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G.R. No. L-45425 April 29, 1939 7.

Tomasa Mercado
............................................................................. .08
JOSE GATCHALIAN, ET AL., plaintiffs-appellants, ...................
REVENUE, defendant-appellee. ............................................................................. .13
Guillermo B. Reyes for appellants.
9. Emiliana Santiago
Office of the Solicitor-General Tuason for appellee.
............................................................................. .13
10. Maria C. Legaspi
The plaintiff brought this action to recover from the defendant ............................................................................. .16
Collector of Internal Revenue the sum of P1,863.44, with legal ..................
interest thereon, which they paid under protest by way of
income tax. They appealed from the decision rendered in the 11. Francisco Cabral
case on October 23, 1936 by the Court of First Instance of the ............................................................................. .13
City of Manila, which dismissed the action with the costs ..................
against them.
12. Gonzalo Javier
............................................................................. .14
The case was submitted for decision upon the following .......................
stipulation of facts:
13. Maria Santiago
Come now the parties to the above-mentioned case, ............................................................................. .17
through their respective undersigned attorneys, and ......................
hereby agree to respectfully submit to this Honorable
14. Buenaventura Guzman
Court the case upon the following statement of facts:
............................................................................. .13
1. That plaintiff are all residents of the municipality of
Pulilan, Bulacan, and that defendant is the Collector of 15. Mariano Santos
Internal Revenue of the Philippines; ............................................................................. .14
2. That prior to December 15, 1934 plaintiffs, in order
to enable them to purchase one sweepstakes ticket Total
valued at two pesos (P2), subscribed and paid therefor ............................................................................. 2.0
the amounts as follows: ........................... 0

1. Jose Gatchalian 3. That immediately thereafter but prior to December

P0. 15, 1934, plaintiffs purchased, in the ordinary course
18 of business, from one of the duly authorized agents of
the National Charity Sweepstakes Office one ticket
2. Gregoria Cristobal bearing No. 178637 for the sum of two pesos (P2) and
............................................................................. .18 that the said ticket was registered in the name of Jose
.................. Gatchalian and Company;

3. Saturnina Silva 4. That as a result of the drawing of the sweepstakes

............................................................................. .08 on December 15, 1934, the above-mentioned ticket
....................... bearing No. 178637 won one of the third prizes in the
4. Guillermo Tapia amount of P50,000 and that the corresponding check
covering the above-mentioned prize of P50,000 was
............................................................................. .13
drawn by the National Charity Sweepstakes Office in
favor of Jose Gatchalian & Company against the
5. Jesus Legaspi Philippine National Bank, which check was cashed
............................................................................. .15 during the latter part of December, 1934 by Jose
......................... Gatchalian & Company;

6. Jose Silva 5. That on December 29, 1934, Jose Gatchalian was

............................................................................. .07 required by income tax examiner Alfredo David to file
................................ the corresponding income tax return covering the
prize won by Jose Gatchalian & Company and that on
December 29, 1934, the said return was signed by 11. That plaintiff's request to pay the balance of the
Jose Gatchalian, a copy of which return is enclosed as tax and penalties was granted by defendant subject to
Exhibit A and made a part hereof; the condition that plaintiffs file the usual bond secured
by two solvent persons to guarantee prompt payment
6. That on January 8, 1935, the defendant made an of each installments as it becomes due;
assessment against Jose Gatchalian & Company
requesting the payment of the sum of P1,499.94 to the 12. That on July 16, 1935, plaintiff filed a bond, a
deputy provincial treasurer of Pulilan, Bulacan, giving copy of which marked Exhibit K is enclosed and made
to said Jose Gatchalian & Company until January 20, a part hereof, to guarantee the payment of the balance
1935 within which to pay the said amount of of the alleged tax liability by monthly installments at
P1,499.94, a copy of which letter marked Exhibit B is the rate of P118.70 a month, the first payment under
enclosed and made a part hereof; protest to be effected on or before July 31, 1935;

7. That on January 20, 1935, the plaintiffs, through 13. That on July 16, 1935 the said plaintiffs formally
their attorney, sent to defendant a reply, a copy of protested against the payment of the sum of P602.51,
which marked Exhibit C is attached and made a part a copy of which protest is attached and marked
hereof, requesting exemption from payment of the Exhibit L, but that defendant in his letter dated August
income tax to which reply there were enclosed fifteen 1, 1935 overruled the protest and denied the request
(15) separate individual income tax returns filed for refund of the plaintiffs;
separately by each one of the plaintiffs, copies of
which returns are attached and marked Exhibit D-1 to 14. That, in view of the failure of the plaintiffs to pay
D-15, respectively, in order of their names listed in the the monthly installments in accordance with the terms
caption of this case and made parts hereof; a statement and conditions of bond filed by them, the defendant in
of sale signed by Jose Gatchalian showing the amount his letter dated July 23, 1935, copy of which is
put up by each of the plaintiffs to cover up the attached and marked Exhibit M, ordered the municipal
attached and marked as Exhibit E and made a part treasurer of Pulilan, Bulacan to execute within five
hereof; and a copy of the affidavit signed by Jose days the warrant of distraint and levy issued against
Gatchalian dated December 29, 1934 is attached and the plaintiffs on May 13, 1935;
marked Exhibit F and made part thereof;
15. That in order to avoid annoyance and
8. That the defendant in his letter dated January 28, embarrassment arising from the levy of their property,
1935, a copy of which marked Exhibit G is enclosed, the plaintiffs on August 28, 1936, through Jose
denied plaintiffs' request of January 20, 1935, for Gatchalian, Guillermo Tapia, Maria Santiago and
exemption from the payment of tax and reiterated his Emiliano Santiago, paid under protest to the municipal
demand for the payment of the sum of P1,499.94 as treasurer of Pulilan, Bulacan the sum of P1,260.93
income tax and gave plaintiffs until February 10, 1935 representing the unpaid balance of the income tax and
within which to pay the said tax; penalties demanded by defendant as evidenced by
income tax receipt No. 35811 which is attached and
9. That in view of the failure of the plaintiffs to pay marked Exhibit N and made a part hereof; and that on
the amount of tax demanded by the defendant, September 3, 1936, the plaintiffs formally protested to
notwithstanding subsequent demand made by the defendant against the payment of said amount and
defendant upon the plaintiffs through their attorney on requested the refund thereof, copy of which is
March 23, 1935, a copy of which marked Exhibit H is attached and marked Exhibit O and made part hereof;
enclosed, defendant on May 13, 1935 issued a warrant but that on September 4, 1936, the defendant
of distraint and levy against the property of the overruled the protest and denied the refund thereof;
plaintiffs, a copy of which warrant marked Exhibit I is copy of which is attached and marked Exhibit P and
enclosed and made a part hereof; made a part hereof; and

10. That to avoid embarrassment arising from the 16. That plaintiffs demanded upon defendant the
embargo of the property of the plaintiffs, the said refund of the total sum of one thousand eight hundred
plaintiffs on June 15, 1935, through Gregoria and sixty three pesos and forty-four centavos
Cristobal, Maria C. Legaspi and Jesus Legaspi, paid (P1,863.44) paid under protest by them but that
under protest the sum of P601.51 as part of the tax and defendant refused and still refuses to refund the said
penalties to the municipal treasurer of Pulilan, amount notwithstanding the plaintiffs' demands.
Bulacan, as evidenced by official receipt No. 7454879
which is attached and marked Exhibit J and made a 17. The parties hereto reserve the right to present other
part hereof, and requested defendant that plaintiffs be and additional evidence if necessary.
allowed to pay under protest the balance of the tax and
penalties by monthly installments;
Exhibit E referred to in the stipulation is of the following tenor:
To whom it may concern: Pulilan, Bulacan, P.I.

I, Jose Gatchalian, a resident of Pulilan, Bulacan, (Sgd.) JOSE GATCHALIAN

married, of age, hereby certify, that on the 11th day of
August, 1934, I sold parts of my shares on ticket No. And a summary of Exhibits D-1 to D-15 is inserted in the bill
178637 to the persons and for the amount indicated of exceptions as follows:
below and the part of may share remaining is also
Purchaser Amount Address JANUARY 19, 1935 SUBMITTED TO THE
1. Mariano Santos Pulilan,
........................................... Bulacan.
Pri Ne
Exh Purc
2. Buenaventura Guzman ce Expen t
.13 - Do - Name ibit hase
............................... Wo ses pri
No. Price
n ze
3. Maria Santiago
.17 - Do - 1. Jose Gatchalian
............................................ P4, 3,9
.............................. D-1 P0.18 P 480
4. Gonzalo Javier 425 45
.14 - Do - ............
2. Gregoria
5. Francisco Cabral Cristobal 4,5 2,5
.13 - Do - D-2 .18 2,000
.......................................... .............................. 75 75
6. Maria C. Legaspi
.16 - Do -
.......................................... 3. Saturnina Silva
1,8 1,5
.............................. D-3 .08 360
7. Emiliana Santiago 75 15
.13 - Do - ...............
4. Guillermo
8. Julio Gatchalian Tapia 3,3 2,9
.13 - Do - D-4 .13 360
............................................ .............................. 25 65
9. Jose Silva
.07 - Do -
...................................................... 5. Jesus Legaspi
3,8 3,1
by Maria D-5 .15 720
10. Tomasa Mercado 25 05
.08 - Do - Cristobal .........
6. Jose Silva
11. Jesus Legaspi 1,8 1,5
.15 - Do - .............................. D-6 .08 360
............................................. 75 15
12. Guillermo Tapia
.13 - Do - 7. Tomasa
Mercado 1,8 1,5
D-7 .07 360
13. Saturnina Silva .............................. 75 15
.08 - Do - .........

14. Gregoria Cristobal 8. Julio Gatchalian

.18 - Do - 3,1 2,9
....................................... by Beatriz D-8 .13 240
50 10
Guzman .......
15. Jose Gatchalian
.18 - Do - 9. Emiliana
Santiago 3,3 2,9
D-9 .13 360
Total .............................. 25 65
cost of ........
10. Maria C.
Legaspi D- 4,1 3,1
.16 960
ticket; and that, therefore, the persons named above .............................. 10 00 40
are entitled to the parts of whatever prize that might be ........
won by said ticket.
11. Francisco D- .13 3,3 360 2,9
Cabral 11 25 65 Islands, no matter how created or organized, but not
.............................. including duly registered general copartnership
........ (compaias colectivas), a tax of three per centum upon
such income; and a like tax shall be levied, assessed,
12. Gonzalo Javier collected, and paid annually upon the total net income
D- 3,3 2,9 received in the preceding calendar year from all
.............................. .14 360
12 25 65 sources within the Philippine Islands by every
corporation, joint-stock company, partnership, joint
13. Maria account (cuenta en participacion), association, or
Santiago D- 4,3 3,9 insurance company organized, authorized, or existing
.17 360
.............................. 13 50 90 under the laws of any foreign country, including
............ interest on bonds, notes, or other interest-bearing
obligations of residents, corporate or
14. Buenaventura otherwise: Provided, however, That nothing in this
D- 3,3 2,9
Guzman .13 360 section shall be construed as permitting the taxation of
14 25 65
........................... the income derived from dividends or net profits on
which the normal tax has been paid.
15. Mariano
Santos D- 3,3 2,9
.14 360 The gain derived or loss sustained from the sale or
.............................. 15 25 65
.......... other disposition by a corporation, joint-stock
company, partnership, joint account (cuenta en
<="" participacion), association, or insurance company, or
td="" property, real, personal, or mixed, shall be ascertained
style= in accordance with subsections (c) and (d) of section
"font- two of Act Numbered Two thousand eight hundred
size: and thirty-three, as amended by Act Numbered
14px; Twenty-nine hundred and twenty-six.
decora The foregoing tax rate shall apply to the net income
tion: received by every taxable corporation, joint-stock
50, none; company, partnership, joint account (cuenta en
000 color: participacion), association, or insurance company in
rgb(0, the calendar year nineteen hundred and twenty and in
0, each year thereafter.
font- There is no doubt that if the plaintiffs merely formed a
family community of property the latter is exempt from the payment
: arial, of income tax under the law. But according to the stipulation
verdan facts the plaintiffs organized a partnership of a civil nature
a;"> because each of them put up money to buy a sweepstakes ticket
for the sole purpose of dividing equally the prize which they
The legal questions raised in plaintiffs-appellants' five assigned may win, as they did in fact in the amount of P50,000 (article
errors may properly be reduced to the two following: (1) 1665, Civil Code). The partnership was not only formed, but
Whether the plaintiffs formed a partnership, or merely a upon the organization thereof and the winning of the prize, Jose
community of property without a personality of its own; in the Gatchalian personally appeared in the office of the Philippines
first case it is admitted that the partnership thus formed is liable Charity Sweepstakes, in his capacity as co-partner, as such
for the payment of income tax, whereas if there was merely a collection the prize, the office issued the check for P50,000 in
community of property, they are exempt from such payment; favor of Jose Gatchalian and company, and the said partner, in
and (2) whether they should pay the tax collectively or whether the same capacity, collected the said check. All these
the latter should be prorated among them and paid individually. circumstances repel the idea that the plaintiffs organized and
formed a community of property only.
The Collector of Internal Revenue collected the tax under
section 10 of Act No. 2833, as last amended by section 2 of Act Having organized and constituted a partnership of a civil
No. 3761, reading as follows: nature, the said entity is the one bound to pay the income tax
which the defendant collected under the aforesaid section 10
(a) of Act No. 2833, as amended by section 2 of Act No. 3761.
SEC. 10. (a) There shall be levied, assessed, collected,
There is no merit in plaintiff's contention that the tax should be
and paid annually upon the total net income received
prorated among them and paid individually, resulting in their
in the preceding calendar year from all sources by
exemption from the tax.
every corporation, joint-stock company, partnership,
joint account (cuenta en participacion), association or
insurance company, organized in the Philippine
In view of the foregoing, the appealed decision is affirmed,
with the costs of this instance to the plaintiffs appellants. So

Avancea, C.J., Villa-Real, Diaz, Laurel, Concepcion and

Moran, JJ., concur.
G.R. No. L-27933 December 24, 1968 makes the lot on which it stands subject to Article 158
of the Civil Code and on the point of view of equity
DIVERSIFIED CREDIT CORPORATION, plaintiff- that the wife of the defendant Felipe Rosado received
appellee, an aliquot share of P2,400.00 only from the share and
vs. if the house were demolished the defendant would
FELIPE ROSADO and LUZ JAYME suffer damage in the amount of P8,000.00;
ROSADO, defendants-appellants.
6. That the portion of the lot on which the house
Montalvo and Bernabe for plaintiff-appellee. stands, would earn a monthly rental of P50.00;
Pedro D. Delfin for defendants-appellants.
7. That Felipe Rosado, husband of Luz Jayme, did not
REYES, J.B.L.: give his conformity to the Deed of Sale, Exh. "A".

This appeal from a decision of the Court of First Instance of 8. That on October 31, 1964, the defendant Felipe
Bacolod City, Negros Occidental (Civ. Case No. 7516 of that Rosado requested the plaintiff in the letter, Exh. "C"
Court) was certified to us by the Court of Appeals (Second for the plaintiff, for a period of six (6) months within
Division) because the same involves no questions of fact. which to vacate the premises.

The case had its origin in the Municipal Court of Bacolod City, 9. That the letter was not answered by the plaintiff and
when the Diversified Credit Corporation filed an action to they did not accept the offer, and on November 25,
compel the spouses Felipe Rosado and Luz Jayme Rosado to 1964, they filed a complaint before the Municipal
vacate and restore possession of a parcel of land in the City of Court which proves that plaintiff neglected the offer;
Bacolod (Lot 62-B of Subdivision plan LRC-Psd-33823) that
forms part of Lot No. 62 of the Bacolod Cadastre, and is The Court of First Instance in its decision rejected the claim of
covered by Transfer Certificate of Title No. 27083 in the name ownership advanced by Rosado, based upon the construction of
of plaintiff. After answer, claiming that the lot was defendants' a house on the disputed lot by the conjugal partnership of the
conjugal property, the Municipal Court ordered defendants to Rosado spouses, which allegedly converted the land into
surrender and vacate the land in litigation; to pay P100.00 a conjugal property under Article 158, paragraph 2 of the present
month from the filing of the complaint up to the actual vacating Civil Code of the Philippines; further held that defendants were
of the premises; to pay P500.00 attorneys' fees and costs. Upon in estoppel to claim title in view of the letter Exhibit C
appeal to the Court of First Instance, the case was submitted on requesting for six (6) months within which to vacate the
the following stipulation of facts (Rec. on App., pp. 59-60): premises, and affirmed the decision of the Inferior Court.
Defendant Felipe Rosado resorted to the Court of Appeals, and
1. That Lot No. 62-B of Bacolod Cadastre belong to his appeal (CA-G.R. No. 37398-R) is the one now before us.
the thirteen co-owners, including the wife of the He assigns four alleged errors:
defendant herein, who owns 1/13th part pro-indiviso;
(a) The lower court erred in not holding that Exhibit
2. That on May 11, 1964, Luz Jayme Rosado, wife of "A" is null and void, since upon the construction of
the defendant Felipe Rosado, signed a Deed of Sale the conjugal dwelling thereon, the conjugal
together with the co-owners of the property to the partnership of the defendant-appellant Felipe Rosado
plaintiff as shown by Exh. "A" for the plaintiff; and Luz Jayme became the owner of the share of Luz
Jayme in Lot No. 62-B, Bacolod Cadastre;
3. That on the lot in question the defendant Felipe
Rosado had built a house sometime in 1957 without (b) The trial court erred in ordering the defendant-
the whole property having been previously partitioned appellant to vacate Lot No. 62-B and in not holding
among the thirteen (13) co-owners; that Exhibit "A" is null and void because as the legal
usufructuary of the share of Luz Jayme Rosado in Lot
4. That the title of the property has already been 62-B, Bacolod Cadastre, the conjugal partnership,
managed and administered by the defendant-appellant
transferred to the plaintiff upon registration of the
Felipe Rosado can not be deprived of its usufructuary
Deed of Sale in June, 1964, with the Office of the
rights by any contract between Luz Jayme and the
Register of Deeds;
5. That demand was made by the plaintiff upon the
(c) The trial court erred in not holding that the
defendant Felipe Rosado and his wife Luz Jayme
defendant-appellant should be reimbursed the value of
Rosado on October 19, 1964, but until now the
the conjugal house constructed on Lot 62-B; and
defendant Felipe Rosado has refused to vacate the
premises or to remove his house thereon as shown by
Exh. "B" for the plaintiff, on the grounds as he alleged (d) The lower court erred in ordering the defendant-
in his answer that he had built on the lot in question a appellant to pay attorneys' fees in the amount of five
conjugal house worth P8,000.00 which necessarily hundred (P500.00) pesos.
It can be seen that the key question is whether by the result of the construction must be rejected for lack of factual or
construction of a house on the lot owned in common by the legal basis.
Jaymes, and sold by them to the appellant corporation, the land
in question or a 1/13th part of it became conjugal property. It is the logical consequence of the foregoing ruling that the
lower court did not err in holding that the appellant was bound
Appellant, husband of vendor Luz Jayme, claims the to vacate the land without reimbursement, since he knew that
affirmative invoking the second paragraph of Article 158 of the the land occupied by the house did not belong exclusively to
Civil Code of the Philippines, prescribing that: his wife, but to the other owners as well, and there is no proof
on record that the house occupied only 1/13 of the total area.
ART. 158. Improvements, whether for utility or The construction was not done in good faith.
adornment, made on the separate property of the
spouses through advancements from the partnership or WHEREFORE, the judgment of the Court of First Instance is
through the industry of either the husband or the wife, affirmed. Costs against appellant Felipe Rosado.
belong to the conjugal partnership.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez,
Buildings constructed, at the expense of the Castro, Fernando and Capistrano, JJ., concur.
partnership, during the marriage on land belonging to
one of the spouses, also pertain to the partnership, but
the value of the land shall be reimbursed to the spouse
who owns the same.

Rosado further contends that as the building of the house at the

expense of the conjugal partnership converted the 1/13
undivided share on his wife in Lot 62-B into property of the
community, the deed of sale of May 11, 1964 in favor of the
appellee corporation was void in so far as said 1/13 share is
concerned, because his wife, Luz Jayme, had ceased to own
such share from and after the building of the house; and
Rosado, as manager of the conjugal partnership, had not
participated in the sale, nor subsequently ratified the same.

We find appellant's thesis legally untenable. For it is a basic

principle in the law of co-ownership, both under the present
Civil Code as in the Code of 1889, that no individual co-owner
can claim title to any definite portion of the land or thing
owned in common until the partition thereof. Prior to that time,
all that the co-owner has is an ideal, or abstract, quota or
proportionate share in the entire thing owned in common by all
the co-owners. The principle is emphasized by the rulings of
this Court. In Lopez vs. Ilustre, 5 Phil. 567, it was held that
while a co-owner has the right to freely sell and dispose of his
undivided interest, he has no right to sell a divided part of the
real estate owned in common. "If he is the owner of an
undivided half of a tract of land, he has the right to sell and
convey an undivided half, but he has no right to divide the lot
into two parts, and convey the whole of one part by metes and
bounds." The doctrine was reiterated in Mercado vs. Liwanag,
L-14429, June 20, 1962, holding that a co-owner may not
convey a physical portion of the land owned in common. And
in Santos vs. Buenconsejo, L-20136, June 23, 1965, it was
ruled that a co-owner may not even adjudicate to himself any
determinate portion of land owned in common.

Since the share of the wife, Luz Jayme, was at no time

physically determined, it cannot be validly claimed that the
house constructed by her husband was built on land belonging
to her, and Article 158 of the Civil Code can not apply.
Certainly, on her 1/13 ideal or abstract undivided share, no
house could be erected. Necessarily, the claim of conversion of
the wife's share from paraphernal to conjugal in character as a
[G.R. No. 98328. October 9, 1997] After the NLTDRA was notified that the case is [sic] initially
set for hearing on December 7, 1987, the Acting Chief, Docket
Division of the NLRDRA [sic] submitted another report
recommending that petitioner be ordered to refer to the Bureau
JUAN C. CARVAJAL, petitioner, vs. COURT OF of Lands for corrections of the discrepancy existing in the
APPEALS and SOLID HOMES, directional bearing and area of Lot 6846-D, Csd-04-005516-
INC., respondents. D. The technical descriptions as corrected by the Bureau of
Lands was [sic] submitted and the application was initially set
DECISION for hearing on April 26, 1988. The Notice of Initial Hearing
stating that the application was set forbe [sic] heard on April
PANGANIBAN, J.: 26, 1988 was thereafter issued by the NLTDRA.

Is there denial of due process if an applicant for land On June 1, 1988, an order of general default was issued by
registration is unable to testify? May a land registration court, respondent Court. Exempted from the order was one Annie
after it is convinced that the property subject of an application Jimenez who filed an opposition to the application. On June 22,
for registration under the torrens system is already covered by 1988, private respondent Solid Homes, Inc. filed its opposition
an existing certificate, dismiss such application and thus ignore stating that a land registered in its name under the Torrens
petitioners insistence on submitting further evidence of his System and covered by then TCT No. N-7873 is almost
alleged title? What constitutes sufficient evidence to show identical to the property subject of the application by
identity of the land applied for with the land already titled in petitioner. The opposition was not admitted considering that no
favor of private respondent? motion to set aside the order of general default was filed by
private respondent.

