G.R. No. 152766.
June 20, 2003 On 29 October 1999 petitioner filed her Petition for Relief from Judgment with
LILIA SANCHEZ, petitioner, vs. COURT OF APPEALS, HON. VICTORINO S.
ALVARO as Presiding Judge, RTC-Br. 120, Caloocan City, and VIRGINIA
TERIA, respondents.
DECISION
BELLOSILLO, J.:
This is a Special Civil Action for Certiorari under Rule 65 of the Rules of Court to
annul and set aside the Decision of the Court of Appeals dated 23 May 2001 as well
as its Resolution dated 8 January 2002 in CA-G.R. SP No. 59182.
Lilia Sanchez, petitioner, constructed a house on a 76-square meter lot owned
by her parents-in-law. The lot was registered under TCT No. 263624 with the
following co-owners: Eliseo Sanchez married to Celia Sanchez, Marilyn Sanchez
married to Nicanor Montalban, Lilian Sanchez, widow, Nenita Sanchez, single,
Susana Sanchez married to Fernando Ramos, and Felipe Sanchez. [1] On 20
February 1995, the lot was registered under TCT No. 289216 in the name of private
respondent Virginia Teria by virtue of a Deed of Absolute Sale supposed to have
been executed on 23 June 1995 [2] by all six (6) co-owners in her favor.[3] Petitioner
claimed that she did not affix her signature on the document and subsequently
refused to vacate the lot, thus prompting private respondent Virginia Teria to file an
action for recovery of possession of the aforesaid lot with the Metropolitan Trial Court
(MeTC) of Caloocan City sometime in September 1995, subsequently raffled to Br. 49
of that court.
On 12 February 1998, the MeTC-Br. 49 of Caloocan City ruled in favor of private
respondent declaring that the sale was valid only to the extent of 5/6 of the lot and the
other 1/6 remaining as the property of petitioner, on account of her signature in
the Deed of Absolute Sale having been established as a forgery.
Petitioner then elevated her appeal to the Regional Trial Court of Caloocan City,
subsequently assigned to Br. 120, which ordered the parties to file their respective
memoranda of appeal. Counsel for petitioner did not comply with this order, nor even
inform her of the developments in her case. Petitioner not having filed any pleading
with the RTC of Caloocan City, the trial court affirmed the 27 July 1998 decision of the
MeTC.
On 4 November 1998, the MeTC issued an order for the issuance of a writ of
execution in favor of private respondent Virginia Teria, buyer of the property. On 4
November 1999 or a year later, a Notice to Vacate was served by the sheriff upon
petitioner who however refused to heed the Notice.
On 28 April 1999 private respondent started demolishing petitioners house
without any special permit of demolition from the court.
Due to the demolition of her house which continued until 24 May 1999 petitioner
was forced to inhabit the portion of the premises that used to serve as the houses
toilet and laundry area.
the RTC on the ground that she was not bound by the inaction of her counsel who
failed to submit petitioners appeal memorandum. However the RTC denied the
Petition and the subsequent Motion for Reconsideration.
On 14 June 2000 petitioner filed her Petition for Certiorari with the Court of
Appeals alleging grave abuse of discretion on the part of the court a quo.
On 23 May 2001 the appellate court dismissed the petition for lack of merit. On
18 June 2001 petitioner filed a Motion for Reconsideration but the Court of Appeals
denied the motion in its Resolution of 8 January 2002.
The only issue in this case is whether the Court of Appeals committed grave
abuse of discretion in dismissing the challenged case before it.
As a matter of policy, the original jurisdiction of this Court to issue the so-called
extraordinary writs should generally be exercised relative to actions or proceedings
before the Court of Appeals or before constitutional or other tribunals or agencies the
acts of which for some reason or other are not controllable by the Court of Appeals.
Where the issuance of the extraordinary writ is also within the competence of the
Court of Appeals or the Regional Trial Court, it is either of these courts that the
specific action for the procurement of the writ must be presented. However, this Court
must be convinced thoroughly that two (2) grounds exist before it gives due course to
a certiorari petition under Rule 65: (a) The tribunal, board or officer exercising judicial
or quasi-judicial functions has acted without or in excess of its or his jurisdiction; and
(b) There is no appeal nor any plain, speedy and adequate remedy in the ordinary
course of law.
Despite the procedural lapses present in this case, we are giving due course to
this petition as there are matters that require immediate resolution on the merits to
effect substantial justice.
The Rules of Court should be liberally construed in order to promote their object
of securing a just, speedy and inexpensive disposition of every action or
proceeding.[4]
The rules of procedure should be viewed as mere tools designed to aid the
courts in the speedy, just and inexpensive determination of the cases before
them. Liberal construction of the rules and the pleadings is the controlling principle to
effect substantial justice.[5] Litigations should, as much as possible, be decided on
their merits and not on mere technicalities.[6]
Verily, the negligence of petitioners counsel cannot be deemed as negligence of
petitioner herself in the case at bar. A notice to a lawyer who appears to have been
unconscionably irresponsible cannot be considered as notice to his client.[7] Under the
peculiar circumstances of this case, it appears from the records that counsel was
negligent in not adequately protecting his clients interest, which necessarily calls for a
liberal construction of the Rules.
The rationale for this approach is explained in Ginete v. Court of Appeals - [8]
This Court may suspend its own rules or exempt a particular case from its operation
where the appellate court failed to obtain jurisdiction over the case owing to
appellants failure to perfect an appeal.Hence, with more reason would this Court
suspend its own rules in cases where the appellate court has already obtained
jurisdiction over the appealed case. This prerogative to relax procedural rules of the
most mandatory character in terms of compliance, such as the period to appeal has
been invoked and granted in a considerable number of cases x x x x
Let it be emphasized that the rules of procedure should be viewed as mere tools
designed to facilitate the attainment of justice. Their strict and rigid application, which
would result in technicalities that tend to frustrate rather than promote substantial
justice, must always be eschewed. Even the Rules of Court reflect this principle. The
power to suspend or even disregard rules can be so pervasive and compelling as to
alter even that which this Court itself has already declared to be final, as we are now
constrained to do in the instant case x x x x
The emerging trend in the rulings of this Court is to afford every party litigant the
amplest opportunity for the proper and just determination of his cause, free from the
constraints of technicalities. Time and again, this Court has consistently held that
rules must not be applied rigidly so as not to override substantial justice.
Aside from matters of life, liberty, honor or property which would warrant the
suspension of the Rules of the most mandatory character and an examination and
review by the appellate court of the lower courts findings of fact, the other elements
that should be considered are the following: (a) the existence of special or compelling
circumstances, (b) the merits of the case, (c) a cause not entirely attributable to the
fault or negligence of the party favored by the suspension of the rules, (d) a lack of
any showing that the review sought is merely frivolous and dilatory, and (e) the other
party will not be unjustly prejudiced thereby.[9]
The suspension of the Rules is warranted in this case since the procedural
infirmity was not entirely attributable to the fault or negligence of petitioner. Besides,
substantial justice requires that we go into the merits of the case to resolve the
present controversy that was brought about by the absence of any partition
agreement among the parties who were co-owners of the subject lot in
question. Hence, giving due course to the instant petition shall put an end to the
dispute on the property held in common.
In Peoples Homesite and Housing Corporation v. Tiongco[10] we held:
There should be no dispute regarding the doctrine that normally notice to counsel is
notice to parties, and that such doctrine has beneficent effects upon the prompt
dispensation of justice. Its application to a given case, however, should be looked into
and adopted, according to the surrounding circumstances; otherwise, in the courts
desire to make a short-cut of the proceedings, it might foster, wittingly or unwittingly,
dangerous collusions to the detriment of justice. It would then be easy for one lawyer
to sell ones rights down the river, by just alleging that he just forgot every process of
the court affecting his clients, because he was so busy. Under this circumstance, one
should not insist that a notice to such irresponsible lawyer is also a notice to his
clients.
Thus, we now look into the merits of the petition.
This case overlooks a basic yet significant principle of civil law: co-
ownership. Throughout the proceedings from the MeTC to the Court of Appeals, the
notion of co-ownership[11] was not sufficiently dealt with. We attempt to address this
controversy in the interest of substantial justice. Certiorari should therefore be granted
to cure this grave abuse of discretion.
Sanchez Roman defines co-ownership as the right of common dominion which
two or more persons have in a spiritual part of a thing, not materially or physically
divided.[12] Manresa defines it as the manifestation of the private right of ownership,
which instead of being exercised by the owner in an exclusive manner over the things
subject to it, is exercised by two or more owners and the undivided thing or right to
which it refers is one and the same.[13]
The characteristics of co-ownership are: (a) plurality of subjects, who are the co-
owners, (b) unity of or material indivision, which means that there is a single object
which is not materially divided, and which is the element which binds the subjects,
and, (c) the recognition of ideal shares, which determines the rights and obligations of
the co-owners.[14]
In co-ownership, the relationship of such co-owner to the other co-owners is
fiduciary in character and attribute. Whether established by law or by agreement of
the co-owners, the property or thing held pro-indiviso is impressed with a fiducial
nature so that each co-owner becomes a trustee for the benefit of his co-owners and
he may not do any act prejudicial to the interest of his co-owners.[15]
Thus, the legal effect of an agreement to preserve the properties in co-
ownership is to create an express trust among the heirs as co-owners of the
properties. Co-ownership is a form of trust and every co-owner is a trustee for the
others.[16]
Before the partition of a land or thing held in common, no individual or co-owner
can claim title to any definite portion thereof. All that the co-owner has is an ideal or
abstract quota or proportionate share in the entire land or thing. [17]
Article 493 of the Civil Code gives the owner of an undivided interest in the
property the right to freely sell and dispose of it, i.e., his undivided interest. He may
validly lease his undivided interest to a third party independently of the other co-
owners.[18] But he has no right to sell or alienate a concrete, specific or determinate
part of the thing owned in common because his right over the thing is represented by
a quota or ideal portion without any physical adjudication.[19]
Although assigned an aliquot but abstract part of the property, the metes and
bounds of petitioners lot has not been designated. As she was not a party to the Deed
of Absolute Salevoluntarily entered into by the other co-owners, her right to 1/6 of the
property must be respected. Partition needs to be effected to protect her right to her
definite share and determine the boundaries of her property. Such partition must be
done without prejudice to the rights of private respondent Virginia Teria as buyer of
the 5/6 portion of the lot under dispute.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals
dated 23 May 2001 as well as its Resolution dated 8 January 2002 in CA-G.R. SP
No. 59182 is ANNULLED and SET ASIDE. A survey of the questioned lot with TCT
No. 289216 (formerly TCT No. 263624) by a duly licensed geodetic engineer and the
PARTITION of the aforesaid lot are ORDERED.
 Let the records of this case be REMANDED to MeTC-Br. 49, Caloocan City to
effect the aforementioned survey and partition, as well as segregate the 1/6 portion
appertaining to petitioner Lilia Sanchez.
The Deed of Absolute Sale by the other co-owners to Virginia Teria shall be
RESPECTED insofar as the other undivided 5/6 portion of the property is concerned.

