO TAINO, SAMSON TAINO,
NOE
TAINO,
SOCORRO
TAINO
and
CLEOFAS
TAINO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT (Second Civil Cases
Division), ALEJANDRA PANSACOLA, LEONILA ENCALLADO,
VEDASTO ENCALLADO, JOSE YEPES, et al., respondents.

PARAS, J.:
This is a petition for review on certiorari by way of appeal from:
(a) the decision of respondent Court of Appeals (Intermediate
Appellate Court) * promulgated on May 17, 1985 in AC-G.R. CV
No. 70460, entitled "Alejandra Pansacola, et al. vs. Domen
Villabona del Banco, et al." which reversed and set aside the
judgment ** of the trial court; and (b) its resolution ** of October
15, 1985 in the same case, denying petitioners' motion for
reconsideration of the aforementioned decision and their
supplement to motion for reconsideration.

The dispositive portion of the questioned decision (Rollo, p. 97)

reads, as follows:
ACCORDINGLY, the decision appealed from is hereby
SET ASIDE insofar as it dismisses the complaint, and
another one entered
(1) Declaring plaintiffs-appellants and defendantsappellees, in their respective capacities as described
in par. V of the complaint, as co-owners of the
property in dispute, but subject to the four-part proindiviso division already made by said property;
(2) Ordering the cancellation of all certificates of title
that may have been issued to any of the parties
hereto; and
(3) Ordering the complete and final partition of the
subject property in conformity with law.
For this purpose, this case is hereby remanded to the
Court of origin so that a final partition shall be made
in accordance with Sections 2, 3, et. seq., Rule 69 of
the Rules of Court.
Let a copy of this decision be furnished to the
Register of Deeds for the Province of Quezon.
The facts of the case are taken from the decision of the Appellate
Court (Rollo, p. 39) as follows:
In a document executed in the Municipality of San Rafael,
Bulacan, on February 11, 1859, three brothers, Benedicto
Pansacola, Jose Pansacola and Manuel Pansacola (known as Fr.

Manuel Pena) entered into an agreement which provided, among

others:

(b) The second one-fourth (1/4) portion shall belong

to Don Jose Pansacola;

(1) That they will purchase from the Spanish Government the
lands comprising the Island of Cagbalite which is located within
the boundaries of the Municipality of Mauban, Province of Tayabas
(now Quezon) and has an approximate area of 1,600 hectares;

(c) The third one-fourth(1/4) portion shall henceforth

belong to the children of their deceased brother, Don
Eustaquio
Pansacola,
namely: Don
Mariano
Pansacola,- Maria Pansacola and Don Hipolito
Pansacola;

(2) That the lands shall be considered after the purchase as their
common property;
(3) That the co-ownership includes Domingo Arce and Baldomera
Angulo, minors at that time represented by their father, Manuel
Pansacola (Fr. Manuel Pena) who will contribute for them in the
proposed purchase of the Cagbalite Island;
(4) That whatever benefits may be derived from the Island shall
be shared equally by the co-owners in the following proportion:
Benedicto Pansacola-1/4 share; Jose Pansacola-1/4 share; and,
Domingo Arce and Baldomera Angulo-2/4 shares which shall be
placed under the care of their father, Manuel Pansacola (Fr.
Manuel Pena).
On August 14, 1866, co-owners entered into the actual
possession and enjoyment of the Island purchased by them from
the Spanish Government. On April 11, 1868 they agreed to modify
the terms and conditions of the agreement entered into by them
on February 11, 1859. The new agreement provided for a new
sharing and distribution of the lands, comprising the Island of
Cagbalite and whatever benefits may be derived therefrom, as
follows:
(a) The first one-fourth (1/4) portion shall belong
to Don Benedicto Pansacola;

(d) The fourth and last one-fourth (1/4) portion shall

belong to their nephews and nieces (1) Domingo
Arce,
(2) Baldomera
Angulo,
(3) Marcelina
Flores, (4) Francisca Flores, (5) Candelaria dela Cruz,
and (6) Gervasio Pansacola who, being all minors,
are still under the care of their brother, Manuel
Pansacola (Fr. Manuel Pena). The latter is the real
father of said minors.
About one hundred years later, on November 18, 1968, private
respondents brought a special action for partition in the Court of
First Instance of Quezon, under the provisions of Rule 69 of the
Rules of Court, including as parties the heirs and successors-ininterest of the co-owners of the Cagbalite Island in the second
contract of co-ownership dated April 11, 1968. In their answer
some of the defendants, petitioners herein, interposed such
defenses as prescription, res judicata, exclusive ownership,
estoppel and laches.
After trial on the merits, the trial court rendered a
decision *** dated November 6, 1981 dismissing the complaint,
the dispositive portion of which reads as follows:
WHEREFORE, and in the fight of all the foregoing this
Court finds and so holds that the Cagbalite Island
has already been partitioned into four (4) parts

among the original co-owners or their successors-ininterest.

by the Court in a Resolution of the Second Division dated

November 24, 1986 (Rollo, p. 160).

Judgment is therefore rendered for the defendants

against the plaintiffs dismissing the complaint in the
above entitled case.

On May 19, 1987, private respondents in the instant petition filed

a manifestation praying for the denial of the instant petition in the
same manner that G.R. No. 72620 was denied by the Court in its
Resolution dated July 23, 1986 (Rollo, p. 151). Their rejoinder to
the reply of petitioners was filed on May 25,1987 (Rollo, p. 179).