The Case On June 28, 1988, private respondent filed a motion to lift the
order of general default and to admit its opposition on the
ground that its right would be adversely affected by the
These are the main questions raised in this petition for application. Acting on the motion and in order to avoid
review assailing the November 29, 1990 Decision[1] of the duplicity, the NLTDRA was directed to make the plotting of
Court of Appeals[2] in CA-G.R. SP No. 18318, the dispositive the relative position of the property covered by LRC Psd-
portion of which reads: 245998 and embraced in TCT No. N-7873 and to submit its
plotting to the Court for its guidance. In the same order dated
July 1, 1988, respondent Court in the interest of justice set
WHEREFORE, in view of the foregoing, let this petition be, as
it is hereby DISMISSED.[3] aside the order of general default in so far as private respondent
was concerned and admitted private respondents opposition.
This petition also impugns the April 25, 1991 Court of Appeals
Resolution[4] which denied reconsideration. On January 10, 1989, petitioner filed a motion praying that the
opposition of private respondent be dismissed for the reason
that the order issued by respondent court directing the
NLRTDA [sic] to make a plotting of the land in question on the
The Facts basis of the title submitted by the Registry of Deeds of
Marikina Branch Manila released the private respondent from
the duty and obligation of presenting evidence to prove that the
The facts found by public respondent are as follows:[5] land applied for is private and that there is apparent lack of
interest on the part of private respondent to pursue its claim on
Petitioner is the applicant in a land registration case filed with account of its non-appearance despite the lapse of more than
Branch 71, Regional Trial Court of the Fourth Judicial Region six months or to introduce evidence that will show that the land
stationed in Antipolo, Rizal. Sought to be brought by petitioner in question is covered by the alleged torrens certificate of title.
under the operation of the Land Registration Act (Act No. 496)
is a 96,470 square meter lot denominated as Lots 6846-A, During the hearings conducted on September 13, 1988,
6846-B, 6846-C and 6846-D. Copies of the application were September 27, 1988, October 4, 1988, October 11, 1988,
ordered by respondent Court to be furnished (to) the National October 18, 1988, November 22, 1988, December 6, 1988,
Land Titles and Deeds Registration Administration (NLTDRA) petitioner presented his evidence on the question as to whether
which on March 18, 1987 submitted a report recommending or not he had a registrable right over the land in question.
that applicant be order[ed] to amend his petition by including
the names and complete postal addresses of the adjoining Pursuant to the court order dated July 1, 1988 directing the
owners and correcting the discrepancy regarding the boundary NLTDRA to make the plotting of the relative position of the
lot number along line 2-3 of Lot 6846-D on plan Csd-04- property covered by LRC Psd-245998 and embraced in TCT
005516-D. On order of respondent Court [trial court], the No. N-7873, the Land Registration Authority submitted a
petition was accordingly amended. report dated December 22, 1986 [should be 1988]
recommending that, after due hearing, the application for
registration of petitioner be dismissed. The application was
thus dismissed by respondent court in an order dated January 2, evidence in the (proceeding) for Land Registration and (to) rest
1989. Considering, however, that the recommendation is [sic] (his) case;
for dismissal after due hearing, respondent judge issued an
order dated January 10, 1989 setting for hearing on January 24, 3. Whether the decision of the Honorable Court of Appeals is
1989 the Report submitted by the Land Registration reversible.
Authority. The hearing proceeded on February 8, 1989 with
Engr. Silverio G. Perez, Chief, Department on Registration,
Petitioner alleges that the table survey made by the
Land Registration Authority being presented in connection Land Registration Authority and the geodetic engineer of the
with his Report recommending the dismissal of the application Land Management Bureau cannot serve as basis for
after due hearing. On February 28, 1989, the petitioner's
identifying his land. On the other hand, petitioner was able to
application for registration was dismissed.
establish the identity of the land he applied for by actual
ground survey which was approved by the Director of Lands
On March 13, 1989, petitioner filed his motion to reconsider and reprocessed by the Land Registration Authority. He
the February 28, 1989 dismissal of the application for claims that if said land is covered by private respondents title,
registration to which private respondent filed an opposition the Director of Lands and/or Regional Director will no(t)
dated March 20, 1989. The motion for reconsideration was approve the survey. Petitioner also argues that the land in
denied in an order dated March 4, 1989. question is situated in Mambogan, Antipolo, Rizal while that
of private respondent is in Mayamot, Antipolo, Rizal. Survey
On May 2, 1989 petitioner filed a second motion to reconsider Plan FP-1540, which served as basis of private respondents
the dismissal of his petition. On May 8, 1989, respondent judge certificate of title, cannot be found; hence, according to
issued an order requiring the parties as well as the engineers petitioner, the table survey was anomalous. Petitioner adds
from the Land Registration Commission and the DENR to that the matter entirely wanting in this case (is) the identity or
appear before respondent Court on June 5, 1989. The engineer similarity of the realties.[7] Petitioner concludes that the trial
from the Land Registration Commission was likewise directed court should have ordered actual ocular inspection and
to inform the court whether the property applied for by ground verification survey of the properties involved.
petitioner is indeed inside the titled property of private
respondent. Petitioner further maintains that he was denied due
process when he, as an applicant in a land registration case,
was not able to take the witness stand. According to
After the Land Registration Authority submitted a report petitioner, even his counsel hardly participated in the
showing that there was indeed an overlapping of the four (4) proceeding except to propound clarificatory questions during
parcels of land applied for by petitioner and the properties of the examination of Engineer Silverio Perez of the Land
Solid Homes under TCT 7873 and considering that the Registration Authority.[8]
properties applied for are [sic] within the titled property and
could not be the subject of an application for registration, the Public respondent justified its dismissal of the appeal
second motion to reconsider the dismissal of the application for in this wise:[9]
registration was denied in an order dated July 5, 1989.
Land already decreed and registered in an ordinary registration
As earlier stated, the Court of Appeals affirmed the proceeding cannot again be subject of adjudication or
dismissal of the application for registration, and denied the settlement in a subsequent conducted proceeding (Land Titles
subsequent motion for reconsideration. Hence, this recourse to and Deeds by Noblejas, 1968 Revised Edition, page 96). The
this Court via Rule 45 of the Rules of Court. Report submitted by the Land Registration Authority (Annex
B) and the Survey Division of the DENR (Annex RR) both
indicate an overlapping of the lot applied for by petitioner and
the lot covered by TCT N-7873 owned by private respondent
The Issues
Solid Homes, Inc. Even if petitioner were allowed to continue
with the presentation of his evidence, the end result would still
Petitioner submits the following issues:[6] be the dismissal of his application for registration. Respondent
Judge was therefore justified in cutting short the proceeding as
the time to be spent in hearing petitioners application could be
1. Whether or not an actual ground verification survey is used disposing the other cases pending with respondent court.
required to establish the identity of the two parcels of land or
whether TCT No. 7873 under Plan FP-1540 of Solid Homes
Inc., situated in Barangay Mayamot, Antipolo, Rizal is Anent the allegation that private respondent Solid Homes did
identical or similar to Lots 6846-A to 6846-D inclusive Cad. not actively participate in the trials conducted to hear his
585, Lungsod Silangan, Cadastre, situated in Mambogan, evidence, suffice it to state that it is counsels prerogative to
Antipolo, Rizal applied for under LRC Case No. 414 (-A), determine how he intends to pursue his case.
LRC Record No. N-60084;

2. Whether or not the petitioner was given (the) chance and the The Court's Ruling
opportunity to be heard or allowed to fully introduce his

The petition has no merit.

First Issue: Identity of the Property Applied For absolute or fee simple title over the property sought to be
registered necessarily requires a resolution of the question as to
whether or not the oppositors had a dominical right totally
We are not persuaded that the land petitioner applied for adverse to that of the applicants. x x x
was not identical to private respondents land which was already
covered by a torrens certificate of title. The two reports Based on the reports submitted, the land registration court
prepared by the Land Registration Authority and the DENR correctly dismissed the application for original land
Survey Division clearly showed that there was an overlapping registration. An application for registration of an already titled
between the two properties. Because the futility of petitioners land constitutes a collateral attack on the existing title. It
application was apparent, the trial court deemed it unnecessary behooves a land registration court to determine the veracity of
to hear further evidence. We agree. any and all adverse claims, bearing in mind Section 46 of Act
At the outset, we stress that there was nothing irregular in No. 496 which provides that (n)o title to registered land in
the order given by the trial court to the Land Registration derogation to that of the registered owner shall be acquired by
Authority and the Survey Division of the DENR to submit prescription or adverse possession. The trial courts order to the
reports on the location of the land covered by petitioners LRA and DENR was a mere cautionary measure in cognizance
application and private respondents certificate of title. The of the well-settled rule that a torrens title cannot be collaterally
authority of the land registration court to require the filing of attacked. In other words, the title may be challenged only in a
additional papers to aid it in its determination of the propriety proceeding for that purpose, not in an application for
of the application was based on Section 21 of PD 1529: [10] registration of a land already registered in the name of another
person. After one year from its registration, the title is
incontrovertible and is no longer open to review. The remedy
SEC. 21. Requirement of additional facts and papers; ocular
of the landowner, whose property has been wrongfully or
inspection. -- The court may require facts to be stated in the
erroneously registered in anothers name, is to institute an
application in addition to those prescribed by this Decree not
ordinary action for reconveyance or -- if the property has
inconsistent therewith and may require the filing of any
passed into the hands of an innocent purchaser for value -- for
additional papers. It may also conduct an ocular inspection, if
damages.[12] In view of the nature of a torrens title, a land
registration court has the duty to determine whether the
issuance of a new certificate alters a valid and existing
From the above provision, it is also clear that ocular certificate of title.
inspection of the property applied for was only discretionary,
not mandatory. Likewise, the land registration court was not Contrary to petitioners contention, the approval by the
obliged to order the survey of the contested lot, especially assistant chief of the Bureau of Lands Survey Division of the
when another government agency had already submitted a survey conducted on the land applied for by petitioner did not
report finding that the contested lot was identical with that prove that the said land was not covered by any title. It merely
described in private respondents certificate of title and showed that such land has been surveyed and its boundaries
recommending the dismissal of the application for registration. have been determined.
Further, the order of the land registration court for the Also noteworthy is the finding of public respondent
LRA and DENR to submit reports was in accordance with the that "the same order (issued by the land registration court)
purposes of the Land Registration Law: [11] [which set] aside the order (of) general default insofar as
private respondent Solid Homes, Inc. was concerned, directed
The purposes of the land registration law, in general, are: to the NLTDRA to make the plotting of the relative position of
ascertain once and for all the absolute title over a given landed the property covered by LRC Psd-245998 and [that which
property; to make, so far as it is possible, a certificate of title was] embraced in TCT No. N-7873.[13] The intention of the
issued by the court to the owner of the land absolute proof of land registration court was to avoid duplicity,[14] that is, to
such title; to quiet title to the land and to put a stop forever to rule out the possibility that the land he sought to register was
any question of legality to a title; and to decree that land title to already covered by a certificate of title. In this case, the land
be final, irrevocable and, undisputable. (citing Benen vs. he applied for was found to be within the land described in
Tuason, L-26127, June 28, 1974, 57 SCRA 531.) private respondents transfer certificate of title.
Petitioner also alleges that the land he applied for was
It is true that a court of first instance acting as a land located in Barangay Mambogan, while the registered land of
registration court has limited and special jurisdiction. It can not private respondent was in Barangay Mayamot. In his reply
be denied, however, that when the law confers jurisdiction filed with public respondent, however, he himself admitted
upon a court, the latter is deemed to have all the necessary that Barangay Mambogan is a part of Barangay Mayamot
powers to exercise such jurisdiction to make it [which is] a bigger barrio in Antipolo, Rizal, and Mayamot
effective. (citing Marcelino vs. Antonio, 70 Phil. 388, 391.) The covers a big parcel of land running from Antipolo up to
purpose of the applicant is to prove that he has an absolute or Marikina.[15] In view of petitioners declaration, it was not
simple title over the property sought to be registered, otherwise impossible for the land owned by private respondent to be
his application will be denied. An absolute oppositor claims a located in Barangay Mayamot and in Barangay
dominical right totally adverse to that of the applicant. If Mambogan. At any rate, whether the two lands are located in
successful, registration will be decreed in favor of the Mambogan or Mayamot or both is a factual question, and its
oppositor. As to whether or not private respondents have resolution by the trial and the appellate courts is binding on
this Court. Petitioner failed to provide a reason, let alone an the absence of fraud, is the evidence of title and shows exactly
adequate one, to justify the reversal of such finding of the the real interest of its owner. The title once registered, with
lower courts. very few exceptions, should not thereafter be impugned,
altered, changed, modified, enlarged, or diminished, except in
Petitioner also argues that the plotting made by NLTDRA some direct proceeding permitted by law. Otherwise all
was anomalous because Survey Plan FP-1540, on which security in registered titles would be lost. A registered title can
private respondents title was based, could not be located. This not be altered, modified, enlarged, or diminished in
argument lacks merit. The law does not require resorting to a a collateral proceeding and not even by a direct proceeding,
survey plan to prove the true boundaries of a land covered by a after the lapse of the period prescribed by law.
valid certificate of title; the title itself is the conclusive proof of
the realtys metes and bounds. Section 47 of the Land
Registration Act, or Act No. 496, provides that (t)he original All in all, the land registration court did not err in relying
certificates in the registration book, any copy thereof duly on the certificate of title instead of the survey plan; likewise,
certified under the signature of the clerk, or of the register of the appellate court did not commit any reversible error in
deeds of the province or city where the land is situated, and the affirming the trial courts decision.
seal of the court, and also the owners duplicate certificate, shall
be received as evidence in all the courts of the Philippine
Islands and shall be conclusive as to all matters contained Second Issue: Denial of Due Process
therein except so far as otherwise provided in this Act. It has
been held that a certificate of title is conclusive evidence with
respect to the ownership of the land described therein and other Petitioner claims that he was denied due process because
matters which can be litigated and decided in land registration he was unable to take the witness stand. We disagree. The
proceedings.[16]Thus, this Court in Odsigue vs. Court of essence of due process is the opportunity to be heard. It is the
Appeals[17] ruled: denial of this opportunity that is repugnant to due process. [19] In
this case, petitioner was afforded an opportunity to present
x x x. Petitioner contends that private respondents have not witnesses, and he did present three. However, petitioner did not
identified the property sought to be recovered as required by invoke his right to take the witness stand even when the trial
Art. 434 of the Civil Code. He alleges that Sitio Aduas, where court ordered the submission of the parties memoranda which
the land in question is located, is at the boundary of Barangay signified the termination of the proceedings. Because he
May-Iba, Teresa, Rizal, and Barangay Lagundi, Morong, acquiesced to the termination of the case, he forfeited his right
Rizal. On the other hand, petitioner maintains, the parcel of to take the witness stand.
land he is occupying is located in Barangay May-Iba. He Likewise, we are not persuaded by his allegation that his
claims that the technical description in the title does not own counsel hardly participated in the proceedings. The
sufficiently identify the property of private respondent and that records show that said counsel did cross-examine Engineer
a geodetic survey to determine which of his improvements Silverio Perez by propounding clarificatory questions to the
should be demolished should first have been conducted by the latter. In any event, the client is generally bound by the acts of
private respondent. x x x. his counsel. Petitioner has not shown at all that his previous
counsel had acted in such grossly negligent manner as to
But private respondents title (OCT No. 4050) indicates that the deprive him of effective representation, or of due process. [20]
property is located in Barangay Lagundi. Likewise, the
certification issued by the Municipal Agrarian Reform Officer In support of his contention, petitioner cites Tirona vs.
at Morong, Rizal stated that petitioner was occupying a Naawa[21] which held:
landholding at Barangay Lagundi.
We hold the view, however that respondent Judge erred when
For our purposes, a survey is not necessary. A certificate of he ordered the dismissal of the registration case over the
title is conclusive evidence not only of ownership of the land objection of the oppositors; and when he refused to reconsider
referred but also its location. The subject of these proceedings the order of dismissal and reinstate the case he had neglected to
is the land covered by OCT No. 4050. Accordingly, petitioners perform an act which the law enjoins as a duty resulting from
required to demolish only whatever is constructed within its an office, and had thereby deprived the oppositors of a right to
boundaries. (Underscoring supplied.) which they are entitled.

The old case of Legarda and Prieto vs. Such ruling finds no application to the present case,
Saleeby[18] explains the nature of a torrens certificate of title, as because neither Respondent Mariano Raymundo (the applicant
follows: in the land registration case) nor Petitioner Constantino Tirona
(the oppositor in the cited case) was a holder of any certificate
x x x. The registration, under the torrens system, does not give of title over the land intended for registration. Such being the
the owner any better title than he had. If he does not already case, the land registration court was ordered to act in
have a perfect title, he can not have it registered. Fee simple accordance with Section 37 of Act No. 496[22] either by
titles only may be registered. The certificate of registration dismissing the application if none of the litigants succeeded in
accumulates in one document a precise and correct statement of showing a proper title, or by entering a decree awarding the
the exact status of the fee held by its owner. The certificate, in land applied for to the person entitled thereto.
WHEREFORE, premises considered, the petition is
hereby DENIED and the assailed Decision and Resolution
are AFFIRMED. Costs against petitioner.
Narvasa, C.J., (Chairman), Romero,
Melo, and Francisco, JJ., concur.
G.R. No. L-4656 November 18, 1912
Santa Lucia; valued at

RICARDO PARDELL Y CRUZ and 6. Three parcels of land in the pueblo of

VICENTA ORTIZ Y FELIN DE PARDELL, plaintiffs- Candon; valued at
vs. Total 7,896.00
That, on or about the first months of the year 1888, the
BARTOLOME, defendants-appellants.
defendants, without judicial authorization, nor friendly or
extrajudicial agreement, took upon themselves the
Gaspar de Bartolome, in his own behalf. administration and enjoyment of the said properties and
B. Gimenez Zoboli, for appellees. 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,
TORRES, J.: together with one-half of the fruits and rents collected
therefrom, the said defendant and her husband, the self-styled
This is an appeal by bill of exceptions, from the judgment of administrator of the properties mentioned, had been delaying
October 5, 1907, whereby the Honorable Dionisio Chanco, the partition and delivery of the said properties by means of
judge, absolved the defendants from the complaint, and the unkept promises and other excuses; and that the plaintiffs, on
plaintiff from a counterclaim, without special finding as to account of the extraordinary delay in the delivery of one-half of
costs. 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
Counsel for the spouses Ricardo y Cruz and Vicente Ortiz y sentencing the defendants, Gaspar de Bartolome, and Matilde
Felin de Pardell, the first of whom, absent in Spain by reason of Ortiz Felin de Bartolome, to restore and deliver to the plaintiffs
his employment, conferred upon the second sufficient and one-half of the total value in cash, according to appraisal, of the
ample powers to appear before the courts of justice, on June 8, undivided property specified, which one-half amounted
1905, in his written complaint, alleged that the plaintiff, approximately to P3,948, or if deemed proper, to recognize the
Vicente Ortiz, and the defendant, Matilde Ortiz, are the duly plaintiff Vicenta Ortiz to be vested with the full and absolute
recognized natural daughters of the spouses Miguel Ortiz and right of ownership to the said undivided one-half of the
Calixta Felin y Paula who died in Vigan, Ilocos Sur, in 1875 properties in question, as universal testamentary heir thereof
and 1882, respectively; that Calixta Felin, prior to her death, together with the defendant Matilde Ortiz, to indemnify the
executed on August 17, 1876, a nuncupative will in Vigan plaintiffs in the sum of P8,000, for losses and damages, and to
whereby she made her four children, named Manuel, Francisca, pay the costs.
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 Counsel for the defendants, in his answer denied the facts
few years after her death, leaving no heirs by force of law, and alleged in paragraphs 1, 4, 6, 7, and 8 thereof, inasmuch as,
therefore the only existing heirs of the said testatrix are the upon the death of the litigating sister's brother Manuel, their
plaintiff Vicenta Ortiz and the defendant Matilde Ortiz; that, mother, who was still living, was his heir by force of law, and
aside from some personal property and jewelry already divided the defendants had never refused to give to the plaintiff Vicente
among the heirs, the testatrix possessed, at the time of the Ortiz her share of the said properties; and stated that he
execution of her will, and left at her death the real properties admitted the facts alleged in paragraph 2, provided it be
which, with their respective cash values, are as follows: 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
1. A house of strong material, with the lot the complaint, with the difference that the said surname should
on which it is built, situated on Escolta P6,000.00 be Felin, and likewise paragraph 5, except the part thereof
Street, Vigan, and valued at relating to the personal property and the jewelry, since the
latter had not yet been divided; that the said jewelry was in the
2. A house of mixed material, with the lot possession of the plaintiffs and consisted of: one Lozada gold
on which it stands, at No. 88 Washington 1,500.00 chronometer watch with a chain in the form of a bridle curb
Street, Vigan; valued at and a watch charm consisting of the engraving of a postage
stamp on a stone mounted in gold and bearing the initials M.
3. A lot on Magallanes Street, Vigan; O., a pair of cuff buttons made of gold coins, four small gold
valued at buttons, two finger rings, another with the initials M. O., and a
4. A parcel of rice land, situated in the gold bracelet; and that the defendants were willing to deliver to
60.00 the plaintiffs, in conformity with their petitions, one-half of the
barrio of San Julian, Vigan; valued at
total value in cash, according to appraisement, of the undivided
5. A parcel of rice land in the pueblo of 86.00
real properties specified in paragraph 5, which half amounted fifth line of paragraph 5, the phrase "in cash in accordance with
to P3,948. the assessed value," and likewise further to amend the same, in
paragraph 6 thereof, by substituting the following word in lieu
In a special defense said counsel alleged that the defendants of the petition for the remedy sought: "By reason of all the
had never refused to divide the said property and had in fact foregoing, I beg the court to be pleased to render the judgment
several years before solicited the partition of the same; that, by sentencing the defendants, Gaspar de Bartolome and
from 1886 to 1901, inclusive, there was collected from the Matilde Ortiz Felin de Bartolome, to restore and deliver to the
property on Calle Escolta the sum of 288 pesos, besides a few plaintiffs an exact one-half of the total vale of the undivided
other small amounts derived from other sources, which were properties described in the complaint, such value to be
delivered to the plaintiffs with other larger amounts, in 1891, ascertained by the expert appraisal of two competent persons,
and from the property on Calle Washington, called La Quinta, one of whom shall be appointed by the plaintiffs and the other
990.95 pesos, which proceeds, added together, made a total of by the defendants, and, in case of disagreement between these
1,278.95 pesos, saving error or omission; that, between the two appointees such value shall be determined by a third expert
years abovementioned, Escolta, and that on Calle appraiser appointed by the court, or, in a proper case, by the
Washington, La Quinta, 376.33, which made a total of price offered at public auction; or, in lieu thereof, it is
1,141.71, saving error or omission; that, in 1897, the work of requested that the court recognize the plaintiff, Vicenta Ortiz,
reconstruction was begun of the house on Calle Escolta, which to be vested with a full and absolute right to an undivided one-
been destroyed by an earthquake, which work was not finished half of the said properties; furthermore, it is prayed that the
until 1903 and required an expenditure on the part of the plaintiffs be awarded an indemnity of P8,000 for losses and
defendant Matilde Ortiz, of 5,091.52 pesos; that all the damages, and the costs." Notwithstanding the opposition of the
collections made up to August 1, 1905, including the rent from defendants, the said amendment was admitted by the court and
the stores, amounted to only P3,654.15, and the expenses, to counsel for the defendants were allowed to a period of three
P6,252.32, there being, consequently, a balance of P2,598.17, days within which to present a new answer. An exception was
which divided between the sisters, the plaintiff and the taken to this ruling.
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 The proper proceedings were had with reference to the
defendant Bartolome presented to the plaintiffs a statement in valuation of the properties concerned in the division sought and
settlements of accounts, and delivered to the person duly incidental issues were raised relative to the partition of some of
authorized by the latter for the purpose, the sum of P2,606.29, them and their award to one or the other of the parties. Due
which the said settlement showed was owing his principals, consideration was taken of the averments and statements of
from various sources; that, the defendant Bartolome having both parties who agreed between themselves, before the court,
been the administrator of the undivided property claimed by the that any of them might at any time acquire, at the valuation
plaintiffs, the latter were owing the former legal remuneration fixed by the expert judicial appraiser, any of the properties in
of the percentage allowed by law for administration; and that question, there being none in existence excluded by the
the defendants were willing to pay the sum of P3,948, one-half litigants. The court, therefore, by order of December 28, 1905,
of the total value of the said properties, deducting therefrom the ruled that the plaintiffs were entitled to acquire, at the valuation
amount found to be owing them by the plaintiffs, and asked determined by the said expert appraiser, the building known
that judgment be rendered in their favor to enable them to as La Quinta, the lot on which it stands and the warehouses and
recover from the latter that amount, together with the costs and other improvements comprised within the inclosed land, and
expenses of the suit. the seeds lands situated in the pueblos of Vigan and Santa
Lucia; and that the defendants were likewise entitled to acquire
The defendants, in their counter claim, repeated each and all of the house on Calle Escolta, the lot on Calle Magallanes, and the
the allegations contained in each of the paragraphs of section three parcels of land situated in the pueblo of Candon.
10 of their answer; that the plaintiffs were obliged to pay to the
administrator of the said property the remuneration allowed After this partition had been made counsel for the defendants,
him by law; that, as the revenues collected by the defendants by a writing of March 8, 1906, set forth: That, having
amounted to no more than P3,654.15 and the expenditures petitioned for the appraisement of the properties in question for
incurred by them, to P6,252.32, it followed that the plaintiffs the purpose of their partition, it was not to be understood that
owed the defendants P1,299.08, that is one-half of the he desired from the exception duly entered to the ruling made
difference between the amount collected from and that in the matter of the amendment to the complaint; that the
extended on the properties, and asked that judgment be properties retained by the defendants were valued at P9,310,
therefore rendered in their behalf to enable them to collect this and those retained by the plaintiffs, at P2,885, one-half of
sum from the plaintiffs, Ricardo Pardell and Vicenta Ortiz, which amounts each party had to deliver to the other, as they
with legal interest thereon from December 7, 1904, the date were pro indiviso properties; that, therefore, the defendants had
when the accounts were rendered, together with the sums to to pay the plaintiffs the sum of P3,212.50, after deducting the
which the defendant Bartolome was entitled for the amount which the plaintiffs were obliged to deliver to the
administration of the undivided properties in question. defendants, as one-half of the price of the properties retained
by the former; that, notwithstanding that the amount of the
By a written motion of August 21, 1905, counsel for the counterclaim for the expenses incurred in the reconstruction of
plaintiffs requested permission to amend the complaint by the pro indiviso property should be deducted from the sum
inserting immediately after the words "or respective appraisal," 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 By this finding absolving the defendants from the complaint,
instrument of purchase and sale, the sum of P3,212.50, which and which was acquiesced in by the plaintiffs who made no
was one-half of the value of the properties alloted to the appeal therefrom, the first issue has been decided which was
defendants; such delivery, however, was not to be understood raised by the plaintiffs, concerning the indemnity for losses and
as a renouncement of the said counterclaim, but only as a damages, wherein are comprised the rents which should have
means for the final termination of the pro indiviso status of the been obtained from the upper story of the said house during the
property. time it was occupied by the defendants, Matilde Ortiz and her
husband, Gaspar de Bartolome.
The case having been heard, the court on October 5, 1907,
rendered judgment holding that the revenues and the expenses Notwithstanding the acquiescence on the part of the plaintiffs,
were compensated by the residence enjoyed by the defendant assenting to the said finding whereby the defendants were
party, that no losses or damages were either caused or suffered, absolved from the complaint, yet, as such absolution is based
nor likewise any other expense besides those aforementioned, on the compensation established in the judgment of the trial
and absolved the defendants from the complaint and the court, between the amounts which each party is entitled to
plaintiffs from the counterclaim, with no special finding as to claim from the other, it is imperative to determine whether the
costs. An exception was taken to this judgment by counsel for defendant Matilde Ortiz, as coowner of the house on Calle
the defendants who moved for a new trial on the grounds that Escolta, was entitled, with her husband, to reside therein,
the evidence presented did not warrant the judgment rendered without paying to her coowner, Vicenta Ortiz, who, during the
and that the latter was contrary to law. This motion was denied, greater part of the time, lived with her husband abroad, one-
exception whereto was taken by said counsel, who filed the half of the rents which the upper story would have produced,
proper bill of exceptions, and the same was approved and had it been rented to a stranger.
forwarded to the clerk of this court, with a transcript of the
evidence. Article 394 of the Civil Code prescribes:

Both of the litigating sisters assented to a partition by halves of Each coowner may use the things owned in common,
the property left in her will by their mother at her death; in fact, provided he uses them in accordance with their object
during the course of this suit, proceedings were had, in and in such manner as not to injure the interests of the
accordance with the agreement made, for the division between community nor prevent the coowners from utilizing
them of the said hereditary property of common ownership, them according to their rights.
which division was recognized and approved in the findings of
the trial court, as shown by the judgment appealed from.
Matilde Ortiz and her husband occupied the upper story,
designed for use as a dwelling, in the house of joint ownership;
The issues raised by the parties, aside from said division made but the record shows no proof that, by so doing, the said
during the trial, and which have been submitted to this court for Matilde occasioned any detriment to the interest of the
decision, concern: (1) The indemnity claimed for losses and community property, nor that she prevented her sister Vicenta
damages, which the plaintiffs allege amount to P8,000, in from utilizing the said upper story according to her rights. It is
addition to the rents which should have been derived from the to be noted that the stores of the lower floor were rented and
house on Calle Escolta, Vigan; (2) the payment by the plaintiffs accounting of the rents was duly made to the plaintiffs.
to the defendants of the sum of P1,299.08, demanded by way of
counterclaim, together with legal interest thereon from Each coowner of realty held pro indiviso exercises his rights
December 7, 1904; (3) the payment to the husband of the over the whole property and may use and enjoy the same with
defendant Matilde Ortiz, of a percentage claimed to be due him
no other limitation than that he shall not injure the interests of
as the administrator of the property of common ownership; (4)
his coowners, for the reason that, until a division be made, the
the division of certain jewelry in the possession of the plaintiff
respective part of each holder can not be determined and every
Vicenta Ortiz; and (5) the petition that the amendment be held
one of the coowners exercises, together with his other
to have been improperly admitted, which was made by the coparticipants, joint ownership over the pro indiviso property,
plaintiffs in their written motion of August 21, 1905, against
in addition to his use and enjoyment of the same.
the opposition of the defendants, through which admission the
latter were obliged to pay the former P910.50.lawphil.net
As the hereditary properties of the joint ownership of the two
sisters, Vicenta Ortiz, plaintiff, and Matilde Ortiz, defendant,
Before entering upon an explanation of the propriety or were situated in the Province of Ilocos Sur, and were in the
impropriety of the claims made by both parties, it is
care of the last named, assisted by her husband, while the
indispensable to state that the trial judge, in absolving the
plaintiff Vicenta with her husband was residing outside of the
defendants from the complaint, held that they had not caused
said province the greater part of the time between 1885 and
losses and damages to the plaintiffs, and that the revenues and
1905, when she left these Islands for Spain, it is not at all
the expenses were compensated, in view of the fact that the strange that delays and difficulties should have attended the
defendants had been living for several years in the Calle efforts made to collect the rents and proceeds from the property
Escolta house, which was pro indiviso property of joint
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 was in a ruinous state, should pay the defendants one-half of
properties of joint tenancy for purposes of their preservation the amount expanded in the said repair work, since the building
and improvement, these latter are not obliged to pay to the after reconstruction was worth P9,000, according to expert
plaintiff Vicenta one-half of the rents which might have been appraisal. Consequently, the counterclaim made by the
derived from the upper of the story of the said house on Calle defendants for the payment to them of the sum of P1,299.08, is
Escolta, and, much less, because one of the living rooms and a proper demand, though from this sum a reduction must be
the storeroom thereof were used for the storage of some made of P384, the amount of one-half of the rents which should
belongings and effects of common ownership between the have been collected for the use of the quarters occupied by the
litigants. The defendant Matilde, therefore, in occupying with justice of the peace, the payment of which is incumbent upon
her husband the upper floor of the said house, did not injure the the husband of the defendant Matilde, as aforesaid, and the
interests of her coowner, her sister Vicenta, nor did she prevent balance remaining, P915.08, is the amount which the plaintiff
the latter from living therein, but merely exercised a legitimate Vicenta must pay to the defendants.
right pertaining to her as coowner of the property.
The defendants claim to be entitled to the collection of legal
Notwithstanding the above statements relative to the joint- interest on the amount of the counterclaim, from December 7,
ownership rights which entitled the defendants to live in the 1904. This contention can not be sustained, inasmuch as, until
upper story of the said house, yet in view of the fact that the this suit is finally decided, it could not be known whether the
record shows it to have been proved that the defendant plaintiffs would or would not be obliged to pay the sum
Matilde's husband, Gaspar de Bartolome, occupied for four whatever in reimbursement of expenses incurred by the
years a room or a part of the lower floor of the same house on plaintiffs in the repair work on the said house on Calle Escolta,
Calle Escolta, using it as an office for the justice of the peace, a whether or not the defendants, in turn, were entitled to collect
position which he held in the capital of that province, strict any such amount, and, finally, what the net sum would be
justice, requires that he pay his sister-in-law, the plaintiff, one which the plaintiff's might have to pay as reimbursement for
half of the monthly rent which the said quarters could have one-half of the expenditure made by the defendants. Until final
produced, had they been leased to another person. The amount disposal of the case, no such net sum can be determined, nor
of such monthly rental is fixed at P16 in accordance with the until then can the debtor be deemed to be in arrears. In order
evidence shown in the record. This conclusion as to that there be an obligation to pay legal interest in connection
Bartolome's liability results from the fact that, even as the with a matter at issue between the parties, it must be declared
husband of the defendant coowner of the property, he had no in a judicial decision from what date the interest will be due on
right to occupy and use gratuitously the said part of the lower the principal concerned in the suit. This rule has been
floor of the house in question, where he lived with his wife, to established by the decisions of the supreme court of Spain, in
the detriment of the plaintiff Vicenta who did not receive one- reference to articles 1108, 1109, and 1110 of the Civil Code,
half of the rent which those quarters could and should have reference on April 24, 1867, November 19, 1869, and February
produced, had they been occupied by a stranger, in the same 22, 1901.
manner that rent was obtained from the rooms on the lower
floor that were used as stores. Therefore, the defendant With regard to the percentage, as remuneration claimed by the
Bartolome must pay to the plaintiff Vicenta P384, that is, one- husband of the defendant Matilde for his administration of the
half of P768, the total amount of the rents which should have property of common ownership, inasmuch as no stipulation
been obtained during four years from the quarters occupied as whatever was made in the matter by and between him and his
an office by the justice of the peace of Vigan. sister-in-law, the said defendant, the claimant is not entitled to
the payment of any remuneration whatsoever. Of his own
With respect to the second question submitted for decision to accord and as an officious manager, he administered the
this court, relative to the payment of the sum demanded as a said pro indiviso property, one-half of which belonged to his
counterclaim, it was admitted and proved in the present case wife who held it in joint tenancy, with his sister-in-law, and the
that, as a result of a serious earthquake on August 15, 1897, the law does not allow him any compensation as such voluntary
said house on Calle Escolta was left in ruins and uninhabitable, administrator. He is merely entitled to a reimbursement for
and that, for its reconstruction or repair, the defendants had to such actual and necessary expenditures as he may have made
expend the sum of P6,252.32. This expenditure, on the undivided properties and an indemnity for the damages
notwithstanding that it was impugned, during the trial, by the he may have suffered while acting in that capacity, since at all
plaintiffs, was duly proved by the evidence presented by the events it was his duty to care for and preserve the said property,
defendants. Evidence, unsuccessfully rebutted, was also half of which belonged to his wife; and in exchange for the
introduced which proved that the rents produced by all the rural trouble occasioned him by the administration of his sister-in-
and urban properties of common ownership amounted, up to law's half of the said property, he with his wife resided in the
August 1, 1905, to the sum of P3,654.15 which, being applied upper story of the house aforementioned, without payment of
toward the cost of the repair work on the said house, leaves a one-half of the rents said quarters might have produced had
balance of P2,598.17, the amount actually advanced by the they been leased to another person.
defendants, for the rents collected by them were not sufficient
for the termination of all the work undertaken on the said With respect to the division of certain jewelry, petitioned for by
building, necessary for its complete repair and to replace it in a the defendants and appellants only in their brief in this appeal,
habitable condition. It is therefore lawful and just that the the record of the proceedings in the lower court does not show
plaintiff Vicenta Ortiz, who was willing to sell to her sister that the allegation made by the plaintiff Vicenta is not true, to
Matilde for P1,500, her share in the house in question, when it
the effect that the deceased mother of the litigant sisters defendant Matilde Ortiz is not entitled to any remuneration for
disposed of this jewelry during her lifetime, because, had she the administration of the pro indiviso property belonging to
not done so, the will made by the said deceased would have both parties; (4) that, neither is he entitled to collect from the
been exhibited in which the said jewelry would have been plaintiffs the sum of P910.50, the difference between the
mentioned, at least it would have been proved that the articles assessed valuation and the price set by the expert appraisal
in question came into the possession of the plaintiff Vicenta solicited by the plaintiffs in their amendment to the complaint;
without the expressed desire and the consent of the deceased and, (5) that no participation shall be made of jewelry
mother of the said sisters, for the gift of this jewelry was aforementioned now in the possession of the plaintiff Vicenta
previously assailed in the courts, without success; therefore, Ortiz. The said judgment, as relates to the points appealed, is
and in view of its inconsiderable value, there is no reason for affirmed, in so far as its findings agree with those of this
holding that the said gift was not made. decision, and is reversed, in so far as they do not. No special
finding is made regarding the costs of both instances. So
As regards the collection of the sum of P910.50, which is the ordered.
difference between the assessed value of the undivided real
properties and the price of the same as determined by the Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur.
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
G.R. No. L-32047 November 1, 1930 administratrix of the property of her deceased husband, could
not lawfully and legally execute a contract of lease with the
MANUEL MELENCIO, MARIANO MELENCIO, PURA conditions and terms similar to that of the one under
MELENCIO, and CARIDAD MELENCIO, plaintiffs- consideration, and that from this it follows that she could not
appellants, ratify the said lease as claimed by the defendant.
DY TIAO LAY, defendant-appellee. On January 21,1928, Liberata Macapagal Viuda de Melencio,
duly appointed and qualified as administratrix of the estate of
Jose V. Valladolid, Jose P. Melencio and Camus and Delgado her deceased husband, Ramon Melencio, filed a petition
for appellants. praying to be allowed to join the plaintiffs as party to the
Araneta and Zaragoza for appellee. 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
OSTRAND, J.: verbal contract of lease for a term from month to month. To
this complaint of intervention, the defendant-appellee filed an
On August 1,1927, the plaintiffs, Manuel, Mariano, Pura and answer reproducing the allegations contained in his answer
Caridad Melencio, brought the present action against the reproducing the allegations contained in his answer to the
defendant-appellee, Dy Tiao Lay for the recovery of the complaint of the original plaintiffs and setting up prescription
possession of a parcel of land situated in the town of as a further special defense.
Cabanatuan, Nueva Ecija, and containing an area of 4,628.25
square meters. The plaintiffs further demand a monthly rental It appears from the evidence that the land in question was
of P300 for the use and occupation of the parcel from May, originally owned by one Julian Melencio. He died prior to the
1926, until the date of the surrender to them of the possession year 1905 leaving his widow, Ruperta Garcia, and his five
thereof; and that if it is found that the said appellee was children, Juliana, Ramon, Ruperta, Pedro R., and Emilio
occupying the said parcel of land by virtue of a contract of Melencio. Emilio Melencio also died before 1905, his son Jose
lease, such contract should be declared null and void for lack of P. Melencio, then a minor, succeeding to his interest in the said
consent, concurrence, and ratification by the owners thereof. parcel of land by representation. A question has been raised as
to whether the land was community property of the marriage of
In his answer, the defendant pleaded the general issue, and as Julian Melencio and Ruperta Garcia, but the evidence is
special defenses, he alleged in substance that he was occupying practically undisputed that Ruperta Garcia in reality held
the said tract of land by virtue of a contract of lease executed nothing but a widow's usufruct in the land.
on July 24,1905, in favor of his predecessor in interest, by
Ruperta Garcia, Pedro Melencio, Juliana Melencio, and On July 24,1905, Ruperta Garcia, Pedro R. Melencio, Juliana
Ruperta Melencio under the terms specified therein, and which Melencio, and Ruperta Melencio executed a contract of lease of
contract is still in force; that Liberata Macapagal, the mother of the land in favor of one Yap Kui Chin, but neither Jose P.
the plaintiffs, in her capacity as judicial administratrix of the Melencio nor Ramon Melencio were mentioned in the lease.
estate of Ramon Melencio, one of the original coowners of the The term of the lease was for twenty years, extendible for a like
parcel of land in question, actually recognized and ratified the period at the option of the lessee. The purpose of the lessee was
existence and validity of the contract aforesaid by virtue of the to establish a rice mill on the land, with the necessary buildings
execution of a public document by her on or about November for warehouses and for quarters for the employees, and it was
27,1920, and by collecting from the assignees of the original further stipulated that at the termination of the original period
lessee the monthly rent for the premises until April 30, 1926; of the lease, or the extension therof, the lessors might purchase
and that said defendant deposits with the clerk of court the sum all the buildings and improvements on the land at a price to be
of P20.20 every month as rent thereof and that as a fixed by experts appointed by the parties, but that if the lessors
counterclaim, he seeks the recovery of P272 for goods and should fail to take advantage of that privilege, the lease would
money delivered by him to the plaintiffs. continue for another and further period of twenty years. The
document was duly acknowledged but was never recorded with
The plaintiffs filed a reply to the answer alleging, among other the register of deeds. The original rent agreed upon was P25
things, that Ruperta Garcia was not one of the coowners of the per month, but by reason of the construction of a street through
land in question; that the person who signed the alleged the land, the monthly rent was reduced of P20.20.
contract of lease never represented themselves as being the sole
and exclusive owners of the land subject to the lease as alleged Shortly after the execution of the lease, the lessee took
by the defendant in his answer; that the said contract of lease of possession of the parcel in question and erected the mill as well
July 24,1905, is null and void for being executed without the as the necessary buildings, and it appears that in matters
intervention and consent of two coowners, Ramon Melencio pertaining to the lease, he dealt with Pedro R. Melencio, who
and Jose P. Melencio, and without the marital consent of the from 1905 until his death in 1920, acted as manager of the
husbands of Juliana and Ruperta Melencio; that the lessee has property held in common by the heirs of Julian Melencio and
repeatedly violated the terms and conditions of the said Ruperta Garcia. The original lessee, Yap Kui Chin, died in
contract; and that Liberata Macapagal, in her capacity as
1912, and the lease, as well as the other property, was consent of the others, make any alterations in the common
transferred to Uy Eng Jui who again transferred it to Uy Eng property even though such alterations might be advantageous to
Jui & Co., an unregistered partnership. Finally the lease came all." We do not think that the alterations are of sufficient
into the hands of Dy Tiao Lay, the herein defendant-appellee. importance to nullify the lease, especially so since none of the
coowners objected to such alterations until over twenty years
Ramon Melencio died in 1914, and his widow, Liberata after the execution of the contract of lease. The decision of this
Macapagal, was appointed administratrix of his estate. In 1913 court in the case of Enriquez vs. A. S. Watson and Co. (22
the land which includes the parcel in question was registered Phil., 623), contains a full discussion of the effect of alterations
under the Torrens system. The lease was not mentioned in the of leased community property, and no further discussion upon
certificate of title, but it was stated that one house and three the point need here be considered.
warehouses on the land were the property of Yap Kui Chin.
The second proposition is likewise of little merit. Under the
In 1920 the heirs of Julian Melencio made an extrajudicial circumstances, the provision in the contract that the lessee, at
partition of parts of the inheritance, and among other things, the any time before he erected any building on the land, might
land here in question fell to the share of the children of Ramon rescind the lease, can hardly be regarded as a violation of
Melencio, who are the original plaintiffs in the present case. article 1256 of the Civil Code.
Their mother, Liberata Macapagal, as administratrix of the
estate of her deceased husband, Ramon, collected the rent for The third and fourth proposition are, in our opinion,
the lease at the rate of P20.20 per month until the month of determinative of the controversy. The court below based its
May,1926, when she demanded of the lessee that the rent decision principally on the case of Enriquez vs. A.S. Watson &
should be increased to P300 per month, and she was then Co. (22 Phil., 623), and on the resolution of the Direccion
informed by the defendant that a written lease existed and that General de los Registros dated April 26,1907. (Jurisprudencia
according to the terms thereof, the defendant was entitled to an Civil, vol.107, p. 222.) An examination of the Enriquez case
extension of the lease at the original rental. The plaintiffs will show that it differs materially from the present. In that case
insisted that they never had any knowledge of the existence of all of the coowners of a lot and building executed a contract of
such a contract of lease and maintained that in such case the lease of the property for the term of eighteen years in favor of
lease was executed without their consent and was void. It may A. S. Watson & Co.; one of the owners was minor, but he was
be noted that upon careful search, a copy of the contract of represented by his legally appointed guardian, and the action of
lease was found among the papers of the deceased Pedro R, the latter in signing the lease on behalf of the minor was
Melencio. Thereafter the present action was brought to set formally approved by the Court of First Instance. In the present
aside the lease and to recover possession of the land. Upon case only a small majority of the coowners executed the lease
trial, the court below rendered judgment in favor of the here in question, and according to the terms of the contract the
defendant declaring the lease valid and ordering the plaintiffs lease might be given a duration of sixty years; that is widely
to pay the P272 demanded by the defendant in his different from a lease granted by all of the coowners for a term
counterclaim. From this judgment the plaintiffs appealed. of only eighteen years.

The contention of the appellants is that the aforesaid contract of The resolution of April 26,1907, is more in point. It relates to
lease (Exhibit C) is null and void for the following reasons: the inscription or registration of a contract of lease of some
pasture grounds. The majority of the coowners of the property
1. That Exhibit C calls for an alteration of the property executed the lease for the term of twelve years but when the
in question and therefore ought to have been signed by lessees presented the lease for inscription in the registry of
all the coowners as by law required in the premises. 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.
2. That the validity and fulfillment of the said
The Direccion General de los Registros held that the contract
agreement of lease were made to depend upon the will
of the lessee exclusively. of lease for a period exceeding six years, constitutes a real right
subject to registry and that the lease in question was valid.
3. That the said contract of lease being for a term of
The conclusions reached by the Direccion General led to
over six years, the same is null and void pursuant to
the provision of article 1548 of the Civil Code. 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
4. That the duration of the same is unreasonably long, (translation):
thus being against public policy.
The joint owners of 511 out of 1,000 parts of the
5. That the defendant-appellee and his predecessors in realty denominated El Mortero, leased out the whole
interest repeatedly violated the provisions of the property for twelve years to Doa Josefa de la Rosa;
agreement. whereupon the Count and Countess Trespalacios
together with other coowners brought this suit to annul
The first proposition is based on article 397 of the Civil Code the lease and, in view of the fact that the land was
which provides that "none of the owners shall, without the indivisible, prayed for its sale by public auction and
the distribution of the price so obtained; they alleged such cases it must of necessity be recognized that the
that they neither took part nor consented to the lease; part owners representing the greater portion of the
that the decision of the majority of part owners property held in common have no power to lease said
referred to in article 398 of the Code, implies a property for a longer period than six years without the
common deliberation on the step to be taken , for to do consent of all the coowners, whose propriety rights,
without it, would, even more than to do without the expressly recognized by the law, would by contracts
minority, be nothing less than plunder; and that, even of long duration be restricted or annulled; and as
if this deliberation were not absolutely necessary, the under article 1548 of the Civil Code such contracts
power of the majority would still be confined to cannot be entered into by the husband with respect to
decisions touching the management and enjoyment of his wife's property, by the parent or guardian with
the common property, and would not include acts of respect to that of the child or ward, and by the
ownership, such as a lease for twelve years, which manager in default of special power, since the contract
according to the Mortgage Law gives rise to a real of lease only produces personal obligations, and
right, which must be recorded, and which can be cannot without the consent of all persons interested or
performed only by the owners of the property leased. express authority from the owner, be extended to
include stipulations which may alter its character,
The part owners who had executed the contract prayed changing it into a contract of partial alienation of the
in reconvention that it held valid for all the owners in property leased;
common, and if this could not be, then for all those
who had signed it, and for the rest, for the period of Considering that, applying this doctrine to the case
six years; and the Audiencia of Caceres having before us, one of the grounds upon which the
rendered judgment holding the contract null and void, judgment appealed from, denying the validity of the
and ordering the sale of the realty and the distribution lease made by the majority of the part owners of the
of the price, the defendants appealed alleging under pasture land El Mortero is based, must be upheld; to
the third and fourth assignments of error, that the wit, that the period of duration is twelve years and the
judgment was a violation of article 398 of the Civil consent of all the coowners has not been obtained;
Code, which is absolute and sets no limit of time for hence, the third, fourth. and fifth assignments of error
the efficacy of the decisions arrived at by the majority are without merit; firstly, because article 398 of the
of the part owners for the enjoyment of the common Civil Code, alleged to have been violated, refers to
property, citing the decisions of June 30th, 1897, of acts decided upon by the majority of the part owners,
July 8th,1902, and of October 30th, 1907; under the touching the management and enjoyment of the
fifth assignments of error the appellants contended common property, and does not contradict what we
that in including joint owners among those referred to have stated in the foregoing paragraph; secondly
in said article, which sets certain limits to the power of because although the cases cited were such as arose
leasing, in the course of the management of another's upon leases for more than six years, yet this point was
property, the court applied article 1548 unduly; and by not raised on appeal, and could not therefore be passed
the seventh assignments of error, they maintained the upon; and thirdly, because it cannot be denied that
judgment appealed from also violated article 1727, there is an analogy between a manager without special
providing that the principal is not bound where his authority, who is forbidden by article 1548 of the
agent has acted beyond his authority; whence it may Code to give a lease for a period of over six years, and
be inferred that if in order to hold the contract null and the joint owners constituting a legal majority, who
void, the majority of the part owners are looked upon may decide to lease out the indivisible property, with
as managers or agents exercising limited powers, it respect to the shares of the other coowners; and
must at least be conceded that in so far as the act in having come to the conclusion that the contract is null
question lies within the scope of their powers, it is and void, there is no need to discuss the first two
valid; the contract cannot be annulled in toto. assignments of error which refer to another of the
bases adopted, however erroneously, by the trial court;
The Supreme Court held that the appeal from the decision of
the Audiencia of Caceres was not well taken and expressed the Considering that the sixth assignment of error is
following consideranda: without merit, inasmuch as the joint ownership of
property is not a sort of agency and cannot be
Considering that, although as a rule the contract of governed by the provisions relating to the latter
lease constitutes an act of management, as this court contract; whence, article 1727 of the Code alleged to
has several times held, cases may yet arise, either have been violated, can no more be applied, than, the
owing to the nature of the subject matter, or to the question of the validity or nullity of the lease being
period of duration, which may render it imperative to raise, upon the contract as celebrated, it would be
record the contract in the registry of property, in allowable to modify a posteriorisome one or other of
pursuance of the Mortgage Law, where the contract of the main conditions stipulated, like that regarding the
lease may give rise to a real right in favor of the duration of the lease, for this would amount to a
lessee, and it would then constitute such a sundering novation; still less allowable would it be to authorize
of the ownership as transcends mere management; in diverse periods for the different persons unequally
interested in the fulfillment.
Taking into consideration articles 398,1548, and 1713 of the Although the name of Ramon Melencio, father of the plaintiffs
Civil Code and following the aforesaid decision of June in this action, was not in fact signed to the lease in question,
1,1909, we hold that the contract of lease here in question is and the lease did not even so much as mentioned him as one of
null and void. the coowners, the undersigned are nevertheless of the opinion
that Ramon Melencio, and his children after him, are estopped
It has been suggested that by reason of prescription and by from questioning said lease, for the reason that, from 1905 to
acceptance of benefits under the lease, the plaintiffs are the time of his death in 1914, Ramon Melencio enjoyed the
estopped to question the authority for making the lease.To this benefits of the lease, as did his widow and children after him
we may answer that the burden of proof of prescription until May,1926, when the widow repudiated the lease, as a
devolved upon the defendant and that as far as we can find, preliminary to the bringing of this action by the plaintiffs. By
there is no proof that Ramon Melencio and his successors ever their acceptance of the benefits of the lease over so long a
had knowledge of the existence of the lease in question prior to period, the persons now questioning the lease and their father,
1926. We cannot by mere suspicion conclude that they were their predecessor in interest, are estopped to question the
informed of the existence of the document and its terms; it authority for making the lease. This estopped cures the want of
must be remembered that under a strict interpretation of the the special power contemplated in article 1548 of the Civil
terms of the lease, the lessees could remain indefinitely in their Code.
tenancy unless the lessors could purchase the mill and the
buildings on the land. In such circumstances, better evidence In addition to the estopped arising from the acceptance of
than that presented by the defendant in regard to the plaintiff's benefits under the lease, an estoppel further arises from the fact
knowledge of the lease must be required. that Ramon Melecio, during the years following the execution
of the lease, stood by and saw the lessees place upon the
The fact that Ramon during his lifetime received his share of property improvements of a value of more than P100,000, for
the products of land owned in common with his coheirs is not which reason, also, equity will not permit the lease to be
sufficient proof of knowledge of the existence of the contract of disturbed to the prejudice of the lessee.
lease when it is considered that the land in question was only a
small portion of a large tract which Pedro R. Melencio was To exhibit the foregoing proposition fully, it is necessary to
administering in connection with other community property. understand the facts relative to the controversy. These are
substantially as follows:
The appealed judgment as to the validity of the lease is
therefore reversed, and it is ordered that the possession of the The land covered by the original lease, having an area of some
land in controversy be delivered to the intervenor Liberata 6,000 square meters, is located in the town of Cabanatuan and
Macapagal in her capacity as administratrix of the estate of the was formerly the property of one Julian Melencio, married to
deceased Ramon Melencio. It is further ordered that the Ruperta Garcia. After the death of Julian Melencio, his widow,
defendant pay to said administratrix a monthly rent of P50 for Ruperta Garcia, united in 1905, with three of their children,
the occupation of the land from May 1st, 1926, until the land is namely, Pedro R., Juliana, and Ruperta, in executing, in favor
delivered to the administratrix. The sum of P272 demanded by of Yap Kui Chin, as lessee, the lease which is the subject of
the defendant in his counterclaim may be deducted from the this controversy. The consideration mentioned in the lease was
total amount of the rent due and unpaid. The building erected the sum P25 per month. On August 2,1907, at the request of
on the land by the defendant and his predecessors in interest Pedro R. Melencio, another document was drawn changing the
may be removed by him, or otherwise disposed of, within six superficial configuration of the leased land but preserving its
months from the promulgation of this decision. Without costs. original extension of 6,000 square meters. This change was
So ordered. made for the purpose of giving Pedro R. Melencio space upon
which to construct a house on the part segragated from the
Avancea, C.J., , Malcolm, Johns, Romualdez, and Villa-Real, original mass. In 1915 a new street, passing through the leased
JJ., concur. property, was opened in Cabanatuan; and Pedro R. Melencio,
Jonhson, J., I reserve my vote. acting for the lessors, reduced the monthly rent from P25 to
P20, to correspond with the reduction in the area of the leased
land resulting from the occupation of part of it by the