G.R. No. 133638 April 15, 2005
PERPETUA VDA. DE APE, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS and GENOROSA CAWIT VDA. DE
LUMAYNO, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari of the Decision1 of the Court of Appeals
in CA-G.R. CV No. 45886 entitled, "Generosa Cawit de Lumayno, accompanied by
her husband Braulio Lumayno v. Fortunato Ape, including his wife Perpetua de Ape."
The pertinent facts are as follows:
Cleopas Ape was the registered owner of a parcel of land particularly known as Lot
No. 2319 of the Escalante Cadastre of Negros Occidental and covered by Original
Certificate of Title (OCT) No. RP 1379 (RP-154 [300]).2Upon Cleopas Ape's death
sometime in 1950, the property passed on to his wife, Maria Ondoy, and their eleven
(11) children, namely: Fortunato, Cornelio, Bernalda, Bienvenido, Encarnacion,
Loreta, Lourdes, Felicidad, Adela, Dominador, and Angelina, all surnamed Ape.
On 15 March 1973, Generosa Cawit de Lumayno (private respondent herein), joined
by her husband, Braulio,3instituted a case for "Specific Performance of a Deed of Sale
with Damages" against Fortunato and his wife Perpetua (petitioner herein) before the
then Court of First Instance of Negros Occidental. It was alleged in the complaint that
on 11 April 1971, private respondent and Fortunato entered into a contract of sale of
land under which for a consideration of P5,000.00, Fortunato agreed to sell his share
in Lot No. 2319 to private respondent. The agreement was contained in a receipt
prepared by private respondent's son-in-law, Andres Flores, at her behest. Said
receipt was attached to the complaint as Annex "A" thereof and later marked as
Exhibit "G" for private respondent. The receipt states:
April 11, 1971
TO WHOM IT MAY CONCERN:
This date received from Mrs. Generosa Cawit de Lumayno the sum of
THIRTY PESOS ONLY as Advance Payment of my share in Land
Purchased, for FIVE THOUSAND PESOS LOT #2319.
(Signed)
FORTUNATO APE
P30.00 WITNESS:
(Illegible)4
As private respondent wanted to register the claimed sale transaction, she
supposedly demanded that Fortunato execute the corresponding deed of sale and to
receive the balance of the consideration. However, Fortunato unjustifiably refused to
heed her demands. Private respondent, therefore, prayed that Fortunato be ordered
to execute and deliver to her "a sufficient and registrable deed of sale involving his
one-eleventh (1/11) share or participation in Lot No. 2319 of the Escalante Cadastre;
to pay P5,000.00 in damages; P500.00 reimbursement for litigation expenses as well
as additional P500.00 for every appeal made; P2,000.00 for attorney's fees; and to
pay the costs.5
Fortunato and petitioner denied the material allegations of the complaint and claimed
that Fortunato never sold his share in Lot No. 2319 to private respondent and that his
signature appearing on the purported receipt was forged. By way of counterclaim, the
defendants below maintained having entered into a contract of lease with respondent
involving Fortunato's portion of Lot No. 2319. This purported lease contract
commenced in 1960 and was supposed to last until 1965 with an option for another
five (5) years. The annual lease rental was P100.00 which private respondent and
her husband allegedly paid on installment basis. Fortunato and petitioner also
assailed private respondent and her husband's continued possession of the rest of
Lot No. 2319 alleging that in the event they had acquired the shares of Fortunato's
co-owners by way of sale, he was invoking his right to redeem the same. Finally,
Fortunato and petitioner prayed that the lease contract between them and respondent
be ordered annulled; and that respondent be ordered to pay them attorney's fees;
moral damages; and exemplary damages.6
In their reply,7 the private respondent and her husband alleged that they had
purchased from Fortunato's co-owners, as evidenced by various written
instruments,8 their respective portions of Lot No. 2319. By virtue of these sales, they
insisted that Fortunato was no longer a co-owner of Lot No. 2319 thus, his right of
redemption no longer existed.
Prior to the resolution of this case at the trial court level, Fortunato died and was
substituted in this action by his children named Salodada, Clarita, Narciso, Romeo,
Rodrigo, Marieta, Fortunato, Jr., and Salvador, all surnamed Ape. 9
During the trial, private respondent testified that she and her husband acquired the
various portions of Lot No. 2319 belonging to Fortunato's co-owners. Thereafter, her
husband caused the annotation of an adverse claim on the certificate of title of Lot
No. 2319.10 The annotation states:
Entry No. 123539 Adverse claim filed by Braulio Lumayno. Notice of adverse
claim filed by Braulio Lumayno affecting the lot described in this title to the extent of
77511.93 square meters, more or less, the aggregate area of shares sold to him on
the basis of (alleged) sales in his possession. Doc. No. 157, Page No. 33, Book No.
XI, Series of 1967 of Alexander Cawit of Escalante, Neg. Occ. Date of instrument.
June 22, 1967 at 8:30 a.m. (SGD) FEDENCIORRAZ, Actg. Register of Deeds.11
In addition, private respondent claimed that after the acquisition of those shares, she
and her husband had the whole Lot No. 2319 surveyed by a certain Oscar Mascada
who came up with a technical description of said piece of land.12 Significantly, private
respondent alleged that Fortunato was present when the survey was conducted. 13
Also presented as evidence for private respondent were pictures taken of some parts
of Lot No. 2319 purportedly showing the land belonging to Fortunato being bounded
by a row of banana plants thereby separating it from the rest of Lot No. 2319.14
As regards the circumstances surrounding the sale of Fortunato's portion of the land,
private respondent testified that Fortunato went to her store at the time when their
lease contract was about to expire. He allegedly demanded the rental payment for
his land but as she was no longer interested in renewing their lease agreement, they
agreed instead to enter into a contract of sale which Fortunato acceded to provided
private respondent bought his portion of Lot No. 2319 for P5,000.00. Thereafter, she
asked her son-in-law Flores to prepare the aforementioned receipt. Flores read the
document to Fortunato and asked the latter whether he had any objection thereto.
Fortunato then went on to affix his signature on the receipt.
For her part, petitioner insisted that the entire Lot No. 2319 had not yet been formally
subdivided;15 that on 11 April 1971 she and her husband went to private respondent's
house to collect past rentals for their land then leased by the former, however, they
managed to collect only thirty pesos;16 that private respondent made her (petitioner's)
husband sign a receipt acknowledging the receipt of said amount of money; 17 and that
the contents of said receipt were never explained to them. 18 She also stated in her
testimony that her husband was an illiterate and only learned how to write his name in
order to be employed in a sugar central.19 As for private respondent's purchase of the
shares owned by Fortunato's co-owners, petitioner maintained that neither she nor
her husband received any notice regarding those sales transactions. 20 The testimony
of petitioner was later on corroborated by her daughter-in-law, Marietta Ape Dino.21
After due trial, the court a quo rendered a decision 22 dismissing both the complaint
and the counterclaim. The trial court likewise ordered that deeds or documents
representing the sales of the shares previously owned by Fortunato's co-owners be
registered and annotated on the existing certificate of title of Lot No. 2319. According
to the trial court, private respondent failed to prove that she had actually paid the
purchase price of P5,000.00 to Fortunato and petitioner. Applying, therefore, the
provision of Article 1350 of the Civil Code,23 the trial court concluded that private
respondent did not have the right to demand the delivery to her of the registrable
deed of sale over Fortunato's portion of the Lot No. 2319.
The trial court also rejected Fortunato and petitioner's claim that they had the right of
redemption over the shares previously sold to private respondent and the latter's
husband, reasoning as follows:
Defendants in their counterclaim invoke their right of legal redemption under Article
1623 of the New Civil Code in view of the alleged sale of the undivided portions of the
lot in question by their co-heirs and co-owners as claimed by the plaintiffs in their
complaint. They have been informed by the plaintiff about said sales upon the filing
of the complaint in the instant case as far back as March 14, 1973. Defendant
themselves presented as their very own exhibits copies of the respective deeds of
sale or conveyance by their said co-heirs and co-owners in favor of the plaintiffs or
their predecessors-in-interest way back on January 2, 1992 when they formally
offered their exhibits in the instant case; meaning, they themselves acquired
possession of said documentary exhibits even before they formally offered them in
evidence. Under Art. 1623 of the New Civil Code, defendants have only THIRTY (30)
DAYS counted from their actual knowledge of the exact terms and conditions of the
deeds of sale or conveyance of their co-heirs' and co-owners' share within which to
exercise their right of legal redemption.24
Within the reglementary period, both parties filed their respective notices of appeal
before the trial court with petitioner and her children taking exception to the finding of
the trial court that the period within which they could invoke their right of redemption
had already lapsed.25 For her part, private respondent raised as errors the trial court's
ruling that there was no contract of sale between herself and Fortunato and the
dismissal of their complaint for specific performance.26
The Court of Appeals, in the decision now assailed before us, reversed and set aside
the trial court's dismissal of the private respondent's complaint but upheld the portion
of the court a quo's decision ordering the dismissal of petitioner and her children's
counterclaim. The dispositive portion of the appellate court's decision reads:
WHEREFORE, the decision dated March 11, 1994, is hereby REVERSED
and SET ASIDE insofar as the dismissal of plaintiffs-appellants' complaint is
concerned, and another one is entered ordering the defendant-appellant
Fortunato Ape and/or his wife Perpetua de Ape and successors-in-interest to
execute in favor of plaintiff-appellant Generosa Cawit de Lumayno a Deed of
Absolute Sale involving the one-eleventh (1/11) share or participation of
Fortunato Ape in Lot No. 2319, Escalante Cadastre, containing an area of
12,527.19 square meters, more or less, within (30) days from finality of this
decision, and in case of non-compliance with this Order, that the Clerk of
Court of said court is ordered to execute the deed on behalf of the vendor.
The decision is AFFIRMED insofar as the dismissal of defendants-
appellants' counterclaim is concerned.
Without pronouncement as to costs.27
The Court of Appeals upheld private respondent's position that Exhibit "G" had all the
earmarks of a valid contract of sale, thus:
Exhibit G is the best proof that the P5,000.00 representing the purchase price of the
1/11th share of Fortunato Ape was not paid by the vendee on April 11, 1971, and/or up
to the present, but that does not affect the binding force and effect of the document.
The vendee having paid the vendor an advance payment of the agreed purchase
price of the property, what the vendor can exact from the vendee is full payment upon
his execution of the final deed of sale. As is shown, the vendee precisely instituted
this action to compel the vendor Fortunato Ape to execute the final document, after
she was informed that he would execute the same upon arrival of his daughter "Bala"
from Mindanao, but afterwards failed to live up to his contractual obligation (TSN, pp.
11-13, June 10, 1992).
It is not right for the trial court to expect plaintiff-appellant to pay the balance of the
purchase price before the final deed is executed, or for her to deposit the equivalent
amount in court in the form of consignation. Consignation comes into fore in the case
of a creditor to whom tender of payment has been made and refuses without just
cause to accept it (Arts. 1256 and 1252, N.C.C.; Querino vs. Pelarca, 29 SCRA 1).
As vendee, plaintiff-appellant Generosa Cawit de Lumayno does not fall within the
purview of a debtor.
We, therefore, find and so hold that the trial court should have found that exhibit G
bears all the earmarks of a private deed of sale which is valid, binding and
enforceable between the parties, and that as a consequence of the failure and refusal
on the part of the vendor Fortunato Ape to live up to his contractual obligation, he
and/or his heirs and successors-in-interest can be compelled to execute in favor of,
and to deliver to the vendee, plaintiff-appellant Generosa Cawit de Lumayno a
registerable deed of absolute sale involving his one-eleventh (1/11th) share or
participation in Lot No. 2319, Escalante Cadastre, containing an area of 12,527.19
square meters, more or less, within 30 days from finality of this decision, and, in case
of non-compliance within said period, this Court appoints the Clerk of Court of the trial
court to execute on behalf of the vendor the said document. 28
The Court of Appeals, however, affirmed the trial court's ruling on the issue of
petitioner and her children's right of redemption. It ruled that Fortunato's receipt of
the Second Owner's Duplicate of OCT (RP) 1379 (RP-154 ([300]), containing the
adverse claim of private respondent and her husband, constituted a sufficient
compliance with the written notice requirement of Article 1623 of the Civil Code and
the period of redemption under this provision had long lapsed.
Aggrieved by the decision of the appellate court, petitioner is now before us raising,
essentially, the following issues: whether Fortunato was furnished with a written
notice of sale of the shares of his co-owners as required by Article 1623 of the Civil
Code; and whether the receipt signed by Fortunato proves the existence of a contract
of sale between him and private respondent.
In her memorandum, petitioner claimed that the Court of Appeals erred in sustaining
the court a quo's pronouncement that she could no longer redeem the portion of Lot
No. 2319 already acquired by private respondent for no written notice of said sales
was furnished them. According to her, the Court of Appeals unduly expanded the
scope of the law by equating Fortunato's receipt of Second Owner's Duplicate of OCT
(RP) 1379 (RP-154 ([300]) with the written notice requirement of Article 1623. In
addition, she argued that Exhibit "G" could not possibly be a contract of sale of
Fortunato's share in Lot No. 2319 as said document does not contain "(a) definite
agreement on the manner of payment of the price." 29 Even assuming that Exhibit "G"
is, indeed, a contract of sale between private respondent and Fortunato, the latter did
not have the obligation to deliver to private respondent a registrable deed of sale in
view of private respondent's own failure to pay the full purchase price of Fortunato's
portion of Lot No. 2319. Petitioner is also of the view that, at most, Exhibit "G" merely
contained a unilateral promise to sell which private respondent could not enforce in
the absence of a consideration distinct from the purchase price of the land. Further,
petitioner reiterated her claim that due to the illiteracy of her husband, it was
incumbent upon private respondent to show that the contents of Exhibit "G" were fully
explained to him. Finally, petitioner pointed out that the Court of Appeals erred when
it took into consideration the same exhibit despite the fact that only its photocopy was
presented before the court.
On the other hand, private respondent argued that the annotation on the second
owner's certificate over Lot No. 2319 constituted constructive notice to the whole
world of private respondent's claim over the majority of said parcel of land. Relying
on our decision in the case of Cabrera v. Villanueva,30 private respondent insisted that
when Fortunato received a copy of the second owner's certificate, he became fully
aware of the contracts of sale entered into between his co-owners on one hand and
private respondent and her deceased husband on the other.
Private respondent also averred that "although (Lot No. 2319) was not actually
partitioned in a survey after the death of Cleopas Ape, the land was partitioned in a
'hantal-hantal' manner by the heirs. Each took and possessed specific portion or
premises as his/her share in land, farmed their respective portion or premises, and
improved them, each heir limiting his/her improvement within the portion or premises
which were his/her respective share."31Thus, when private respondent and her
husband purchased the other parts of Lot No. 2319, it was no longer undivided as
petitioner claims.
The petition is partly meritorious.
Article 1623 of the Civil Code provides:
The right of legal pre-emption or redemption shall not be exercised except within thirty
days from the notice in writing by the prospective vendor, or by the vendor, as the
case may be. The deed of sale shall not be recorded in the Registry of Property,
unless accompanied by an affidavit of the vendor that he has given written notice
thereof to all possible redemptioners.
Despite the plain language of the law, this Court has, over the years, been tasked to
interpret the "written notice requirement" of the above-quoted provision. In the
case Butte v. Manuel Uy & Sons, Inc.,32 we declared that
In considering whether or not the offer to redeem was timely, we think that the notice
given by the vendee (buyer) should not be taken into account. The text of Article
1623 clearly and expressly prescribes that the thirty days for making the redemption
are to be counted from notice in writing by the vendor. Under the old law (Civ. Code
of 1889, Art. 1524), it was immaterial who gave the notice; so long as the redeeming
co-owner learned of the alienation in favor of the stranger, the redemption period
began to run. It is thus apparent that the Philippine legislature in Article 1623
deliberately selected a particular method of giving notice, and that method must be
deemed exclusive. (39 Am. Jur., 237; Payne vs. State, 12 S.W. 2(d) 528). As ruled in
Wampler vs. Lecompte, 150 Atl. 458 (affd. in 75 Law Ed. [U.S.] 275)
why these provisions were inserted in the statute we are not informed, but
we may assume until the contrary is shown, that a state of facts in respect
thereto existed, which warranted the legislature in so legislating.
The reasons for requiring that the notice should be given by the seller, and not by the
buyer, are easily divined. The seller of an undivided interest is in the best position to
know who are his co-owners that under the law must be notified of the sale. Also, the
notice by the seller removes all doubts as to fact of the sale, its perfection; and its
validity, the notice being a reaffirmation thereof, so that the party notified need not
entertain doubt that the seller may still contest the alienation. This assurance would
not exist if the notice should be given by the buyer.33
The interpretation was somehow modified in the case of De Conejero, et al. v. Court
of Appeals, et al.34 wherein it was pointed out that Article 1623 "does not prescribe a
particular form of notice, nor any distinctive method for notifying the redemptioner"
thus, as long as the redemptioner was notified in writing of the sale and the
particulars thereof, the redemption period starts to run. This view was reiterated
in Etcuban v. The Honorable Court of Appeals, et al.,35 Cabrera v.
Villanueva,36 Garcia, et al. v. Calaliman, et al.,37 Distrito, et al. v. The Honorable Court
of Appeals, et al.,38 and Mariano, et al. v. Hon. Court of Appeals, et al.39
However, in the case of Salatandol v. Retes,40 wherein the plaintiffs were not
furnished any written notice of sale or a copy thereof by the vendor, this Court again
referred to the principle enunciated in the case of Butte. As observed by Justice
Vicente Mendoza, such reversion is only sound, thus:
Art. 1623 of the Civil Code is clear in requiring that the written notification should
come from the vendor or prospective vendor, not from any other person. There is,
therefore, no room for construction. Indeed, the principal difference between Art.
1524 of the former Civil Code and Art. 1623 of the present one is that the former did
not specify who must give the notice, whereas the present one expressly says the
notice must be given by the vendor. Effect must be given to this change in statutory
language.41
remains intangible.44 As legal redemption is intended to minimize co-
ownership,45 once the property is subdivided and distributed among the co-owners,
the community ceases to exist and there is no more reason to sustain any right of
legal redemption.46
In this case, records reveal that although Lot No. 2319 has not yet been formally
subdivided, still, the particular portions belonging to the heirs of Cleopas Ape had
already been ascertained and they in fact took possession of their respective parts.
This can be deduced from the testimony of petitioner herself, thus:
Q When the plaintiffs leased the share of your husband, were there any
metes and bounds?
A It was not formally subdivided. We have only a definite portion.
(hantal-hantal)
Q This hantal-hantal of your husband, was it also separate and distinct
from the hantal-hantal or the share of the brothers and sisters of your
husband?
A Well, this property in question is a common property.
Q To the north, whose share was that which is adjacent to your
husband's assumed partition?
A I do not know what [does] this "north" [mean].
COURT
(To Witness)
Q To the place from where the sun rises, whose share was that?
A The shares of Cornelia, Loreta, Encarnacion and Adela.

In this case, the records are bereft of any indication that Fortunato was given any Q How could you determine their own shares?
written notice of prospective or consummated sale of the portions of Lot No. 2319 by
the vendors or would-be vendors. The thirty (30)-day redemption period under the
A They were residing in their respective assumed portions.
law, therefore, has not commenced to run.

Q How about determining their respective boundaries?

Despite this, however, we still rule that petitioner could no longer invoke her right to
redeem from private respondent for the exercise of this right "presupposes the
existence of a co-ownership at the time the conveyance is made by a co-owner and A It could be determined by stakes and partly a row of banana
when it is demanded by the other co-owner or co-owners."42 The regime of co- plantations planted by my son-in-law.
ownership exists when ownership of an undivided thing or right belongs to different
persons.43 By the nature of a co-ownership, a co-owner cannot point to specific Q Who is this son-in-law you mentioned?
portion of the property owned in common as his own because his share therein
A Narciso Ape.
ATTY. CAWIT
(Continuing)
Q You said that there were stakes to determine the hantal-hantal of
your husband and the hantal-hantal of the other heirs, did I get you right?
ATTY. TAN
Admitted, Your Honor.
Similarly telling of the partition is the stipulation of the parties during the pre-trial
ATTY. CAWIT
Q Mrs. Ape, in 1960, Cleopas Ape was already dead, is that correct?
A Certainly, since he died in 1950.
Q By the manifestation of your counsel that the entire land (13
hectares) of your father-in-law, Cleopas Ape, was leased to Generosa
Lumayno, is this correct?
A No, it is only the assumed portion of my husband [which] was leased
to Generosa Lumayno.
Q For clarification, it was only the share of your husband [which] was
leased to Generosa Cawit Lumayno?
A Yes.47
ATTY. CAWIT
Q My question: is that portion which you said was leased by your
husband to the Lumayno[s] and which was included to the lease by your
mother-in-law to the Lumayno[s], when the Lumayno[s] returned your
husband['s] share, was that the same premises that your husband leased to
the Lumayno[s]?
A The same.
Q In re-possessing this portion of the land corresponding to the share
of your husband, did your husband demand that they should re-possess the
land from the Lumayno[s] or did the Lumayno[s] return them to your
husband voluntarily?
A They just returned to us without paying the rentals.
COURT
Q Was the return the result of your husband's request or just voluntarily
they returned it to your husband?
A No, sir, it was just returned voluntarily, and they abandoned the area
but my husband continued farming.48
wherein it was admitted that Lot No. 2319 had not been subdivided nevertheless,
"Fortunato Ape had possessed a specific portion of the land ostensibly corresponding
to his share."49
From the foregoing, it is evident that the partition of Lot No. 2319 had already been
effected by the heirs of Cleopas Ape. Although the partition might have been informal
is of no moment for even an oral agreement of partition is valid and binding upon the
parties.50 Likewise, the fact that the respective shares of Cleopas Ape's heirs are still
embraced in one and the same certificate of title and have not been technically
apportioned does not make said portions less determinable and identifiable from one
another nor does it, in any way, diminish the dominion of their respective owners. 51
Turning now to the second issue of the existence of a contract of sale, we rule that
the records of this case betray the stance of private respondent that Fortunato Ape
entered into such an agreement with her.
A contract of sale is a consensual contract, thus, it is perfected by mere consent of
the parties. It is born from the moment there is a meeting of minds upon the thing
which is the object of the sale and upon the price. 52 Upon its perfection, the parties
may reciprocally demand performance, that is, the vendee may compel the transfer of
the ownership and to deliver the object of the sale while the vendor may demand the
vendee to pay the thing sold.53For there to be a perfected contract of sale, however,
the following elements must be present: consent, object, and price in money or its
equivalent. In the case of Leonardo v. Court of Appeals, et al.,54 we explained the
element of consent, to wit:
The essence of consent is the agreement of the parties on the terms of the contract,
the acceptance by one of the offer made by the other. It is the concurrence of the
minds of the parties on the object and the cause which constitutes the contract. The
area of agreement must extend to all points that the parties deem material or there is
no consent at all.
To be valid, consent must meet the following requisites: (a) it should be intelligent, or
with an exact notion of the matter to which it refers; (b) it should be free and (c) it
should be spontaneous. Intelligence in consent is vitiated by error; freedom by
violence, intimidation or undue influence; spontaneity by fraud. 55
In this jurisdiction, the general rule is that he who alleges fraud or mistake in a
transaction must substantiate his allegation as the presumption is that a person takes
ordinary care for his concerns and that private dealings have been entered into fairly
and regularly.56 The exception to this rule is provided for under Article 1332 of the
Civil Code which provides that "[w]hen one of the parties is unable to read, or if the
contract is in a language not understood by him, and mistake or fraud is alleged, the
person enforcing the contract must show that the terms thereof have been fully
explained to the former."
In this case, as private respondent is the one seeking to enforce the claimed contract
of sale, she bears the burden of proving that the terms of the agreement were fully
explained to Fortunato Ape who was an illiterate. This she failed to do. While she
claimed in her testimony that the contents of the receipt were made clear to
Fortunato, such allegation was debunked by Andres Flores himself when the latter
took the witness stand. According to Flores:
ATTY. TAN
Q Mr. Witness, that receipt is in English, is it not?
A Yes, sir.
Q When you prepared that receipt, were you aware that Fortunato Ape
doesn't know how to read and write English?
A Yes, sir, I know.
Q Mr. Witness, you said you were present at the time of the signing of
that alleged receipt of P30.00, correct?
A Yes, sir.
Q Where, in what place was this receipt signed?
A At the store.
Q At the time of the signing of this receipt, were there other person[s]
present aside from you, your mother-in-law and Fortunato Ape?
A In the store, yes, sir.
Q When you signed that document of course you acted as witness
upon request of your mother-in-law?
A No, this portion, I was the one who prepared that document.
Q Without asking of (sic) your mother-in-law, you prepared that
document or it was your mother-in-law who requested you to prepare that
document and acted as witness?
A She requested me to prepare but does not instructed (sic) me to act
as witness. It was our opinion that whenever I prepared the document, I
signed it as a witness.
Q Did it not occur to you to ask other witness to act on the side of
Fortunato Ape who did not know how to read and write English?
A It occurred to me.
Q But you did not bother to request a person who is not related to your
mother-in-law, considering that Fortunato Ape did not know how to read and
write English?
A The one who represented Fortunato Ape doesn't know also how to
read and write English. One a maid.
Q You mentioned that there [was another] person inside the store,
under your previous statement, when the document was signed, there [was
another] person in the store aside from you, your mother-in-law and
Fortunato Ape, is not true?
A That is true, there is one person, but that person doesn't know how to
read also.
Q Of course, Mr. Witness, since it occurred to you that there was need
for other witness to sign that document for Fortunato Ape, is it not a fact that
the Municipal Building is very near your house?
A Quite (near).
Q But you could readily proceed to the Municipal Building and request
one who is knowledgeable in English to act as witness?
A I think there is no need for that small receipt. So I don't bother myself
to go.
Q You did not consider that receipt very important because you said
that small receipt?
 A Yes, I know.57

As can be gleaned from Flores's testimony, while he was very much aware of
Fortunato's inability to read and write in the English language, he did not bother to
fully explain to the latter the substance of the receipt (Exhibit "G"). He even
dismissed the idea of asking somebody else to assist Fortunato considering that a
measly sum of thirty pesos was involved. Evidently, it did not occur to Flores that the
document he himself prepared pertains to the transfer altogether of Fortunato's
property to his mother-in-law. It is precisely in situations such as this when the
wisdom of Article 1332 of the Civil Code readily becomes apparent which is "to
protect a party to a contract disadvantaged by illiteracy, ignorance, mental weakness
or some other handicap."58

In sum, we hold that petitioner is no longer entitled to the right of redemption under
Article 1632 of the Civil Code as Lot No. 2319 had long been partitioned among its
co-owners. This Court likewise annuls the contract of sale between Fortunato and
private respondent on the ground of vitiated consent.