Considering that the cross claims filed in the above

entitled civil case are not compulsory cross claims
and in order that they may be litigated individually
the same are hereby dismissed without prejudice.
IT IS SO ORDERED.
The motion for reconsideration filed by the plaintiffs, private
respondents herein, was denied by the trial court in an order
dated February 25, 1982 (Record on Appeal, p. 241).
On appeal, respondent Court reversed and set aside the decision
of the lower court (Rollo, p. 117). It also denied the motion for
reconsideration and the supplement to motion for reconsideration
filed by private respondents, in its resolution dated October 15,
1983 (Rollo, p. 86).
Instant petition was filed with the Court on December 5, 1985
(Rollo, p. 12). Petitioners Josefina Pansacola, et al. having filed a
separate petition (G.R. No. 72620) on the same subject matter
and issues raised in the instant 'petition, the counsel for private
respondents filed a consolidated comment on the separate
petitions for review on February 24, 1986 with the First Division of
the Court (Rollo, p. 119). It appears that counsel for petitioners
also filed a consolidated reply to the consolidated comment of
private respondents as required by the Second Division of the
Court (Rollo, p. 151). However, petitioners filed a separate reply
in the instant case on February 18,1987 (Rollo, p. 168)as required

On June 8, 1987, the Court resolved to give due course to the

petition (Rollo, p. 192). The memorandum of private respondents
was mailed on July 18, 1987 and received in the Court on July 29,
1987 (Rollo, p. 112); the memorandum for petitioners was mailed
on August 18, 1987 and received in the Court on September 7,
1987 (Rollo, p. 177).
The sole issue to be resolved by the Court is the question of
whether or not Cagbalite Island is still undivided property owned
in common by the heirs and successors-in-interest of the
brothers, Benedicto, Jose and Manuel Pansacola.
The Pansacola brothers purchased the Island in 1859 as common
property and agreed on how they would share in the benefits to
be derived from the Island. On April 11, 1868, they modified the
terms and conditions of the agreement so as to include in the coownership of the island the children of their deceased brothers
Eustaquio and the other children of Manuel Pansacola (Fr. Manuel
Pena) who were committed in the agreement of February 11,
1859. The new agreement provided for a new sharing proportion
and distribution of the Island among the co-owners.
On January 20, 1907, the representative of the heirs of all the
original owners of Cagbalite Island entered into an agreement to
partition the Island, supplemented by another agreement dated

April 18, 1908. The contract dated January 20, 1907 provides as
follows:
Sa Mauban, Tayabas, ika 20 ng Enero ng 1907
caming mga quinatawan ng mga ibang co-herederos
na hindi caharap, sa pulong na ito, sa nasa naming
lahat na magcaroon na ng catahimikan ang amingaming cabahagui sa Pulong Kagbalete sumacatuid
upang mapagtoos ang hangahan ng apat na sapul
na pagcacabahagui nitong manang ito, pagcacausap
na naming lahat at maihanay at mapagtalonan ang
saysay ng isa't isa, ay cusa naming pinagcasunduan
at pinasiya ang nangasosonod:
Una: Ang malaquing calupaan, alis ang lahat na
pacatan ay babahaguin alinsunod sa pagcabaki na
guinawa sa croquis na niyari ng practico agrimensor
Don Jose Garcia.
Icalawa: Ang Lomingoy, doon ang tuid na guhit sa
ilong ng Pait ay pagaapatin ding sinlaqui ayon sa
dating pagkakabaki.
Icatlo: Cung magawa na ang tunay na piano at icapit
na sa lupa, paglalagay ng nadarapat na mojon, ang
masacupan ng guhit, sumacatuid ang caingin at
pananim ng isa na nasacupan ng pucto na noocol sa
iba, ay mapapasulit sa dapat mag-ari, na
pagbabayaran nito ang nagtanim sa halagang:bawat caponong niog na nabunga, P 1.00 'un peso);
cung ang bias ay abot sa isang vara, P 0.50; cung
bagong tanim o locloc P 0. 50 ang capono.

Icapat: Ang lahat na pacatan ay bacod na

pagaapatin at bawat bahagui ay noocol sa isat-isa sa
apat na sanga ng paganacang nagmana.
Icalima: Upang ang naipatanim ng bawat isa ay
matama sa canya ng mailagan ang hirap ng loob ng
nagatikha; ay pagtotolong-tolongan ng lahat naiba
na mahusay ang dalawang partes na magcalapit na
mapa ayong tumama, hangang may pagluluaran, sa
nagsikap at maoyanam, maidaco sa lugar na walang
cailangang pagusapan.
Icanim: Ang casulatang ito, cung mapermahan na na
magcacaharap sampong ng mga ibang co-herederos
na notipicahan nitong lahat na pinagcasundoan ay
mahahabilin sa camay ng agrimensor, Amadeo
Pansacola, upang canyang mapanusugan ang
maipaganap ang dito'y naootos.
Na sa catunayan at catibayan ng lahat na nalalagda
dito, sa pag galang at pag ganap dito sa
paingacaisahan ay pumirma sampo ng mga sacsing
caharap at catanto ngayong fecha ayon sa itaas.
The contract dated April 18, 1908 provides as follows:
Sa Mauban, ika 18 ng Abril ng 1908, sa pagcacatipon
ng lahat na firmantes nito ay pinagcaisahan itong
nangasosonod:
Una Pinagtitibay ang mga pinagcasundoan sa
itaas noong 20 ng Enero ng 1907, liban na lamang
sa mga pangcat na una at icapat at tongcol doon
pinasiya naming bahaguinin ng halohalo at paparejo
ang calupaan at pacatan.

Ycalawa Sa pagsucat ng agrimensor na si Amadeo

at
paggawa
ng
piano
at
descripcion
ay
pagbabayaran siya ng sa bawat isa naoocol sa
halagang isang piso sa bawat hectares.
Icatlo Ang counting pucto sa 'Mayanibulong' na
may caingin ni G. Isidro Altamarino, asawa ni
Restitute ay tutumbasan naman cay G. Norberto
Pansacola sa lugar ng Dapo calapit ng Pinangalo ng
gasing sucat.
Icapat Sa inilahad na piano ay pinasiya nang
itoloy at upang maca pagparehistro ang isa't isa ay
pinagcaisahang magcacagastos na parepareho para
sa tablang pangmohon at ibat iba pang cagastusan.
Sa catunayan at catibayan ay cami, pumirma.
(Record on Appeal, p. 224)
There is nothing in all four agreements that suggests that actual
or physical partition of the Island had really been made by either
the original owners or their heirs or successors-in-interest. The
agreement entered into in 1859 simply provides for the sharing of
whatever benefits can be derived from the island. The agreement,
in fact, states that the Island to be purchased shall be considered
as their common property. In the second agreement entered in
1868 the co-owners agreed not only on the sharing proportion of
the benefits derived from the Island but also on the distribution of
the Island each of the brothers was allocated a 1/4 portion of the
Island with the children of the deceased brother, Eustaquio
Pansacola allocated a 1/4 portion and the children of Manuel
Pansacola (Fr. Manuel Pena) also allocated a 1/4 portion of the
Island. With the distribution agreed upon each of the co-owner is
a co-owner of the whole, and in this sense, over the whole he
exercises the right of dominion, but he is at the same time the