At the time the lease was made there was living one Ramon
Melencio, son of Julian Melencio and Ruperta Garcia and
brother of the heirs who signed the lease. Also before this time
Separate Opinions
there had been another brother named Emilio Melencio. But
Emilio was dead and his only surviving son, Jose P. Melencio,
was a small boy then under the tutelage of his uncle Pedro R.
Melencio. The lease referred to is not and never has been
questioned by any of the persons, or descendants of the
STREET and VILLAMOR, JJ., dissenting: persons, who signed the instrument. Neither has it been
questioned by Jose P. Melecio, son of Emilio. Nor was the
lease questioned in life by Ramon Melencio, who died in 1914;
and the only persons raising a question as to its validity are four Civ., vol. 4. p. 502) Neither do we pause to argue that the
of the five children of Ramon, the same being the plaintiffs in contract might have been considered valid under the doctrine of
this case. this court stated in Eleizegui vs. Manila Lawn Tennis Club (2
Phil., 309). At any rate the lease did not purport to bind Ramon,
By series of changes, not, necessary to be here recounted, the and he was not even mentioned therein as one of the coowners.
rights of the original lessee became vested in the defendant, Dy
Tiao Lay. At the time of the institution of the present action the But it is to be noted that none of the parties signatory to the
defendant, Dy Tia lay, had a rice mill, consisting of valuable lease have at any time sought to abrogate the contract; and
buildings and improvements, constructed on the land, and some of the children of Ramon Melencio only are before the
valued, it is alleged, at P160,000; but during the time of the court as actors in this case seeking to set the contract aside.
pendency of this action a fire occurred which seems to have Under these circumstances the undersigned are of the opinion
destroyed the mill and improvements with the exception of that Ramon Melencio was at the time of his death bound by the
a camarin valued at some P15,000. lease, from his having participated for years in the benefits
derived from the contract, and that his children, who derive
In November, 1920, the children of Julian Melencio and their rights from him, are likewise bound.
Ruperta Garcia executed a partial extra-judicial partition of the
properties belonging to their father's estate; and the land It is well established that an estate in land may be virtually
covered by this lease was assigned to Liberata Macapagal, transferred from one man to another without a writing, by the
widow of Ramon Melencio, in right of her deceased husband failure of the owner to give notice of his title to the purchaser
Ramon and as representative of the children. It will be noted under circumstances where the omission to do so would
that the land encumbered by the lease was thus assigned operate as a fraud (Kirk vs. Hamilton, 102 U. S., 68,77; 26
precisely to the family of the deceased brother, Ramon Law. ed., 79). This doctrine is so universally accepted that a
Melencio, who at the same time was the sole living brother bare reference to general treatises on the subject of estopped is
whose name was not signed to the lease. necessary (10 R.C. L., p.694; 21 C. J., pp.1154, 1160, 1206,
1207, 1209); and the estoppel is as effective with respect to a
At the time the lease was executed, Pedro R. Melencio was in lease as it is with respect to a deed of absolute conveyance (21
fact the manager of the common ancestral estate belonging to C.J., 1213).
himself and his brothers and sisters; and he continued as such
until 1920. After the partition, or partial partition, of the In the case before us Ramon Melencio lived in the town where
fraternal estate in 1920, Liberata Macapagal Viuda de Ramon the land covered by this lease was located, and every time he
Melencio succeeded to the office of manager, or guardian, of went abroad he must have seen the valuable improvements
the estate of her children, at least with respect to the parcel now which the original lessee, or his successors in interest, were
in question. erecting and had erected upon part of the common ancestral
estate. But from the date the lease was executed until his death
It will be noted as an important fact that every dollar due as Ramon Melencio did nothing except to receive such portion of
rent from the leased land was paid by the lessee, from the time the rent as pertained to him. Under these circumstances, even if
when rent first became due, and these payments were made his brother Pedro R. Melencio had conveyed the property away
first to Pedro R. Melencio as manager of the common estate by deed of absolute alienation, Ramon would have been legally
pertaining to himself and his brothers and sisters, until 1920, bound. It is but natural that so long as he lived after the lease
when the rents began to be paid to Liberata Macapagal in the was made, no complaint was ever registered by him against its
right to herself and children. In April, 1926, Liberata ceased to validity.
collect the rent, and in May, thereafter, she refused to accept
payment of the monthly instalment of rent then due. For this And if Ramon Melencio was estoppel, of course his children
reason the defendant has been making a consignation of the are estopped, for their rights are of a purely derivative
corresponding rent for the benefit of the lessors in the office of character. In the case before us a period of more than twenty-
the provincial treasurer. No question is made that during the one years elapsed between the time the lease was made and the
life of Ramon Melencio he received his share of the monthly date when it was first called in question by the widow.
rental from the property in question; nor is there any question
that thereafter his widow and children received their share of But Manuel Melencio, the oldest of the heirs who are suing in
the same until the property was assigned in partition to Liberata this case, says that he did not know the terms of the lease until
Macapagal and her children, after which they received all of a short while before this action was instituted, when he called
the rent, until Liberata refused longer to accept it. upon the widow of his uncle Pedro and found a copy of the
lease after searching among his uncle's papers. It is not
The undersigned concur in the proposition that the lease signed surprising that this plaintiff, who was hardly more than a baby
in 1905 was not per se binding on Ramon Melencio, first, when the lease was made, should not have known about the
because he was not a party to that lease; and, secondly, because terms of the contract. But it was all the time safely kept among
the making of a lease for twenty years, extendible under certain the papers of his uncle Pedro, who, as already stated, was
circumstances for a second and third period of equal duration, manager of the common estate of the brothers and sisters.
was an act of rigorous alienation and not a mere act of Ramon Melencio is now dead and of course cannot speak as to
management and enjoyment such as is contemplated in article whether he knew the terms of the agreement. But he should be
398 of the Civil Code. (Sentencia, June 1,1909; Ruiz, Cod. presumed to have known its terms, because he was enjoying
benefits from month to month under it, and he had the means of
knowledge immediately at hand, namely by recourse to a
trusted brother in whose custody the contract was preserved. In
addition to this, we note that when partition was effected about
the year 1920 the fact that the property in question was subject
to a lease in favor of the defendant was noted in the document
by which the property was assigned to Liberata Macapagal and
her children. The suggestion that the terms of the lease were
unknown to the plaintiffs is of little weight and of no legal
merit. We note that the lease was never registered, but this fact
makes no difference in a lawsuit between the parties to the
lease, or their successors in interest.

We are of the opinion that the judgment should be affirmed.

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

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

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.
G.R. No. 101522 May 28, 1993 (represented by daughter Pinky Rose), and
MARIANO, MERCEDES SAN PEDRO, DIONISIA M. The loan being unpaid, the lot in dispute was
AQUINO, and JOSE N.T. AQUINO, petitioners, foreclosed by the mortgagee bank and in the
vs. foreclosure sale held on December 27, 1963,
HON. COURT OF APPEALS, (Sixteenth Division), the same was awarded to the mortgagee bank
GRACE GOSIENGFIAO, assisted by her husband as the highest bidder.
her husband AMADOR BITONA; FRANCISCO On February 7, 1964, third-party defendant
GOSIENGFIAO, JR., NORMA GOSIENGFIAO, and Amparo Gosiengfiao-Ibarra redeemed the
PINKY ROSE GUENO, respondents. property by paying the amount of P1,347.89
and the balance of P423.35 was paid on
The Baristers Law Office for petitioners. December 28, 1964 to the mortgagee bank.

Simeon T. Agustin for private respondents. On September 10, 1965, Antonia Gosiengfiao
on her behalf and that of her minor children
Emma, Lina, Norma together with Carlos and
Severino executed a "Deed of Assignment of
the Right of Redemption" in favor of Amparo
G. Ibarra appearing in the notarial register of
Pedro (Laggui) as Doc. No. 257, Page No. 6,
Book No. 8, Series of 1965.
Before Us is a petition foe review of the decision, dated May
13, 1991 of the Court of Appeals in CA-G.R. CV No. 13122,
On August 15, 1966, Amparo Gosiengfiao
entitled Grace Gosiengfiao, et al. v. Leonardo Mariano
sold the entire property to defendant
v. Amparo Gosiengfiao 1 raising as issue the distinction
Leonardo Mariano who subsequently
between Article 10882 and Article 16203 of the Civil Code.
established residence on the lot subject of this
controversy. It appears in the Deed of Sale
The Court of Appeals summarized the facts as follows: dated August 15, 1966 that Amparo, Antonia,
Carlos and Severino were signatories thereto.
It appears on record that the decedent
Francisco Gosiengfiao is the registered owner Sometime in 1982, plaintiff-appellant Grace
of a residential lot located at Ugac Sur, Gosiengfiao learned of the sale of said
Tuguegarao, Cagayan, particularly described property by the third-party defendants. She
as follows, to wit: went to the Barangay Captain and asked for a
confrontation with defendants Leonardo and
"The eastern portion of Lot Avelina Mariano to present her claim to said
1351, Tuguegarao property.
Cadastre, and after its
segregation now designated On November 27, 1982, no settlement having
as Lot 1351-A, Plan PSD- been reached by the parties, the Barangay
67391, with an area of captain issued a certificate to file action.
1,1346 square meters."
On December 8, 1982, defendant Leonardo
and covered by Transfer Certificate of Title Mariano sold the same property to his
No. T-2416 recorded in the Register of Deeds children Lazaro F. Mariano and Dionicia M.
of Cagayan. Aquino as evidenced by a Deed of Sale
notarized by Hilarion L. Aquino as Doc. No.
The lot in question was mortgaged by the 143, Page No. 19, Book No. V, Series of
decedent to the Rural Bank of Tuguegarao 1982.
(designated as Mortgagee bank, for brevity)
on several occasions before the last, being on On December 21, 1982, plaintiffs Grace
March 9, 1956 and 29, 1958. Gosiengfiao, et al. filed a complaint for
"recovery of possession and legal redemption
On August 15, 1958, Francisco Gosiengfiao with damages" against defendants Leonardo
died intestate survived by his heirs, namely: and Avelina Mariano. Plaintiffs alleged in
Third-Party Defendants: wife Antonia and their complaint that as co-heirs and co-
Children Amparo, Carlos, Severino and owners of the lot in question, they have the
herein plaintiffs-appellants Grace, Emma, right to recover their respective shares in the
Ester, Francisco, Jr., Norma, Lina
same, and property as they did not sell the In the case at bar, it is undisputed and
same, and the right of redemption with regard supported by records, that third-party
to the shares of other co-owners sold to the defendant Amparo G. Ibarra redeemed the
defendants. propety in dispute within the one year
redemption period. Her redemption of the
Defendants in their answer alleged that the property, even granting that the money used
plaintiffs has (sic) no cause of action against was from her own personal funds did not
them as the money used to redeem lot in make her the exclusive owner of the
question was solely from the personal funds mortgaged property owned in common but
of third-party defendant Amparo inured to the benefit of all co-owners. It
Gosiengfiao-Ibarra, who consequently would have been otherwise if third-party
became the sole owner of the said property defendant Amparo G. Ibarra purchased the
and thus validly sold the entire property to said property from the mortgagee bank
the defendants, and the fact that defendants (highest, bidder in the foreclosure sale) after
had already sold the said property to the the redemption period had already expired
children, Lazaro Mariano and Dionicia M. and after the mortgagee bank had
Aquino. Defendants further contend that even consolidated it title in which case there would
granting that the plaintiffs are co-owners with no longer be any co-ownership to speak of .6
the third-party defendants, their right of
redemption had already been barred by the The decision of the Court of Appeals is supported by a long
Statute of Limitations under Article 1144 of line of case law which states that a redemption by a co-owner
the Civil Code, if not by laches.4 within the period prescribed by law inures to the benefit of all
the other co-owners.7
After trial on the merits, the Regional Trial Court of Cagayan,
Branch I, rendered a decision dated September 16, 1986, The main argument of petitioners in the case at bar is that the
dismissing the complaint and stating that respondents have no Court of Appeals incorrectly applied Article 1620 of the Civil
right of ownership or possession over the lot in question. The Code, instead of Article 1088 of the same code which governs
trial court further said that when the subject property foreclosed legal redemption by co-heirs since the lot in question, which
and sold at public auction, the rights of the heirs were reduced forms part of the intestate estate of the late Francisco
to a mere right of redemption. And when Amparo G. Ibarra Gosiengfiao, was never the subject of partition or distribution
redeemed the lot from the Rural Bank on her own behalf and among the heirs, thus, private respondents and third-party
with her own money she became the sole owner of the defendants had not ceased to be co-heirs.
property. Respondents' having failed to redeem the property
from the bank or from Amparo G. Ibarra, lost whatever rights On that premise, petitioners further contend that the right of
the might have on the property.5 legal redemption was not timely exercised by the private
respondents, since Article 1088 prescribes that the same must
The Court of Appeals in its questioned decision reversed and be done within the period of one month from the time they
set aside the ruling of the trial court and declared herein were notified in writing of the sale by the vendor.
respondents as co-owners of the property in the question. The
Court of Appeals said: According to Tolentino, the fine distinction between Article
1088 and Article 1620 is that when the sale consists of an
The whole controversy in the case at bar interest in some particular property or properties of the
revolves on the question of "whether or not a inheritance, the right redemption that arises in favor of the
co-owner who redeems the whole property other co-heirs is that recognized in Article 1620. On the other
with her own personal funds becomes the hand, if the sale is the hereditary right itself, fully or in part, in
sole owner of said property and terminates the abstract sense, without specifying any particular object, the
the existing state of co-ownership." right recognized in Article 1088 exists.8

Admittedly, as the property in question was Petitioners allege that upon the facts and circumstances of the
mortgaged by the decedent, a co-ownership present case, respondents failed to exercise their right of legal
existed among the heirs during the period redemption during the period provided by law, citing as
given by law to redeem the foreclosed authority the case of Conejero, et al., v. Court of Appeals, et
property. Redemption of the whole property al.9 wherein the Court adopted the principle that the giving of a
by a co-owner does not vest in him sole copy of a deed is equivalent to the notice as required by law in
ownership over said property but will inure to legal redemption.
the benefit of all co-owners. In other words,
it will not end to the existing state of co- We do not dispute the principle laid down in the Conejero case.
ownership. Redemption is not a mode of However, the facts in the said case are not four square with the
terminating a co-ownership. facts of the present case. In Conejero, redemptioner Enrique
Conejero was shown and given a copy of the deed of sale of the
xxx xxx xxx subject property. The Court in that case stated that the
furnishing of a copy of the deed was equivalent to the giving of Q. Where did Don
a written notice required by law. 11 Mariano, Dr. Mariano and
you see each other?
The records of the present petition, however, show no written
notice of the sale being given whatsoever to private A. In the house of Brgy.
respondents. Although, petitioners allege that sometime on Captain Antonio Bassig.
October 31, 1982 private respondent, Grace Gosiengfiao was
given a copy of the questioned deed of sale and shown a copy Q. What transpired in the
of the document at the Office of the Barangay Captain house of the Brgy. Captain
sometime November 18, 1982, this was not supported by the when you saw each other
evidence presented. On the contrary, respondent, Grace there?
Gosiengfiao, in her testimony, declared as follows:
A. Brgy. Captain Bassig
Q. When you went back to informed my intention of
the residence of Atty. claiming the lot and I also
Pedro Laggui were you informed him about the
able to see him? Deed of Sale that was not
signed by me since it is
A. Yes, I did. mine it is already sold and I
was informed in writing
Q. When you saw him, about it. I am a legal heir
what did you tell? and I have also the right to
A. I asked him about the
Deed of Sale which Mrs. Q. And what was the reply
Aquino had told me and he of Don Mariano and Dr.
also showed me a Deed of Mariano to the information
Sale. I went over the Deed given to them by Brgy.
of Sale and I asked Atty. Captain Bassig regarding
Laggui about this and he your claim?
mentioned here about the
names of the legal heirs. I A. He insisted that the lot is
asked why my name is not already his because of the
included and I was never Deed of Sale. I asked for
informed in writing the exact copy so that I
because I would like to could show to him that I
claim and he told me to did not sign and he said he
better consult my own does not have a copy. 12
The above testimony was never refuted by Dr. Mariano who
Q. And did you go? was present before Brgy. Captain Bassig.

A. Yes, I did. The requirement of a written notice has long been settled as
early as in the case of Castillo v. Samonte,13 where this Court
Q. What kind of copy or quoted the ruling in Hernaez v. Hernaez, 32 Phil., 214, thus:
document is that?
Both the letter and spirit of the New Civil
A. It is a deed of sale Code argue against any attempt to widen the
signed by my mother, sister scope of the notice specified in Article 1088
Amparo and my brothers. by including therein any other kind of notice,
such as verbal or by registration. If the
Q. If shown to you the intention of the law had been to include
copy of the Deed of Sale verbal notice or any other means of
information as sufficient to give the effect of
will you be able to identify
this notice, then there would have been no
necessity or reasons to specify in Article
1088 of the New Civil Code that the said
A. Yes, sir.11 notice be made in writing for, under the old
law, a verbal notice or information was
Thereafter, Grace Gosiengfiao explicitly stated that she was sufficient. 14
never given a copy of the said Deed of Sale.
Moreover, petitioners themselves adopted in their argument such
respondents' allegation In their complaint that sometime on reconveyance. 18
October, 1982 they sought the redemption of the property from
spouses Leonardo Mariano and Avelina Tigue, by tendering the Premises considered, respondents have not lost their right to
repurchase money of P12,000.00, which the spouses redeem, for in the absence of a written notification of the sale
rejected.15 Consequently, private respondents exercised their by the vendors, the 30-day period has not even begun to run.
right of redemption at the first opportunity they have by
tendering the repurchase price to petitioners. The complaint WHEREFORE, the decision of the Court of Appeals is hereby
they filed, before the Barangay Captain and then to the AFFIRMED. Cost against petitioners.
Regional Trial Court was necessary to assert their rights. As we
learned in the case of Castillo, supra:
It would seem clear from the above that the
reimbursement to the purchaser within the Narvasa, C.J., Padilla and Nocon, JJ., concur.
period of one month from the notice in
writing is a requisite or condition precedent
to the exercise of the right of legal
redemption; the bringing of an action in court
is the remedy to enforce that right in case the
purchaser refuses the redemption. The first
must be done within the month-period; the
second within the prescriptive period
provided in the Statute of Limitation. 16

The ruling in Castillo v. Samonte; supra, was reiterated in the

case of Garcia v. Calaliman, where We also discussed the
reason for the requirement of the written notice. We said:

Consistent with aforesaid ruling, in the

interpretation of a related provision (Article
1623 of the New Civil Code) this Court had
stressed that written notice is indispensable,
actual knowledge of the sale acquired in
some other manners by the redemptioner,
notwithstanding. He or she is still entitled to
written notice, as exacted by the code to
remove all uncertainty as to the sale, its
terms and its validity, and to quiet and doubt
that the alienation is not definitive. The law
not having provided for any alternative, the
method of notifications remains exclusive,
though the Code does not prescribe any
particular form of written notice nor any
distinctive method written notification of
redemption (Conejero et al. v. Court of
Appeals et al., 16 SCRA 775 [1966];
Etcuban v. Court of Appeals, 148 SCRA 507
[1987]; Cabrera v. Villanueva, G.R. No.
75069, April 15, 1988).17 (Emphasis ours)

We likewise do not find merit in petitioners' position that

private respondents could not have validly effected redemption
due to their failure to consign in court the full redemption price
after tender thereof was rejected by the petitioners.
Consignation is not necessary, because the tender of payment
was not made to discharge an obligation, but to enforce or
exercise a right. It has been previously held that consignation is
not required to preserve the right of repurchase as a mere
tender of payment is enough on time as a basis for an action to
compel the vendee a retroto resell the property; no subsequent
consignation was necessary to entitle private respondents to
133 Phil. 55 her children in favor of defendant Elena Pajimula over the
remaining 2/3 portion of Lot No. 802, said portion is identified
as the western portion of Lot No. 802 which is bounded on the
REYES J. B. L., J.: north by Dc Guzman street, on the east by properties
of LeonardaEstoque, on the sought by the national mad and on
Direct appeal from an order of the Court of first instance of La the west by Lots Nos. 799 and 801, containing an area of 958
Union, in its Civil Case No. 1990, granting a motion to dismiss square meters.'
the complain for legal redemption by a co-owner
(retracto legal de comuneros) on account of failure to state a The appellant's stand is that the deed in her favor was
cause of action. inoperative to convey the southeastern third of Lot 802 of the
Rosario Cadastre notwithstanding the description in the deed
The basic facts and issues are stated in the decision appealed
itself, for the reason that the vendor being a mere co-owner,
from, follows:
had no right to sell any definite portion of the land held in
"Plaintiff based her complaint for legal redemption on a claim common but could only transmit her undivided share, since the
that she is a co-owner of lot No. 802, for having purchased 1/3 specific portion corresponding to the selling co-owner is not
portion thereof, containing an area of 640 square meters as known until partition takes place (Lopez vs. Ilustre, 5 Phil. 567;
evidenced by a deed of sale, Annex "A", which was executed Ramirez vs. Bautista 14Phil. 528). from this premise, the
on October 28, 1961 by Crispina Perez de Aquitania, one of the appellant argues that the sale in her favor, although describing
co-owners, in her favor. a definite area, should be construed as having conveyed only
the undivided 1/3 interest in Lot 802 owned at the time bythe
On the other hand, the defendant, who on December 30, 1959 vendor, Crispina Perez Vda. de Aquitania. Wherefore, when
acquired the other 2/3 portion of Lot No. 802 the next day said vendor acquired the 2/3 interest of her two
from Crispina Aquitaniaand her children, claimed that the other co-owners, Lot 802 became the common property
plaintiff bought the 1/3 southeastern portion, which is of appelant and Crispina Perez. Therefore, appellant argues,
definitely identified and, segregate hence there existed no co- when Crispina old the rest of the property
ownership at the time and after said plaintiff bought the to appellee Pajimula spouses, the former was selling an
aforesaid portion, upon which right of legal redemption can be undivided 2 /3 that appellant, as co-owner was entitled to
exercised or taken advantage of. redeem, pursuant to Article 1620 of the New Civil Code.