WHEREFORE, premises considered, the decision dated 25 March 1998 of the Court
of Appeals is hereby REVERSED and SET ASIDE and the decision dated 11 March
1994 of the Regional Trial Court, Branch 58, San Carlos City, Negros Occidental,
dismissing both the complaint and the counterclaim, is hereby REINSTATED. No
costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4656 November 18, 1912
RICARDO PARDELL Y CRUZ and
VICENTA ORTIZ Y FELIN DE PARDELL, plaintiffs-appellees,
vs.
GASPAR DE BARTOLOME Y ESCRIBANO and
MATILDE ORTIZ Y FELIN DE BARTOLOME, defendants-appellants.
Gaspar de Bartolome, in his own behalf.
B. Gimenez Zoboli, for appellees.
TORRES, J.:
This is an appeal by bill of exceptions, from the judgment of October 5, 1907,
whereby the Honorable Dionisio Chanco, judge, absolved the defendants from the
complaint, and the plaintiff from a counterclaim, without special finding as to costs.
Counsel for the spouses Ricardo y Cruz and Vicente Ortiz y Felin de Pardell, the first
of whom, absent in Spain by reason of his employment, conferred upon the second
sufficient and ample powers to appear before the courts of justice, on June 8, 1905, in
his written complaint, alleged that the plaintiff, Vicente Ortiz, and the defendant,
Matilde Ortiz, are the duly recognized natural daughters of the spouses Miguel Ortiz
and Calixta Felin y Paula who died in Vigan, Ilocos Sur, in 1875 and 1882,
respectively; that Calixta Felin, prior to her death, executed on August 17, 1876, a
nuncupative will in Vigan whereby she made her four children, named Manuel,
Francisca, Vicenta, and Matilde, surnamed Ortiz y Felin, her sole and universal heirs
of all her property; that, of the persons enumerated, Manuel died before his mother
and Francisca a few years after her death, leaving no heirs by force of law, and
therefore the only existing heirs of the said testatrix are the plaintiff Vicenta Ortiz and
the defendant Matilde Ortiz; that, aside from some personal property and jewelry
already divided among the heirs, the testatrix possessed, at the time of the execution
of her will, and left at her death the real properties which, with their respective cash
values, are as follows:
1. A house of strong material, with the lot on which it is built,
P6,000.00
situated on Escolta Street, Vigan, and valued at
2. A house of mixed material, with the lot on which it stands, at
1,500.00
No. 88 Washington Street, Vigan; valued at
3. A lot on Magallanes Street, Vigan; valued at 100.00
4. A parcel of rice land, situated in the barrio of San Julian,
60.00
Vigan; valued at
5. A parcel of rice land in the pueblo of Santa Lucia; valued at 86.00
6. Three parcels of land in the pueblo of Candon; valued at 150.00
Total 7,896.00
That, on or about the first months of the year 1888, the defendants, without judicial
authorization, nor friendly or extrajudicial agreement, took upon themselves the
administration and enjoyment of the said properties and collected the rents, fruits, and
products thereof, to the serious detriment of the plaintiffs' interest; that,
notwithstanding the different and repeated demands extrajudicially made upon
Matilde Ortiz to divide the aforementioned properties with the plaintiff Vicente and to
deliver to the latter the one-half thereof, together with one-half of the fruits and rents
collected therefrom, the said defendant and her husband, the self-styled administrator
of the properties mentioned, had been delaying the partition and delivery of the said
properties by means of unkept promises and other excuses; and that the plaintiffs, on
account of the extraordinary delay in the delivery of one-half of said properties, or
their value in cash, as the case might be, had suffered losses and damages in the
sum of P8,000. Said counsel for the plaintiffs therefore asked that judgment be
rendered by sentencing the defendants, Gaspar de Bartolome, and Matilde Ortiz Felin
de Bartolome, to restore and deliver to the plaintiffs one-half of the total value in cash,
according to appraisal, of the undivided property specified, which one-half amounted
approximately to P3,948, or if deemed proper, to recognize the plaintiff Vicenta Ortiz
to be vested with the full and absolute right of ownership to the said undivided one-
half of the properties in question, as universal testamentary heir thereof together with
the defendant Matilde Ortiz, to indemnify the plaintiffs in the sum of P8,000, for losses
and damages, and to pay the costs.
Counsel for the defendants, in his answer denied the facts alleged in paragraphs 1, 4,
6, 7, and 8 thereof, inasmuch as, upon the death of the litigating sister's brother
Manuel, their mother, who was still living, was his heir by force of law, and the
defendants had never refused to give to the plaintiff Vicente Ortiz her share of the
said properties; and stated that he admitted the facts alleged in paragraph 2, provided
it be understood, however, that the surname of the defendant's mother was Felin, and
not Feliu, and that Miguel Ortiz died in Spain, and not in Vigan; that he also admitted
paragraph 3 of the complaint, with the difference that the said surname should be
Felin, and likewise paragraph 5, except the part thereof relating to the personal
property and the jewelry, since the latter had not yet been divided; that the said
jewelry was in the possession of the plaintiffs and consisted of: one Lozada gold
chronometer watch with a chain in the form of a bridle curb and a watch charm
consisting of the engraving of a postage stamp on a stone mounted in gold and
bearing the initials M. O., a pair of cuff buttons made of gold coins, four small gold
buttons, two finger rings, another with the initials M. O., and a gold bracelet; and that
the defendants were willing to deliver to the plaintiffs, in conformity with their petitions,
one-half of the total value in cash, according to appraisement, of the undivided real
properties specified in paragraph 5, which half amounted to P3,948.
In a special defense said counsel alleged that the defendants had never refused to
divide the said property and had in fact several years before solicited the partition of
the same; that, from 1886 to 1901, inclusive, there was collected from the property on
Calle Escolta the sum of 288 pesos, besides a few other small amounts derived from
other sources, which were delivered to the plaintiffs with other larger amounts, in
1891, and from the property on Calle Washington, called La Quinta, 990.95 pesos,
which proceeds, added together, made a total of 1,278.95 pesos, saving error or
omission; that, between the years abovementioned, Escolta, and that on Calle
Washington,La Quinta, 376.33, which made a total of 1,141.71, saving error or
omission; that, in 1897, the work of reconstruction was begun of the house on Calle
Escolta, which been destroyed by an earthquake, which work was not finished until
1903 and required an expenditure on the part of the defendant Matilde Ortiz, of
5,091.52 pesos; that all the collections made up to August 1, 1905, including the rent
from the stores, amounted to only P3,654.15, and the expenses, to P6,252.32, there
being, consequently, a balance of P2,598.17, which divided between the sisters, the
plaintiff and the defendant, would make the latter's share P1,299.08; that, as shown
by the papers kept by the plaintiffs, in the year 1891 the defendant Bartolome
presented to the plaintiffs a statement in settlements of accounts, and delivered to the
person duly authorized by the latter for the purpose, the sum of P2,606.29, which the
said settlement showed was owing his principals, from various sources; that, the
defendant Bartolome having been the administrator of the undivided property claimed
by the plaintiffs, the latter were owing the former legal remuneration of the percentage
allowed by law for administration; and that the defendants were willing to pay the sum
of P3,948, one-half of the total value of the said properties, deducting therefrom the
amount found to be owing them by the plaintiffs, and asked that judgment be
rendered in their favor to enable them to recover from the latter that amount, together
with the costs and expenses of the suit.
The defendants, in their counter claim, repeated each and all of the allegations
contained in each of the paragraphs of section 10 of their answer; that the plaintiffs
were obliged to pay to the administrator of the said property the remuneration allowed
him by law; that, as the revenues collected by the defendants amounted to no more
than P3,654.15 and the expenditures incurred by them, to P6,252.32, it followed that
the plaintiffs owed the defendants P1,299.08, that is one-half of the difference
between the amount collected from and that extended on the properties, and asked
that judgment be therefore rendered in their behalf to enable them to collect this sum
from the plaintiffs, Ricardo Pardell and Vicenta Ortiz, with legal interest thereon from
December 7, 1904, the date when the accounts were rendered, together with the
sums to which the defendant Bartolome was entitled for the administration of the
undivided properties in question.
By a written motion of August 21, 1905, counsel for the plaintiffs requested
permission to amend the complaint by inserting immediately after the words "or
respective appraisal," fifth line of paragraph 5, the phrase "in cash in accordance with
the assessed value," and likewise further to amend the same, in paragraph 6 thereof,
by substituting the following word in lieu of the petition for the remedy sought: "By
reason of all the foregoing, I beg the court to be pleased to render the judgment by
sentencing the defendants, Gaspar de Bartolome and Matilde Ortiz Felin de
Bartolome, to restore and deliver to the plaintiffs an exact one-half of the total vale of
the undivided properties described in the complaint, such value to be ascertained by
the expert appraisal of two competent persons, one of whom shall be appointed by
the plaintiffs and the other by the defendants, and, in case of disagreement between
these two appointees such value shall be determined by a third expert appraiser
appointed by the court, or, in a proper case, by the price offered at public auction; or,
in lieu thereof, it is requested that the court recognize the plaintiff, Vicenta Ortiz, to be
vested with a full and absolute right to an undivided one-half of the said properties;
furthermore, it is prayed that the plaintiffs be awarded an indemnity of P8,000 for
losses and damages, and the costs." Notwithstanding the opposition of the
defendants, the said amendment was admitted by the court and counsel for the
defendants were allowed to a period of three days within which to present a new
answer. An exception was taken to this ruling.
The proper proceedings were had with reference to the valuation of the properties
concerned in the division sought and incidental issues were raised relative to the
partition of some of them and their award to one or the other of the parties. Due
consideration was taken of the averments and statements of both parties who agreed
between themselves, before the court, that any of them might at any time acquire, at
the valuation fixed by the expert judicial appraiser, any of the properties in question,
there being none in existence excluded by the litigants. The court, therefore, by order
of December 28, 1905, ruled that the plaintiffs were entitled to acquire, at the
valuation determined by the said expert appraiser, the building known as La Quinta,
the lot on which it stands and the warehouses and other improvements comprised
within the inclosed land, and the seeds lands situated in the pueblos of Vigan and
Santa Lucia; and that the defendants were likewise entitled to acquire the house on
Calle Escolta, the lot on Calle Magallanes, and the three parcels of land situated in
the pueblo of Candon.
After this partition had been made counsel for the defendants, by a writing of March 8,
1906, set forth: That, having petitioned for the appraisement of the properties in
question for the purpose of their partition, it was not to be understood that he desired
from the exception duly entered to the ruling made in the matter of the amendment to
the complaint; that the properties retained by the defendants were valued at P9,310,
and those retained by the plaintiffs, at P2,885, one-half of which amounts each party
had to deliver to the other, as they were pro indivisoproperties; that, therefore, the
defendants had to pay the plaintiffs the sum of P3,212.50, after deducting the amount
which the plaintiffs were obliged to deliver to the defendants, as one-half of the price
of the properties retained by the former; that, notwithstanding that the amount of the
counterclaim for the expenses incurred in the reconstruction of the pro indiviso
property should be deducted from the sum which the defendants had to pay the
plaintiffs, the former, for the purpose of bringing the matter of the partition to a close,
would deliver to the latter, immediately upon the signing of the instrument of purchase
and sale, the sum of P3,212.50, which was one-half of the value of the properties
alloted to the defendants; such delivery, however, was not to be understood as a
renouncement of the said counterclaim, but only as a means for the final termination
of the pro indiviso status of the property.
The case having been heard, the court on October 5, 1907, rendered judgment
holding that the revenues and the expenses were compensated by the residence
enjoyed by the defendant party, that no losses or damages were either caused or
suffered, nor likewise any other expense besides those aforementioned, and
absolved the defendants from the complaint and the plaintiffs from the counterclaim,
with no special finding as to costs. An exception was taken to this judgment by
counsel for the defendants who moved for a new trial on the grounds that the
evidence presented did not warrant the judgment rendered and that the latter was
contrary to law. This motion was denied, exception whereto was taken by said
counsel, who filed the proper bill of exceptions, and the same was approved and
forwarded to the clerk of this court, with a transcript of the evidence.
Both of the litigating sisters assented to a partition by halves of the property left in her
will by their mother at her death; in fact, during the course of this suit, proceedings
were had, in accordance with the agreement made, for the division between them of
the said hereditary property of common ownership, which division was recognized
and approved in the findings of the trial court, as shown by the judgment appealed
from.
The issues raised by the parties, aside from said division made during the trial, and
which have been submitted to this court for decision, concern: (1) The indemnity
claimed for losses and damages, which the plaintiffs allege amount to P8,000, in
addition to the rents which should have been derived from the house on Calle
Escolta, Vigan; (2) the payment by the plaintiffs to the defendants of the sum of
P1,299.08, demanded by way of counterclaim, together with legal interest thereon
from December 7, 1904; (3) the payment to the husband of the defendant Matilde
Ortiz, of a percentage claimed to be due him as the administrator of the property of
common ownership; (4) the division of certain jewelry in the possession of the plaintiff
Vicenta Ortiz; and (5) the petition that the amendment be held to have been
improperly admitted, which was made by the plaintiffs in their written motion of August
21, 1905, against the opposition of the defendants, through which admission the latter
were obliged to pay the former P910.50. lawphil.net
Before entering upon an explanation of the propriety or impropriety of the claims
made by both parties, it is indispensable to state that the trial judge, in absolving the
defendants from the complaint, held that they had not caused losses and damages to
the plaintiffs, and that the revenues and the expenses were compensated, in view of
the fact that the defendants had been living for several years in the Calle Escolta
house, which was pro indivisoproperty of joint ownership.
By this finding absolving the defendants from the complaint, and which was
acquiesced in by the plaintiffs who made no appeal therefrom, the first issue has
been decided which was raised by the plaintiffs, concerning the indemnity for losses
and damages, wherein are comprised the rents which should have been obtained
from the upper story of the said house during the time it was occupied by the
defendants, Matilde Ortiz and her husband, Gaspar de Bartolome.
Notwithstanding the acquiescence on the part of the plaintiffs, assenting to the said
finding whereby the defendants were absolved from the complaint, yet, as such
absolution is based on the compensation established in the judgment of the trial
court, between the amounts which each party is entitled to claim from the other, it is
imperative to determine whether the defendant Matilde Ortiz, as coowner of the
house on Calle Escolta, was entitled, with her husband, to reside therein, without
paying to her coowner, Vicenta Ortiz, who, during the greater part of the time, lived
with her husband abroad, one-half of the rents which the upper story would have
produced, had it been rented to a stranger.
Article 394 of the Civil Code prescribes:
Each coowner may use the things owned in common, provided he uses
them in accordance with their object and in such manner as not to injure the
interests of the community nor prevent the coowners from utilizing them
according to their rights.
Matilde Ortiz and her husband occupied the upper story, designed for use as a
dwelling, in the house of joint ownership; but the record shows no proof that, by so
doing, the said Matilde occasioned any detriment to the interest of the community
property, nor that she prevented her sister Vicenta from utilizing the said upper story
according to her rights. It is to be noted that the stores of the lower floor were rented
and accounting of the rents was duly made to the plaintiffs.
Each coowner of realty held pro indiviso exercises his rights over the whole property
and may use and enjoy the same with no other limitation than that he shall not injure
the interests of his coowners, for the reason that, until a division be made, the
respective part of each holder can not be determined and every one of the coowners
exercises, together with his other coparticipants, joint ownership over the pro
indiviso property, in addition to his use and enjoyment of the same.
As the hereditary properties of the joint ownership of the two sisters, Vicenta Ortiz,
plaintiff, and Matilde Ortiz, defendant, were situated in the Province of Ilocos Sur, and
were in the care of the last named, assisted by her husband, while the plaintiff
Vicenta with her husband was residing outside of the said province the greater part of
the time between 1885 and 1905, when she left these Islands for Spain, it is not at all
strange that delays and difficulties should have attended the efforts made to collect
the rents and proceeds from the property held in common and to obtain a partition of
the latter, especially during several years when, owing to the insurrection, the country
was in a turmoil; and for this reason, aside from that founded on the right of
coownership of the defendants, who took upon themselves the administration and
care of the properties of joint tenancy for purposes of their preservation and
improvement, these latter are not obliged to pay to the plaintiff Vicenta one-half of the
rents which might have been derived from the upper of the story of the said house on
Calle Escolta, and, much less, because one of the living rooms and the storeroom
thereof were used for the storage of some belongings and effects of common
ownership between the litigants. The defendant Matilde, therefore, in occupying with
her husband the upper floor of the said house, did not injure the interests of her
coowner, her sister Vicenta, nor did she prevent the latter from living therein, but
merely exercised a legitimate right pertaining to her as coowner of the property.
Notwithstanding the above statements relative to the joint-ownership rights which
entitled the defendants to live in the upper story of the said house, yet in view of the
fact that the record shows it to have been proved that the defendant Matilde's
husband, Gaspar de Bartolome, occupied for four years a room or a part of the lower
floor of the same house on Calle Escolta, using it as an office for the justice of the
peace, a position which he held in the capital of that province, strict justice, requires
that he pay his sister-in-law, the plaintiff, one half of the monthly rent which the said
quarters could have produced, had they been leased to another person. The amount
of such monthly rental is fixed at P16 in accordance with the evidence shown in the
record. This conclusion as to Bartolome's liability results from the fact that, even as
the husband of the defendant coowner of the property, he had no right to occupy and
use gratuitously the said part of the lower floor of the house in question, where he
lived with his wife, to the detriment of the plaintiff Vicenta who did not receive one-half
of the rent which those quarters could and should have produced, had they been
occupied by a stranger, in the same manner that rent was obtained from the rooms
on the lower floor that were used as stores. Therefore, the defendant Bartolome must
pay to the plaintiff Vicenta P384, that is, one-half of P768, the total amount of the
rents which should have been obtained during four years from the quarters occupied
as an office by the justice of the peace of Vigan.
With respect to the second question submitted for decision to this court, relative to the
payment of the sum demanded as a counterclaim, it was admitted and proved in the
present case that, as a result of a serious earthquake on August 15, 1897, the said
house on Calle Escolta was left in ruins and uninhabitable, and that, for its
reconstruction or repair, the defendants had to expend the sum of P6,252.32. This
expenditure, notwithstanding that it was impugned, during the trial, by the plaintiffs,
was duly proved by the evidence presented by the defendants. Evidence,
unsuccessfully rebutted, was also introduced which proved that the rents produced by
all the rural and urban properties of common ownership amounted, up to August 1,
1905, to the sum of P3,654.15 which, being applied toward the cost of the repair work
on the said house, leaves a balance of P2,598.17, the amount actually advanced by
the defendants, for the rents collected by them were not sufficient for the termination
of all the work undertaken on the said building, necessary for its complete repair and
to replace it in a habitable condition. It is therefore lawful and just that the plaintiff
Vicenta Ortiz, who was willing to sell to her sister Matilde for P1,500, her share in the
house in question, when it was in a ruinous state, should pay the defendants one-half
of the amount expanded in the said repair work, since the building after reconstruction
was worth P9,000, according to expert appraisal. Consequently, the counterclaim
made by the defendants for the payment to them of the sum of P1,299.08, is a proper
demand, though from this sum a reduction must be made of P384, the amount of
one-half of the rents which should have been collected for the use of the quarters
occupied by the justice of the peace, the payment of which is incumbent upon the
husband of the defendant Matilde, as aforesaid, and the balance remaining, P915.08,
is the amount which the plaintiff Vicenta must pay to the defendants.
The defendants claim to be entitled to the collection of legal interest on the amount of
the counterclaim, from December 7, 1904. This contention can not be sustained,
inasmuch as, until this suit is finally decided, it could not be known whether the
plaintiffs would or would not be obliged to pay the sum whatever in reimbursement of
expenses incurred by the plaintiffs in the repair work on the said house on Calle
Escolta, whether or not the defendants, in turn, were entitled to collect any such
amount, and, finally, what the net sum would be which the plaintiff's might have to pay
as reimbursement for one-half of the expenditure made by the defendants. Until final
disposal of the case, no such net sum can be determined, nor until then can the
debtor be deemed to be in arrears. In order that there be an obligation to pay legal
interest in connection with a matter at issue between the parties, it must be declared
in a judicial decision from what date the interest will be due on the principal
concerned in the suit. This rule has been established by the decisions of the supreme
court of Spain, in reference to articles 1108, 1109, and 1110 of the Civil Code,
reference on April 24, 1867, November 19, 1869, and February 22, 1901.
With regard to the percentage, as remuneration claimed by the husband of the
defendant Matilde for his administration of the property of common ownership,
inasmuch as no stipulation whatever was made in the matter by and between him and
his sister-in-law, the said defendant, the claimant is not entitled to the payment of any
remuneration whatsoever. Of his own accord and as an officious manager, he
administered the said pro indivisoproperty, one-half of which belonged to his wife who
held it in joint tenancy, with his sister-in-law, and the law does not allow him any
compensation as such voluntary administrator. He is merely entitled to a
reimbursement for such actual and necessary expenditures as he may have made on
the undivided properties and an indemnity for the damages he may have suffered
while acting in that capacity, since at all events it was his duty to care for and
preserve the said property, half of which belonged to his wife; and in exchange for the
trouble occasioned him by the administration of his sister-in-law's half of the said
property, he with his wife resided in the upper story of the house aforementioned,
without payment of one-half of the rents said quarters might have produced had they
been leased to another person.
With respect to the division of certain jewelry, petitioned for by the defendants and
appellants only in their brief in this appeal, the record of the proceedings in the lower
court does not show that the allegation made by the plaintiff Vicenta is not true, to the
effect that the deceased mother of the litigant sisters disposed of this jewelry during
her lifetime, because, had she not done so, the will made by the said deceased would
have been exhibited in which the said jewelry would have been mentioned, at least it
would have been proved that the articles in question came into the possession of the
plaintiff Vicenta without the expressed desire and the consent of the deceased mother
of the said sisters, for the gift of this jewelry was previously assailed in the courts,
without success; therefore, and in view of its inconsiderable value, there is no reason
for holding that the said gift was not made.
As regards the collection of the sum of P910.50, which is the difference between the
assessed value of the undivided real properties and the price of the same as
determined by the judicial expert appraiser, it is shown by the record that the ruling of
the trial judge admitting the amendment to the original complaint, is in accord with the
law and principles of justice, for the reason that any of the coowners of a pro
indiviso property, subject to division or sale, is entitled to petition for its valuation by
competent expert appraisers. Such valuation is not prejudicial to any of the joint
owners, but is beneficial to their interests, considering that, as a general rule, the
assessed value of a building or a parcel of realty is less than the actual real value of
the property, and this being appraiser to determine, in conjunction with the one
selected by the plaintiffs, the value of the properties of joint ownership. These two
experts took part in the latter proceedings of the suit until finally, and during the
course of the latter, the litigating parties agreed to an amicable division of the pro
indiviso hereditary property, in accordance with the price fixed by the judicial expert
appraiser appointed as a third party, in view of the disagreement between and
nonconformity of the appraisers chosen by the litigants. Therefore it is improper now
to claim a right to the collection of the said sum, the difference between the assessed
value and that fixed by the judicial expert appraiser, for the reason that the increase in
price, as determined by this latter appraisal, redounded to the benefit of both parties.