sole owner of a portion, in the instant case, a 1/4 portion (for each
group of co-owners) of the Island which is truly abstract, because
until physical division is effected such portion is merely an Ideal
share, not concretely determined (3 Manresa, Codigo Civil, 3rd
Ed., page 486, cited in Lopez vs. Cuaycong, 74 Phil. 601; De la
Cruz vs. Cruz, 32 SCRA 307 [1970]; Felices vs. Colegado, 35 SCRA
173 [1970],; Dultra vs. CFl 70 SCRA 465 [1976]; Gatchalian vs.
Arlegui, 75 SCRA 234 [1977].)
In the agreement of January 20, 1907, the heirs that were
represented agreed on how the Island was to be partitioned. The
agreement of April 18, 1908 which supplements that of January
20, 1907 reveals that as of the signing of the 1908 agreement no
actual partition of the Island had as yet been done. The second
and fourth paragraphs of the agreement speaks of a survey yet to
be conducted by a certain Amadeo and a plan and description yet
to be made. Virgilio Pansacola, a son of the surveyor named
Amadeo who is referred to in the contract dated April 18, 1908 as
the surveyor to whom the task of surveying Cagbalite Island
pursuant to said agreement was entrusted, however, testified
that said contracts were never implemented because nobody
defrayed the expenses for surveying the same (Record on Appeal,
p. 225).
Petitioners invoke res judicata to bar this action for partition in
view of the decision of the Court in G.R. No. 21033,"Domingo Arce
vs. Maria Villabona, et al.," 21034, "Domingo Arce vs. Francisco
Pansacola, et al.," and 21035,"Domingo Arce vs. Emiliano
Pansacola, et al." promulgated on February 20, 1958 (Rollo, p.
141) and Brief for Defendants-Appellees, p. 87 Appendix 1),
wherein the Court said:
Considering the facts that he waited for a period of
nearly 23 years after the return from his deportation
before taking any positive action to recover his

pretended right in the property in question, gives

great credit, in our opinion, to the declaration of the
witnesses for the defense (a) that the original parcel
of land was partitioned as they claim, and (b) that
the plaintiff had disposed of all the right and interest
which he had in the portion which had been given to
him.
The issue in the aforementioned case which were tried together is
not whether there has already been a partition of the Cagbalite
Island. The actions were brought by the plaintiff to recover
possession of three distinct parcels of land, together with
damages. In fact the word partition was used in the metaphysical
or Ideal sense (not in its physical sense).
Commenting on the above ruling of the Court in connection with
the instant case, the respondent Court said:
Concededly, the Supreme Court decision in G.R. Nos.
21033-35 (Exh. X) did use or employ the word
"partition." A careful reading of the said decision will,
however, reveal, and we so hold, that the
employment or use of the word "partition" therein
was made not in its technical and legal meaning or
sense adverted to above, but, rather in its Ideal,
abstract and spiritual sense, this is (at) once evident
from the bare statement in said decision to the
effect that the property was divided into four parts,
without any reference to the specific parts of the
property that may have been adjudicated to each
owner. There being no such reference in the decision
and in the judgment affirmed therein to the
adjudication of specific and definite portions of the
property to each co-owner, there is a clear and
logical inference that there was indeed no

adjudication of specific and definite portions of the

property made to each co-owner.
It must be admitted that the word "partition" is not infrequently
used both in popular and technical parlance (Fule vs. Fule, 52 Phil.
750 [1929]). For purposes of the aforementioned case, evidently
the Court used the word "partition" to refer to the distribution of
the Cagbalite Island agreed upon by the original owners and in
the later agreements, by the heirs and their subsequent
successors-in-interest. There need not be a physical partition; a
distribution of the Island even in a state of indiviso or was
sufficient in order that a co-owner may validly sell his portion of
the co-owned property. The sale of part of a particular lot thus coowned by one co-owner was within his right pro-indiviso is valid in
its entirety (Pamplona vs. Moreto, 96 SCRA 775 [1980]) but he
may not convey a physical portion with boundaries of the land
owned in common (Mercado vs. Liwanag, 5 SCRA 472 [1962]).
Definitely, there was no physical partition of the Island in 1859.
Neither could there have been one in 1894 because the manner
of subdividing the Island was only provided for in the later
agreements entered into by the heirs in 1907 and 1908. There
was a distribution of the Island in 1868 as agreed upon by the
original co-owners in their agreement of April 11, 1868. Any
agreement entered into by the parties in 1894 could be no more
than another agreement as to the distribution of the Island
among the heirs of the original co-owners and the preparation of
a tentative plan by a practical surveyor, a Mr. Jose Garcia,
mentioned in the first paragraph of the 1907 agreement,
preparatory to the preparation of the real plan to be prepared by
the surveyor Amadeo, mentioned in the agreement of April 18,
1908.
What is important in the Court's ruling in the three
aforementioned cases is that, the fact that there was a
distribution of the Island among the co-owners made the sale of

Domingo Arce of the portion allocated to him though pro-indiviso,

valid. He thus disposed of all his rights and interests in the portion
given to him.
It is not disputed that some of the private respondents and some
of the petitioners at the time the action for partition was filed in
the trial court have been in actual possession and enjoyment of
several portions of the property in question (Rollo, p. 148). This
does not provide any proof that the Island in question has already
been actually partitioned and co-ownership terminated. A coowner cannot, without the conformity of the other co-owners or a
judicial decree of partition issued pursuant to the provision of
Rule 69 of the Rules of Court (Rule 71 of the Old Rules),
adjudicate to himself in fee simple a determinate portion of the
lot owned in common, as his share therein, to the exclusion of
other co-owners (Santos, Jr. vs. Buenconsejo, 14 SCRA 407
[1965]; Carvajal vs. Court of Appeals, 112 SCRA 237 [1982]). It is
a basic principle in the law of co-ownership both under the
present Civil Code as in the Code of 1889 that no individual coowner can claim any definite portion thereof (Diversified Credit
Corporation vs. Rosada 26 SCRA 470 [1968]). lt is therefore of no
moment that some of the co-owners have succeeded in securing
cadastral titles in their names to some portions of the Island
occupied by them (Rollo, p. 10).
It is not enough that the co-owners agree to subdivide the
property. They must have a subdivision plan drawn in accordance
with which they take actual and exclusive possession of their
respective portions in the plan and titles issued to each of them
accordingly (Caro vs. Court of Appeals, 113 SCRA 10 [1982]). The
mechanics of actual partition should follow the procedure laid
down in Rule 69 of the Rules of Court. Maganon vs. Montejo, 146
SCRA 282 [1986]).