From the complaint, it would appear that Lot No. 802 of the "ART. 1620. A co-owner of a thing may exercise the right of
Cadastral survey of Rosario, covered by original certificate of redemption in case the shares of all the other co-owners or of
title No. RO-2720 (N.A.), was originally owned by the late arty of them, are sold to a third person. If the price of the
spouses Rosendo Perez and Fortunata Bernal, who were alienation is grossly excessive the redemptioner shall pay only
survived by her child namely, Crispin Perez, Lorenzo Perez a reasonable one.
and Ricardo Perez. Ricardo Perez is also now
dead. On October 28, 1951, Crispina P. Vda. deAquitania sold Should two or more co-owners desire to exercise the right of
her right and participation in Lot No. 802 consisting of 1/3 redemption, they may only do so in proportion to the share they
portion with an area of 640 square meters to may respectively have in the thing owned in common.
Leonora Estoque (Annex of the complaint). On October 29,
The lower court, upon motion of defendant, dismissed the
1951, Lorenzo Perez, Crispina Perez and Emilia P. Posadas,
complaint, holding that the deeds of sale show that the lot
widow of her deceased husband, Ricardo Perez, for herself and
acquired by plaintiff Estoque was different from that of the
in behalf of her minor children, Gumersendo, Raquel, Emilio a
defendants Pajimula; hence they never became co-owners, and
and Ricardo. Jr., executed a deed of extrajudicial settlement
the alleged right of legal redemption was not
wherein Lorenzo Perez, Emilia P. Posadas and her minor
proper. Estoque appealed.
children assigned all their right, interest and participation in lot
No. 802 to Crispina Perez (Annex B of the complaint). On We find no error in the order of dismissal, for the facts pleaded
December 30, 1959, Crispina Perez and her children, negate the claim that appellant Estoque ever became a co-
Rosita Aquitania Belmonte, Remedios Aquitania Misa, owner of appellee Pajimula.
Manuel Aquitania, Sergio Aquitania and Aurora Aquitania sold
to Elena Pajimula, the remaining 2/3 western portion of Lot (1) The deed of sale to Estoque (Annex A of the complaint)
No. 802 with an area of 958 square meters (Annex C of the clearly specifies the object sold as the southeastern third
complaint). portion of lot 802 of the Rosario Cadastre, with an area of 840
square meters, more or less. Granting that the
The action of the plaintiff is premised on the claim of co- seller, Crispina Perez Vda. de Aquitania could not have sold
ownership. From the deed of sale executed in favor of the this particular portion of the lot owned in common by her and
plaintiff, it can be seen that the 1/3 portion sold to plaintiff is her two brothers, Lorenzo and Ricardo Perez, by no means
definitely identified as the 1/3 portion located on the south- does it follow that she intended to sell to appellant Estoque her
eastern part of Lot No. 802 and specifically bounded on the 1/3 undivided interest in the lot aforementioned. There is
north by De Guzman Street, on the east by Posadas street, on nothing in the deed of sale to justify such inference. That the
the sought by Perez street, and on the west by remaining seller could have validly sold her one-third undivided interest
portion of the same lot, which contained an area of 640 square to appellant is no proof that she did choose to sell the
meters. And in the deed of sale executed by CrispinaPerez and same. Ab posse ad actu non vale illatio.
(2) While on the date of the sale to Estoque (Annex A) said
contract may have been ineffective, for lack of power in the
vendor to sell the spec portion described in the deed, the
transaction was validated and became fully effective when the
next day (October 29, 1951) the vendor, Crispina Perez,
acquired the entire interest of bar remaining co-owners (Annex
B) and there became the sole owner of Lot No. 802 of the
Rosario Cadastral survey (Llace, vs. Muoz, 12 Phil.
328). Article 1434 of the Civil Code of the Philippines clearly
prescribes that -
"When a person who is not the owner of a thing sells or
alienates and delivers it, and later the seller or grantor acquires
title thereto such title passes by operation of law to the buyer or

Pursuant to this rule, appellant Estoque became the actual

owner of southeastern third of lot 802 on October 29,
1951. Wherefore, she never acquired an undivided interest in
lot 802. And when eight years later Cris Perez sold to
the appellees Pajimula the western two-thirds of the same lot
appellant did not acquire a right to redeem the property thus
sold, since the respective portions were distinct and separate.
IN VIEW OF THE FOREGOING, the appealed order of
dismissal is affirmed. Costs against appellant Estoque.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz
Castro, Angeles, and Fernando, JJ., concur.
G.R. No. 75884 September 24, 1987 the defendant that she was processed the sum
of P300,000.00 by the JK Exports, Inc. which
JULITA GO ONG, FOR HERSELF AND AS JUDICIAL will also take charge of the interest of the
GUARDIAN OF STEVEN GO ONG, petitioners, loan.
THE HON. COURT OF APPEALS, ALLIED BANKING Concluding, the trial court ruled:
CITY, respondents. Absent (of) any evidence
that the property in
question is the capital of
the deceased husband
PARAS, J.: brought into the marriage,
said property should be
presumed as acquired
This is a petition for review on certiorari of the March 21, 1986
during the marriage and,
Decision * of the Court of Appeals in AC-G.R. CV No. 02635,
therefore, conjugal
"Julita Ong etc. vs. Allied Banking Corp. et al." affirming, with
modification, the January 5, 1984 Decision of the Regional
Trial Court of Quezon City in Civil Case No. Q-35230.
After the dissolution of the
marriage with the death of
The uncontroverted facts of this case, as found by the Court of
plaintiff's husband, the
Appeals, are as follows:
plaintiff acquired, by law,
her conjugal share, together
...: Two (2) parcels of land in Quezon City with the hereditary rights
Identified as Lot No. 12, Block 407, Psd thereon. (Margate vs.
37326 with an area of 1960.6 sq. m. and Lot Rabacal, L-14302, April
No. 1, Psd 15021, with an area of 3,660.8 sq. 30, 1963). Consequently,
m. are covered by Transfer Certificate of the mortgage constituted on
Title No. 188705 in the name of "Alfredo said property, upon express
Ong Bio Hong married to Julita Go Ong authority of plaintiff,
"(Exh. D). Alfredo Ong Bio Hong died on notwithstanding the lack of
January 18, 1975 and Julita Go Ong was judicial approval, is valid,
appointed administratrix of her husband's with respect to her conjugal
estate in Civil Case No. 107089. The letters share thereon, together
of administration was registered on TCT No. with her hereditary rights.
188705 on October 23, 1979. Thereafter,
Julita Go Ong sold Lot No. 12 to Lim Che
On appeal by petitioner, respondent Court of Appeals affirmed,
Boon, and TCT No. 188705 was partially
with modification, the appealed decision (Record, pp. 19-22).
cancelled and TCT No. 262852 was issued in
favor of Lim Che Boon covering Lot No. 12 The dispositive portion of the appellate court's decision reads:
(Exh. D-4). On June 8, 1981 Julita Go Ong
through her attorney-in-fact Jovita K. Yeo WHEREFORE, with the modification that
(Exh. 1) mortgaged Lot No. 1 to the Allied the extrajudicial foreclosure proceedings
Banking Corporation to secure a loan of instituted by defendant against plaintiff shall
P900,000.00 obtained by JK Exports, Inc. be held in abeyance to await the final result
The mortgage was registered on TCT No. of Civil Case No. 107089 of the Court of
188705 on the same date with the following First Instance of Manila, 6th Judicial District
notation: "... mortgagee's consent necessary Branch XXXII, entitled "IN THE MATTER
in case of subsequent alienation or OF THE INTESTATE ESTATE OF THE
encumbrance of the property other conditions LATE ALFREDO ONG BIO: JULITA GO
set forth in Doc. No. 340, Page No. 69, Book ONG, ADMINISTRATRIX". In pursuance
No. XIX, of the Not. Public of Felixberto with which the restraining order of the lower
Abad". On the loan there was due the sum of court in this case restraining the sale of the
P828,000.00 and Allied Banking Corporation properties levied upon is hereby ordered to
tried to collect it from Julita Go Ong, (Exh. continue in full force and effect coterminous
E). Hence, the complaint alleging nullity of with the final result of Civil Case No.
the contract for lack of judicial approval 107089, the decision appealed from is hereby
which the bank had allegedly promised to affirmed. Costs against plaintiff-appellant.
secure from the court. In response thereto, the
bank averred that it was plaintiff Julita Go SO ORDERED.
Ong who promised to secure the court's
approval, adding that Julita Go Ong informed
On April 8, 1986, petitioner moved for the reconsideration of Nevertheless, petitioner, citing the cases of Picardal, et al. vs.
the said decision (Ibid., pp. 24-29), but in a Resolution dated Lladas (21 SCRA 1483) and Fernandez, et al. vs.
September 11, 1986, respondent court denied the motion for Maravilla (10 SCRA 589), further argues that in the settlement
lack of merit (Ibid., p. 23). Hence, the instant petition proceedings of the estate of the deceased spouse, the entire
(Ibid., pp. 6-17). conjugal partnership property of the marriage is under
administration. While such may be in a sense true, that fact
The Second Division of this Court, in a Resolution dated alone is not sufficient to invalidate the whole mortgage,
November 19, 1986 (Rollo, p. 30), without giving due course to willingly and voluntarily entered into by the petitioner. An
the petition, resolved to require private respondent to comment opposite view would result in an injustice. Under similar
thereon and it did on February 19, 1987 (Ibid., pp. 37-42). circumstances, this Court applied the provisions of Article 493
Thereafter, in a Resolution dated April 6, 1987, the petition of the Civil Code, where the heirs as co-owners shall each have
was given due course and the parties were required to file their the full ownership of his part and the fruits and benefits
respective memoranda (Ibid., p. 43). pertaining thereto, and he may therefore alienate, assign or
mortgage it, and even effect of the alienation or mortgage, with
Petitioner filed her Memorandum on May 13, 1987 (Ibid., pp. respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of
45-56), while private respondent filed its Memorandum on
the co-ownership (Philippine National Bank vs. Court of
May 20, 1987 (Ibid., pp. 62-68).
Appeals, 98 SCRA 207 [1980]).
The sole issue in this case is
Consequently, in the case at bar, the trial court and the Court of
Appeals cannot be faulted in ruling that the questioned
WHETHER OR NOT THE MORTGAGE CONSTITUTED mortgage constituted on the property under administration, by
OVER THE PARCEL OF LAND UNDER PETITIONER'S authority of the petitioner, is valid, notwithstanding the lack of
ADMINISTRATION IS NULL AND VOID FOR WANT OF judicial approval, with respect to her conjugal share and to her
JUDICIAL APPROVAL. hereditary rights. The fact that what had been mortgaged was in
custodia legis is immaterial, insofar as her conjugal share and
The instant petition is devoid of merit. hereditary share in the property is concerned for after all, she
was the ABSOLUTE OWNER thereof. This ownership by hers
The well-settled rule that the findings of fact of the trial court is not disputed, nor is there any claim that the rights of the
are entitled to great respect, carries even more weight when government (with reference to taxes) nor the rights of any heir
affirmed by the Court of Appeals as in the case at bar. or anybody else have been prejudiced for impaired. As stated
by Associate Justice (later Chief Justice) Manuel Moran
In brief, the lower court found: (1) that the property under the in Jakosalem vs. Rafols, et al., 73 Phil. 618
administration of petitioner the wife of the deceased, is a
community property and not the separate property of the latter; The land in question, described in the
(2) that the mortgage was constituted in the wife's personal appealed decision, originally belonged to
capacity and not in her capacity as administratrix; and (3) that Juan Melgar. The latter died and the judicial
the mortgage affects the wife's share in the community property administration of his estate was commenced
and her inheritance in the estate of her husband. in 1915 and came to a close on December 2,
1924, only. During the pendency of the said
Petitioner, asserting that the mortgage is void for want of administration, that is, on July 5, 1917,
judicial approval, quoted Section 7 of Rule 89 of the Rules of Susana Melgar, daughter of the deceased
Court and cited several cases wherein this Court ruled that the Juan Melgar, sold the land with the right of
regulations provided in the said section are mandatory. repurchase to Pedro Cui, subject to the
stipulation that during the period for the
repurchase she would continue in possession
While petitioner's assertion may have merit insofar as the rest
of the land as lessee of the purchase. On
of the estate of her husband is concerned the same is not true as
December 12, 1920, the partition of the estate
regards her conjugal share and her hereditary rights in the
left by the deceased Juan Melgar was made,
estate. The records show that petitioner willingly and
and the land in question was adjudicated to
voluntarily mortgaged the property in question because she was
Susana Melgar. In 1921, she conveyed, in
processed by JK Exports, Inc. the sum of P300,000.00 from the
payment of professional fees, one-half of the
proceeds of the loan; and that at the time she executed the real
land in favor of the defendant-appellee
estate mortgage, there was no court order authorizing the
Nicolas Rafols, who entered upon the portion
mortgage, so she took it upon herself, to secure an order.
thus conveyed and has been in possession
thereof up to the present. On July 23, 1921,
Thus, in confirming the findings of the lower court, as Pedro Cui brought an action to recover said
supported by law and the evidence, the Court of Appeals aptly half of the land from Nicolas Rafols and the
ruled that Section 7 of Rule 89 of the Rules of Court is not other half from the other defendants, and
applicable, since the mortgage was constituted in her personal while that case was pending, or about August
capacity and not in her capacity as administratrix of the estate 4, 1925, Pedro Cui donated the whole land in
of her husband. question to Generosa Teves, the herein
plaintiff-appellant, after trial, the lower court
rendered a decision absolving Nicolas Rafols
as to the one-half of the land conveyed to him
by Susana Melgar, and declaring the plaintiff
owner of the other half by express
acknowledgment of the other defendants. The
plaintiff appealed from that part of the
judgment which is favorable to Nicolas

The lower court absolved Nicolas Rafols

upon the theory that Susana Melgar could not
have sold anything to Pedro Cui because the
land was then in custodia legis, that is, under
judicial administration. This is error. That the
land could not ordinary be levied upon while
in custodia legis, does not mean that one of
the heirs may not sell the right, interest or
participation which he has or might have in
the lands under administration. The ordinary
execution of property in custodia legis is
prohibited in order to avoid interference with
the possession by the court. But the sale
made by an heir of his share in an
inheritance, subject to the result of the
pending administration, in no wise stands in
the way of such administration.

The reference to judicial approval in Sec. 7, Rule 89 of the

Rules of Court cannot adversely affect the substantiverights of
private respondent to dispose of her Ideal [not inchoate, for the
conjugal partnership ended with her husband's death, and her
hereditary rights accrued from the moment of the death of the
decedent (Art. 777, Civil Code) share in the co-heirship and/or
co-ownership formed between her and the other heirs/co-
owners (See Art. 493, Civil Code, supra.). Sec. 7, Art. 89 of the
Civil Code applies in a case where judicial approval has to be
sought in connection with, for instance, the sale or mortgage of
property under administration for the payment, say of a
conjugal debt, and even here, the conjugal and hereditary
shares of the wife are excluded from the requisite judicial
approval for the reason already adverted to hereinabove,
provided of course no prejudice is caused others, including the

Moreover, petitioner is already estopped from questioning the

mortgage. An estoppel may arise from the making of a promise
even though without consideration, if it was intended that the
promise should be relied upon and in fact it was relied upon,
and if a refusal to enforce it would be virtually to sanction the
perpetration of fraud or would result in other injustice (Gonzalo
Sy Trading vs. Central Bank, 70 SCRA 570).

PREMISES CONSIDERED, the instant petition is hereby

DENIED and the assailed decision of the Court of Appeals is
hereby AFFIRMED.


Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento,

JJ., concur.
G.R. No. 102380 January 18, 1993 proportionate share of the six (6) million pesos paid by the
buyer, Yu Hwa Ping, as earnest money; that the balance of
HERODOTUS P. ACEBEDO and DEMOSTHENES P. P6,000,000.00 is more than enough to pay the unsettled claims
ACEBEDO, petitioners, against the estate. Thus, they prayed for the Court to direct the
vs. administrator, Herodotus Acebedo (referred to as petitioner-
HON. BERNARDO P. ABESAMIS, MIGUEL ACEBEDO, administrator hereafter):
RIZALINO ACEBEDO, REPUBLICA ACEBEDO, 1. to sell the properties mentioned in the
FILIPINAS ACEBEDO and YU HWA PING, respondents. motion;

Heminio L. Ruiz for petitioners. 2. with the balance of P6 million, to pay all
the claims against the Estate; and
Vicente D. Millora for private respondents.
3. to distribute the residue among the Heirs in
Romero A. Yu for respondent Yu Hua Ping. final settlement of the Estate.

To the aforesaid Motion, herein petitioner-administrator

interposed an "Opposition to Approval of Sale", to wit:
1. That he has learned that some of the heirs
The lower court's jurisdiction in approving a Deed of herein have sold some real estate property of
Conditional Sale executed by respondents-heirs and ordering the Estate located at Balintawak, Quezon
City, without the knowledge of the herein
herein administrator-petitioner Herodotus Acebedo to sell the
administrator, without the approval of this
remaining portions of said properties, despite the absence of its
Honorable Court and of some heirs, and at a
prior approval as a probate court, is being challenged in the
shockingly low price;
case at bar.

2. That he is accordingly hereby registering

The late Felix Acebedo left an estate consisting of several real
his vehement objection to the approval of the
estate properties located in Quezon City and Caloocan City,
sale, perpetrated in a manner which can even
with a conservative estimated value of about P30 million. Said
estate allegedly has only the following unsettled claims: render the proponents of the sale liable for
punishment for contempt of this Honorable
a. P87,937.00 representing unpaid real estate
taxes due Quezon City;
3. The herein Administrator instead herein
prays this Honorable Court to authorize the
b. P20,244.00 as unpaid real estate taxes due sale of the above mentioned property of the
Caloocan City; Estate to generate funds to pay certain
liabilities of the Estate and with the approval
c. The unpaid salaries/allowances of former of this Honorable Court if warranted, to give
Administrator Miguel Acebedo, and the the heirs some advances chargeable against
incumbent Administrator Herodotus theirs (sic) respective shares, and, for the
Acebedo; and purpose to authorize the herein
Administrator, and the other heirs to help the
d. Inheritance taxes that may be due on the Administrator personally or through a broker,
net estate. to look for a buyer for the highest obtainable
price, subject always to the approval of this
The decedent was succeeded by eight heirs, two of whom are Honorable Court.1
the petitioners herein, and the others are the private
respondents. On October 30, 1989, herein petitioners moved to be given a
period of forty-five (45) days within which to look for a buyer
Due to the prolonged pendency of the case before the who will be willing to buy the properties at a price higher than
respondent Court for sixteen years, respondents-heirs filed a P12,000,000.00.
"Motion for Approval of Sale", on October 4, 1989. The said
sale involved the properties covered by Transfer Certificate of The case was set for hearing on December 15, 1989. However,
Title Nos. 155569, 120145, 9145, and 18709, all of which are by said date, petitioners have not found any buyer offering
registered in Quezon City, and form part of the estate. The better terms. Thus, they asked the Court, on February 8, 1990,
consideration for said lots was twelve (12) million pesos and by for an in extendible period of thirty days to look for a buyer.
that time, they already had a buyer. It was further stated in said
Motion that respondents-heirs have already received their
Petitioner-administrator then filed a criminal complaint for for the price already agreed upon, while herein petitioners
falsification of a public document against Yu Hwa Ping and negotiate for a higher price with Yu Hwa Ping.
notary public Eugenio Obon on February 26, 1990. He initiated
this complaint upon learning that it was Yu Hwa Ping who Petitioners, then, instead filed a "Supplemental Opposition" to
caused the notarization of the Deed of Conditional Sale the approval of the Deed of Conditional Sale.
wherein allegedly petitioner-administrator's signature was
made to appear. He also learned that after he confronted the
On March 29, 1991, the respondent Court issued the challenged
notary public of the questioned document, the latter revoked his Order, the dispositive portion of which states, to wit:
notarial act on the same.
WHEREFORE, the Order dated August 7,
On April 2, 1990, petitioner-administrator filed the civil action
1990, is hereby lifted, reconsidered and set
to secure the declaration by the Court of the nullity of the Deed
aside, and another one is hereby issued as
of Conditional Sale and the Deed of Absolute Sale. follows:

The period granted herein petitioners having lapsed without

1. Approving the conditional sale, dated
having found a buyer, petitioner Demosthenes Acebedo sought
September 10, 1989, executed by the heirs-
to nullify the Orders granting them several periods within
movants, in favor of Yu Hwa Ping, pertaining
which to look for a better buyer. Respondents filed a comment to their respective shares in the properties
thereon. covered by TCT Nos. 155569, 120145, 1945
and 18709 of the Register of Deeds of
Having miserably failed to find a better buyer, after seven long Quezon City;
months, petitioner-administrator filed another "Opposition to
Approval of Sale", dated May 10, 1990, maintaining that the 2. Ordering the administrator Herodotus
sale should wait for the country to recover from the effects of Acebedo to sell the remaining portions of the
the coup d'etat attempts, otherwise, the properties should be
said properties also in favor of Yu Hwa Ping
divided among the heirs.
at the same price as the sale executed by the
herein heirs-movants;
On June 21, 1990, petitioners filed a "Motion for Leave of
Court to Mortgage and Lease some of the Properties of the
3. Ordering Yu Hwa Ping to deposit with the
Estate". To this Motion, respondents filed an Opposition on the
Court the total remaining balance of the
following grounds : that the motion is not proper because of the
purchase price for the said lots within
pending motion to approve the sale of the same properties; that
TWENTY (20) DAYS from notice hereof;
said conditional sale was initiated by petitioner-administrator
who had earlier signed a receipt for P500,000.00 as earnest
money; that the approval of the sale would mean Yu Hwa 4. The motion to cite former administrator
Ping's assumption of payment of the realty taxes; that the estate Miguel Acebedo in contempt of court,
has no further debts and thus, the intestate administrator may resulting from his failure to submit the
be terminated. owner's copy of TCT Nos. 155569, and
120145 is hereby denied.3
On August 17, 1990, respondent Court issued an Order, the
dispositive portion of which, stated, among others, to wit:2 Yu Hwa Ping, on April 4, 1991, deposited the remaining
balance of the purchase price for the properties subject of the
Deed of Conditional Sale in the amount of P6,500,000.00.
b. the motion filed by the heirs-movants,
dated October 4, 1989, praying that the new
administrator be directed to sell the Petitioners herein received the questioned Order on April 11,
properties covered by TCT Nos. 155569, 1991. Twenty one (21) days thereafter, they filed a Motion for
120145, 9145 and 18709, in favor of Yu Hwa Reconsideration, praying that the Court reinstate its Order of
Ping is hereby denied; and August 17, 1990. To this, private respondents filed their
c. the new administrator is hereby granted
leave to mortgage some properties of the Instead of making a reply, petitioners herein filed a
estate at a just and reasonable amount, Supplemental Motion for Reconsideration. The motions for
subject to the approval of the Court. reconsideration of herein petitioners were denied by the
respondent Court on August 23, 1991.
On December 4, 1990, the respondent Judge issued an order
resolving to call the parties to a conference on December 17, On September 23, 1991, herein petitioners filed a Motion for
1990. The conference was held, but still the parties were unable Partial Reconsideration, hoping for the last time that they
to arrive at an agreement. So, on January 4, 1991, it was would be able to convince the Court that its Order dated March
continued, wherein the parties actually agreed that the heirs be 29, 1991 in effect approving the conditional sale is erroneous
allowed to sell their shares of the properties to Yu Hwa Ping and beyond its jurisdiction.
On October 17, 1991, the respondent Court denied the Motion The Civil Code, under the provisions on co-ownership, further
for Partial Reconsideration for "lack of merit". qualifies this right.11 Although it is mandated that each co-
owner shall have the full ownership of his part and of the fruits
On November 7, 1991, private respondents filed a Motion for and benefits pertaining thereto, and thus may alienate, assign or
Execution of the Order dated March 29, 1991. This was mortgage it, and even substitute another person in its
pending resolution when the petitioners filed this Petition enjoyment, the effect of the alienation or the mortgage, with
for Certiorari. respect to the
co-owners, shall be limited to the portion which may be
The controversy in the case at bar revolves around one allotted to him in the division upon the termination of the co-
ownership.12 In other words, the law does not prohibit a co-
question: Is it within the jurisdiction of the lower court, acting
owner from selling, alienating or mortgaging his ideal share in
as a probate court, to issue an Order approving the Deed of
the property held in common.13
Conditional Sale executed by respondents-heirs without prior
court approval and to order herein Administrator to sell the
remaining portion of said properties? As early as 1942, this Court has recognized said right of an heir
to dispose of property under administration. In the case
of Teves de Jakosalem vs. Rafols, et al.,14 it was said that the
We answer in the positive?
sale made by an heir of his share in an inheritance, subject to
the result of the pending administration, in no wise, stands in
In the case of Dillena vs. Court of Appeals,5 this Court made a the way of such administration. The Court then relied on the
pronouncement that it is within the jurisdiction of the probate provision of the Old Civil Code, Article 440 and Article 339
court to approve the sale of properties of a deceased person by which are still in force as Article 533 and Article 493,
his prospective heirs before final adjudication. Hence, it is error respectively, in the new Civil Code. The Court also cited the
to say that this matter should be threshed out in a separate words of a noted civilist, Manresa: "Upon the death of a
action. person, each of his heirs 'becomes the undivided owner of the
whole estate left with respect to the part or portion which might
The Court further elaborated that although the Rules of Court be adjudicated to him, a community of ownership being thus
do not specifically state that the sale of an immovable property formed among the co-owners of the estate which remains
belonging to an estate of a decedent, in a special proceeding, undivided'."
should be made with the approval of the court, this authority is
necessarily included in its capacity as a probate court. Private respondents having secured the approval of the probate
Therefore, it is clear that the probate court in the case at bar, court, a matter which is unquestionably within its jurisdiction,
acted within its jurisdiction in issuing the Order approving the and having established private respondents' right to alienate the
Deed of Conditional Sale. decedent's property subject of administration, this Petition
should be dismissed for lack of merit.
We cannot countenance the position maintained by herein
petitioners that said conditional sale is null and void for lack of PREMISES considered, Petition is hereby DISMISSED. With
prior court approval. The sale precisely was made conditional, Costs.
the condition being that the same should first be approved by
the probate court.
Petitioners herein anchor their claim on Section 7, Rule 89 of
Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur.
the Rules of Court.6 It is settled that court approval is necessary
for the validity of any disposition of the decedent's estate.
However, reference to judicial approval cannot adversely affect
the substantive rights of the heirs to dispose of their ideal share
in the co-heirship and/or co-ownership among the heirs.7