In consideration of the foregoing, whereby the errors assigned to the lower court have
been duly refuted, it is our opinion that, with a partial reversal of the judgment
appealed from, in so far as it absolves the plaintiffs from the counterclaim presented
by the defendants, we should and hereby do sentence the plaintiffs to the payment of
the sum of P915.08, the balance of the sum claimed by the defendants as a balance
of the one-half of the amount which the defendants advanced for the reconstruction or
repair of the Calle Escolta house, after deducting from the total of such sum claimed
by the latter the amount of P384 which Gaspar de Bartolome, the husband of the
defendant Matilde, should have paid as one-half of the rents due for his occupation of
the quarters on the lower floor of the said house as an office for the justice of the
peace court of Vigan; and we further find: (1) That the defendants are not obliged to
pay one-half of the rents which could have been obtained from the upper story of the
said house; (2) that the plaintiffs can not be compelled to pay the legal interest from
December 7, 1904, on the sum expanded in the reconstruction of the aforementioned
house, but only the interest fixed by law, at the rate of 6 per cent per annum, from the
date of the judgment to be rendered in accordance with this decision; (3) that the
husband of the defendant Matilde Ortiz is not entitled to any remuneration for the
administration of thepro indiviso property belonging to both parties; (4) that, neither is
he entitled to collect from the plaintiffs the sum of P910.50, the difference between
the assessed valuation and the price set by the expert appraisal solicited by the
plaintiffs in their amendment to the complaint; and, (5) that no participation shall be
made of jewelry aforementioned now in the possession of the plaintiff Vicenta Ortiz.
The said judgment, as relates to the points appealed, is affirmed, in so far as its
findings agree with those of this decision, and is reversed, in so far as they do not. No
special finding is made regarding the costs of both instances. So ordered.
G.R. No. L-2812 October 18, 1906
LONGINOS JAVIER, plaintiff-appellee,
vs.
SEGUNDO JAVIER, ET AL., defendants-appellants.
Hartigan, Rohde and Gutierrez, for appellants.
Chicote, Miranda and Sierra, for appellee.
WILLARD, J.:
This case relates to the ownership of the lot, and of the house standing thereon, No.
521 Calle Real, Malate, Manila. The court below found that the land belonged to the
plaintiff as administrator of the estate of his father, Manuel Javier, and that the
defendant Isabel Hernandez and Manuel Ramon Javier, her son, are the owners of
the house standing on the lot. Judgment was rendered in favor of the plaintiff for the
possession of the property, but giving the defendants a reasonable opportunity to
remove the house.
The evidence sustains the findings of fact to the effect that the land belongs to the
estate represented by the plaintiff. There was evidence to show that the land was, in
1860, in the possession of Manuel Javier, the father of the defendant Segundo Javier,
and that since that time it has been occupied by his children and that no one of these
children ever made any claim to the ownership thereof, and no one them ever
occupied the property as owner.
Manuel Ramon Javier, testifying as a witness, made no claim to the ownership of the
land, and testified simply that the result of his investigations into the question of
ownership showed that there was a great confusion in regard thereto.
The appellants claim that this action can not be maintained by the administrator of the
estate of Manuel Javier, but that it should be maintained by all the heirs of the
deceased. The right of judicial administrator to recover the possession of real
property belonging to the estate of the deceased was recognized in the case of
Alfonso vs.Natividad 1 (4 Off. Gaz., 461; secs. 702, 703, and 704 of the Code of Civil
Procedure).
The appellants claim in their brief that they were possessors in good faith, and by
reason thereof and of the provisions of article 451 of the Civil Code they can not be
compelled to pay rent. It is to be observed, however, that the appellants do not come
within the definition of a possessor in good faith found in article 433 of the Civil Code
cited in their brief. As said by the appellants themselves in that brief, the two
defendants, Segundo Javier and his wife, Isabel Hernandez, always believed that the
land did not belong to them but belonged to the estate of Manuel Javier. It is to be
observed, moreover, that the judgment of the court does not allow any recovery at all
for the use or occupation of the house, and the recovery of rent for the use of the land
is limited to the time elapsed since April 24, 1904, when a demand was made upon
the defendants for the possession of the property.
It is also claimed by the appellants that, in accordance with article 453 of the Civil
Code, they are entitled to be reimbursed for the expenses of constructing the house.
These expenses are only allowed in accordance with the article cited by the
appellants to a possession in good faith, and the appellants were not such
possessors. lawphil.net
It is claimed finally by the appellants that the case should be decided by an
application of the principles of law meant that community of property existed because
the house was owned by the appellants and the land by the plaintiff, the contention
can not be maintained, for such a condition of affairs does not create a community of
property within the meaning of that term as it is used in title 3, book 2 of the Civil
Code. If, on the other hand, it is itself belonged to the heirs of Manuel Javier, and that
two of the defendants were such heirs, it can be said that the decision of the court
below was fully as favorable to the appellants as it could be.
Article 397 of the Civil Code relates to improvements made upon the common
property by one of the coowners. The burden of proof was on the appellants to show
that the house was built with the consent of their cotenants. Even if a tacit consent
was shown this would not require such cotenants to pay for the house. (8 Manresa,
Commentaries on Civil Code, p. 396.)
The judgment of the court below allowed the appellants to remove the house within a
reasonable time. Whether this judgment was erroneous as far as the appellee is
concerned, we need not inquire, because he has not appealed from the judgment.
The judgment of the court below is affirmed, with the costs of this instance against the
appellants.
After the expiration of twenty days from the date hereof let judgment be entered in
accordance herewith and ten days thereafter let the case remanded to the court
below for proper action. So ordered.
Arellano, C.J., Torres, Mapa, Johnson, Carson and Tracey, JJ., concur.
G.R. No. L-1562 April 11, 1906
RAFAEL ENRIQUEZ, plaintiff-appellee,
vs.
A. S. WATSON & CO., ET AL., defendants-appellants.
Gibbs and Kincaid, for appellants.
Coudert Brothers, for appellee.
WILLARD, J.:
The plaintiff brought this action on the 5th day of April, 1902, as administrator of the
testate estate of Antonio Enriquez, who died in the year 1883. The testator at the time
of his death was, and his estate now is, the owner of a lot of land with the buildings
thereon situated on the Escolta, in the city of Manila, and occupied by the defendant
company as a drug store. The plaintiff, in the complaint, alleged that the defendants
had been in the possession and enjoyment of the property from the 20th, day of June,
1900, until the 1st day of November, 1901; that the reasonable value of the use of the
property during that time was 32,000 Mexican pesos; that no part of the said sum has
been paid except the sum of 19,200 Mexican pesos, and the plaintiff asked judgment
for the sum of 12,800 pesos and interest. Judgment was ordered in the court below in
favor of defendants Humphreys, Joy, and Morley. Judgment was also ordered in favor
of the plaintiff and against the defendants Watson & Co. for the sum of 10,800 pesos,
local currency, and the costs. From the judgment in favor of the defendants,
Humphreys, Joy, and Morley, the plaintiff did not appeal, but from the judgment
against Watson & Co. the latter did appeal.
On the 20th day of June, 1900, Watson & Co. were in possession on part of the
property by virtue of a contract of lease made with the then executor of the said
estate on the 29th day of July, 1895. The rent due under this lease from the 20th day
of June, 1900, to the 25th day of January, 1901, has been paid by Watson & Co. On
the 25th day of January, 1901, has new lease was made between the then executor
and administrator of the estate, Francisco Enriquez, and the defendants Watson &
Co. for a term of twelve years. All the rent due under this lease has been paid by the
defendant up to the 1st day of November, 1901.
If the estate represented by the plaintiff in bound by the terms of these two leases for
the time mentioned in the complaint, namely, from the 20th day of June, 1900, to the
1st day of November, 1901, then there is nothing due to the plaintiff, and the
judgment must be reversed.
In regard to the first lease, the claim of the plaintiff seems to be this: On the 20th of
June, 1900, the plaintiff as administrator of the estate of Antonio Enriquez, obtained a
judgment by default in the court of a justice of the peace of the city of Manila in a
proceeding of forcible entry and detainer, for the ejectment of Watson & Co. from the
premises on the ground of nonpayment of rent, and the plaintiff's claim is that
judgment terminated the then existing lease, and that if Watson & Co. occupied the
premises after that, as they did, then they were bound to pay the reasonable value of
the use of the premises, which the plaintiff alleged was more than the amount
provided for in the lease.
In the case of Enriquez vs. Watson & Co. (1 Phil. Rep., 44) this court held as follows:
In view of the established facts above related we are of the opinion and
decide that there have been subsequent juridical acts between the
appellants (Watson & Co.) on one side and on the other the Enriquez estate,
represented either by Don Francisco or by Don Rafael, by virtue of which the
said appellants must have continued as such tenants of the estate,
notwithstanding the judgment given on June 20,1900, which by reason of the
very acts of the plaintiff estate has become ineffective and has lost its
executory force.
An examination of that case will show that Watson & Co., after the 20th of June, paid,
and the Enriquez estate received, as rent for the premises the amount named in the
lease. Under these circumstances there can be no recovery now by the plaintiff for
any additional rent for the time elapsing between the 20th of June, 1900, and the 25th
of January, 1901.
As to the lease made on the 25th of January, 1901, the claim of the plaintiff is that it is
void because made for a term exceeding six years. The question presented by this
claim has been decided adversely to the appellee in the case of Tipton vs.
Martinez, 1 No. 2070, January 2, 1906, in which it was held that a lease made by an
administrator such as is referred to in article 1548 of the Civil Code, for more than six
years, is valid for six years and void for the excess. In accordance with that decision
Watson &. Co. had a right to occupy the premises for six years from the 25th of
January, 1901, by paying the amount provided for in that lease.
It is claimed, however, by the appellee, that the validity of this contract of lease has
already been passed upon judicially, and that it has been declared void. There is
nothing in the case of Enriquez vs. Watson above cited to support any such
contention. Neither does the order made on the 25th of May, 1901, by one of the
judges, of the Court of First Instance for the district of Intramuros, found on page 27
of the bill of exceptions, support this claim. After the judgment of the 20th of June,
1900, had been rendered, Rafael Enriquez was removed as administrator of the
estate and Francisco Enriquez succeeded him. He remained as such executor and
administrator until some in March, 1901. He was then removed, and Rafael Enriquez
was again appointed. Upon this second appointment of Rafael Enriquez, he
attempted to enforce the judgment of the 20th of June, 1900, and Watson & Co.
resisted this attempt. They made an application to the court for suspension of the
order directing, execution of the judgment. It seems from the order above mentioned
of the 25th of May, 1901, that with this motion for suspension they presented the
contract of lease made on the 25th of January, 1901, above referred to, as one
reason why a suspension should be ordered. The Court of First Instance, in deciding
that motion, held that the judgment having become final, it had no authority to
suspend its execution. The judge also added in the decision that the contract of the
25th of January, 1901, was null and void. This last declaration was in no sense
necessary for the determination of the motion then pending before the court. It had
been determined by the statement that the judgment being final no suspension was
possible. Under these circumstances the judgment in the case was notres
adjudicata as to the validity of this estate.