Neither can such actual possession and enjoyment of some

portions of the Island by some of the petitioners herein be
considered a repudiation of the co-ownership. It is undisputed
that the Cagbalite Island was purchased by the original co-owners
as a common property and it has not been proven that the Island
had been partitioned among them or among their heirs. While
there is co-ownership, a co-owner's possession of his share is copossession which is linked to the possession of the other coowners (Gatchalian vs. Arlegui, 75 SCRA 234 [1977]).
Furthermore, no prescription shall run in favor of a co-owner
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership (Valdez vs. Olonga, 51
SCRA 71 [1973], Tero vs. Tero, 131 SCRA 100 [1984]). Co-owners
cannot acquire by prescription the share of the other co-owners,
absent a clear repudiation of the co-ownership clearly
communicated to the other co-owners (Mariano vs. De Vega, 148
SCRA 342 [1987]).
An action for partition does not prescribe. Article 403 of the Old
Civil Code, now Article 497, provides that the assignees of the coowners may take part in the partition of the common property,
and Article 400 of the Old Code, now Article 494 provides that
each co-owner may demand at any time the partition of the
common property, a provision which implies that the action to
demand partition is imprescriptible or cannot be barred by laches
(Budlong vs. Pondoc, 79 SCRA 24 [1977]). An action for partition
does not lie except when the co-ownership is properly repudiated
by the co- owner (Jardin vs. Hollasco, 117 SCRA 532 [1982]).
On July 23, 1986, the Court through its Second Division denied
the petition for the review of G.R. No. 72620, the petition for
review on certiorari separately filed by Josefina Pansacola (Rollo,
p. 151).

PREMISES CONSIDERED, the instant petition is likewise DENIED

for lack of merit.
SO ORDERED.

JACOBUS
BERNHARD
vs.
PR BUILDERS, INC., respondent.

HULST, petitioner,

DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule
45 of the Revised Rules of Court assailing the Decision 1 dated
October 30, 2002 of the Court of Appeals (CA) in CA-G.R. SP No.
60981.
The facts:
Jacobus Bernhard Hulst (petitioner) and his spouse Ida Johanna
Hulst-Van Ijzeren (Ida), Dutch nationals, entered into a Contract to
Sell with PR Builders, Inc. (respondent), for the purchase of a 210sq m residential unit in respondent's townhouse project
in Barangay Niyugan, Laurel, Batangas.
When respondent failed to comply with its verbal promise to
complete the project by June 1995, the spouses Hulst filed before
the Housing and Land Use Regulatory Board (HLURB) a complaint
for rescission of contract with interest, damages and attorney's
fees, docketed as HLRB Case No. IV6-071196-0618.

On April 22, 1997, HLURB Arbiter Ma. Perpetua Y. Aquino (HLURB

Arbiter) rendered a Decision2 in favor of spouses Hulst, the
dispositive portion of which reads:

On August 21, 1997, the HLURB Arbiter issued a Writ of Execution

addressed to the Ex-Officio Sheriff of the Regional Trial Court of
Tanauan, Batangas directing the latter to execute its judgment. 5

WHEREFORE, premises considered, judgment is hereby

rendered in favor of the complainant, rescinding the
Contract to Sell and ordering respondent to:

On April 13, 1998, the Ex-Officio Sheriff proceeded to implement

the Writ of Execution. However, upon complaint of respondent
with the CA on a Petition for Certiorari and Prohibition, the levy
made by the Sheriff was set aside, requiring the Sheriff to levy
first on respondent's personal properties. 6 Sheriff Jaime B. Ozaeta
(Sheriff) tried to implement the writ as directed but the writ was
returned unsatisfied.7

1) Reimburse complainant the sum of P3,187,500.00,

representing the purchase price paid by the complainants
to P.R. Builders, plus interest thereon at the rate of twelve
percent (12%) per annum from the time complaint was
filed;
2) Pay complainant the sum of P297,000.00 as actual
damages;
3) Pay complainant the sum of P100,000.00 by way of
moral damages;
4) Pay complainant the sum of P150,000.00 as exemplary
damages;
5) P50,000.00 as attorney's fees and for other litigation
expenses; and
6) Cost of suit.
SO ORDERED.3
Meanwhile, spouses Hulst divorced. Ida assigned her rights over
the purchased property to petitioner. 4 From then on, petitioner
alone pursued the case.

On January 26, 1999, upon petitioner's motion, the HLURB Arbiter

issued an Alias Writ of Execution.8
On March 23, 1999, the Sheriff levied on respondent's 15 parcels
of land covered by 13 Transfer Certificates of Title
(TCT)9 in Barangay Niyugan, Laurel, Batangas.10
In a Notice of Sale dated March 27, 2000, the Sheriff set the
public auction of the levied properties on April 28, 2000 at 10:00
a.m..11
Two days before the scheduled public auction or on April 26,
2000, respondent filed an Urgent Motion to Quash Writ of Levy
with the HLURB on the ground that the Sheriff made an overlevy
since the aggregate appraised value of the levied properties
at P6,500.00 per sq m is P83,616,000.00, based on the Appraisal
Report12 of Henry Hunter Bayne Co., Inc. dated December 11,
1996, which is over and above the judgment award. 13
At 10:15 a.m. of the scheduled auction date of April 28, 2000,
respondent's counsel objected to the conduct of the public
auction on the ground that respondent's Urgent Motion to Quash
Writ of Levy was pending resolution. Absent any restraining order