This Court had the occasion to rule that there is no doubt that
an heir can sell whatever right, interest, or participation he may
have in the property under administration. This is a matter
which comes under the jurisdiction of the probate court. 8

The right of an heir to dispose of the decedent's property, even

if the same is under administration, is based on the Civil Code
provision9 stating that the possession of hereditary property is
deemed transmitted to the heir without interruption and from
the moment of the death of the decedent, in case the inheritance
is accepted. Where there are however, two or more heirs, the
whole estate of the decedent is, before its partition, owned in
common by such heirs. 10
G.R. No. 61584 November 25, 1992 buyer. A Certificate of Sale over the land was executed by the
Provincial Treasurer in favor of the Provincial Board of Negros
RODOLFO FANESA, petitioners,
vs. On May 29, 1974, Juliana P. Fanesa redeemed the property
COURT OF APPEALS, ALICIO PAULMITAN, ELENA from the Provincial Government of Negros Occidental for the
PAULMITAN and ANITO PAULMITAN, respondents. On learning of these transactions, respondents children of the
late Pascual Paulmitan filed on January 18, 1975 with the Court
of First Instance of Negros Occidental a Complaint against
petitioners to partition the properties plus damages.
Petitioners set up the defense of prescription with respect to Lot
This is a petition for review on certiorari seeking the reversal No. 757 as an affirmative defense, contending that the
of the decision 1 of the Court of Appeals, dated July 14, 1982 in Complaint was filed more than eleven years after the issuance
CA-G.R. No. 62255-R entitled "Alicio Paulmitan, et al. v. of a transfer certificate of title to Donato Paulmitan over the
Donato Sagario Paulmitan, et al." which affirmed the land as consequence of the registration with the Register of
decision 2 of the then Court of First Instance (now RTC) of Deeds, of Donato's affidavit extrajudicially adjudicating unto
Negros Occidental, 12th Judicial District, Branch IV, Bacolod himself Lot No. 757. As regards Lot No. 1091, petitioner
City, in Civil Case No. 11770. Juliana P. Fanesa claimed in her Answer to the Complaint that
she acquired exclusive ownership thereof not only by means of
The antecedent facts are as follows: a deed of sale executed in her favor by her father, petitioner
Donato Paulmitan, but also by way of redemption from the
Provincial Government of Negros Occidental.
Agatona Sagario Paulmitan, who died sometime in 1953, 3 left
the two following parcels of land located in the Province of
Acting on the petitioners' affirmative defense of prescription
Negros Occidental: (1) Lot No. 757 with an area of 1,946
square meters covered by Original Certificate of Title (OCT) with respect to Lot No. 757, the trial court issued an order
dated April 22, 1976 dismissing the complaint as to the said
No. RO-8376; and (2) Lot No. 1091 with an area of 69,080
property upon finding merit in petitioners' affirmative defense.
square meters and covered by OCT No. RO-11653. From her
This order, which is not the object of the present petition, has
marriage with Ciriaco Paulmitan, who is also now deceased,
become final after respondents' failure to appeal therefrom.
Agatona begot two legitimate children, namely: Pascual
Paulmitan, who also died in 1953, 4 apparently shortly after his
mother passed away, and Donato Paulmitan, who is one of the Trial proceeded with respect to Lot No. 1091. In a decision
petitioners. Petitioner Juliana P. Fanesa is Donato's daughter dated May 20, 1977, the trial court decided in favor of
while the third petitioner, Rodolfo Fanes, is Juliana's husband. respondents as to Lot No. 1091. According to the trial court,
Pascual Paulmitan, the other son of Agatona Sagario, is the respondents, as descendants of Agatona Sagario Paulmitan
survived by the respondents, who are his children, name: were entitled to one-half (1/2) of Lot No. 1091, pro
Alicio, Elena, Abelino, Adelina, Anita, Baking and Anito, all indiviso. The sale by petitioner Donato Paulmitan to his
surnamed Paulmitan. daughter, petitioner Juliana P. Fanesa, did not prejudice their
rights. And the repurchase by Juliana P. Fanesa of the land
from the Provincial Government of Negros Occidental did not
Until 1963, the estate of Agatona Sagario Paulmitan remained
vest in Juliana exclusive ownership over the entire land but
unsettled and the titles to the two lots mentioned above
remained in the name of Agatona. However, on August 11, only gave her the right to be reimbursed for the amount paid to
1963, petitioner Donato Paulmitan executed an Affidavit of redeem the property. The trial court ordered the partition of the
land and directed petitioners Donato Paulmitan and Juliana P.
Declaration of Heirship, extrajudicially adjudicating unto
Fanesa to pay private respondents certain amounts representing
himself Lot No. 757 based on the claim that he is the only
the latter's share in the fruits of the land. On the other hand,
surviving heir of Agatona Sagario. The affidavit was filed with
the Register of Deeds of Negros Occidental on August 20, respondents were directed to pay P1,479.55 to Juliana P.
1963, cancelled OCT No. RO-8376 in the name of Agatona Fanesa as their share in the redemption price paid by Fanesa to
the Provincial Government of Negros Occidental. The
Sagario and issued Transfer Certificate of Title (TCT) No.
dispositive portion of the trial court's decision reads:
35979 in Donato's name.

As regards Lot No. 1091, Donato executed on May 28, 1974 a WHEREFORE, judgment is hereby rendered
Deed of Sale over the same in favor of petitioner Juliana P. on the second cause of action pleaded in the
complain as follows:
Fanesa, his daughter. 5

1. The deed of sale (Exh. "F") dated May 28,

In the meantime, sometime in 1952, for non-payment of taxes,
Lot No. 1091 was forfeited and sold at a public auction, with 1974 is valid insofar as the one-half
the Provincial Government of Negros Occidental being the undivided portion of Lot 1091 is concerned
as to vest ownership over said half portion in
favor of defendant Juliana Fanesa and her operation of the provisions in the Civil Code on the right of
husband Rodolfo Fanesa, while the representation 9 with respect to his children, the respondents.
remaining half shall belong to plaintiffs, pro- When Agatona Sagario Paulmitan died intestate in 1952, her
indiviso; two (2) sons Donato and Pascual were still alive. Since it is
well-settled by virtue of Article 777 of the Civil Code that
2. Lot 1091, Cadastral Survey of Pontevedra, "[t]he rights to the succession are transmitted from the moment
Province of Negros Occidental, now covered of the death of the decedent," 10 the right of ownership, not only
by TCT No. RO-11653 (N.A.), is ordered of Donato but also of Pascual, over their respective shares in
partitioned. The parties must proceed to an the inheritance was automatically and by operation of law
actual partition by property instrument of vested in them in 1953 when their mother died intestate. At that
partition, submitting the corresponding stage, the children of Donato and Pascual did not yet have any
subdivision within sixty (60) days from right over the inheritance since "[i]n every inheritance, the
finality of this decision, and should they fail relative nearest in degree excludes the more distant
to agree, commissioners of partition may be ones." 11 Donato and Pascual excluded their children as to the
appointed by the Court; right to inherit from Agatona Sagario Paulmitan, their mother.

3. Pending the physical partition, the Register From the time of the death of Agatona Sagario Paulmitan to the
of Deeds of Negros Occidental is ordered to subsequent passing away of her son Pascual in 1953, the estate
cancel Original Certificate of Title No. RO- remained unpartitioned. Article 1078 of the Civil Code
11653 (N.A.) covering Lot 1091, Pontevedra provides: "Where there are two or more heirs, the whole estate
Cadastre, and to issue in lieu thereof a new of the decedent is, before its partition, owned in common by
certificate of title in the name of plaintiffs such heirs, subject to the payment of debts of the
and defendants, one-half portion each,pro- deceased." 12 Donato and Pascual Paulmitan were, therefore,
indiviso, as indicated in paragraph 1 above; co-owners of the estate left by their mother as no partition was
ever made.
4. Plaintiffs are ordered to pay, jointly and
severally, defendant Juliana Fanesa the When Pascual Paulmitan died intestate in 1953, his children,
amount of P1,479.55 with interest at the legal the respondents, succeeded him in the co-ownership of the
rate from May 28, 1974 until paid; disputed property. Pascual Paulmitan's right of ownership over
an undivided portion of the property passed on to his children,
who, from the time of Pascual's death, became co-owners with
5 Defendants Donato Sagario Paulmitan and
their uncle Donato over the disputed decedent estate.
Juliana Paulmitan Fanesa are ordered to
account to plaintiffs and to pay them, jointly
and severally, the value of the produce from Petitioner Juliana P. Fanesa claims ownership over Lot No.
Lot 1091 representing plaintiffs' share in the 1091 by virtue of two transactions, namely: (a) the sale made in
amount of P5,000.00 per year from 1966 up her favor by her father Donato Paulmitan; and (b) her
to the time of actual partition of the property, redemption of the land from the Provincial of Negros
and to pay them the sum of P2,000.00 as Occidental after it was forfeited for non-payment of taxes.
attorney's fees as well as the costs of the suit.
When Donato Paulmitan sold on May 28, 1974 Lot No. 1091 to
xxx xxx xxx his daughter Juliana P. Fanesa, he was only a co-owner with
respondents and as such, he could only sell that portion which
may be allotted to him upon termination of the co-
On appeal, the Court of Appeals affirmed the trial court's
ownership. 13 The sale did not prejudice the rights of
decision. Hence this petition.
respondents to one half (1/2) undivided share of the land which
they inherited from their father. It did not vest ownership in the
To determine the rights and obligations of the parties to the entire land with the buyer but transferred only the seller's pro-
land in question, it is well to review, initially, the relatives who indiviso share in the property 14 and consequently made the
survived the decedent Agatona Sagario Paulmitan. When buyer a co-owner of the land until it is partitioned. In Bailon-
Agatona died in 1953, she was survived by two (2) sons, Casilao v. Court of Appeals, 15 the Court, through Justice Irene
Donato and Pascual. A few months later in the same year, R. Cortes, outlined the effects of a sale by one co-owner
Pascual died, leaving seven children, the private respondents. without the consent of all the co-owners, thus:
On the other had, Donato's sole offspring was petitioner Juliana
P. Fanesa.
The rights of a co-owner of a certain property
are clearly specified in Article 493 of the
At the time of the relevant transactions over the properties of Civil Code, Thus:
decedent Agatona Sagario Paulmitan, her son Pascual had died,
survived by respondents, his children. It is, thus, tempting to
Art. 493. Each co-owner shall have the full
apply the principles pertaining to the right of representation as
ownership of his part and of the fruits and
regards respondents. It must, however, be borne in mind that
Pascual did no predecease his mother, 8 thus precluding the benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it and
even substitute another person its enjoyment, The petition raises a purely legal issue: May
except when personal rights are involved. But a co-owner acquire exclusive ownership over
the effect of the alienation or mortgage, with the property held in common?
respect to the co-owners, shall be limited to
the portion which may be allotted to him in Essentially, it is the petitioners' contention
the division upon the termination of the co- that the property subject of dispute devolved
ownership. [Emphasis supplied.] upon him upon the failure of his co-heirs to
join him in its redemption within the period
As early as 1923, this Court has ruled that required by law. He relies on the provisions
even if a co-owner sells the whole property of Article 1515 of the old Civil Code, Article
as his, the sale will affect only his own share 1613 of the present Code, giving the vendee a
but not those of the other co-owners who did retro the right to demand redemption of the
not consent to the sale [Punsalan v. Boon entire property.
Liat, 44 Phil. 320 (1923)]. This is because
under the aforementioned codal provision, There is no merit in this petition.
the sale or other disposition affects only his
undivided share and the transferee gets only
The right of repurchase may be exercised by
what would correspond to his grantor in the
co-owner with respect to his share alone
partition of the thing owned in common (CIVIL CODE, art. 1612, CIVIL CODE
[Ramirez v. Bautista, 14 Phil. 528 (1909)]. (1889), art. (1514.). While the records show
Consequently, by virtue of the sales made by
that petitioner redeemed the property in its
Rosalia and Gaudencio Bailon which are
entirety, shouldering the expenses therefor,
valid with respect to their proportionate
that did not make him the owner of all of it.
shares, and the subsequent transfers which
In other words, it did not put to end the
culminated in the sale to private respondent existing state of co-ownership (Supra, Art.
Celestino Afable, the said Afable thereby
489). There is no doubt that redemption of
became a co-owner of the disputed parcel of
property entails a necessary expense. Under
land as correctly held by the lower court
the Civil Code:
since the sales produced the effect of
substituting the buyers in the enjoyment
thereof [Mainit v. Bandoy, 14 Phil. 730 Art. 488. Each co-owner shall have a right to
(1910)]. compel the other co-owners to contribute to
the expenses of preservation of the thing or
right owned in common and to the taxes. Any
From the foregoing, it may be deduced that
one of the latter may exempt himself from
since a co-owner is entitled to sell his this obligation by renouncing so much of his
undivided share, a sale of the entire property undivided interest as may be equivalent to his
by one co-owner without the consent of the
share of the expenses and taxes. No such
other co-owners is not null and void.
waiver shall be made if it is prejudicial to the
However, only the rights of the co-owner-
seller are transferred, thereby making the
buyer a co-owner of the property.
The result is that the property remains to be
in a condition of co-ownership. While a
Applying this principle to the case at bar, the sale by petitioner
vendee a retro, under Article 1613 of the
Donato Paulmitan of the land to his daughter, petitioner Juliana
Code, "may not be compelled to consent to a
P. Fanesa, did not give to the latter ownership over the entire
partial redemption," the redemption by one
land but merely transferred to her the one half (1/2) undivided co-heir or co-owner of the property in its
share of her father, thus making her the co-owner of the land in
totality does not vest in him ownership over
question with the respondents, her first cousins.
it. Failure on the part of all the co-owners to
redeem it entitles the vendee a retro to retain
Petitioner Juliana P. Fanesa also claims ownership of the entire the property and consolidate title thereto in
property by virtue of the fact that when the Provincial his name (Supra, art. 1607). But the
Government of Negros Occidental bought the land after it was provision does not give to the redeeming co-
forfeited for non-payment of taxes, she redeemed it. owner the right to the entire property. It does
not provide for a mode of terminating a co-
The contention is without merit. ownership.

The redemption of the land made by Fanesa did not terminate Although petitioner Fanesa did not acquire ownership over the
the co-ownership nor give her title to the entire land subject of entire lot by virtue of the redemption she made, nevertheless,
the co-ownership. Speaking on the same issue raised by she did acquire the right to reimbursed for half of the
petitioners, the Court, in Adille v. Court of Appeals, 16 resolved redemption price she paid to the Provincial Government of
the same with the following pronouncements: Negros Occidental on behalf of her co-owners. Until
reimbursed, Fanesa hold a lien upon the subject property for
the amount due her. 17

Finally, petitioners dispute the order of the trial court, which

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

WHEREFORE, the petition is DENIED and the decision of the

Court of Appeals AFFIRMED.


Gutierrez, Jr., Bidin, Davide, Jr., Romero and Melo, JJ.,

G.R. No. 76351 October 29, 1993 In his answer with counterclaim, respondent alleged that he had
no objection to the sale as long as the best selling price could
VIRGILIO B. AGUILAR, petitioner, be obtained; that if the sale would be effected, the proceeds
vs. thereof should be divided equally; and, that being a co-owner,
COURT OF APPEALS and SENEN B. he was entitled to the use and enjoyment of the property.
AGUILAR, respondents.
Upon issues being joined, the case was set for pre-trial on 26
Jose F. Manacop for petitioner. April 1979 with the lawyers of both parties notified of the pre-
trial, and served with the pre-trial order, with private
respondent executing a special power of attorney to his lawyer
Siruello, Muyco & Associates Law Office for private
to appear at the pre-trial and enter into any amicable settlement
in his behalf.1

On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel for

respondent, filed a motion to cancel pre-trial on the ground that
BELLOSILLO, J.: he would be accompanying his wife to Dumaguete City where
she would be a principal sponsor in a wedding.
This is a petition for review on certiorari seeking to reverse
and set aside the Decision of the Court of Appeals in CA-GR On 23 April 1979, finding the reasons of counsel to be without
CV No. 03933 declaring null and void the orders of 23 and 26 merit, the trial court denied the motion and directed that the
April, 1979, the judgment by default of 26 July 1979, and the pre-trial should continue as scheduled.
order of 22 October 1979 of the then Court of First Instance of
Rizal, Pasay City, Branch 30, and directing the trial court to set
the case for pre-trial conference. When the case was called for pre-trial as scheduled on 26 April
1979, plaintiff and his counsel appeared. Defendant did not
appear; neither his counsel in whose favor he executed a
Petitioner Virgilio and respondent Senen are brothers; Virgilio special power of attorney to represent him at the pre-trial.
is the youngest of seven (7) children of the late Maximiano Consequently, the trial court, on motion of plaintiff, declared
Aguilar, while Senen is the fifth. On 28 October 1969, the two defendant as in default and ordered reception of plaintiff's
brothers purchased a house and lot in Paraaque where their evidence ex parte.
father could spend and enjoy his remaining years in a peaceful
neighborhood. Initially, the brothers agreed that Virgilio's share
On 7 May 1979, defendant through counsel filed an omnibus
in the co-ownership was two-thirds while that of Senen was
one-third. By virtue of a written memorandum dated 23 motion to reconsider the order of default and to defer reception
February 1970, Virgilio and Senen agreed that henceforth their of evidence. The trial court denied the motion and plaintiff
presented his evidence.
interests in the house and lot should be equal, with Senen
assuming the remaining mortgage obligation of the original
owners with the Social Security System (SSS) in exchange for On 26 July 1979, rendering judgment by default against
his possession and enjoyment of the house together with their defendant, the trial court found him and plaintiff to be co-
father. owners of the house and lot, in equal shares on the basis of
their written agreement. However, it ruled that plaintiff has
been deprived of his participation in the property by
Since Virgilio was then disqualified from obtaining a loan from
defendant's continued enjoyment of the house and lot, free of
SSS, the brothers agreed that the deed of sale would be
rent, despite demands for rentals and continued maneuvers of
executed and the title registered in the meantime in the name of
Senen. It was further agreed that Senen would take care of their defendants, to delay partition. The trial court also upheld the
father and his needs since Virgilio and his family were staying right of plaintiff as co-owner to demand partition. Since
plaintiff could not agree to the amount offered by defendant for
in Cebu.
the former's share, the trial court held that this property should
be sold to a third person and the proceeds divided equally
After Maximiano Aguilar died in 1974, petitioner demanded between the parties.
from private respondent that the latter vacate the house and that
the property be sold and proceeds thereof divided among them.
The trial court likewise ordered defendant to vacate the
property and pay plaintiff P1,200.00 as rentals2 from January
Because of the refusal of respondent to give in to petitioner's 1975 up to the date of decision plus interest from the time the
demands, the latter filed on 12 January 1979 an action to action was filed.
compel the sale of the house and lot so that the they could
divide the proceeds between them.
On 17 September 1979, defendant filed an omnibus motion for
new trial but on 22 October 1979 the trial court denied the
In his complaint, petitioner prayed that the proceeds of the sale, motion.
be divided on the basis of two-thirds (2/3) in his favor and one-
third (1/3) to respondent. Petitioner also prayed for monthly
Defendant sought relief from the Court of Appeals praying that
rentals for the use of the house by respondent after their father
the following orders and decision of the trial court be set aside:
(a) the order of 23 April 1970 denying defendants motion for must be taken seriously if it is to attain its objective, i.e., the
postponement of the pre-trial set on 26 April 1979; (b) the speedy and inexpensive disposition of cases.
order of 26 April 1979 declaring him in default and authorizing
plaintiff to present his evidence ex-parte; (e) the default Moreover, the trial court denied the motion for postponement
judgment of 26 July 1979; and, (d) the order dated 22 October three (3) days before the scheduled pre-trial. If indeed, counsel
1979 denying his omnibus motion for new trial. for respondent could not attend the pre-trial on the scheduled
date, respondent at least should have personally appeared in
On 16 October 1986, the Court of Appeals set aside the order order not to be declared as in default. But, since nobody
of the trial court of 26 April 1979 as well as the assailed appeared for him, the order of the trial court declaring him as in
judgment rendered by default., The appellate court found the default and directing the presentation of petitioner's evidence ex
explanation of counsel for defendant in his motion to cancel parte was proper.7
pre-trial as satisfactory and devoid of a manifest intention to
delay the disposition of the case. It also ruled that the trial court With regard to the merits of the judgment of the trial court by
should have granted the motion for postponement filed by default, which respondent appellate court did not touch upon in
counsel for defendant who should not have been declared as in resolving the appeal, the Court holds that on the basis of the
default for the absence of his counsel. pleadings of the parties and the evidence presented ex parte,
petitioner and respondents are co-owners of subject house and
Petitioner now comes to us alleging that the Court of Appeals lot in equal shares; either one of them may demand the sale of
erred (1) in not holding that the motion of defendant through the house and lot at any time and the other cannot object to
counsel to cancel the pre-trial was dilatory in character and (2) such demand; thereafter the proceeds of the sale shall be
in remanding the case to the trial court for pre-trial and trial. divided equally according to their respective interests.

The issues to be resolved are whether the trial court correctly Private respondent and his family refuse to pay monthly rentals
declared respondent as in default for his failure to appear at the to petitioner from the time their father died in 1975 and to
pre-trial and in allowing petitioner to present his evidence ex- vacate the house so that it can be sold to third persons.
parte, and whether the trial court correctly rendered the default Petitioner alleges that respondent's continued stay in the
judgment against respondent. property hinders its disposal to the prejudice of petitioner. On
the part of petitioner, he claims that he should be paid two-
We find merit in the petition. thirds (2/3) of a monthly rental of P2,400.00 or the sum of
As regards the first issue, the law is clear that the appearance of
parties at the pre-trial is mandatory.3 A party who fails to In resolving the dispute, the trial court ordered respondent to
appear at a pre-trial conference may be non-suited or vacate the property so that it could be sold to third persons and
considered as in default.4 In the case at bar, where private the proceeds divided between them equally, and for respondent
respondent and counsel failed to appear at the scheduled pre- to pay petitioner one-half (1/2) of P2,400.00 or the sum of
trial, the trial, court has authority to declare respondent in P1,200.00 as monthly rental, conformably with their stipulated
default.5 sharing reflected in their written agreement.