We see no evidence in the case to show that the lease of 1895, or the lease of
January 25, 1901, was made by Watson & Co. and Francisco Enriquez in fraud of the
rights of the other heirs of the estate.

The judgment of the court below in favor of the plaintiff and against Watson & Co. is
reversed and after the expiration of twenty days final judgment will be entered in
accordance herewith and ten days thereafter the case will be remanded to the court
below with instructions to enter judgment in their favor and against the plaintiff,
absolving them from the complaint, with costs. No costs will be allowed in this court.
So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.

G.R. No. L-32047 November 1, 1930
MANUEL MELENCIO, MARIANO MELENCIO, PURA MELENCIO, and CARIDAD
MELENCIO, plaintiffs-appellants,
vs.
DY TIAO LAY, defendant-appellee.
Jose V. Valladolid, Jose P. Melencio and Camus and Delgado for appellants.
Araneta and Zaragoza for appellee.
OSTRAND, J.:
On August 1,1927, the plaintiffs, Manuel, Mariano, Pura and Caridad Melencio,
brought the present action against the defendant-appellee, Dy Tiao Lay for the
recovery of the possession of a parcel of land situated in the town of Cabanatuan,
Nueva Ecija, and containing an area of 4,628.25 square meters. The plaintiffs further
demand a monthly rental of P300 for the use and occupation of the parcel from May,
1926, until the date of the surrender to them of the possession thereof; and that if it is
found that the said appellee was occupying the said parcel of land by virtue of a
contract of lease, such contract should be declared null and void for lack of consent,
concurrence, and ratification by the owners thereof.
In his answer, the defendant pleaded the general issue, and as special defenses, he
alleged in substance that he was occupying the said tract of land by virtue of a
contract of lease executed on July 24,1905, in favor of his predecessor in interest, by
Ruperta Garcia, Pedro Melencio, Juliana Melencio, and Ruperta Melencio under the
terms specified therein, and which contract is still in force; that Liberata Macapagal,
the mother of the plaintiffs, in her capacity as judicial administratrix of the estate of
Ramon Melencio, one of the original coowners of the parcel of land in question,
actually recognized and ratified the existence and validity of the contract aforesaid by
virtue of the execution of a public document by her on or about November 27,1920,
and by collecting from the assignees of the original lessee the monthly rent for the
premises until April 30, 1926; and that said defendant deposits with the clerk of court
the sum of P20.20 every month as rent thereof and that as a counterclaim, he seeks
the recovery of P272 for goods and money delivered by him to the plaintiffs.
The plaintiffs filed a reply to the answer alleging, among other things, that Ruperta
Garcia was not one of the coowners of the land in question; that the person who
signed the alleged contract of lease never represented themselves as being the sole
and exclusive owners of the land subject to the lease as alleged by the defendant in
his answer; that the said contract of lease of July 24,1905, is null and void for being
executed without the intervention and consent of two coowners, Ramon Melencio and
Jose P. Melencio, and without the marital consent of the husbands of Juliana and
Ruperta Melencio; that the lessee has repeatedly violated the terms and conditions of
the said contract; and that Liberata Macapagal, in her capacity as administratrix of the
property of her deceased husband, could not lawfully and legally execute a contract
of lease with the conditions and terms similar to that of the one under consideration,
and that from this it follows that she could not ratify the said lease as claimed by the
defendant.
On January 21,1928, Liberata Macapagal Viuda de Melencio, duly appointed and
qualified as administratrix of the estate of her deceased husband, Ramon Melencio,
filed a petition praying to be allowed to join the plaintiffs as party to the present case,
which petition was granted in open court on January 31,1928. Her amended
complaint of intervention of February 14,1928, contains allegations similar to those
alleged in the complaint of the original plaintiffs, and she further alleges that the
defendant-appellee has occupied the land in question ever since November, 1920,
under and by virtue of a verbal contract of lease for a term from month to month. To
this complaint of intervention, the defendant-appellee filed an answer reproducing the
allegations contained in his answer reproducing the allegations contained in his
answer to the complaint of the original plaintiffs and setting up prescription as a
further special defense.
It appears from the evidence that the land in question was originally owned by one
Julian Melencio. He died prior to the year 1905 leaving his widow, Ruperta Garcia,
and his five children, Juliana, Ramon, Ruperta, Pedro R., and Emilio Melencio. Emilio
Melencio also died before 1905, his son Jose P. Melencio, then a minor, succeeding
to his interest in the said parcel of land by representation. A question has been raised
as to whether the land was community property of the marriage of Julian Melencio
and Ruperta Garcia, but the evidence is practically undisputed that Ruperta Garcia in
reality held nothing but a widow's usufruct in the land.
On July 24,1905, Ruperta Garcia, Pedro R. Melencio, Juliana Melencio, and Ruperta
Melencio executed a contract of lease of the land in favor of one Yap Kui Chin, but
neither Jose P. Melencio nor Ramon Melencio were mentioned in the lease. The term
of the lease was for twenty years, extendible for a like period at the option of the
lessee. The purpose of the lessee was to establish a rice mill on the land, with the
necessary buildings for warehouses and for quarters for the employees, and it was
further stipulated that at the termination of the original period of the lease, or the
extension therof, the lessors might purchase all the buildings and improvements on
the land at a price to be fixed by experts appointed by the parties, but that if the
lessors should fail to take advantage of that privilege, the lease would continue for
another and further period of twenty years. The document was duly acknowledged
but was never recorded with the register of deeds. The original rent agreed upon was
P25 per month, but by reason of the construction of a street through the land, the
monthly rent was reduced of P20.20.
Shortly after the execution of the lease, the lessee took possession of the parcel in
question and erected the mill as well as the necessary buildings, and it appears that
in matters pertaining to the lease, he dealt with Pedro R. Melencio, who from 1905
until his death in 1920, acted as manager of the property held in common by the heirs
of Julian Melencio and Ruperta Garcia. The original lessee, Yap Kui Chin, died in
1912, and the lease, as well as the other property, was transferred to Uy Eng Jui who
again transferred it to Uy Eng Jui & Co., an unregistered partnership. Finally the lease
came into the hands of Dy Tiao Lay, the herein defendant-appellee.
Ramon Melencio died in 1914, and his widow, Liberata Macapagal, was appointed
administratrix of his estate. In 1913 the land which includes the parcel in question was
registered under the Torrens system. The lease was not mentioned in the certificate
of title, but it was stated that one house and three warehouses on the land were the
property of Yap Kui Chin.
In 1920 the heirs of Julian Melencio made an extrajudicial partition of parts of the
inheritance, and among other things, the land here in question fell to the share of the
children of Ramon Melencio, who are the original plaintiffs in the present case. Their
mother, Liberata Macapagal, as administratrix of the estate of her deceased husband,
Ramon, collected the rent for the lease at the rate of P20.20 per month until the
month of May,1926, when she demanded of the lessee that the rent should be
increased to P300 per month, and she was then informed by the defendant that a
written lease existed and that according to the terms thereof, the defendant was
entitled to an extension of the lease at the original rental. The plaintiffs insisted that
they never had any knowledge of the existence of such a contract of lease and
maintained that in such case the lease was executed without their consent and was
void. It may be noted that upon careful search, a copy of the contract of lease was
found among the papers of the deceased Pedro R, Melencio. Thereafter the present
action was brought to set aside the lease and to recover possession of the land. Upon
trial, the court below rendered judgment in favor of the defendant declaring the lease
valid and ordering the plaintiffs to pay the P272 demanded by the defendant in his
counterclaim. From this judgment the plaintiffs appealed.
The contention of the appellants is that the aforesaid contract of lease (Exhibit C) is
null and void for the following reasons:
1. That Exhibit C calls for an alteration of the property in question and
therefore ought to have been signed by all the coowners as by law required
in the premises.
2. That the validity and fulfillment of the said agreement of lease were made
to depend upon the will of the lessee exclusively.
3. That the said contract of lease being for a term of over six years, the
same is null and void pursuant to the provision of article 1548 of the Civil
Code.
4. That the duration of the same is unreasonably long, thus being against
public policy.
5. That the defendant-appellee and his predecessors in interest repeatedly
violated the provisions of the agreement.
The first proposition is based on article 397 of the Civil Code which provides that
"none of the owners shall, without the consent of the others, make any alterations in
the common property even though such alterations might be advantageous to all." We
do not think that the alterations are of sufficient importance to nullify the lease,
especially so since none of the coowners objected to such alterations until over
twenty years after the execution of the contract of lease. The decision of this court in
the case of Enriquez vs. A. S. Watson and Co. (22 Phil., 623), contains a full
discussion of the effect of alterations of leased community property, and no further
discussion upon the point need here be considered.
The second proposition is likewise of little merit. Under the circumstances, the
provision in the contract that the lessee, at any time before he erected any building on
the land, might rescind the lease, can hardly be regarded as a violation of article 1256
of the Civil Code.
The third and fourth proposition are, in our opinion, determinative of the controversy.
The court below based its decision principally on the case of Enriquez vs. A.S.
Watson & Co. (22 Phil., 623), and on the resolution of theDireccion General de
los Registros dated April 26,1907. (Jurisprudencia Civil, vol.107, p. 222.) An
examination of the Enriquez case will show that it differs materially from the present.
In that case all of the coowners of a lot and building executed a contract of lease of
the property for the term of eighteen years in favor of A. S. Watson & Co.; one of the
owners was minor, but he was represented by his legally appointed guardian, and the
action of the latter in signing the lease on behalf of the minor was formally approved
by the Court of First Instance. In the present case only a small majority of the
coowners executed the lease here in question, and according to the terms of the
contract the lease might be given a duration of sixty years; that is widely different from
a lease granted by all of the coowners for a term of only eighteen years.
The resolution of April 26,1907, is more in point. It relates to the inscription or
registration of a contract of lease of some pasture grounds. The majority of the
coowners of the property executed the lease for the term of twelve years but when
the lessees presented the lease for inscription in the registry of property, the registrar
denied the inscription on the ground that the term of the lease exceeded six years
and that therefore the majority of the coowners lacked authority to grant the lease.
The Direccion General de los Registros held that the contract of lease for a period
exceeding six years, constitutes a real right subject to registry and that the lease in
question was valid.
The conclusions reached by the Direccion General led to considerable criticism and
have been overruled by a decision of the Supreme Court of Spain dated June 1,1909.
In that decision the court made the following statement of the case (translation):
The joint owners of 511 out of 1,000 parts of the realty denominated El
Mortero, leased out the whole property for twelve years to Doa Josefa de la
Rosa; whereupon the Count and Countess Trespalacios together with other
coowners brought this suit to annul the lease and, in view of the fact that the
land was indivisible, prayed for its sale by public auction and the distribution
of the price so obtained; they alleged that they neither took part nor
consented to the lease; that the decision of the majority of part owners
referred to in article 398 of the Code, implies a common deliberation on the
step to be taken , for to do without it, would, even more than to do without
the minority, be nothing less than plunder; and that, even if this deliberation
were not absolutely necessary, the power of the majority would still be
confined to decisions touching the management and enjoyment of the
 common property, and would not include acts of ownership, such as a lease
for twelve years, which according to the Mortgage Law gives rise to a real
right, which must be recorded, and which can be performed only by the
owners of the property leased.
The part owners who had executed the contract prayed in reconvention that
it held valid for all the owners in common, and if this could not be, then for all
those who had signed it, and for the rest, for the period of six years; and
the Audiencia of Caceres having rendered judgment holding the contract null
and void, and ordering the sale of the realty and the distribution of the price,
the defendants appealed alleging under the third and fourth assignments of
error, that the judgment was a violation of article 398 of the Civil Code, which
is absolute and sets no limit of time for the efficacy of the decisions arrived
at by the majority of the part owners for the enjoyment of the common
property, citing the decisions of June 30th, 1897, of July 8th,1902, and of
October 30th, 1907; under the fifth assignments of error the appellants
contended that in including joint owners among those referred to in said
article, which sets certain limits to the power of leasing, in the course of the
management of another's property, the court applied article 1548 unduly;
and by the seventh assignments of error, they maintained the judgment
appealed from also violated article 1727, providing that the principal is not
bound where his agent has acted beyond his authority; whence it may be
inferred that if in order to hold the contract null and void, the majority of the
part owners are looked upon as managers or agents exercising limited
powers, it must at least be conceded that in so far as the act in question lies
within the scope of their powers, it is valid; the contract cannot be
annulled in toto.
The Supreme Court held that the appeal from the decision of the Audiencia of
Caceres was not well taken and expressed the following consideranda:
Considering that, although as a rule the contract of lease constitutes an act
of management, as this court has several times held, cases may yet arise,
either owing to the nature of the subject matter, or to the period of duration,
which may render it imperative to record the contract in the registry of
property, in pursuance of the Mortgage Law, where the contract of lease
may give rise to a real right in favor of the lessee, and it would then
constitute such a sundering of the ownership as transcends mere
management; in such cases it must of necessity be recognized that the part
owners representing the greater portion of the property held in common
have no power to lease said property for a longer period than six years
without the consent of all the coowners, whose propriety rights, expressly
recognized by the law, would by contracts of long duration be restricted or
annulled; and as under article 1548 of the Civil Code such contracts cannot
be entered into by the husband with respect to his wife's property, by the
parent or guardian with respect to that of the child or ward, and by the
manager in default of special power, since the contract of lease only
produces personal obligations, and cannot without the consent of all persons
interested or express authority from the owner, be extended to include
stipulations which may alter its character, changing it into a contract of
partial alienation of the property leased;
Considering that, applying this doctrine to the case before us, one of the
grounds upon which the judgment appealed from, denying the validity of the
lease made by the majority of the part owners of the pasture landEl
Mortero is based, must be upheld; to wit, that the period of duration is twelve
years and the consent of all the coowners has not been obtained; hence, the
third, fourth. and fifth assignments of error are without merit; firstly, because
article 398 of the Civil Code, alleged to have been violated, refers to acts
decided upon by the majority of the part owners, touching the management
and enjoyment of the common property, and does not contradict what we
have stated in the foregoing paragraph; secondly because although the
cases cited were such as arose upon leases for more than six years, yet this
point was not raised on appeal, and could not therefore be passed upon;
and thirdly, because it cannot be denied that there is an analogy between a
manager without special authority, who is forbidden by article 1548 of the
Code to give a lease for a period of over six years, and the joint owners
constituting a legal majority, who may decide to lease out the indivisible
property, with respect to the shares of the other coowners; and having come
to the conclusion that the contract is null and void, there is no need to
discuss the first two assignments of error which refer to another of the bases
adopted, however erroneously, by the trial court;
Considering that the sixth assignment of error is without merit, inasmuch as
the joint ownership of property is not a sort of agency and cannot be
governed by the provisions relating to the latter contract; whence, article
1727 of the Code alleged to have been violated, can no more be applied,
than, the question of the validity or nullity of the lease being raise, upon the
contract as celebrated, it would be allowable to modify aposteriori some one
or other of the main conditions stipulated, like that regarding the duration of
the lease, for this would amount to a novation; still less allowable would it be
to authorize diverse periods for the different persons unequally interested in
the fulfillment.
Taking into consideration articles 398,1548, and 1713 of the Civil Code and following
the aforesaid decision of June 1,1909, we hold that the contract of lease here in
question is null and void.
It has been suggested that by reason of prescription and by acceptance of benefits
under the lease, the plaintiffs are estopped to question the authority for making the
lease.To this we may answer that the burden of proof of prescription devolved upon
the defendant and that as far as we can find, there is no proof that Ramon Melencio
and his successors ever had knowledge of the existence of the lease in question prior
to 1926. We cannot by mere suspicion conclude that they were informed of the
existence of the document and its terms; it must be remembered that under a strict
interpretation of the terms of the lease, the lessees could remain indefinitely in their
tenancy unless the lessors could purchase the mill and the buildings on the land. In
such circumstances, better evidence than that presented by the defendant in regard
to the plaintiff's knowledge of the lease must be required.
The fact that Ramon during his lifetime received his share of the products of land
owned in common with his coheirs is not sufficient proof of knowledge of the
existence of the contract of lease when it is considered that the land in question was
only a small portion of a large tract which Pedro R. Melencio was administering in
connection with other community property.