from the HLURB, the Sheriff proceeded to sell the 15 parcels of

land. Holly Properties Realty Corporation was the winning bidder
for all 15 parcels of land for the total amount of P5,450,653.33.
The sum of P5,313,040.00 was turned over to the petitioner in
satisfaction of the judgment award after deducting the legal
fees.14
At 4:15 p.m. of the same day, while the Sheriff was at the HLURB
office to remit the legal fees relative to the auction sale and to
submit the Certificates of Sale15 for the signature of HLURB
Director Belen G. Ceniza (HLURB Director), he received the Order
dated April 28, 2000 issued by the HLURB Arbiter to suspend the
proceedings on the matter.16
Four months later, or on August 28, 2000, the HLURB Arbiter and
HLURB Director issued an Order setting aside the sheriff's levy on
respondent's real properties,17 reasoning as follows:
While we are not making a ruling that the fair market value
of the levied properties is PhP6,500.00 per square meter
(or an aggregate value of PhP83,616,000.00) as indicated
in the Hunter Baynes Appraisal Report, we definitely cannot
agree with the position of the Complainants and the Sheriff
that the aggregate value of the 12,864.00-square meter
levied properties is only around PhP6,000,000.00. The
disparity between the two valuations are [sic] so egregious
that the Sheriff should have looked into the matter first
before proceeding with the execution sale of the said
properties, especially when the auction sale proceedings
was seasonably objected by Respondent's counsel, Atty.
Noel Mingoa. However, instead of resolving first the
objection timely posed by Atty. Mingoa, Sheriff Ozaete
totally disregarded the objection raised and, posthaste,
issued the corresponding Certificate of Sale even prior to
the payment of the legal fees (pars. 7 & 8, Sheriff's Return).

While we agree with the Complainants that what is material

in an execution sale proceeding is the amount for which the
properties were bidded and sold during the public auction
and that, mere inadequacy of the price is not a sufficient
ground to annul the sale, the court is justified to intervene
where the inadequacy of the price shocks the conscience
(Barrozo vs. Macaraeg, 83 Phil. 378). The difference
between PhP83,616,000.00 and Php6,000,000.00 is
PhP77,616,000.00 and it definitely invites our attention to
look into the proceedings had especially so when there was
only one bidder, the HOLLY PROPERTIES REALTY
CORPORATION represented by Ma, Chandra Cacho (par. 7,
Sheriff's Return) and the auction sale proceedings was
timely objected by Respondent's counsel (par. 6, Sheriff's
Return) due to the pendency of the Urgent Motion to Quash
the Writ of Levy which was filed prior to the execution sale.
Besides, what is at issue is not the value of the
subject properties as determined during the auction
sale, but the determination of the value of the
properties levied upon by the Sheriff taking into
consideration Section 9(b) of the 1997 Rules of Civil
Procedure x x x.
xxxx
It is very clear from the foregoing that, even during levy,
the Sheriff has to consider the fair market value of the
properties levied upon to determine whether they are
sufficient to satisfy the judgment, and any levy in excess of
the judgment award is void (Buan v. Court of Appeals, 235
SCRA 424).
x x x x18 (Emphasis supplied).

The dispositive portion of the Order reads:

WHEREFORE, the levy on the subject properties made by
the Ex-Officio Sheriff of the RTC of Tanauan, Batangas, is
hereby SET ASIDE and the said Sheriff is hereby directed to
levy instead Respondent's real properties that are
reasonably sufficient to enforce its final and executory
judgment, this time, taking into consideration not only the
value of the properties as indicated in their respective tax
declarations, but also all the other determinants at arriving
at a fair market value, namely: the cost of acquisition, the
current value of like properties, its actual or potential uses,
and in the particular case of lands, their size, shape or
location, and the tax declarations thereon.

Without filing a motion for reconsideration, 23 petitioner took the

present recourse on the sole ground that:
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
AFFIRMING THE ARBITER'S ORDER SETTING ASIDE THE
LEVY MADE BY THE SHERIFF ON THE SUBJECT
PROPERTIES.24
Before resolving the question whether the CA erred in affirming
the Order of the HLURB setting aside the levy made by the sheriff,
it behooves this Court to address a matter of public and national
importance which completely escaped the attention of the HLURB
Arbiter and the CA: petitioner and his wife are foreign nationals
who are disqualified under the Constitution from owning real
property in their names.

SO ORDERED.19
Section 7 of Article XII of the 1987 Constitution provides:
A motion for reconsideration being a prohibited pleading under
Section 1(h), Rule IV of the 1996 HLURB Rules and Procedure,
petitioner filed a Petition for Certiorari and Prohibition with the CA
on September 27, 2000.
On October 30, 2002, the CA rendered herein assailed
Decision20 dismissing the petition. The CA held that petitioner's
insistence that Barrozo v. Macaraeg21 does not apply since said
case stated that "when there is a right to redeem inadequacy of
price should not be material" holds no water as what is obtaining
in this case is not "mere inadequacy," but an inadequacy that
shocks the senses; that Buan v. Court of Appeals 22 properly
applies since the questioned levy covered 15 parcels of land
posited to have an aggregate value of P83,616,000.00 which
shockingly
exceeded
the
judgment
debt
of
only
around P6,000,000.00.

Sec. 7. Save in cases of hereditary succession, no private

lands shall be transferred or conveyed except to
individuals, corporations, or associations qualified to
acquire or hold lands of the public domain. (Emphasis
supplied).
The capacity to acquire private land is made dependent upon the
capacity to acquire or hold lands of the public domain. Private
land may be transferred or conveyed only to individuals or
entities "qualified to acquire lands of the public domain." The
1987 Constitution reserved the right to participate in the
disposition, exploitation, development and utilization of lands of
the public domain for Filipino citizens 25 or corporations at least 60
percent of the capital of which is owned by Filipinos. 26 Aliens,
whether individuals or corporations, have been disqualified from
acquiring public lands; hence, they have also been disqualified
from acquiring private lands.27

Since petitioner and his wife, being Dutch nationals, are

proscribed under the Constitution from acquiring and owning real
property, it is unequivocal that the Contract to Sell entered into
by petitioner together with his wife and respondent is void. Under
Article 1409 (1) and (7) of the Civil Code, all contracts whose
cause, object or purpose is contrary to law or public policy and
those expressly prohibited or declared void by law are inexistent
and void from the beginning. Article 1410 of the same Code
provides that the action or defense for the declaration of the
inexistence of a contract does not prescribe. A void contract is
equivalent to nothing; it produces no civil effect. 28 It does not
create, modify or extinguish a juridical relation. 29
Generally, parties to a void agreement cannot expect the aid of
the law; the courts leave them as they are, because they are
deemed in pari delicto or "in equal fault."30 In pari delicto is "a
universal doctrine which holds that no action arises, in equity or
at law, from an illegal contract; no suit can be maintained for its
specific performance, or to recover the property agreed to be sold
or delivered, or the money agreed to be paid, or damages for its
violation; and where the parties are in pari delicto, no affirmative
relief of any kind will be given to one against the other." 31
This rule, however, is subject to exceptions 32 that permit the
return of that which may have been given under a void contract
to: (a) the innocent party (Arts. 1411-1412, Civil Code); 33 (b) the
debtor who pays usurious interest (Art. 1413, Civil Code); 34 (c)
the party repudiating the void contract before the illegal
purpose is accomplished or before damage is caused to a
third person and if public interest is subserved by
allowing recovery (Art. 1414, Civil Code); 35 (d) the
incapacitated party if the interest of justice so demands (Art.
1415, Civil Code);36 (e) the party for whose protection the
prohibition by law is intended if the agreement is not illegal per
se but merely prohibited and if public policy would be enhanced