Although respondent's counsel filed a motion to postpone pre- We uphold the trial court in ruling in favor of petitioner, except
trial hearing, the grant or denial thereof is within the sound as to the effectivity of the payment of monthly rentals by
discretion of the trial court, which should take into account two respondent as co-owner which we here declare to commence
factors in the grant or denial of motions for postponement, only after the trial court ordered respondent to vacate in
namely: (a) the reason for the postponement and (b) the merits accordance with its order of 26 July 1979.
of the case of movant.6
Article 494 of the Civil Code provides that no co-owner shall
In the instant case, the trial court found the reason stated in the be obliged to remain in the co-ownership, and that each co-
motion of counsel for respondent to cancel the pre-trial to be owner may demand at any time partition of the thing owned in
without merit. Counsel's explanation that he had to go to by common insofar as his share is concerned. Corollary to this
boat as early as 25 March 1979 to fetch his wife and rule, Art. 498 of the Code states that whenever the thing is
accompany her to a wedding in Dumaguete City on 27 April essentially, indivisible and the co-owners cannot agree that it
1979 where she was one of the principal sponsors, cannot be be, allotted to one of them who shall indemnify the others, it
accepted. We find it insufficient to justify postponement of the shall be sold and its proceeds accordingly distributed. This is
pre-trial, and the Court of Appeals did not act wisely in resorted to (1) when the right to partition the property is
overruling the denial. We sustain the trial court and rule that it invoked by any of the co-owners but because of the nature of
did not abuse its discretion in denying the postponement for the property it cannot be subdivided or its subdivision would
lack of merit. Certainly, to warrant a postponement of a prejudice the interests of the co-owners, and (b) the co-owners
mandatory process as pre-trial would require much more than are not in agreement as to who among them shall be allotted or
mere attendance in a social function. It is time indeed we assigned the entire property upon proper reimbursement of the
emphasize that there should be much more than mere co-owners. In one case,8 this Court upheld the order of the trial
perfunctory treatment of the pre-trial procedure. Its observance court directing the holding of a public sale of the properties
owned in common pursuant to Art. 498 of the Civil Code.
However, being a co-owner respondent has the right to use the
house and lot without paying any compensation to petitioner, as
he may use the property owned in common long as it is in
accordance with the purpose for which it is intended and in a
manner not injurious to the interest of the other co-
owners.9 Each co-owner of property 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 co-owners, the reason being that until a division
is made, the respective share of each cannot be determined and
every co-owner exercises, together with his co-participants
joint ownership over the pro indiviso property, in addition to
his use and enjoyment of the
same. 10

Since petitioner has decided to enforce his right in court to end

the co-ownership of the house and lot and respondent has not
refuted the allegation that he has been preventing the sale of the
property by his continued occupancy of the premises, justice
and equity demand that respondent and his family vacate the
property so that the sale can be effected immediately. In
fairness to petitioner, respondent should pay a rental of
P1,200.00 per month, with legal interest; from the time the trial
court ordered him to vacate, for the use and enjoyment of the
other half of the property appertaining to petitioner.

When petitioner filed an action to compel the sale of the

property and the trial court granted the petition and ordered the
ejectment of respondent, the co-ownership was deemed
terminated and the right to enjoy the possession jointly also
ceased. Thereafter, the continued stay of respondent and his
family in the house prejudiced the interest of petitioner as the
property should have been sold and the proceeds divided
equally between them. To this extent and from then on,
respondent should be held liable for monthly rentals until he
and his family vacate.

WHEREFORE, the petition is GRANTED. The assailed

Decision of the Court of Appeals dated 16 October 1986 is
REVERSED and SET ASIDE. The decision of the trial court in
Civil Case No. 69.12-P dated 16 July 1979 is REINSTATED,
with the modification that respondent Senen B. Aguilar is
ordered to vacate the premises in question within ninety (90)
days from receipt of this and to pay petitioner Virgilio B.
Aguilar a monthly rental of P1,200.00 with interest at the legal
rate from the time he received the decision of the trial court
directing him to vacate until he effectively leaves the premises.

The trial court is further directed to take immediate steps to

implement this decision conformably with Art. 498 of the Civil
Code and the Rules of Court. This decision is final and


Cruz, Davide, Jr., Quiason, JJ., concur.

G.R. No. L-33187 March 31, 1980 On May 6, 1946, Monica Maniega died intestate in Calamba,
PAMPLONA and APOLONIA ONTE, petitioners, On July 30, 1952, or more than six (6) years after the death of
vs. his wife Monica Maniega, Flaviano Moreto, without the
VIVENCIO MORETO, VICTOR MORETO, ELIGIO consent of the heirs of his said deceased wife Monica, and
MORETO, MARCELO MORETO, PAULINA MORETO, before any liquidation of the conjugal partnership of Monica
ROSARIO MORETO, MARTA MORETO, SEVERINA and Flaviano could be effected, executed in favor of Geminiano
MENDOZA, PABLO MENDOZA, LAZARO MENDOZA, Pamplona, married to defendant Apolonia Onte, the deed of
VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO absolute sale (Exh. "1") covering lot No. 1495 for P900.00. The
MORETO and LORENZO MENDOZA, respondents. deed of sale (Exh. "1") contained a description of lot No. 1495
as having an area of 781 square meters and covered by transfer
E.P. Caguioa for petitioners. certificate of title No. 14570 issued in the name of Flaviano
Moreto, married to Monica Maniega, although the lot was
acquired during their marriage. As a result of the sale, the said
Benjamin C. Yatco for respondents.
certificate of title was cancelled and a new transfer certificate
of title No. T-5671 was issued in the name of Geminiano
Pamplona married to Apolonia Onte (Exh. "A").

GUERRERO, J.: After the execution of the above-mentioned deed of sale (Exh.
"1"), the spouses Geminiano Pamplona and Apolonia Onte
This is a petition for certiorari by way of appeal from the constructed their house on the eastern part of lot 1496 as
decision of the Court of Appeals 1 in CA-G.R. No. 35962-R, Flaviano Moreto, at the time of the sale, pointed to it as the
entitled "Vivencio Moreto, et al., Plaintiff-Appellees vs. land which he sold to Geminiano Pamplona. Shortly thereafter,
Cornelio Pamplona, et al., Defendants-Appellants," affirming Rafael Pamplona, son of the spouses Geminiano Pamplona and
the decision of the Court of First Instance of Laguna, Branch I Apolonia Onte, also built his house within lot 1496 about one
at Bian. meter from its boundary with the adjoining lot. The vendor
Flaviano Moreto and the vendee Geminiano Pamplona thought
The facts, as stated in the decision appealed from, show that: all the time that the portion of 781 square meters which was the
subject matter of their sale transaction was No. 1495 and so lot
Flaviano Moreto and Monica Maniega were husband and wife. No. 1495 appears to be the subject matter in the deed of sale
During their marriage, they acquired adjacent lots Nos. 1495, (Exh. "1") although the fact is that the said portion sold thought
4545, and 1496 of the Calamba Friar Land Estate, situated in of by the parties to be lot No. 1495 is a part of lot No. 1496.
Calamba, Laguna, containing 781-544 and 1,021 square meters
respectively and covered by certificates of title issued in the From 1956 to 1960, the spouses Geminiano Pamplona and
name of "Flaviano Moreto, married to Monica Maniega." Apolonio Onte enlarged their house and they even constructed
a piggery corral at the back of their said house about one and
The spouses Flaviano Moreto and Monica Maniega begot one-half meters from the eastern boundary of lot 1496.
during their marriage six (6) children, namely, Ursulo, Marta,
La Paz, Alipio, Pablo, and Leandro, all surnamed Moreto. On August 12, 1956, Flaviano Moreto died intestate. In 1961,
the plaintiffs demanded on the defendants to vacate the
Ursulo Moreto died intestate on May 24, 1959 leaving as his premises where they had their house and piggery on the ground
heirs herein plaintiffs Vivencio, Marcelo, Rosario, Victor, that Flaviano Moreto had no right to sell the lot which he sold
Paulina, Marta and Eligio, all surnamed Moreto. to Geminiano Pamplona as the same belongs to the conjugal
partnership of Flaviano and his deceased wife and the latter
was already dead when the sale was executed without the
Marta Moreto died also intestate on April 30, 1938 leaving as
consent of the plaintiffs who are the heirs of Monica. The
her heir plaintiff Victoria Tuiza.
spouses Geminiano Pamplona and Apolonia Onte refused to
vacate the premises occupied by them and hence, this suit was
La Paz Moreto died intestate on July 17, 1954 leaving the instituted by the heirs of Monica Maniega seeking for the
following heirs, namely, herein plaintiffs Pablo, Severina, declaration of the nullity of the deed of sale of July 30, 1952
Lazaro, and Lorenzo, all surnamed Mendoza. above-mentioned as regards one-half of the property subject
matter of said deed; to declare the plaintiffs as the rightful
Alipio Moreto died intestate on June 30, 1943 leaving as his owners of the other half of said lot; to allow the plaintiffs to
heir herein plaintiff Josefina Moreto. redeem the one-half portion thereof sold to the defendants.
"After payment of the other half of the purchase price"; to order
Pablo Moreto died intestate on April 25, 1942 leaving no issue the defendants to vacate the portions occupied by them; to
and as his heirs his brother plaintiff Leandro Moreto and the order the defendants to pay actual and moral damages and
other plaintiffs herein. attorney's fees to the plaintiffs; to order the defendants to pay
plaintiffs P120.00 a year from August 1958 until they have
vacated the premises occupied by them for the use and Let copy of this decision be furnished the
occupancy of the same. Register of Deeds for the province of Laguna
for his information and guidance.
The defendants claim that the sale made by Flaviano Moreto in
their favor is valid as the lot sold is registered in the name of With costs against the defendants. 2
Flaviano Moreto and they are purchasers believing in good
faith that the vendor was the sole owner of the lot sold. The defendants-appellants, not being satisfied with said
judgment, appealed to the Court of Appeals, which affirmed
After a relocation of lots 1495, 1496 and 4545 made by the judgment, hence they now come to this Court.
agreement of the parties, it was found out that there was mutual
error between Flaviano Moreto and the defendants in the The fundamental and crucial issue in the case at bar is whether
execution of the deed of sale because while the said deed under the facts and circumstances duly established by the
recited that the lot sold is lot No. 1495, the real intention of the evidence, petitioners are entitled to the full ownership of the
parties is that it was a portion consisting of 781 square meters property in litigation, or only one-half of the same.
of lot No. 1496 which was the subject matter of their sale
There is no question that when the petitioners purchased the
property on July 30, 1952 from Flaviano Moreto for the price
After trial, the lower court rendered judgment, the dispositive of P900.00, his wife Monica Maniega had already been dead
part thereof being as follows: six years before, Monica having died on May 6, 1946. Hence,
the conjugal partnership of the spouses Flaviano Moreto and
WHEREFORE, judgment is hereby rendered Monica Maniega had already been dissolved. (Article 175, (1)
for the plaintiffs declaring the deed of New Civil Code; Article 1417, Old Civil Code). The records
absolute sale dated July 30, 1952 pertaining show that the conjugal estate had not been inventoried,
to the eastern portion of Lot 1496 covering liquidated, settled and divided by the heirs thereto in
an area of 781 square meters null and void as accordance with law. The necessary proceedings for the
regards the 390.5 square meters of which liquidation of the conjugal partnership were not instituted by
plaintiffs are hereby declared the rightful the heirs either in the testate or intestate proceedings of the
owners and entitled to its possession. deceased spouse pursuant to Act 3176 amending Section 685 of
Act 190. Neither was there an extra-judicial partition between
The sale is ordered valid with respect to the the surviving spouse and the heirs of the deceased spouse nor
eastern one-half (1/2) of 1781 square meters was an ordinary action for partition brought for the purpose.
of Lot 1496 measuring 390.5 square meters Accordingly, the estate became the property of a community
of which defendants are declared lawful between the surviving husband, Flaviano Moreto, and his
owners and entitled to its possession. children with the deceased Monica Maniega in the concept of a
After proper survey segregating the eastern
one-half portion with an area of 390.5 square The community property of the marriage, at
meters of Lot 1496, the defendants shall be the dissolution of this bond by the death of
entitled to a certificate of title covering said one of the spouses, ceases to belong to the
portion and Transfer Certificate of Title No. legal partnership and becomes the property of
9843 of the office of the Register of Deeds of a community, by operation of law, between
Laguna shall be cancelled accordingly and the surviving spouse and the heirs of the
new titles issued to the plaintiffs and to the deceased spouse, or the exclusive property of
defendants covering their respective portions. the widower or the widow, it he or she be the
heir of the deceased spouse. Every co-owner
shall have full ownership of his part and in
Transfer Certificate of Title No. 5671 of the
the fruits and benefits derived therefrom, and
office of the Register of Deeds of Laguna
he therefore may alienate, assign or mortgage
covering Lot No. 1495 and registered in the
name of Cornelio Pamplona, married to it, and even substitute another person in its
Apolonia Onte, is by virtue of this decision enjoyment, unless personal rights are in
question. (Marigsa vs. Macabuntoc, 17 Phil.
ordered cancelled. The defendants are
ordered to surrender to the office of the
Register of Deeds of Laguna the owner's
duplicate of Transfer Certificate of Title No. In Borja vs. Addision, 44 Phil. 895, 906, the Supreme Court
5671 within thirty (30) days after this said that "(t)here is no reason in law why the heirs of the
decision shall have become final for deceased wife may not form a partnership with the surviving
cancellation in accordance with this decision. husband for the management and control of the community
property of the marriage and conceivably such a partnership, or
rather community of property, between the heirs and the
surviving husband might be formed without a written
agreement." In Prades vs. Tecson, 49 Phil. 230, the Supreme
Court held that "(a)lthough, when the wife dies, the surviving mortgage, with respect to the co-owners,
husband, as administrator of the community property, has shall be limited to the portion which may be
authority to sell the property withut the concurrence of the allotted to him in the division upon the
children of the marriage, nevertheless this power can be waived termination of the co-ownership.
in favor of the children, with the result of bringing about a
conventional ownership in common between the father and We agree with the petitioner that there was a partial partition of
children as to such property; and any one purchasing with the co-ownership when at the time of the sale Flaviano Moreto
knowledge of the changed status of the property will acquire pointed out the area and location of the 781 sq. meters sold by
only the undivided interest of those members of the family who him to the petitioners-vendees on which the latter built their
join in the act of conveyance. house and also that whereon Rafael, the son of petitioners
likewise erected his house and an adjacent coral for piggery.
It is also not disputed that immediately after the execution of
the sale in 1952, the vendees constructed their house on the Petitioners point to the fact that spouses Flaviano Moreto and
eastern part of Lot 1496 which the vendor pointed out to them Monica Maniega owned three parcels of land denominated as
as the area sold, and two weeks thereafter, Rafael who is a son Lot 1495 having an area of 781 sq. meters, Lot 1496 with an
of the vendees, also built his house within Lot 1496. area of 1,021 sq. meters, and Lot 4545 with an area of 544 sq.
Subsequently, a cemented piggery coral was constructed by the meters. The three lots have a total area of 2,346 sq. meters.
vendees at the back of their house about one and one-half These three parcels of lots are contiguous with one another as
meters from the eastern boundary of Lot 1496. Both vendor each is bounded on one side by the other, thus: Lot 4545 is
and vendees believed all the time that the area of 781 sq. bounded on the northeast by Lot 1495 and on the southeast by
meters subject of the sale was Lot No. 1495 which according to Lot 1496. Lot 1495 is bounded on the west by Lot 4545. Lot
its title (T.C.T. No. 14570) contains an area of 781 sq. meters 1496 is bounded on the west by Lot 4545. It is therefore, clear
so that the deed of sale between the parties Identified and that the three lots constitute one big land. They are not separate
described the land sold as Lot 1495. But actually, as verified properties located in different places but they abut each other.
later by a surveyor upon agreement of the parties during the This is not disputed by private respondents. Hence, at the time
proceedings of the case below, the area sold was within Lot of the sale, the co-ownership constituted or covered these three
1496. lots adjacent to each other. And since Flaviano Moreto was
entitled to one-half pro-indiviso of the entire land area or 1,173
Again, there is no dispute that the houses of the spouses sq. meters as his share, he had a perfect legal and lawful right
Cornelio Pamplona and Apolonia Onte as well as that of their to dispose of 781 sq. meters of his share to the Pamplona
son Rafael Pamplona, including the concrete piggery coral spouses. Indeed, there was still a remainder of some 392 sq.
adjacent thereto, stood on the land from 1952 up to the filing of meters belonging to him at the time of the sale.
the complaint by the private respondents on July 25, 1961, or a
period of over nine (9) years. And during said period, the We reject respondent Court's ruling that the sale was valid as to
private respondents who are the heirs of Monica Maniega as one-half and invalid as to the other half for the very simple
well as of Flaviano Moreto who also died intestate on August reason that Flaviano Moreto, the vendor, had the legal right to
12, 1956, lived as neighbors to the petitioner-vendees, yet lifted more than 781 sq. meters of the communal estate, a title which
no finger to question the occupation, possession and ownership he could dispose, alienate in favor of the vendees-petitioners.
of the land purchased by the Pamplonas, so that We are The title may be pro-indiviso or inchoate but the moment the
persuaded and convinced to rule that private respondents are in co-owner as vendor pointed out its location and even indicated
estoppel by laches to claim half of the property, in dispute as the boundaries over which the fences were to be erectd without
null and void. Estoppel by laches is a rule of equity which bars objection, protest or complaint by the other co-owners, on the
a claimant from presenting his claim when, by reason of contrary they acquiesced and tolerated such alienation,
abandonment and negligence, he allowed a long time to elapse occupation and possession, We rule that a factual partition or
without presenting the same. (International Banking termination of the co-ownership, although partial, was created,
Corporation vs. Yared, 59 Phil. 92) and barred not only the vendor, Flaviano Moreto, but also his
heirs, the private respondents herein from asserting as against
We have ruled that at the time of the sale in 1952, the conjugal the vendees-petitioners any right or title in derogation of the
partnership was already dissolved six years before and deed of sale executed by said vendor Flaiano Moreto.
therefore, the estate became a co-ownership between Flaviano
Moreto, the surviving husband, and the heirs of his deceased Equity commands that the private respondents, the successors
wife, Monica Maniega. Article 493 of the New Civil Code is of both the deceased spouses, Flaviano Moreto and Monica
applicable and it provides a follows: Maniega be not allowed to impugn the sale executed by
Flaviano Moreto who indisputably received the consideration
Art. 493. Each co-owner shall have the full of P900.00 and which he, including his children, benefitted
ownership of his part and of the fruits and from the same. Moreover, as the heirs of both Monica Maniega
benefits pertaining thereto, and he may and Flaviano Moreto, private respondents are duty-bound to
therefore alienate, assign or mortgage it, and comply with the provisions of Articles 1458 and 1495, Civil
even substitute another person in its Code, which is the obligation of the vendor of the property of
enjoyment, except when personal rights are delivering and transfering the ownership of the whole property
involve. But the effect of the alienation or the
sold, which is transmitted on his death to his heirs, the herein Teehankee (Chairman), Makasiar, Fernandez, De Castro and
private respondents. The articles cited provide, thus: Melencio-Herrera, JJ., concur.

Art. 1458. By the contract of sale one of the

contracting parties obligates himself to
transfer the ownership of and to deliver a
determinate thing, and the other part to pay
therefore a price certain in money or its

A contract of sale may be absolute or


Art. 1495. The vendor is bound to transfer

the ownership of and deliver, as well as
warrant the thing which is the object of the

Under Article 776, New Civil Code, the inheritance which

private respondents received from their deceased parents and/or
predecessors-in-interest included all the property rights and
obligations which were not extinguished by their parents' death.
And under Art. 1311, paragraph 1, New Civil Code, the
contract of sale executed by the deceased Flaviano Moreto took
effect between the parties, their assigns and heirs, who are the
private respondents herein. Accordingly, to the private
respondents is transmitted the obligation to deliver in full
ownership the whole area of 781 sq. meters to the petitioners
(which was the original obligation of their predecessor
Flaviano Moreto) and not only one-half thereof. Private
respondents must comply with said obligation.

The records reveal that the area of 781 sq. meters sold to and
occupied by petitioners for more than 9 years already as of the
filing of the complaint in 1961 had been re-surveyed by private
land surveyor Daniel Aranas. Petitioners are entitled to a
segregation of the area from Transfer Certificate of Title No. T-
9843 covering Lot 1496 and they are also entitled to the
issuance of a new Transfer Certificate of Title in their name
based on the relocation survey.


judgment appealed from is hereby AFFIRMED with
modification in the sense that the sale made and executed by
Flaviano Moreto in favor of the petitioners-vendees is hereby
declared legal and valid in its entirely.

Petitioners are hereby declared owners in full ownership of the

781 sq. meters at the eastern portion of Lot 1496 now occupied
by said petitioners and whereon their houses and piggery coral

The Register of Deeds of Laguna is hereby ordered to segregate

the area of 781 sq. meters from Certificate of Title No. 9843
and to issue a new Transfer Certificate of Title to the
petitioners covering the segregated area of 781 sq. meters.

No costs.

G.R. No. L-25014 October 17, 1973 1, 1958. The first year's rental was paid on
CASTRO, JR., WILFREDO DE CASTRO, IRINEO DE In the meantime, Tomas de Castro died.
substitution for the deceased defendant-appellant In the month of November, 1956, plaintiff as
ARSENIO DE CASTRO, SR.)., petitioners, lessee and defendant Arsenio de Castro, Sr.
vs. as one of the lessors, agreed to set aside and
GREGORIO ATIENZA, respondent. annul the contract of lease and for this
purpose an agreement (Exh. A) was signed
Arsenio de Castro, Jr. and F.T. Papa for petitioners. by them, Exhibit A as signed by plaintiff and
defendant shows that Felisa Cruz Vda. de
Dakila Castro and Z.D. de Mesa for respondent. Castro, widow of Tomas de Castro, was
intended to be made a party thereof in her
capacity as representative of the heirs of
Tomas Castro.
Condition No. 2 of Exhibit A reads as
The Court rejects petitioners' appeal as without merit and
affirms the judgment of the appellate court. Petitioners'
"2. Na sa pamamagitan nito ay pinawawalang
predecessor-in-interest as co-owner of an undivided one-half
interest in the fishpond could validly lease his interest to a third kabuluhan namin ang nasabing kasulatan at
party, respondent Atienza, independently of his co-owner nagkasundo kami na ang bawat isa sa amin ni
Arsenio de Castro at Felisa Cruz Vda. de
(although said co-owner had also leased his other undivided
Castro ay isauli kay GREGORIO ATIENZA
one-half interest to the same third party) and could likewise by
ang tig P2,500.00 o kabuuang halagang
mutual agreement independently cancel his lease agreement
P5,000.00 na paunang naibigay nito
with said third party. Said predecessor-in-interest (and
petitioners who have substituted him as his heirs) therefore alinsunod sa nasabing kasulatan; na ang
nasabing tig P2,500.00 ay isasauli ng bawat
stands liable on his express undertaking to refund the advance
isa sa amin sa o bago dumating ang Dec. 30,
rental paid to him by the lessee on the cancelled lease and
cannot invoke the non-cancellation of the co-owner's lease to
elude such liability.
Felisa Cruz Vda. de Castro refused to sign
Exhibit A. Defendant did not pay the
The Court of Appeals, in its decision affirming in toto the
P2,500.00 which under the above-quoted
judgment of the Manila court of first instance ordering therein
paragraph of Exhibit A, he should have paid
defendant-appellant Arsenio de Castro, Sr. (now deceased and
on December 30, 1956. Demand for payment
substituted by above-named petitioners as his heirs) "to return
to the plaintiff (respondent) Gregorio Atienza the sum was made by plaintiff's counsel on January 7,
P2,500.00 with legal interest from the date of the filing of 1957 but to no avail, hence the present
complaint until fully paid plus the sum of P250.00 as attorney's
fees and the costs of the suit", found the following facts to
undisputed: On the conflicting contentions between the parties as to who
between them would attend to securing the signature of Mrs.
On January 24, 1956 the brothers Tomas de Felisa Cruz Vda. de Castro (widow of Tomas de Castro) to the
agreement of cancellation of the lease with respondent Atienza,
Castro and Arsenio de Castro, Sr. leased to
the appellate court found that "the testimony of the defendant
plaintiff a fishpond containing an area of 26
(Arsenio de Castro, Sr.) ... supports the contention of the
hectares situated in Polo, Bulacan and
plaintiff (Atienza) "that it was the defendant Arsenio who was
forming part of a bigger parcel of land
covered by Transfer Certificate of Title No. interested and undertook to do so, citing Arsenio's own
declaration that "I agreed to sign this document (referring to the
196450 of the registry of the property of
cancellation) because of my desire to cancel our original
Bulacan. The lessors are co-owners in equal
agreement" and that his purpose in obtaining the cancellation of
shares of the leased property.
said lease agreement with plaintiff Atienza was "(B)ecause I
had the intention of having said fishpond leased to other
According to the contract of lease (Exh. 1) persons and I cannot lease it to third parties unless I can secure
the term of the lease was for five years from the signature of Felisa Vda. de Castro."
January 24, 1956 at a rental of P5,000 a year,
the first year's rental to be paid on February
The appellate court thus held in effect that as Arsenio "was the
1, 1956, the second on February 1, 1957 and
the rental for the last three years on February one interested in cancelling the lease (Exh. 1), it stands to
reason that he most probably undertook to obtain the signature
of Mrs. Castro [widow and successor-in-interest of his brother
Tomas]" and that he could not invoke his own failure to obtain Makalintal, Actg. C.J., Zaldivar, Castro, Fernando, Barredo,
such signature to elude his own undertaking and liability to Makasiar, Antonio and Esguerra, JJ., concur.
refund respondent (plaintiff) his share of the rental paid in
advance by respondent on the cancelled lease in the sum of

The appellate court furthermore correctly held that the consent

or concurrence of Felisa Vda. de Castro (as co-owner in
succession of Tomas) was not an essential condition to the
validity and effectivity of the agreement of cancellation of the
lease (Exhibit A) as between Arsenio and respondent-lessee,
contrary to petitioners' claim, holding that "(S)ince there is no
specific provision in Exhibit A supporting defendant's claim,
we are not prepared to supply such condition unless the same
can be deduced from other evidence or unless the terms of
Exhibit A cannot be performed by plaintiff and defendant
without Mrs. Castro being bound as a party thereto."