The appealed judgment as to the validity of the lease is therefore reversed, and it is
ordered that the possession of the land in controversy be delivered to the intervenor
Liberata Macapagal in her capacity as administratrix of the estate of the deceased
Ramon Melencio. It is further ordered that the defendant pay to said administratrix a
monthly rent of P50 for the occupation of the land from May 1st, 1926, until the land is
delivered to the administratrix. The sum of P272 demanded by the defendant in his
counterclaim may be deducted from the total amount of the rent due and unpaid. The
building erected on the land by the defendant and his predecessors in interest may be
removed by him, or otherwise disposed of, within six months from the promulgation of
this decision. Without costs. So ordered.
G.R. No. L-5075 December 1, 1909
MAURICIO RAMIREZ, administrator of the estate of MOISES RAMIREZ,
deceased, plaintiff-appellee,
vs.
SIMEON BAUTISTA, ET AL., defendants-appellants.
Perfecto J. Salas Rodriguez for appellants.
Teodoro Gonzalez for appellee.
ARELLANO, C. J.:
The subject of this complaint is two fish ponds, left by Moises Ramirez on his demise,
and subsequently illegally sold. This action was brought for the purpose of having the
sale declared to be void, to secure the recovery of possession of the fish ponds, their
restitution to the administrator of the estate of the deceased owner, and indemnity for
damages.
Moises Ramirez, who died intestate in February, 1900, was married twice. By the first
marriage he had five children, named Rosa, Carmen, Francisco, Mauricia, and
Ignacia; by the second marriage three, to wit, Cirila, Isabel, and Serapio, of whom
Isabel alone survives. At the time of his death he left two fish ponds in the sitio of
Tagalag, in the municipality of Polo, Province of Bulacan, the specific details of which
are described and admitted in the case. The two wives are also dead.
The children of the first marriage, Rosa, Carmen, Francisco, Mauricia, and Ignacia,
sold the two fish ponds on the 28th of November, 1901, to Simeon Bautista and
Raymundo Duran for the sum of 1,100 pesos. The only surviving child of the second
marriage, Isabel, was not a party to said sale, hence the suit now filed by the
administrator of the intestate estate to have the sale declared null and void and the
fish ponds restored to the intestate estate of Moises Ramirez.
The two purchasers proved their purchase by two documents, one of which was a
private and other a notarial one executed for the purpose. When summoned to
answer the complaint they requested that the vendors be cited also, but the latter
although so summoned did not appear at trial.
The action was proceeded with against the purchasers and the Court of First Instance
of Bulacan, before whom the matter was heard, rendered judgment holding that the
fish ponds in question pertained to the intestate estate of the late Moises Ramirez,
and that the sale effected by the said Rosa, Carmen, Francisco, Mauricia, and
Ignacia to the defendants, Simeon Bautista and Raymundo Duran, was null and void.
The court decreed that possession of the fish ponds be restored to the plaintiff,
Mauricio Ramirez as administrator of the property of the late Moises Ramirez, and
accorded him the right to recover from the defendants 200 pesos per annum, as loss
and damages, to commence from the day they were notified of the complaint, without
prejudice to their right, which was reserved to them, of action against the said
vendors; the court also sentenced the defendants to pay the costs.
From the above judgment the defendants appealed. The appeal having been heard
before this court, together with the respective allegations of the parties, it appears that
the appellants have made the following assignments of error to the judgment of the
lower court:
I. In that it was not in the judgment the children of the late Moises Ramirez, of both
the first and the second marriage, had become owners in common of the two fish
ponds in question by reason of the death of their ancestor.
II. In that it was found therein that, without a partition having been made of the
property left by Moises Ramirez, the children of his first marriage could not validly
have transmitted their rights of partition in common to the property which is the
subject of this suit.
III. In that sale of the thirteen-sixteenths of the two parcels of land in question was not
declared valid, and void as to three-sixteenths thereof.lawphi1.net
IV. In that it was not found that, as a result of the evidence, the plaintiff had no legal
capacity to bring suit.
The appeal having been heard and the evidence reviewed, the following facts must
be held to have been proven:
That Moises Ramirez was first married to Apolinaria Guillermo and by her had the
above-mentioned five children, Rosa, Carmen, Francisco, Mauricia, and Ignacia
Ramirez.
That by his second wife, Alejandra Capistrano, he had three children, as already
stated, named Cirila, Isabel, and Serapio Ramirez.
That Moises Ramirez and his two wives are now dead, as are also the two children of
the second marriage, Cirila and Serapio. Isabel, a girl of about eight years of age,
alone survives.
That the two fish ponds in question were acquired by Moises Ramirez during the time
of his first marriage with Apolinaria Guillermo, on the 17th of March, 1895, which is
the date of the title by composition with the Spanish Government that constitutes his
title of ownership.
On this supposition, the two fish ponds in litigation belonged to the conjugal
partnership between Moises Ramirez and Apolinaria Guillermo. (Civil Code, art. 1401,
par. 1.)
By virtue of the conjugal partnership, these two fish ponds belonged half to the
husband and half to the wife upon the dissolution of the marriage by reason of the
death of either of them.itc@alf (Civil Code, art. 1392.)
Consequently, upon the death of Apolinaria Guillermo one-half of the fish ponds
belonged to Moises Ramirez, and the other half, that belonging to Apolinaria
Guillermo, to the children of the said married couple, Rosa, Carmen, Francisco,
Mauricia, and Ignacia, as the lawful heirs of their mother. (Civil Code, art. 931.)
Inasmuch as the said property continued undivided between the father on the one
hand and the children on the other, and as the conjugal partnership had terminated, a
community of property maintained the father and the children in the joint dominion.
(Civil Code, art. 392.)
By the second marriage three additional children survived the father, and upon his
death the first five children, together with the latter three, became his heirs, and all
are entitled to divide the said half share belonging to their father into eight parts.
By the death of two of these last three children, their respective shares fell to Isabel
sole heir, inasmuch as they were children of the same parents. (Civil Code art. 947.)
In view of these considerations, the claim of the appellants is entirely legal that
thirteen-sixteenths should be apportioned among the children of the first marriage
to wit, eight as their own, already inherited from their mother, Apolinaria Guillermo,
and five subsequently inherited from their deceased father, Moises Ramirez and
three-sixteenths should be the share of the three children of the second marriage,
which accrued to Isabel Ramirez.
Therefore, in the succession of Moises Ramirez that is now opened the whole of
these fractional parts can not be included, but only the eight which actually constitute
his share in the community of property maintained by him with his children of the first
marriage, Rosa, Carmen, Francisco, Mauricia, and Ignacia, since the death of his first
wife.
The above children of the first marriage, upon the death of Moises Ramirez,
continued the aforesaid community of property with their three half sisters and
brother, Cirila, Isabel, and Serapio; that is to say, now with Isabel, their share being
thirteen-sixteenths, and that of Isabel three sixteenths.
The present status of the two fish ponds in question is that of community of property.
It is certain that when two or more heirs appear at the opening of a
testamentary succession, or during the progress of the settlement of an
intestate estate, and each turns out to be an owner pro indiviso of the
inheritance, by reason of the share he may be entitled to receive, a
community of property then exists between the participants as long as the
estate remains undivided . . . and nothing more tangible can be imagined
than this necessary community, which arose at the moment when the
coheirs assumed the entire representation of the person of the deceased
with respect to all of his property, rights, and actions, both active and
passive. (3 Manresa, 357.)
With regard to the community of property the Civil Code provides that
Every coowner shall have full ownership of his part and in the fruits and
benefits derived therefrom, and he therefore may alienate, assign, or
mortgage it, and even substitute another person in its enjoyment, unless
personal rights are in question. But the effect of the alienation or mortgage,
with regard to the coowners, shall be limited to the share which may be
awarded him in the division on the dissolution of the community. (Art. 399,
Civil Code.)
If Rosa, Carmen, Francisco, Mauricia, and Ignacia Ramirez could lawfully alienate
their respective shares in the joint ownership of the two parcels of land sold to the
defendants, Simeon Bautista and Raymundo Duran, it is evident that the sale of
thirteen-sixteenths of the said two lands could not be void; the sale of the three-
sixteenths which belonged to Isabel alone is illegal, as alleged in the third assignment
of error.
Therefore, the sale described in the public instrument of the 29th of November, 1901,
of the thirteen-sixteenths which belonged to the vendors is valid, and that of the three-
sixteenths which pertain to Isabel, who neither by herself nor by means of another
took part in said sale is null.
Simeon Bautista and Raymundo Duran succeed to the vendors and are subrogated
thereto in the joint ownership of the two fish ponds sold; their shares are the same
that were owned by the vendors, that is, thirteen-sixteenths.
The whole of the two fish ponds can not pertain to the intestate estate of Moises
Ramirez, but merely the half that belonged to him and which at his death became a
part of his intestate estate.
Intestate succession can not disturb the lawful holder in his possession of property,
which it is thought should constitute a part of the hereditary property.
Only in the event of a division of the common property, or upon dissolution of the
community of property now existing between the purchasers, Simeon Bautista and
Raymundo Duran, on the one hand and Isabel Ramirez on the other, can the fruits,
rents, or benefits received, and the part thereof, as well as of the expenses,
corresponding to the coowner Isabel Ramirez in maintaining the community, be
considered, as well as of the rights and actions that may pertain to the purchasers as
against the vendors (who have taken no part in these proceedings), by reason of the
total consideration paid for the two properties, and other obligations which may have
arisen because of the sale.
The present cause of action and the complaint based thereon being limited to the
recovery of the two properties in question, and the restitution of the possession
thereof to the administrator of the intestate estate of Moises Ramirez, in consequence
of the latter's hereditary succession, it is evident that neither recovery of possession
nor the restitution asked for can be granted, as the defendants are the legitimate
proprietors and possessors in joint ownership of the greater portion of the common
property claimed.

While the question of the nullity of the entire sale was previously raised in the action,
the illegality of the sale of three-sixteenths of the common property made by the
vendors is evident.

In view of the foregoing, it is our opinion that the judgment appealed from should only
be affirmed in so far as it declares that the sale made by Rosa, Carmen, Francisco,
Mauricia, and Ignacia Ramirez of the three-sixteenths parts belonging to Isabel
Ramirez in the two fish ponds claimed is null and void; in all other respects the said
judgment is hereby reversed, without any special ruling as to the costs of both
instances. So ordered.

Torres, Mapa, Johnson, Carson, and Moreland, JJ., concur.

G.R. No. L-3404 April 2, 1951
ANGELA I. TUASON, plaintiff-appellant,
vs.
ANTONIO TUASON, JR., and GREGORIO ARANETA, INC., defendants-appellees.
Alcuaz & Eiguren for appellant.
Araneta & Araneta for appellees.
MONTEMAYOR, J.:
In 1941 the sisters Angela I. Tuason and Nieves Tuason de Barreto and their brother
Antonio Tuason Jr., held a parcel of land with an area of 64,928.6 sq. m. covered by
Certificate of Title No. 60911 in Sampaloc, Manila, in common, each owning an
undivided 1/3 portion. Nieves wanted and asked for a partition of the common
property, but failing in this, she offered to sell her 1/3 portion. The share of Nieves
was offered for sale to her sister and her brother but both declined to buy it. The offer
was later made to their mother but the old lady also declined to buy, saying that if the
property later increased in value, she might be suspected of having taken advantage
of her daughter. Finally, the share of Nieves was sold to Gregorio Araneta Inc., a
domestic corporation, and a new Certificate of Title No. 61721 was issued in lieu of
the old title No. 60911 covering the same property. The three co-owners agreed to
have the whole parcel subdivided into small lots and then sold, the proceeds of the
sale to be later divided among them. This agreement is embodied in a document
(Exh. 6) entitled "Memorandum of Agreement" consisting of ten pages, dated June
30, 1941.
Before, during and after the execution of this contract (Exh. 6), Atty. J. Antonio
Araneta was acting as the attorney-in-fact and lawyer of the two co-owners, Angela I.
Tuason and her brother Antonio Tuason Jr. At the same time he was a member of the
Board of Director of the third co-owner, Araneta, Inc.
The pertinent terms of the contract (Exh. 6) may be briefly stated as follows: The
three co-owners agreed to improve the property by filling it and constructing roads
and curbs on the same and then subdivide it into small lots for sale. Araneta Inc. was
to finance the whole development and subdivision; it was prepare a schedule of
prices and conditions of sale, subject to the subject to the approval of the two other
co-owners; it was invested with authority to sell the lots into which the property was to
be subdivided, and execute the corresponding contracts and deeds of sale; it was
also to pay the real estate taxes due on the property or of any portion thereof that
remained unsold, the expenses of surveying, improvements, etc., all advertising
expenses, salaries of personnel, commissions, office and legal expenses, including
expenses in instituting all actions to eject all tenants or occupants on the property;
and it undertook the duty to furnish each of the two co-owners, Angela and Antonio
Tuason, copies of the subdivision plans and the monthly sales and rents and
collections made thereon. In return for all this undertaking and obligation assumed by
Araneta Inc., particularly the financial burden, it was to receive 50 per cent of the
gross selling price of the lots, and any rents that may be collected from the property,
while in the process of sale, the remaining 50 per cent to be divided in equal portions
among the three co-owners so that each will receive 16.33 per cent of the gross
receipts.
Because of the importance of paragraphs 9, 11 and 15 of the contract (Exh. 6), for
purposes of reference we are reproducing them below:
(9) This contract shall remain in full force and effect during all the time that it
may be necessary for the PARTY OF THE SECOND PART to fully sell the
said property in small and subdivided lots and to fully collect the purchase
prices due thereon; it being understood and agreed that said lots may be
rented while there are no purchasers thereof;
(11) The PARTY OF THE SECOND PART (meaning Araneta Inc.) is hereby
given full power and authority to sign for and in behalf of all the said co-
owners of said property all contracts of sale and deeds of sale of the lots into
which this property might be subdivided; the powers herein vested to the
PARTY OF THE SECOND PART may, under its own responsibility and risk,
delegate any of its powers under this contract to any of its officers,
employees or to third persons;
(15) No co-owner of the property subject-matter of this contract shall sell,
alienate or dispose of his ownership, interest or participation therein without
first giving preference to the other co-owners to purchase and acquire the
same under the same terms and conditions as those offered by any other
prospective purchaser. Should none of the co-owners of the property
subject-matter of this contract exercise the said preference to acquire or
purchase the same, then such sale to a third party shall be made subject to
all the conditions, terms, and dispositions of this contract; provided, the
PARTIES OF THE FIRST PART (meaning Angela and Antonio) shall be
bound by this contract as long as the PARTY OF THE SECOND PART,
namely, the GREGORIO ARANETA, INC. is controlled by the members of
the Araneta family, who are stockholders of the said corporation at the time
of the signing of this contract and/or their lawful heirs;
On September 16, 1944, Angela I. Tuason revoked the powers conferred on her
attorney-in-fact and lawyer, J. Antonio Araneta. Then in a letter dated October 19,
1946, Angela notified Araneta, Inc. that because of alleged breach of the terms of the
"Memorandum of Agreement" (Exh. 6) and abuse of powers granted to it in the
document, she had decided to rescind said contract and she asked that the property
held in common be partitioned. Later, on November 20, 1946, Angela filed a
complaint in the Court of First Instance of Manila asking the court to order the
partition of the property in question and that she be given 1/3 of the same including
rents collected during the time that the same including rents collected during the time
that Araneta Inc., administered said property.
The suit was administered principally against Araneta, Inc. Plaintiff's brother, Antonio
Tuason Jr., one of the co-owners evidently did not agree to the suit and its purpose,
for he evidently did not agree to the suit and its purpose, for he joined Araneta, Inc. as
a co-defendant. After hearing and after considering the extensive evidence introduce,
oral and documentary, the trial court presided over by Judge Emilio Pea in a long
and considered decision dismissed the complaint without pronouncement as to costs.
The plaintiff appealed from that decision, and because the property is valued at more
than P50,000, the appeal came directly to this Court.
Some of the reasons advanced by appellant to have the memorandum contract (Exh.
6) declared null and void or rescinded are that she had been tricked into signing it;
that she was given to understand by Antonio Araneta acting as her attorney-in-fact
and legal adviser that said contract would be similar to another contract of subdivision
of a parcel into lots and the sale thereof entered into by Gregorio Araneta Inc., and
the heirs of D. Tuason, Exhibit "L", but it turned out that the two contracts widely
differed from each other, the terms of contract Exh. "L" being relatively much more
favorable to the owners therein the less favorable to Araneta Inc.; that Atty. Antonio
Araneta was more or less disqualified to act as her legal adviser as he did because
he was one of the officials of Araneta Inc., and finally, that the defendant company
has violated the terms of the contract (Exh. 6) by not previously showing her the plans
of the subdivision, the schedule of prices and conditions of the sale, in not introducing
the necessary improvements into the land and in not delivering to her her share of the
proceeds of the rents and sales.
We have examined Exh. "L" and compared the same with the contract (Exh. 6) and
we agree with the trial court that in the main the terms of both contracts are similar
and practically the same. Moreover, as correctly found by the trial court, the copies of
both contracts were shown to the plaintiff Angela and her husband, a broker, and both
had every opportunity to go over and compare them and decide on the advisability of
or disadvantage in entering into the contract (Exh. 6); that although Atty. Antonio
Araneta was an official of the Araneta Inc.; being a member of the Board of Directors
of the Company at the time that Exhibit "6" was executed, he was not the party with
which Angela contracted, and that he committed no breach of trust. According to the
evidence Araneta, the pertinent papers, and sent to her checks covering her receive
the same; and that as a matter of fact, at the time of the trial, Araneta Inc., had spent
about P117,000 in improvement and had received as proceeds on the sale of the lots
the respectable sum of P1,265,538.48. We quote with approval that portion of the
decision appealed from on these points:
The evidence in this case points to the fact that the actuations of J. Antonio
Araneta in connection with the execution of exhibit 6 by the parties, are
above board. He committed nothing that is violative of the fiduciary
relationship existing between him and the plaintiff. The act of J. Antonio
Araneta in giving the plaintiff a copy of exhibit 6 before the same was
executed, constitutes a full disclosure of the facts, for said copy contains all
that appears now in exhibit 6.
Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing the
terms of the contract in that the defendant corporation has failed (1) to make
the necessary improvements on the property as required by paragraphs 1
and 3 of the contract; (2) to submit to the plaintiff from time to time schedule
of prices and conditions under which the subdivided lots are to be sold; and
to furnish the plaintiff a copy of the subdivision plans, a copy of the monthly
gross collections from the sale of the property.
The Court finds from the evidence that he defendant Gregorio Araneta,
Incorporated has substantially complied with obligation imposed by the
contract exhibit 6 in its paragraph 1, and that for improvements alone, it has
disbursed the amount of P117,167.09. It has likewise paid taxes,
commissions and other expenses incidental to its obligations as denied in
the agreement.
With respect to the charged that Gregorio Araneta, Incorporated has failed to
submit to plaintiff a copy of the subdivision plains, list of prices and the
conditions governing the sale of subdivided lots, and monthly statement of
collections form the sale of the lots, the Court is of the opinion that it has no
basis. The evidence shows that the defendant corporation submitted to the
plaintiff periodically all the data relative to prices and conditions of the sale of
the subdivided lots, together with the amount corresponding to her. But
without any justifiable reason, she refused to accept them. With the
indifferent attitude adopted by the plaintiff, it was thought useless for
Gregorio Araneta, Incorporated to continue sending her statement of
accounts, checks and other things. She had shown on various occasions
that she did not want to have any further dealings with the said corporation.
So, if the defendant corporation proceeded with the sale of the subdivided
lots without the approval of the plaintiff, it was because it was under the
correct impression that under the contract exhibit 6 the decision of the
majority co-owners is binding upon all the three.
The Court feels that recission of the contract exhibit 6 is not minor violations
of the terms of the agreement, the general rule is that "recission will not be
permitted for a slight or casual breach of the contract, but only for such
breaches as are so substantial and fundamental as to defeat the object of
the parties in making the agreement" (Song Fo & Co. vs. Hawaiian-
Philippine Co., 47 Phil. 821).
As regards improvements, the evidence shows that during the Japanese occupation
from 1942 and up to 1946, the Araneta Inc. although willing to fill the land, was unable
to obtain the equipment and gasoline necessary for filling the low places within the
parcel. As to sales, the evidence shows that Araneta Inc. purposely stopped selling
the lots during the Japanese occupantion, knowing that the purchase price would be
paid in Japanese military notes; and Atty. Araneta claims that for this, plaintiff should
be thankfull because otherwise she would have received these notes as her share of
the receipts, which currency later became valueles.
But the main contention of the appellant is that the contract (Exh. 6) should be
declared null and void because its terms, particularly paragraphs 9, 11 and 15 which
we have reproduced, violate the provisions of Art. 400 of the Civil Code, which for the
purposes of reference we quote below:
ART. 400. No co-owner shall be obliged to remain a party to the community.
Each may, at any time, demand the partition of the thing held in common.
 Nevertheless, an agreement to keep the thing undivided for a specified
length of time, not exceeding ten years, shall be valid. This period may be a
new agreement.