by permitting recovery (Art. 1416, Civil Code); 37 and (f) the party
for whose benefit the law has been intended such as in price
ceiling laws (Art. 1417, Civil Code) 38 and labor laws (Arts. 14181419, Civil Code).39
It is significant to note that the agreement executed by the
parties in this case is a Contract to Sell and not a contract of sale.
A distinction between the two is material in the determination of
when ownership is deemed to have been transferred to the buyer
or vendee and, ultimately, the resolution of the question on
whether the constitutional proscription has been breached.
In a contract of sale, the title passes to the buyer upon the
delivery of the thing sold. The vendor has lost and cannot recover
the ownership of the property until and unless the contract of sale
is itself resolved and set aside. 40 On the other hand, a contract to
sell is akin to a conditional sale where the efficacy or obligatory
force of the vendor's obligation to transfer title is subordinated to
the happening of a future and uncertain event, so that if the
suspensive condition does not take place, the parties would stand
as if the conditional obligation had never existed. 41 In other
words, in a contract to sell, the prospective seller agrees to
transfer ownership of the property to the buyer upon the
happening of an event, which normally is the full payment of the
purchase price. But even upon the fulfillment of the suspensive
condition, ownership does not automatically transfer to the buyer.
The prospective seller still has to convey title to the prospective
buyer by executing a contract of absolute sale. 42
Since the contract involved here is a Contract to Sell, ownership
has not yet transferred to the petitioner when he filed the suit for
rescission. While the intent to circumvent the constitutional
proscription on aliens owning real property was evident by virtue
of the execution of the Contract to Sell, such violation of the law
did not materialize because petitioner caused the rescission of

the contract before the execution of the final deed transferring

ownership.
Thus, exception (c) finds application in this case. Under Article
1414, one who repudiates the agreement and demands his
money before the illegal act has taken place is entitled to recover.
Petitioner is therefore entitled to recover what he has paid,
although the basis of his claim for rescission, which was granted
by the HLURB, was not the fact that he is not allowed to acquire
private land under the Philippine Constitution. But petitioner is
entitled to the recovery only of the amount of P3,187,500.00,
representing the purchase price paid to respondent. No damages
may be recovered on the basis of a void contract; being
nonexistent, the agreement produces no juridical tie between the
parties involved.43 Further, petitioner is not entitled to actual as
well as interests thereon,44 moral and exemplary damages and
attorney's fees.
The Court takes into consideration the fact that the HLURB
Decision dated April 22, 1997 has long been final and executory.
Nothing is more settled in the law than that a decision that has
acquired finality becomes immutable and unalterable and may no
longer be modified in any respect even if the modification is
meant to correct erroneous conclusions of fact or law and
whether it was made by the court that rendered it or by the
highest court of the land. 45 The only recognized exceptions to the
general rule are the correction of clerical errors, the socalled nunc pro tunc entries which cause no prejudice to any
party, void judgments, and whenever circumstances transpire
after the finality of the decision rendering its execution unjust and
inequitable.46 None of the exceptions is present in this case. The
HLURB decision cannot be considered a void judgment, as it was
rendered by a tribunal with jurisdiction over the subject matter of
the complaint.47

Ineluctably, the HLURB Decision resulted in the unjust enrichment

of petitioner at the expense of respondent. Petitioner received
more than what he is entitled to recover under the circumstances.
Article 22 of the Civil Code which embodies the maxim, nemo ex
alterius incommode debet lecupletari (no man ought to be made
rich out of another's injury), states:
Art. 22. Every person who through an act of performance
by another, or any other means, acquires or comes into
possession of something at the expense of the latter
without just or legal ground, shall return the same to him.
The above-quoted article is part of the chapter of the Civil Code
on Human Relations, the provisions of which were formulated as
basic principles to be observed for the rightful relationship
between human beings and for the stability of the social order;
designed to indicate certain norms that spring from the fountain
of good conscience; guides for human conduct that should run as
golden threads through society to the end that law may approach
its supreme ideal which is the sway and dominance of
justice.48 There is unjust enrichment when a person unjustly
retains a benefit at the loss of another, or when a person retains
money or property of another against the fundamental principles
of justice, equity and good conscience. 49
A sense of justice and fairness demands that petitioner should not
be allowed to benefit from his act of entering into a contract to
sell that violates the constitutional proscription.
This is not a case of equity overruling or supplanting a positive
provision of law or judicial rule. Rather, equity is exercised in this
case "as the complement of legal jurisdiction [that] seeks to reach
and to complete justice where courts of law, through the
inflexibility of their rules and want of power to adapt their

judgments to the special circumstances of cases, are incompetent

to do so."50

execution proceedings and, by itself, does not have the effect of

restraining the Sheriff from proceeding with the execution.

The purpose of the exercise of equity jurisdiction in this case is to

prevent unjust enrichment and to ensure restitution. Equity
jurisdiction aims to do complete justice in cases where a court of
law is unable to adapt its judgments to the special circumstances
of a case because of the inflexibility of its statutory or legal
jurisdiction.51

Respondent, on the other hand, contends that while it is true that

the HLURB Arbiter and Director did not categorically state the
exact value of the levied properties, said properties cannot just
amount to P6,000,000.00; that the HLURB Arbiter and Director
correctly held that the value indicated in the tax declaration is not
the sole determinant of the value of the property.

The sheriff delivered to petitioner the amount of P5,313,040.00

representing the net proceeds (bidded amount isP5,450,653.33)
of the auction sale after deducting the legal fees in the amount
of P137,613.33.52 Petitioner is only entitled to P3,187,500.00, the
amount of the purchase price of the real property paid by
petitioner to respondent under the Contract to Sell. Thus, the
Court in the exercise of its equity jurisdiction may validly order
petitioner to return the excess amount of P2,125,540.00.

The petition is impressed with merit.

If the judgment is for money, the sheriff or other authorized
officer must execute the same pursuant to the provisions of
Section 9, Rule 39 of the Revised Rules of Court, viz:
Sec. 9. Execution of judgments for money, how enforced.

The Court shall now proceed to resolve the single issue raised in
the present petition: whether the CA seriously erred in affirming
the HLURB Order setting aside the levy made by the Sheriff on
the subject properties.

(a) Immediate payment on demand. - The officer shall

enforce an execution of a judgment for money by
demanding from the judgment obligor the immediate
payment of the full amount stated in the writ of execution
and all lawful fees. x x x

Petitioner avers that the HLURB Arbiter and Director had no

factual basis for pegging the fair market value of the levied
properties at P6,500.00 per sq m or P83,616,000.00; that reliance
on the appraisal report was misplaced since the appraisal was
based on the value of land in neighboring developed subdivisions
and on the assumption that the residential unit appraised had
already been built; that the Sheriff need not determine the fair
market value of the subject properties before levying on the same
since what is material is the amount for which the properties were
bidded and sold during the public auction; that the pendency of
any motion is not a valid ground for the Sheriff to suspend the

(b) Satisfaction by levy. - If the judgment obligor cannot

pay all or part of the obligation in cash, certified bank
check or other mode of payment acceptable to the
judgment obligee, the officer shall levy upon the
properties of the judgment obligor of every kind and
nature whatsoever which may be disposed of for
value and not otherwise exempt from execution,
giving the latter the option to immediately choose which
property or part thereof may be levied upon, sufficient to
satisfy the judgment. If the judgment obligor does not
exercise the option, the officer shall first levy on the

personal properties, if any, and then on the real properties

if the personal properties are insufficient to answer for the
judgment.
The sheriff shall sell only a sufficient portion of the
personal or real property of the judgment obligor
which has been levied upon.
When there is more property of the judgment
obligor than is sufficient to satisfy the judgment and
lawful fees, he must sell only so much of the
personal or real property as is sufficient to satisfy
the judgment and lawful fees.
Real property, stocks, shares, debts, credits, and other
personal property, or any interest in either real or personal
property, may be levied upon in like manner and with
like effect as under a writ of attachment (Emphasis
supplied).53
Thus, under Rule 39, in executing a money judgment against the
property of the judgment debtor, the sheriff shall levy on all
property belonging to the judgment debtor as is amply sufficient
to satisfy the judgment and costs, and sell the same paying to the
judgment creditor so much of the proceeds as will satisfy the
amount of the judgment debt and costs. Any excess in the
proceeds shall be delivered to the judgment debtor unless
otherwise directed by the judgment or order of the court. 54
Clearly, there are two stages in the execution of money
judgments. First, the levy and then the execution sale.
Levy has been defined as the act or acts by which an officer sets
apart or appropriates a part or the whole of a judgment debtor's
property for the purpose of satisfying the command of the writ of

execution.55 The object of a levy is to take property into the

custody of the law, and thereby render it liable to the lien of the
execution, and put it out of the power of the judgment debtor to
divert it to any other use or purpose.56
On the other hand, an execution sale is a sale by a sheriff or other
ministerial officer under the authority of a writ of execution of the
levied property of the debtor.57
In the present case, the HLURB Arbiter and Director gravely
abused their discretion in setting aside the levy conducted by the
Sheriff for the reason that the auction sale conducted by the
sheriff rendered moot and academic the motion to quash the levy.
The HLURB Arbiter lost jurisdiction to act on the motion to quash
the levy by virtue of the consummation of the auction sale.
Absent any order from the HLURB suspending the auction sale,
the sheriff rightfully proceeded with the auction sale. The winning
bidder had already paid the winning bid. The legal fees had
already been remitted to the HLURB. The judgment award had
already been turned over to the judgment creditor. What was left
to be done was only the issuance of the corresponding certificates
of sale to the winning bidder. In fact, only the signature of the
HLURB Director for that purpose was needed 58 a purely
ministerial act.
A purely ministerial act or duty is one which an officer or tribunal
performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard for
or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a
public officer and gives him the right to decide how or when the
duty shall be performed, such duty is discretionary and not
ministerial. The duty is ministerial only when the discharge of the
same requires neither the exercise of official discretion nor
judgment.59In the present case, all the requirements of auction

sale under the Rules have been fully complied with to warrant the
issuance of the corresponding certificates of sale.
And even if the Court should go into the merits of the assailed
Order, the petition is meritorious on the following grounds:
Firstly, the reliance of the HLURB Arbiter and Director, as well as
the CA, on Barrozo v. Macaraeg60 and Buan v. Court of Appeals 61 is
misplaced.
The HLURB and the CA misconstrued the Court's pronouncements
in Barrozo. Barrozo involved a judgment debtor who wanted to
repurchase properties sold at execution beyond the one-year
redemption period. The statement of the Court in Barrozo, that
"only where such inadequacy shocks the conscience the courts
will intervene," is at best a mere obiter dictum. This declaration
should be taken in the context of the other declarations of the
Court in Barrozo, to wit:
Another point raised by appellant is that the price paid at
the auction sale was so inadequate as to shock the
conscience of the court. Supposing that this issue is open
even after the one-year period has expired and after the
properties have passed into the hands of third persons who
may have paid a price higher than the auction sale money,
the first thing to consider is that the stipulation contains no
statement of the reasonable value of the properties; and
although defendant' answer avers that the assessed value
wasP3,960 it also avers that their real market value
was P2,000 only. Anyway, mere inadequacy of price
which was the complaint' allegation is not
sufficient ground to annul the sale. It is only where
such inadequacy shocks the conscience that the
courts will intervene. x x x Another consideration is that
the assessed value being P3,960 and the purchase price

being in effect P1,864 (P464 sale price plus P1,400

mortgage lien which had to be discharged) the conscience
is not shocked upon examining the prices paid in the sales
in National Bank v. Gonzales, 45 Phil., 693 and Guerrero v.
Guerrero, 57 Phil., 445, sales which were left undisturbed
by this Court.
Furthermore, where there is the right to redeem as in
this case inadequacy of price should not be material
because the judgment debtor may re-acquire the
property or else sell his right to redeem and thus
recover any loss he claims to have suffered by
reason of the price obtained at the execution sale.
x x x x (Emphasis supplied).62
In other words, gross inadequacy of price does not nullify an
execution sale. In an ordinary sale, for reason of equity, a
transaction may be invalidated on the ground of inadequacy of
price, or when such inadequacy shocks one's conscience as to
justify the courts to interfere; such does not follow when the law
gives the owner the right to redeem as when a sale is made at
public auction,63 upon the theory that the lesser the price, the
easier it is for the owner to effect redemption. 64 When there is a
right to redeem, inadequacy of price should not be material
because the judgment debtor may re-acquire the property or else
sell his right to redeem and thus recover any loss he claims to
have suffered by reason of the price obtained at the execution
sale.65 Thus, respondent stood to gain rather than be harmed by
the low sale value of the auctioned properties because it
possesses the right of redemption. More importantly, the subject
matter in Barrozo is the auction sale, not the levy made by the
Sheriff.