We agree with the trial court that the provisions of Art. 400 of the Civil Code are not
applicable. The contract (Exh., 6) far from violating the legal provision that forbids a
co-owner being obliged to remain a party to the community, precisely has for its
purpose and object the dissolution of the co-ownership and of the community by
selling the parcel held in common and dividing the proceeds of the sale among the
co-owners. The obligation imposed in the contract to preserve the co-ownership until
all the lots shall have been sold, is a mere incident to the main object of dissolving the
co-owners. By virtue of the document Exh. 6, the parties thereto practically and
substantially entered into a contract of partnership as the best and most expedient
means of eventually dissolving the co-ownership, the life of said partnership to end
when the object of its creation shall have been attained.

This aspect of the contract is very similar to and was perhaps based on the other
agreement or contract (Exh. "L") referred to by appellant where the parties thereto in
express terms entered into partnership, although this object is not expressed in so
many words in Exh. 6. We repeat that we see no violation of Art. 400 of the Civil Code
in the parties entering into the contract (Exh. 6) for the very reason that Art. 400 is not
applicable.

Looking at the case from a practical standpoint as did the trial court, we find no valid
ground for the partition insisted upon the appellant. We find from the evidence as was
done by the trial court that of the 64,928.6 sq. m. which is the total area of the parcel
held in common, only 1,600 sq. m. or 2.5 per cent of the entire area remained unsold
at the time of the trial in the year 1947, while the great bulk of 97.5 per cent had
already been sold. As well observed by the court below, the partnership is in the
process of being dissolved and is about to be dissolved, and even assuming that Art.
400 of the Civil Code were applicable, under which the parties by agreement may
agree to keep the thing undivided for a period not exceeding 10 years, there should
be no fear that the remaining 1,600 sq. m. could not be disposed of within the four
years left of the ten-years period fixed by Art. 400.

We deem it unnecessary to discuss and pass upon the other points raised in the
appeal and which counsel for appellant has extensively and ably discussed, citing
numerous authorities. As we have already said, we have viewed the case from a
practical standpoint, brushing aside technicalities and disregarding any minor
violations of the contract, and in deciding the case as we do, we are fully convinced
that the trial court and this Tribunal are carrying out in a practical and expeditious way
the intentions and the agreement of the parties contained in the contract (Exh. 6),
namely, to dissolve the community and co-ownership, in a manner most profitable to
the said parties.

In view of the foregoing, the decision appealed from is hereby affirmed. There is no
pronouncement as to costs.
G.R. No. L-10104 February 10, 1916
ROMANA CORTES, ET AL., plaintiffs-appellants,
vs.
FLORENCIO G. OLIVA, defendant-appellee.
Leodegario Azarraga for appellants.
Jose Agoncillo for appellee.
CARSON, J.:
This is an action for the recovery of personal property and for the damages incident to
its alleged unlawful conversion.
The plaintiffs are the heirs of one Pio Oliva, deceased, who during his lifetime was the
owner of a large machine used for grinding sugar cane; he was also the joint owner
with his brother, Florencio Oliva, the defendant herein, of another smaller machine
used for the same purpose. Throughout the record the machine owned outright by Pio
Oliva is referred to as the large machine or mill (trapiche grande) while the other is
referred to as the small or partnership machine.
In 1896 defendant was the manager of an hacienda in Nasugbu, Batangas, and Pio
Oliva was a tenant on the hacienda. The two machines in question were installed and
in use on the hacienda at the time of the breaking out of the revolution against Spain.
Owing to the unsettled conditions incident to the revolution, the hacienda was
abandoned together with the two machines in question and various other agricultural
implements. Pio Oliva died in 1898 in the pueblo of Calawang, Laguna, P. I., leaving
as his heirs the plaintiffs herein. The defendant, Florencio Oliva, returned to Nasugbu
in 1899. In 1901 he took them in an abandoned condition and badly in need of
repairs. On the large machine he expended approximately P163 and a less amount
on the smaller machine, and he kept both machines under shelter until work was
received on the hacienda. In 1906 the large machine was again used for grinding
cane and it appears to have been used for that purpose ever since. The smaller
machine, the one owned in partnership, has never been used since 1896, and
unsuccessful efforts have been made to sell it. The record is very unsatisfactory and
inconclusive as to the value of the two machines. One of the plaintiffs testified that the
large machine was worth P1,200, while the defendant put its value at P400. There is
no direct evidence in the record as to what the value of the smaller machine is, but it
is very clear that its market value must be small indeed.
The plaintiffs contend that the defendant unlawfully took possession of these
machines in the year 1906 without their knowledge or consent; that from that date
until the year 1912 he had ground cane in the large machine to the value of P42,000,
and that they, as the heirs of the true owner of the machine, are entitled to P14,000
for the use of this machine, that being one third the estimated value of the output; that
the profits which would have accrued to them from the use of the small machine
during that period amounts to P3,500; that they are entitled to a judgment for the
recovery of the machines of their value; and further to a judgment for the sum of
P17,500 for the profits which should have accrued to them for the use of these
machines from the year 1906 to the year 1912.
The defendant contends that he took possession of the machines in 1901, and has
them in his possession since that date under a claim of ownership; that he took
possession because his brother, Pio Oliva, was indebted to him at the time of his
death, and in view of conditions existing at that time, 1901, he took this mode of
indemnity himself against loss of the amount of the indebtedness which exceeded the
value of both machines at the time when he took possession.
This action was instituted on the 6th day of June, 1913, and the trial judge was of
opinion that it had prescribed under the provisions of section 43 of the new Code of
Civil Procedure (Act No. 190), the evidence of record disclosing that the defendant
had been in possession of both the mills under a claim of ownership for a period of
more than four years prior to the date of the institution of the action.
As to larger machine, we are of opinion that the ruling of the trial judge was
unquestionably correct. We find nothing in the record which would justify us in
disturbing the findings of fact by the trial judge and there can be no doubt that
accepting his finding of facts as correct, the plaintiff's action for possession had
prescribed long before the action was instituted (sec. 43 Act No. 190).
The plaintiff contend that the defendant did not take and keep possession of this
machine under a claim of ownership; and that in truth and in fact he originally took
possession of this machine in the year 1906, and that since that time he has kept
possession merely as security for his claim of indebtedness against their father. In
support of their contentions, they rely on certain statements made by the defendant in
a letter written to one of the plaintiffs. This letter appears to have been written partly
with a view to secure some compromise of the threatened litigation over the
machines, and partly by way of justification and defense of the defendant's conduct in
taking possession of the machines after his brother's death. In the course of the letter
he insists that the plaintiffs were not wronged by his action in taking possession,
because, as he indicates, their claim of ownership in the machine and of profits from
its operation is fully met by his claim of indebtedness and of interest on the debt.
Plaintiffs insist that this statement demonstrates that the defendant was not asserting
a right of ownership in the machine at the time when the letter was written, but only
the right to payment of the amount of the alleged indebtedness with interest.
Without stopping to consider the question of the admissibility in evidence of the
contents of his letter, which seems to have been written with some view to a
compromise of threatened litigation, we hold that, read in connection with all the
evidence of record, it falls far short of sustaining the contentions of the plaintiffs. We
agree with the trial judge, who carefully reviewed the letter together with all the rest of
the evidence, and held that the letter, as a whole, clearly discloses that defendant
regarded himself as the lawful owner of the machine at the time when the letter was
written; and that the references to the principal and interest of the debt for which it
was taken was made by the defendant merely for the sake of showing that he had not
wronged his brother or his brother's heirs by taking the machines for the debt.
With reference to the smaller machine, which was originally owned jointly by the
defendant and his brother, the claim of prescription of the action brought by the
plaintiffs is not satisfactorily established.

This machine having been originally the joint property of the defendant and his
brother, the fact that he held it in his possession for a long period of years, and
exercised acts of ownership with reference to it does not afford a sufficient ground for
the inference he had possession under a claim of exclusive ownership, and adverse
to the claims of his brother's estate. Ordinarily possession by one joint owner will not
be presumed to be adverse to the others, but will, as a rule, be held to be for the
benefit of all. Much stronger evidence is required to show an adverse holding by one
of several joint owners than by a stranger; and in such cases, to sustain a plea of
prescription, it must always clearly appear that one who was originally a joint owner
has repudiated the claims of his coowners, and that his coowners were apprised or
should have been apprised of his claim of adverse and exclusive ownership before
the alleged prescriptive period began to run. We do not think that the evidence or
record is sufficient to sustain a finding to that effect with reference to the small
machine.

On their own allegations, however, plaintiffs cannot maintain an action for possession
of this machine against the defendant, who was originally a joint with his brother, their
predecessor in interest. Doubtless they have a right to have the machine sold and to
a partition of the proceeds of the sale, and an accounting for profits while in the
exclusive possession of the defendant; and liberally construed, the allegations of their
complaint would seem to be sufficient, if supported by competent evidence to entitle
them to a judgment for such profits.

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

The judgment entered in the court below dismissing the complaint at costs of the
plaintiffs should be affirmed with the costs of this instance against the appellants,
without prejudice, nevertheless, to the right of the plaintiffs to bring another action
asserting any right they may have in the small machine, originally owned jointly by the
defendant and his brother, their predecessor in interest, or in profits arising from the
use of this machine since the date of the institution of this action. So ordered.
G.R. No. L-38544 November 18, 1933
PAZ DE SANTOS, CONSUELO DE SANTOS and JOSE MARIANO DE
SANTOS, petitioners-appellants,
vs.
BANK OF THE PHILIPPINE ISLANDS, oppositor-appellee.
Vicente J. Francisco for appellants.
Feria and La O for appellee.
VILLA-REAL, J.:
This is an appeal taken by the petitioners herein Paz, Consuelo and Jose Mariano de
Santos, from the order of the Court of First Instance of Manila, which reads as
follows:
Upon consideration of the petition filed by Paz, Consuelo and Jose Mariano
de Santos praying that this court order the cancellation of the lien annotated
on their certificates of title consisting in the preliminary attachment of the
properties described therein, in favor of the Bank of the Philippine Islands; it
appearing that this same motion had already been previously filed, that is on
July 6, 1931, and denied by this same court; it appearing likewise, that a
similar petition had been filed in civil case No. 39435 of the Court of First
Instance of Manila, entitled "Bank of the Philippine Islands vs. Isidoro de
Santos et al., which petition was also denied by the said court which heard
the motion in question on September 30, 1931; and it appearing further that
aid order have not been appealed from and have therefore become final on
the ground that the period fixed by law within which they might have been
again considered by this court has elapse; and it appearing furthermore that
the provisions of the Civil Code and of the Code of Civil Procedure cited by
the petitioners in their motion under consideration by this court are not
applicable to nor can serve as a ground for the aforesaid motion filed by
them, inasmuch as they contain nothing with reference to liens in favor of
third persons who are not a party to the partition in question;
Wherefore, the petition of the aforesaid petitioners herein is hereby denied. It
is so ordered.
In support of their appeal, the petitioner-appellants assign the following alleged errors
in the decision of the courta quo, to wit:
1. In not ordering the cancellation of the preliminary attachment noted at the
back of the new certificates of title Nos. 39885, 39879 and 39880 issued
respectively to each of the three herein appellants for their respective shares
in the community property.
2. In holding the orders of the court of July 31, and of September 30, 1931
mentioned in the appealed order, as binding and conclusive in the instant
case.
3. In ordering the appellants to include in their bill of exceptions the
aforementioned order of September 30, 1931, which was issued in the case
of the Bank of the Philippine Islands vs. Isidoro de Santos et al., No. 39435,
by the judge of the Sala other than the one in which the present case was
heard.
The following pertinent facts are necessary for the solution of the questions raised in
this appeal:
The petitioner-appellants herein Paz, Consuelo and Jose Mariano de Santos,
together with their brothers Felipe and Isidoro de Santos, were owners pro indiviso of
nine parcels of land described in the transfer certificates of title Nos. 34394, 34395,
34396, 34397, 34398, 34399, 34400, 34403 and 34530.
On March 26, 1930, Isidoro de Santos and Paulino Candelaria executed jointly and
severally in favor of the herein oppositor-appellee, Bank of the Philippine Islands, a
promissory note for the sum of P45,000 payable within ninety days with interest at the
rate of 9 per cent per annum, delivering the promissory note in question (Appendix B)
to the aforesaid bank.
Inasmuch as Isidoro de Santos and Paulino Candelaria failed to pay the amount of
the said promissory note upon maturity and after demand had been made upon them
therefore the aforesaid oppositor-appellee, Bank of the Philippine Islands, on April 18,
1931, filed a complaint against Isidoro de Santos and Paulino Candelaria with the
Court of First Instance of Manila, praying for the issuance of a writ of preliminary
attachment against their properties, which was issued and annotated on the back of
each and every one of the transfer certificates of the hereinbefore enumerated.
Three days after the issuance of said writ of attachment and the annotation thereof on
the back of the aforesaid transfer certificates of title, that is on April 21, 1931, the
herein petitioner-appellants, together with Isidoro and Felipe de Santos executed an
extrajudicial partition of the parcels of land in question.
On July 6, 1931, Felipe de Santos filed a motion in Cadastral Case No. 3 and others,
G.L.R.O. Record No. 63 and others, of the Court of First Instance of Manila, praying
among other things, (1) that the aforesaid extrajudicial partition be approved by the
court, and (2) that the preliminary attachment of the interest of Isidoro de Santos in
each and every one of the nine parcels of land described in the transfer certificates of
the title hereinbefore enumerated, be consolidated into parcels of land adjudicated to
him by virtue of the aforesaid extrajudicial partition.
Although the petitioner-appellants herein and Isidoro de Santos were duly notified of
the hearing of the aforesaid motion which was set for July 14, 1931, as evidenced by
the notice and the note of Attorney Javier appearing at the foot thereof, none of them
appeared at the hearing.
On July 31, 1931, the Court of First Instance of Manila, in deciding the aforesaid
motion of Felipe de Santos, stated the following:
The petition is hereby denied with respect to the properties described in the
transfer certificates of title Nos. 34396, 34398 and 34403, on the ground that
the first two properties are mortgaged to Luis Mirasol and the last to the
Philippine Guaranty Co., Inc., inasmuch as the mortgage constituted thereon
is subscribed to jointly and severally by all the coowners thereof. The motion
to the effect that all the attachments issued against Isidoro de Santos be
consolidated exclusively on the properties adjudicated to him by virtue of the
aforesaid deed of partition is, likewise hereby denied.
Neither the petitioner Felipe de Santos nor the herein petitioner-appellants Paz,
Consuelo and Jose Mariano de Santos, nor Isidoro de Santos excepted to nor
appealed from the order above-mentioned.
On September 30, 1931, the Court of First Instance of Manila denied the motion filed
by Felipe de Santos in civil case No. 39435 of the said court, wherein he prayed,
among other things, that the said court order the register of deeds of the City of
Manila to note on the back of transfer certificates of title Nos. 34397 and 34530 the
preliminary attachment in favor of the Bank of the Philippine Islands, referring to that
portion of the property described in subdivision plan Psd 7299, and to cancel the
preliminary attachments noted on the back of transfer certificates of title Nos. 34394,
34395, 34396, 34398, 34400 and 34403, and on the back of transfer certificate of title
No. 34530 with respect to the portion of the property described therein, which was
]adjudicated to the said petitioner. The court has based its aforesaid decision of the
ground that neither the said petitioner Felipe de Santos nor the defendant therein,
Isidoro de Santos, has the right to compel the plaintiff Bank of the Philippine Islands
to conform to the attachment of only those properties adjudicated to the said
defendant Isidoro de Santos by virtue of the deed of partition, in lieu of his right to an
undivided one-fifth of each of the nine parcels of land hereinbefore
enumerated.lawphil.net
Neither the petitioner Felipe de Santos nor the defendant therein, Isidoro de Santos,
appealed from the above order.
On August 3, 1932, one-year after the motion of Felipe de Santos was filed in the said
civil case No. 39435, the herein petitioner-appellants filed a motion in the cadastral
cases aforementioned, praying for the cancellation of the annotation of the
preliminary attachments levied on the interest of Isidoro de Santos before the
partition, appearing on the back of the new transfer certificates of title issued in their
name after the partition, said annotation having been made pursuant to the order of
the court issued in said cadastral cases on July 31, 1931.
On September 17, 1932, the court denied the motion in question by the aforesaid
order from which this appeal was taken.
It being procedural in nature, we shall first pass upon the question raised in the
second assignment of error, to wit; that the trial court erred in holding the orders of
the court of July 31, and September 30, 1931, as binding and conclusive in the instant
case.
It can be inferred from the order of September 17, 1932, appealed from, that in
denying the motion for the cancellation of the preliminary attachments filed by the
herein petitioner-appellants on August 5, 1932, the court a quo based its decision on
the ground that a similar motion for the cancellation of the preliminary attachments in
question had already been filed in the said case on July 6, 1931, and denied by the
order of July 31, 1931; and another in civil case No. 39435 of the Court of First
Instance of Manila, entitled "Bank of the Philippine Islands vs. Isidoro de Santos et
al.", which was likewise denied on September 30, 1931. Inasmuch as the orders
denying the aforesaid motions have not been appealed from, they have therefore
become final and conclusive.
The order of the court a quo denying the motions in question is based, therefore, on
the assumption that the question regarding the cancellation of the preliminary
attachment sought by the petitioner-appellants has becomeres judicata. This court
has constantly held that in order that res judicata may exist, it is necessary that there
be identity of parties, of grounds or causes of action and of things or subject matter
under litigation (Aquino vs. Director of Lands, 39 Phil., 850; Isaac vs. Padilla, 31 Phil.,
496; Donato vs. Mendoza, 25 Phil., 57; Roman Catholic Archbishop of Manila vs.
Director of Lands, 35 Phil., 339).
The motion for cancellation dated July 6, 1931, was filed by Felipe de Santos alone,
and the fact that the herein petitioner-appellants were notified thereof has not made
them parties to the said motion, inasmuch as they were not included in the motion in
question in accordance with section 114 of the Code of Civil Procedure.
Neither were the herein petitioner-appellants made parties to the motion for
cancellation of the preliminary attachment filed by Felipe de Santos in civil case No.
39435 of the Court of First Instance of Manila, on August 5, 1931, wherein the Bank
of the Philippine Islands was plaintiff and Isidoro de Santos et al. were defendants.
In the motion under consideration, the denial of which is the subject matter of this
appeal, Felipe de Santos is not a party-petitioner. Therefore, there is no identity
between the petitioner in the motions of July 6, and of August 5, 1931, respectively,
and the parties to the motion under consideration.
In the two motions of July 6, and August 5, 1931, mentioned above, wherein Felipe
de Santos alone was the petitioner, the subject matter thereof could not be other that
the properties adjudicated to him by virtue of the deed of partition, which properties
he wished to free from the attachment, inasmuch as he neither acted nor could act in
representation of his coowners for the reason that he was not authorized to do so. In
the motion under consideration, the petitioner-appellants pray for the cancellation of
the annotation of the preliminary attachment on the back of the new transfer
certificates of title issued in their respective names, by virtue of the order of the court
in the cadastral case, on July 31, 1931. If the properties which Felipe de Santos
sought to free from the preliminary attachment in his motions of July 6, and of August
5, 1931, were those which had been adjudicated to him by virtue of the partition, and
the properties which the herein petitioner-appellants seek to free from the same
attachment in their motion to that effect are those which corresponded to them by
virtue of the aforesaid partition, which properties are separate and distinct from those
adjudicated to Felipe de Santos, neither is there identity of subject matter under
litigation herein. The only point where there is identity is in the cause or ground of
action for cancellation, which is the same in the aforestated motions of July 6, and of
August 5, 1931, as well as in the motion under consideration, which ground consists
in the partition of the properties owned in common.lawphi1.net

Therefore, there being no identity either of parties, or of subject matter or thing under
litigation, there is no res judicata.

The second question to decide in this appeal, which is raised in the first assignment
of error, is whether or not it is proper to order the cancellation of the preliminary
attachment annotated on the back of the new transfer certificates of title Nos. 39885,
39879 and 39880, issued respectively in the names of the herein petitioner-appellants
for their respective shares in the community property.

Inasmuch as article 403 of the Civil Code authorizes creditors to contest a partition
already made in case of fraud, or when it has been made to the prejudice of existing
rights and interest, and inasmuch as the oppositor-appellee herein, bank of the
Philippine Islands, was not notified of the partition made among the herein petitioner-
appellants and their coowners Felipe de Santos and Isidoro de Santos, and was not
given an opportunity to contest the partition already made, nor the approval thereof by
the cadastral court, the case should be remanded to the court a quo in order to permit
the said oppositor-appellee, Bank of the Philippine Islands, to file the objection it may
deem convenient, in accordance with the provisions of article 403 of the Civil Code
cited above.

In view of the foregoing considerations, we are of the opinion and so hold that
inasmuch as the partition of the properties held under title of common ownership was
made without notifying the creditors thereof, said creditors may contest the partition in
question in case of fraud, or when it has been made to the prejudice of existing rights
or interests.

Wherefore, the order appealed from is hereby reversed and the case ordered
remanded to the court a quo in order to give the herein oppositor-appellee, Bank of
the Philippine Islands, and opportunity to contest the partition in accordance with the
provisions of article 403 of the Civil Code, without special pronouncement as to costs.
So ordered.
G.R. No. 1111 May 16, 1903
FELICIDAD GARCIA DE LARA, plaintiff-appellant,
vs.
JOSE GONZALEZ DE LA RAMA, ET AL., defendants-appellees.
Emilio Martinez Llanos for appellant.
No appearance for appellees.
COOPER, J.:
This is an appeal by the plaintiff from a judgment of the Court of First Instance,
brought here by bill of exceptions which purports to have been prepared under
section 143 of the Code of Civil Procedure of 1901, but which in reality bears a very
small resemblance to a bill of exceptions properly prepared under the Code. It
contains arguments of counsel, unintelligible statements, and sets forth much that is
irrelevant. The real nature of the suit, the rulings of the court from which the appeal
has been taken, and the character of the judgment rendered, after a careful reading
of the bill of exceptions, are left in doubt and largely to conjecture.
The Code of Civil Procedure is based upon American practice and has superseded
the Spanish Code of Procedure, and since the practice now in force is in a large
measure different from that under the Spanish practice, many difficulties present
themselves to those not familiar with the American practice.
As a general rule, excepting which are not presented in the course of the proceedings
in the Court of First Instance can not be presented and urged on appeal to this court.
The purpose of the rule is to require a party desiring to review in the appellate court
the action of the trial court to call the attention of the trial court by timely objections to
the proceedings complained of. This rule serves the interest of litigants and conduces
to produce the orderly administration of justice in the courts.
An exception has been defined as an objection taken to the decision of the trial court
upon a matter of law, and is a notice that the party taking it preserves for the
consideration of the appellate court a ruling deemed erroneous. (8 Am. Enc. P. and
P., 157.)
An objection alone is not sufficient to preserve the question for review on appeal. To
save the objection an exception is necessary.
We will indicate briefly when and how objections are made and exceptions taken.
This will depend upon the character of the question.
They are taken sometime by demurrer, sometimes by answer, or by some objection
raised during the progress of the trial, or by objections to the judgment after its
rendition. The defendant may demur to the complaint when it appears upon the face
thereof, either
1. That the court has no jurisdiction of the person of the defendant, or the subject of
the action; or
2. That the plaintiff has no legal capacity to sue; or
3. That there is another action pending between the same parties for the same cause;
or
4. That there is a defect or misjoinder of parties, plaintiff or defendant; or
5. That the complaint does not state facts sufficient to constitute a cause of action; or
6. That the complaint is ambiguous, unintelligible, or uncertain.
The demurrer must distinctly specify the grounds upon which any of the objections to
the complaint are taken.
(Sec. 91 Code of Civil Procedure.)
When any of the matters enumerated in this section do not appear upon the fact of
the complaint, the objection to the complaint can only be taken by answer. (Sec. 92.)
If no objection be taken to the complaint, either by demurrer or answer, the defendant
shall be deemed to have waived all the above-named objections, excepting only the
objection to the jurisdiction of the court over the subject-matter, and that the complaint
does not state facts sufficient to constitute a cause of action. (Sec. 93, Code of Civil
Procedure.)
If the ruling of the court upon a demurrer be adverse to the party making the same, he
should except to the ruling of the court, and, in order that the court may determine the
force of the objection, it will be necessary to incorporate in the bill of exceptions the
complaint demurred to, the demurrer, and the judgment or ruling of the court upon the
demurrer.
If the objection is raised by the answer, the exception must necessarily come after
proofs which are made in support of it. The sufficiency and the validity of the objection
thus raised must be determined by the sufficiency of the evidence which has been
offered in support of the allegation contained in the answer. This requires a review or
retrial of the questions of fact and can only be made in the cases which are provided
for in section 497 of the Code of Civil Procedure.
The manner of making objections and taking exceptions to rulings, such as rulings
upon admissibility or exclusion of evidence and other questions arising during the
course of the trial, is provided for in section 142, which reads as follows:
The party excepting to the ruling, order, or judgment shall forthwith inform
the court that he excepts to the ruling, order, or judgment, and the judge
 shall thereupon minute the fact that the party has so excepted; but the trial
shall not be delayed thereby. The exception shall also be recorded by the
stenographer, if one is officially connected with the court.
The Code has not made any specific provisions as to the manner and time of taking
exceptions to the final judgment which has been rendered in a case. It would seem
that the objection should be taken at the time of the rendition of the final judgment, or
as soon thereafter as may be practicable, and before the ending of the term of court
at which the final judgment is rendered.
With reference to the character of objections which may be taken to a judgment of the
court, the American rule is stated as follows:
Errors in a judgment or decree will not be noticed on appeal in the absence
of objections and exceptions taken below, and they should be sufficiently
specific to direct the attention of the court to the alleged defects. (8 Enc. Pl.
and Pr., 289.)
If objection to the judgment arises upon the insufficiency of the proof to support the
judgment or the findings of fact made by the judge, it will also be necessary to bring
the case within the first or third clause of section 497 of the Code of Civil Procedure,
and if under the latter clause, the excepting party should file a motion in the Court of
First Instance for a new trial based upon the ground that the findings of fact are
plainly and manifestly against the weight of evidence.
The manner of perfecting a bill of exceptions is governed by section 143 of the Code
and need no be here repeated.
In preparing and presenting a bill of exceptions under this section it is necessary that
counsel should carefully read and follow the plain directions of the statute. These
directions are sufficiently explicit to enable those who will carefully consider the
section to comply with them.
In preparing a case for this court, counsel should also carefully consider the rules of
the Supreme Court for sending up the bill of exceptions and for the making of briefs
and assignments of errors.
By reason of the failure of the appellants in this case to comply with the plain statutory
provisions with reference to bills of exceptions, it is largely a matter of conjecture to
determine the nature of the suit, the rulings of the court complained of, or the
character of the judgment which has been rendered. For this failure we might well
refuse to consider the case.
It seems probable that the suit was an action for the partition of a tract of land, being
the undivided half of the hacienda de Angono, situated in the Province of Rizal, and
which the plaintiff and defendants in the suit has inherited from their deceased father,
Don Eugenio Gonzalez de Lara; that Eugenio Gonzalez de Lara had acquired this
undivided half interest by purchase from Doa Dominga Santa Ana; that the court
refused to partition the land because the tract sought to be partitioned was itself an
undivided interest, the other being owned by the parties the names of whom are not
disclosed in the record; that the court declined to make the partition on the ground
that the demarcation and boundaries of the land sought to be partitioned had not
been set forth in the partition, and by reason of the interest which is sought to be
partitioned being an undivided interest.
If this was the character of the suit, the Court of First Instance did not err in so
holding.
Partition proceedings are now governed, and were at the time of the institution of this
suit, by the Code of Civil Procedure, 1901, and must be determined by the provisions
of this Code. Section 183 requires that the complaint in an action for partition shall set
forth the nature and extent of the plaintiff's title, and shall contain an adequate
description of the real estate of which partition is demanded, and name each tenant in
common, coparcener, or other person interested therein as defendants.
This provision requires that all persons interested in the land sought to be partitioned
must be made a party to the suit. If the land sought to be partitioned was an undivided
interest held by the father of the plaintiffs and defendants, in order to comply with the
requirements of statute those who were interested in the other half interest should
have been made parties to the suit.
This is not according to the requirements of the Code, but the very nature of a
partition suit renders it necessary; otherwise the proceedings in the suit may become
wholly ineffectual.
This proceeds from the general principle of law that a litigation can never result in an
adjudication which will be binding upon others than the parties to the suit and their
privies in blood or in estate. The other owners were persons who not only had an
interest in the controversy but an interest of such a nature that a final decree could
not be made without affecting that interest. The decree, therefore, would not bind
such parties, and upon another suit for partition brought by them the very half that
had been partitioned in this case might be assigned as the portion belonging to such
other joint owners.
The Code provides that if, upon trial in a partition suit, the court finds that the plaintiff
has a legal right to any part of such estate, it shall order partition thereof in favor of
the plaintiff, among all parties in interest, and if the parties to the suit are not able to
agree amongst themselves to the making of partition, the court shall appoint three
commissioners to make the partition and set off to the plaintiff and each party in
interest such part and proportion of the estate as the court shall order.
When it is made to appear to the commissioner that the estate, or a portion thereof,
can not be divided without great inconvenience to the parties interested, the court
may order it assigned to one of the parties, provided he pays to the other party sum of
money as the commissioners judge equitable. But if no one of the parties interested
will take such assignment and pay such sum, the court shall order the commissioners
to sell such estate at public or private sale. Where the estate can not be divided, the
court may direct the sale of the property at public or private sale. At this public or
private sale third parties may become the purchasers.

A suit brought by the persons interested who were not made parties to the suit, and
who are not bound by the partition proceedings, would deprive such purchaser of the
title to the land acquired at public sale under the judgment of a court. Both the
purchaser at such sale and the heirs who had received their specific portion by metes
and bounds, or the heirs who had compensated the other heirs by the payment of the
value of the land, by reason of land not being divisible, would be deprived of the rights
which they had acquired under the proceedings. This would not only create confusion
and inconvenience but the time of the court would have been uselessly consumed in
the proceedings thus rendered ineffectual, at the suit of the persons who were not
made parties to the action. Such result is avoided by the provision of the statute
which requires each tenant in common, coparcener, or other person interested in the
land to be made a party to the suit.

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

By the provisions of section 181 of the Code of Civil Procedure, a person having or
holding real estate with others, in any form of joint tenancy or tenancy in common,
may compel partition thereof.

Torres, J., concurs.

Co-Ownership

1. Lilian Sanchez vs. CA and Virginia Teria

([G.R. No. 152766. June 20, 2003)
2. Vda. de Ape vs. CA and Dva de Lumayno,
[G.R. No. 133638. April 15, 2005]
3. Spouses Ricardo and Vicenta Pardel vs.
Sposes Gaspar and Matilde Bartolome (23
Phil. 450)
4. Longings Javier vs Segundo Javier (6 Phil
493)
5. Enriquez vs. A. S. Watson and Co. (22
Phil., 623),
6. Manuel, Mariano, Pura and Caridad
Melencio vs. Dy Tiao Lay (55 Phil. 99)
7. Lopez vs. Martinez (5 Phil. 567)
8. Ramirez vs. Bautista (G.R. No. L-5075
December 1, 1909)
9. Tuazon vs. Tuazon (GR No. L-3404, April
2, 1961)
10. Romana Cortez, et al vs. Florencia
Oliva (G.R. No. 10104. February 10, 1916)
11. De Santos vs. Bank of the Philippine
Islands (G.R. No. 38544. November 18,
1933.)
12. Garcia de Lara vs. Gonzales de Lara
(G.R. No. 1111 May 16, 1903)