The Court does not sanction the piecemeal interpretation of a

decision. To get the true intent and meaning of a decision, no
specific portion thereof should be isolated and resorted to, but
the decision must be considered in its entirety. 66
As regards Buan, it is cast under an entirely different factual
milieu. It involved the levy on two parcels of land owned by the
judgment debtor; and the sale at public auction of one was
sufficient to fully satisfy the judgment, such that the levy and
attempted execution of the second parcel of land was declared
void for being in excess of and beyond the original judgment
award granted in favor of the judgment creditor.
In the present case, the Sheriff complied with the mandate of
Section 9, Rule 39 of the Revised Rules of Court, to "sell only a
sufficient portion" of the levied properties "as is sufficient to
satisfy the judgment and the lawful fees." Each of the 15 levied
properties was successively bidded upon and sold, one after the
other until the judgment debt and the lawful fees were fully
satisfied. Holly Properties Realty Corporation successively bidded
upon and bought each of the levied properties for the total
amount of P5,450,653.33 in full satisfaction of the judgment
award and legal fees.67
Secondly, the Rules of Court do not require that the value of the
property levied be exactly the same as the judgment debt; it can
be less or more than the amount of debt. This is the contingency
addressed by Section 9, Rule 39 of the Rules of Court. In the levy
of property, the Sheriff does not determine the exact valuation of
the levied property. Under Section 9, Rule 39, in conjunction with
Section 7, Rule 57 of the Rules of Court, the sheriff is required to
do only two specific things to effect a levy upon a realty: (a) file
with the register of deeds a copy of the order of execution,
together with the description of the levied property and notice of
execution; and (b) leave with the occupant of the property copy of

the same order, description and notice. 68 Records do not show

that respondent alleged non-compliance by the Sheriff of said
requisites.
Thirdly, in determining what amount of property is sufficient out
of which to secure satisfaction of the execution, the Sheriff is left
to his own judgment. He may exercise a reasonable discretion,
and must exercise the care which a reasonably prudent person
would exercise under like conditions and circumstances,
endeavoring on the one hand to obtain sufficient property to
satisfy the purposes of the writ, and on the other hand not to
make an unreasonable and unnecessary levy. 69 Because it is
impossible to know the precise quantity of land or other property
necessary to satisfy an execution, the Sheriff should be allowed a
reasonable margin between the value of the property levied upon
and the amount of the execution; the fact that the Sheriff levies
upon a little more than is necessary to satisfy the execution does
not render his actions improper. 70 Section 9, Rule 39, provides
adequate safeguards against excessive levying. The Sheriff is
mandated to sell so much only of such real property as is
sufficient to satisfy the judgment and lawful fees.
In the absence of a restraining order, no error, much less abuse of
discretion, can be imputed to the Sheriff in proceeding with the
auction sale despite the pending motion to quash the levy filed by
the respondents with the HLURB. It is elementary that sheriffs, as
officers charged with the delicate task of the enforcement and/or
implementation of judgments, must, in the absence of a
restraining order, act with considerable dispatch so as not to
unduly delay the administration of justice; otherwise, the
decisions, orders, or other processes of the courts of justice and
the like would be futile.71 It is not within the jurisdiction of the
Sheriff to consider, much less resolve, respondent's objection to
the continuation of the conduct of the auction sale. The Sheriff
has no authority, on his own, to suspend the auction sale. His

duty being ministerial, he has no discretion to postpone the

conduct of the auction sale.

The Appraisal Report is not the best proof to accurately show the
value of the levied properties as it is clearly self-serving.

Finally, one who attacks a levy on the ground of excessiveness

carries the burden of sustaining that contention. 72In the
determination of whether a levy of execution is excessive, it is
proper to take into consideration encumbrances upon the
property, as well as the fact that a forced sale usually results in a
sacrifice; that is, the price demanded for the property upon a
private sale is not the standard for determining the excessiveness
of the levy.73

Therefore, the Order dated August 28, 2000 of HLURB Arbiter

Aquino and Director Ceniza in HLRB Case No. IV6-071196-0618
which set aside the sheriff's levy on respondent's real properties,
was clearly issued with grave abuse of discretion. The CA erred in
affirming said Order.

Here, the HLURB Arbiter and Director had no sufficient factual

basis to determine the value of the levied property. Respondent
only submitted an Appraisal Report, based merely on surmises.
The Report was based on the projected value of the townhouse
project after it shall have been fully developed, that is, on the
assumption that the residential units appraised had already been
built. The Appraiser in fact made this qualification in its Appraisal
Report: "[t]he property subject of this appraisal has not been
constructed. The basis of the appraiser is on the existing model
units."74 Since it is undisputed that the townhouse project did not
push through, the projected value did not become a reality. Thus,
the appraisal value cannot be equated with the fair market value.

WHEREFORE, the instant petition is GRANTED. The Decision

dated October 30, 2002 of the Court of Appeals in CA-G.R. SP No.
60981 is REVERSED and SET ASIDE. The Order dated August
28, 2000 of HLURB Arbiter Ma. Perpetua Y. Aquino and Director
Belen G. Ceniza in HLRB Case No. IV6-071196-0618 is
declared NULL andVOID. HLURB Arbiter Aquino and Director
Ceniza are directed to issue the corresponding certificates of sale
in favor of the winning bidder, Holly Properties Realty Corporation.
Petitioner is ordered to return to respondent the amount
of P2,125,540.00, without interest, in excess of the proceeds of
the auction sale delivered to petitioner. After the finality of herein
judgment, the amount of P2,125,540.00 shall earn 6% interest
until fully paid.
SO ORDERED.