The issue is simply reduced to whether Arsenio as co-owner of

the fishpond owned pro-indiviso by him with his brother
Tomas (succeeded by Felisa Vda. de Castro) could validly
lease his half-interest to a third party (respondent
Atienza) independently of his
co-owner, and in case his co-owner also leased his other half
interest to the same third party, whether Arsenio could cancel
his own lease agreement with said third party?

The appellate court correctly resolved the issue thus: "Our view
of the contract of lease Exhibit 1 is that each of the Castro
brothers, leased his undivided one-half interest in the fishpond
they owned in common to the plaintiff. Could one of them have
validly leased his interest without the other co-owner leasing
his own? The answer to this is given by appellant in his own
brief (p. 14) when he said that it would result in a partnership
between the lessee and the owner of the other undivided half. If
the lease could be entered into partially by one of the co-
owners, insofar as his interest is concerned, then the lease,
Exhibit 1, can also be cancelled partially as between plaintiff
and defendant. Therefore, we conclude that the consent of Mrs.
Felisa Cruz Vda. de Castro is not essential for the cancellation
of the lease of defendant's one-half undivided share in the
fishpond to plaintiff."

The appellate court's judgment is fully supported by the Civil

Code provisions on the rights and prerogatives of co-owners,
and specifically by Article 493 which expressly provides that

Art. 493. Each co-owner shall have the full

ownership of his part and of the fruits and
benefitspertaining thereto, and he may
therefore alienate, assign or mortgage it,
and even substitute another person in its
enjoyment, except when personal rights are
involved. But the effect of the alienation or
the mortgage, with respect to the co-owners,
shall be limited to the portion which may be
alloted to him in the division upon the
termination of the co-ownership. *

ACCORDINGLY, the appealed judgment is hereby affirmed

with costs against petitioners.
FIRST DIVISION expropriation of their land is arbitrary and capricious, and is
not for a public purpose; the subject lots are their only real
property and are too small for expropriation, while petitioner
has several properties inventoried for socialized housing; the
[G.R. No. 137152. January 29, 2001] fair market value of P3,000.00 per square meter is arbitrary
because the zonal valuation set by the Bureau of Internal
Revenue is P7,000.00 per square meter. As counterclaim,
respondents prayed for damages of P21 million.[3]
CITY OF MANDALUYONG, petitioner, vs. ANTONIO N., Respondents filed a Motion for Preliminary Hearing
FRANCISCO N., THELMA N., EUSEBIO N., claiming that the defenses alleged in their Answer are valid
RODOLFO N., all surnamed grounds for dismissal of the complaint for lack of jurisdiction
AGUILAR, respondents. over the person of the defendants and lack of cause of
action. Respondents prayed that the affirmative defenses be set
DECISION for preliminary hearing and that the complaint be
dismissed.[4] Petitioner replied.
On November 5, 1997, petitioner filed an Amended
This is a petition for review under Rule 45 of the Rules of Complaint and named as an additional defendant Virginia N.
Court of the Orders dated September 17, 1998 and December Aguilar and, at the same time, substituted Eusebio Aguilar with
29, 1998 of the Regional Trial Court, Branch 168, Pasig his heirs. Petitioner also excluded from expropriation TCT No.
City[1] dismissing the petitioners Amended Complaint in SCA 59870 and thereby reduced the area sought to be expropriated
No. 1427 for expropriation of two (2) parcels of land in from three (3) parcels of land to two (2) parcels totalling 1,636
Mandaluyong City. square meters under TCT Nos. 63766 and 63767.[5]

The antecedent facts are as follows: The Amended Complaint was admitted by the trial court
on December 18, 1997. Respondents, who, with the exception
On August 4, 1997, petitioner filed with the Regional of Virginia Aguilar and the Heirs of Eusebio Aguilar had yet to
Trial Court, Branch 168, Pasig City a complaint for be served with summons and copies of the Amended
expropriation entitled City of Mandaluyong, plaintiff v. Antonio Complaint, filed a Manifestation and Motion adopting their
N., Francisco N., Thelma N., Eusebio N., Rodolfo N., all Answer with Counterclaim and Motion for Preliminary
surnamed Aguilar, defendants. Petitioner sought to expropriate Hearing as their answer to the Amended Complaint.[6]
three (3) adjoining parcels of land with an aggregate area of
1,847 square meters registered under Transfer Certificates of The motion was granted. At the hearing of February 25,
Title Nos. 59780, 63766 and 63767 in the names of the 1998, respondents presented Antonio Aguilar who testified and
defendants, herein respondents, located at 9 de Febrero Street, identified several documentary evidence. Petitioner did not
Barangay Mauwag, City of Mandaluyong; on a portion of the 3 present any evidence.Thereafter, both parties filed their
lots, respondents constructed residential houses several decades respective memoranda.[7]
ago which they had since leased out to tenants until the present;
On September 17, 1998, the trial court issued an order
on the vacant portion of the lots, other families constructed
dismissing the Amended Complaint after declaring respondents
residential structures which they likewise occupied; in 1983,
as small property owners whose land is exempt from
the lots were classified by Resolution No. 125 of the Board of
expropriation under Republic Act No. 7279. The court also
the Housing and Urban Development Coordinating Council as
found that the expropriation was not for a public purpose for
an Area for Priority Development for urban land reform under
petitioners failure to present any evidence that the intended
Proclamation Nos. 1967 and 2284 of then President Marcos; as
beneficiaries of the expropriation are landless and homeless
a result of this classification, the tenants and occupants of the
residents of Mandaluyong. The court thus disposed of as
lots offered to purchase the land from respondents, but the
latter refused to sell; on November 7, 1996, the Sangguniang
Panlungsod of petitioner, upon petition of the Kapitbisig, an
association of tenants and occupants of the subject land, WHEREFORE, the Amended Complaint is hereby ordered
adopted Resolution No. 516, Series of 1996 authorizing Mayor dismissed without pronouncement as to cost.
Benjamin Abalos of the City of Mandaluyong to initiate action
for the expropriation of the subject lots and construction of a SO ORDERED.[8]
medium-rise condominium for qualified occupants of the land;
on January 10, 1996, Mayor Abalos sent a letter to respondents Petitioner moved for reconsideration. On December 29,
offering to purchase the said property at P3,000.00 per square 1998, the court denied the motion. Hence this petition.
meter; respondents did not answer the letter. Petitioner thus
prayed for the expropriation of the said lots and the fixing of Petitioner claims that the trial court erred
just compensation at the fair market value of P3,000.00 per
In their answer, respondents, except Eusebio N. Aguilar ARE THUS EXEMPT FROM EXPROPRIATION.[9]
who died in 1995, denied having received a copy of Mayor
Abalos offer to purchase their lots. They alleged that the
Petitioner mainly claims that the size of the lots in (c) Unregistered or abandoned and idle lands;
litigation does not exempt the same from expropriation in view
of the fact that the said lots have been declared to be within the (d) Those within the declared Areas for Priority
Area for Priority Development (APD) No. 5 of Mandaluyong Development, Zonal Improvement Program
by virtue of Proclamation No. 1967, as amended by sites, and Slum Improvement and Resettlement
Proclamation No. 2284 in relation to Presidential Decree No. Program sites which have not yet been acquired;
1517.[10] This declaration allegedly authorizes petitioner to (e) Bagong Lipunan Improvement of Sites and
expropriate the property, ipso facto, regardless of the area of Services or BLISS Sites which have not yet been
the land. acquired;
Presidential Decree (P.D.) No. 1517, the Urban Land (f) Privately-owned lands.
Reform Act, was issued by then President Marcos in 1978. The
decree adopted as a State policy the liberation of human
Where on-site development is found more practicable and
communities from blight, congestion and hazard, and
advantageous to the beneficiaries, the priorities mentioned in
promotion of their development and modernization, the
this section shall not apply. The local government units shall
optimum use of land as a national resource for public
give budgetary priority to on-site development of government
welfare.[11] Pursuant to this law, Proclamation No. 1893 was
issued in 1979 declaring the entire Metro Manila as Urban
Land Reform Zone for purposes of urban land reform. This was
amended in 1980 by Proclamation No. 1967 and in 1983 by Lands for socialized housing are to be acquired in the
Proclamation No. 2284 which identified and specified 245 sites following order: (1) government lands; (2) alienable lands of
in Metro Manila as Areas for Priority Development and Urban the public domain; (3) unregistered or abandoned or idle lands;
Land Reform Zones. (4) lands within the declared Areas for Priority Development
(APD), Zonal Improvement Program (ZIP) sites, Slum
In 1992, the Congress of the Philippines passed Republic Improvement and Resettlement (SIR) sites which have not yet
Act No. 7279, the Urban Development and Housing Act of been acquired; (5) BLISS sites which have not yet been
1992. The law lays down as a policy that the state, in acquired; and (6) privately-owned lands.
cooperation with the private sector, undertake a comprehensive
and continuing Urban Development and Housing Program; There is no dispute that the two lots in litigation are
uplift the conditions of the underprivileged and homeless privately-owned and therefore last in the order of priority
citizens in urban areas and resettlement areas by making acquisition. However, the law also provides that lands within
available to them decent housing at affordable cost, basic the declared APDs which have not yet been acquired by the
services and employment opportunities and provide for the government are fourth in the order of priority. According to
rational use and development of urban land to bring about, petitioner, since the subject lots lie within the declared APD,
among others, equitable utilization of residential lands; this fact mandates that the lots be given priority in
encourage more effective people's participation in the urban acquisition.[14]
development process and improve the capability of local Section 9, however, is not a single provision that can be
government units in undertaking urban development and read separate from the other provisions of the law. It must be
housing programs and projects.[12] Towards this end, all city read together with Section 10 of R.A. 7279 which also
and municipal governments are mandated to conduct provides:
an inventory of all lands and improvements within their
respective localities, and in coordination with the National
Section 10. Modes of Land Acquisition.The modes of acquiring
Housing Authority, the Housing and Land Use Regulatory
lands for purposes of this Act shall include, among others,
Board, the National Mapping Resource Information Authority,
community mortgage, land swapping, land assembly or
and the Land Management Bureau, identify lands for
consolidation, land banking, donation to the Government, joint-
socialized housing and resettlement areas for the immediate
venture agreement, negotiated purchase, and
and future needs of the underprivileged and homeless in the
expropriation: Provided, however, That expropriation shall
urban areas, acquire the lands, and dispose of said lands to the
be resorted to only when other modes of acquisition have
beneficiaries of the program.[13]
been exhausted: Provided, further, That where expropriation
The acquisition of lands for socialized housing is is resorted to, parcels of land owned by small property
governed by several provisions in the law. Section 9 of R.A. owners shall be exempted for purposes of this
7279 provides: Act: Provided, finally, That abandoned property, as herein
defined, shall be reverted and escheated to the State in a
Sec. 9. Priorities in the Acquisition of Land.Lands for proceeding analogous to the procedure laid down in Rule 91 of
socialized housing shall be acquired in the following order: the Rules of Court.[15]

(a) Those owned by the Government or any of its For the purposes of socialized housing, government-owned and
subdivisions, instrumentalities, or agencies, foreclosed properties shall be acquired by the local government
including government-owned or controlled units, or by the National Housing Authority primarily through
corporations and their subsidiaries; negotiated purchase: Provided, That qualified beneficiaries
who are actual occupants of the land shall be given the right of
(b) Alienable lands of the public domain; first refusal.
Lands for socialized housing under R.A. 7279 are to be Senate Bill No. 234 authored by Senator Joey Lina[23] and
acquired in several modes. Among these modes are the House Bill No. 34310. Senate Bill No. 234 then provided that
following: (1) community mortgage; (2) land swapping, (3) one of those lands not covered by the urban land reform and
land assembly or consolidation; (4) land banking; (5) donation housing program was land actually used by small property
to the government; (6) joint venture agreement; (7) negotiated owners within the just and equitable retention limit as provided
purchase; and (8) expropriation. The mode of expropriation is under this Act.[24] Small property owners were defined in
subject to two conditions: (a) it shall be resorted to only when Senate Bill No. 234 as:
the other modes of acquisition have been exhausted; and (b)
parcels of land owned by small property owners are exempt 4. Small Property Ownersare those whose rights are protected
from such acquisition. under Section 9, Article XIII of the Constitution of the
Section 9 of R.A. 7279 speaks of priorities in the Philippines, who own small parcels of land within the fair and
acquisition of lands. It enumerates the type of lands to be just retention limit provided under this Act and which are
acquired and the heirarchy in their acquisition. Section 10 deals adequate to meet the reasonable needs of the small property
with the modes of land acquisition or the process of acquiring owners family and their means of livelihood.[25]
lands for socialized housing. These are two different
things. They mean that the type of lands that may be The exemption from expropriation of lands of small-
acquired in the order of priority in Section 9 are to be property owners was never questioned on the Senate
acquired only in the modes authorized under Section floor.[26] This exemption, although with a modified definition,
10. The acquisition of the lands in the priority list must be was actually retained in the consolidation of Senate Bill No.
made subject to the modes and conditions set forth in the next 234 and House Bill No. 34310 which became R.A. No.
provision. In other words, land that lies within the APD, such 7279.[27]
as in the instant case, may be acquired only in the modes under,
The question now is whether respondents qualify as small
and subject to the conditions of, Section 10.
property owners as defined in Section 3 (q) of R.A.
Petitioner claims that it had faithfully observed the 7279. Section 3 (q) provides:
different modes of land acquisition for socialized housing
under R.A. 7279 and adhered to the priorities in the acquisition Section 3 x x x (q). Small property owners refers to those whose
for socialized housing under said law.[16] It, however, did not only real property consists of residential lands not exceeding
state with particularity whether it exhausted the other modes of three hundred square meters (300 sq.m.) in highly urbanized
acquisition in Section 9 of the law before it decided to cities and eight hundred square meters (800 sq.m.) in other
expropriate the subject lots. The law states expropriation shall urban areas.
be resorted to when other modes of acquisition have been
exhausted. Petitioner alleged only one mode of Small-property owners are defined by two elements: (1) those
acquisition, i.e., by negotiated purchase. Petitioner, through the owners of real property whose property consists of residential
City Mayor, tried to purchase the lots from respondents but the lands with an area of not more than 300 square meters in highly
latter refused to sell.[17] As to the other modes of acquisition, no urbanized cities and 800 square meters in other urban areas;
mention has been made. Not even Resolution No. 516, Series and (2) that they do not own real property other than the same.
of 1996 of the Sangguniang Panlungsod authorizing the Mayor
of Mandaluyong to effect the expropriation of the subject The case at bar involves two (2) residential lots in
property states whether the city government tried to acquire the Mandaluyong City, a highly urbanized city. The lot under TCT
same by community mortgage, land swapping, land assembly No. 63766 is 687 square meters in area and the second under
or consolidation, land banking, donation to the government, TCT No. 63767 is 949 square meters, both totalling 1,636
or joint venture agreement under Section 9 of the law. square meters in area. TCT No. 63766 was issued in the names
of herein five (5) respondents, viz:
Section 9 also exempts from expropriation parcels of land
owned by small property owners.[18] Petitioner argues that the
exercise of the power of eminent domain is not anymore
AGUILAR, single; EUSEBIO N. AGUILAR, JR., widower;
conditioned on the size of the land sought to be
expropriated.[19] By the expanded notion of public use, present
AGUILAR, married to Teresita Puig; all of legal age,
jurisprudence has established the concept that expropriation is
not anymore confined to the vast tracts of land and landed
estates, but also covers small parcels of land.[20] That only a
few could actually benefit from the expropriation of the TCT No. 63767 was issued in the names of the five (5)
property does not diminish its public use character. [21] It simply respondents plus Virginia Aguilar, thus:
is not possible to provide, in one instance, land and shelter for
all who need them.[22] FRANCISCO N. AGUILAR, widower; THELMA N.
AGUILAR, single; EUSEBIO N. AGUILAR, JR., widower;
While we adhere to the expanded notion of public use, the RODOLFO N. AGUILAR, single and ANTONIO N.
passage of R.A. No. 7279, the Urban Development and AGUILAR, married to Teresita Puig; and VIRGINIA N.
Housing Act of 1992 introduced a limitation on the size of the AGUILAR, single, all of legal age, Filipinos.[29]
land sought to be expropriated for socialized housing. The law
expressly exempted small property owners from expropriation
of their land for urban land reform. R.A. No. 7279 originated as
Respondent Antonio Aguilar testified that he and the In the instant case, the titles to the subject lots were issued
other registered owners are all siblings who inherited the in respondents names as co-owners in 1987ten (10) years
subject property by intestate succession from their before the expropriation case was filed in 1997. As co-owners,
parents.[30] Their father died in 1945 and their mother in all that the respondents had was an ideal or abstract quota or
1976.[31] Both TCTs were issued in the siblings names on proportionate share in the lots. This, however, did not mean
September 2, 1987.[32] In 1986, however, the siblings agreed to that they could not separately exercise any rights over the
extrajudicially partition the lots among themselves, but no lots. Each respondent had the full ownership of his undivided
action was taken by them to this end. It was only eleven (11) interest in the property. He could freely sell or dispose of his
years later, on November 28, 1997 that a survey of the two lots interest independently of the other co-owners. And this interest
was made[33] and on February 10, 1998, a consolidation could have even been attached by his creditors.[46] The partition
subdivision plan was approved by the Lands Management in 1998, six (6) months after the filing of the expropriation
Service of the Department of Environment and Natural case, terminated the co-ownership by converting into certain
Resources.[34] The co-owners signed a Partition Agreement on and definite parts the respective undivided shares of the co-
February 24, 1998[35] and on May 21, 1998, TCT Nos. 63766 owners.[47] The subject property is not a thing essentially
and 63767 were cancelled and new titles issued in the names of indivisible. The rights of the co-owners to have the property
the individual owners pursuant to the Partition Agreement. partitioned and their share in the same delivered to them cannot
be questioned for "[n]o co-owner shall be obliged to remain in
Petitioner argues that the consolidation of the subject lots the co-ownership."[48] The partition was merely a necessary
and their partition was made more than six (6) months after the incident of the co-ownership;[49] and absent any evidence to the
complaint for expropriation was filed on August 4, 1997, contrary, this partition is presumed to have been done in good
hence, the partition was made in bad faith, for the purpose of faith.
circumventing the provisions of R.A. 7279.[36]
Upon partition, four (4) co-owners, namely, Francisco,
At the time of filing of the complaint for expropriation, Thelma, Rodolfo and Antonio Aguilar each had a share of 300
the lots subject of this case were owned in common by square meters under TCT Nos. 13849, 13852, 13850,
respondents. Under a co-ownership, the ownership of an 13851.[50] Eusebio Aguilars share was 347 square meters under
undivided thing or right belongs to different persons. [37] During TCT No. 13853[51] while Virginia Aguilars was 89 square
the existence of the co-ownership, no individual can claim title meters under TCT No. 13854.[52]
to any definite portion of the community property until the
partition thereof; and prior to the partition, all that the co-owner It is noted that Virginia Aguilar, although granted 89
has is an ideal or abstract quota or proportionate share in the square meters only of the subject lots, is, at the same time, the
entire land or thing.[38] Article 493 of the Civil Code however sole registered owner of TCT No. 59780, one of the three (3)
provides that: titles initially sought to be expropriated in the original
complaint. TCT No. 59780, with a land area of 211 square
Art. 493. Each co-owner shall have the full ownership of his meters, was dropped in the amended complaint. Eusebio
part and of the fruits and benefits pertaining thereto, and he Aguilar was granted 347 square meters, which is 47 square
may therefore alienate, assign or mortgage it, and even meters more than the maximum of 300 square meters set by
substitute another person in its enjoyment, except when R.A. 7279 for small property owners. In TCT No. 13853,
personal rights are involved. But the effect of the alienation or Eusebios title, however, appears the following annotation:
the mortgage, with respect to the co-owners shall be limited to
the portion which may be allotted to him in the division upon subject to x x x, and to the prov. of Sec. 4 Rule 74 of the Rules
termination of the co-ownership.[39] of Court with respect to the inheritance left by the deceased
Eusebio N. Aguilar.[53]
Before partition in a co-ownership, every co-owner has the
absolute ownership of his undivided interest in the common Eusebio died on March 23, 1995,[54] and, according to
property. The co-owner is free to alienate, assign or mortgage Antonios testimony, the former was survived by five (5)
his interest, except as to purely personal rights.[40] He may also children.[55] Where there are several co-owners, and some of
validly lease his undivided interest to a third party them die, the heirs of those who die, with respect to that part
independently of the other co-owners.[41] The effect of any such belonging to the deceased, become also co-owners of the
transfer is limited to the portion which may be awarded to him property together with those who survive.[56] After Eusebio
upon the partition of the property.[42] died, his five heirs became co-owners of his 347 square-meter
portion. Dividing the 347 square meters among the five entitled
Article 493 therefore gives the owner of an undivided interest each heir to 69.4 square meters of the land subject of litigation.
in the property the right to freely sell and dispose of his Consequently, the share of each co-owner did not exceed
undivided interest.[43] The co-owner, however, has no right to the 300 square meter limit set in R.A. 7279. The second
sell or alienate a concrete specific or determinate part of the question, however, is whether the subject property is the only
thing owned in common, because his right over the thing is real property of respondents for them to comply with the
represented by a quota or ideal portion without any physical second requisite for small property owners.
adjudication.[44] If the co-owner sells a concrete portion, this,
nonetheless, does not render the sale void. Such a sale affects Antonio Aguilar testified that he and most of the original
only his own share, subject to the results of the partition but not co-owners do not reside on the subject property but in their
those of the other co-owners who did not consent to the sale.[45] ancestral home in Paco, Manila.[57] Respondents therefore
appear to own real property other than the lots in
litigation. Nonetheless, the records do not show that the
ancestral home in Paco, Manila and the land on which it stands
are owned by respondents or any one of them. Petitioner did
not present any title or proof of this fact despite Antonio
Aguilars testimony.
On the other hand, respondents claim that the subject lots
are their only real property[58] and that they, particularly two of
the five heirs of Eusebio Aguilar, are merely renting their
houses and therefore do not own any other real property in
Metro Manila.[59] To prove this, they submitted certifications
from the offices of the City and Municipal Assessors in Metro
Manila attesting to the fact that they have no registered real
property declared for taxation purposes in the respective
cities. Respondents were certified by the City Assessor of
Manila;[60] Quezon City;[61] Makati City;[62] Pasay
[63] [64]
City; Paranaque; Caloocan City;[65] Pasig
City;[66] Muntinlupa;[67] Marikina;[68] and the then municipality
of Las Pias[69] and the municipality of San Juan del Monte[70] as
having no real property registered for taxation in their
individual names.
Finally, this court notes that the subject lots are now in the
possession of respondents. Antonio Aguilar testified that he
and the other co-owners filed ejectment cases against the
occupants of the land before the Metropolitan Trial Court,
Mandaluyong, Branches 59 and 60. Orders of eviction were
issued and executed on September 17, 1997 which resulted in
the eviction of the tenants and other occupants from the land in
IN VIEW WHEREOF, the petition is DENIED and the
orders dated September 17, 1998 and December 29, 1998 of the
Regional Trial Court, Branch 168, Pasig City in SCA No. 1427
Davide, Jr., C.J., (Chairman), Kapunan,
Pardo, and Ynares-Santiago, JJ., concur.
G.R. No. L-46296 September 24, 1991 On January 16, 1970, the trial court rendered a decision in
favor of petitioners, the dispositive portion of which states:
BIBIANO BACUS, OLIMPIO BACUS and CONSIDERATIONS, the following are the declared
PURIFICACION BACUS, petitioners, owners of Lot No. 7758 of the Talisay-Minglanilla
vs. Friar Lands Estate presently covered by transfer
HON. COURT OF APPEALS, GALILEO DELIMA Certificate of Title No. 3009, each sharing a pro-
(deceased), substituted by his legal heirs, namely: indiviso share of one-fourth;
NIADAS, ANTONIO DELIMA, DIONISIO DELIMA, 1) Vicente Delima (one-fourth)
DELIMA, respondents. 2) Heirs of Juanita Delima, namely: Bibiano Bacus,
Olimpio Bacus and Purificacion Bacus (on-fourth);
Gabriel J. Canete for petitioners.
Emilio Lumontad, Jr. for private respondents.
3) Heirs of Eulalio Delima, namely Epitacio, Pagano,
Fidel, Virgilio and Galileo Jr., all surnamed Delima
(one-fourth); and

4) The Heirs of Galileo Delima, namely Flaviana Vda.

MEDIALDEA, J.: de Delima, Lily D. Arias, Helen Niadas and Dionisio,
Antonio, Eotu Irenea, and Fely, all surnamed Delima
This is a petition for review on certiorari of the decision of the (one-fourth).
Court of Appeals reversing the trial court's judgment which
declared as null and void the certificate of title in the name of Transfer Certificate of Title No. 3009 is declared null
respondents' predecessor and which ordered the partition of the and void and the Register of Deeds of Cebu is ordered
disputed lot among the parties as co-owners. to cancel the same and issue in lieu thereof another
title with the above heirs as pro-indiviso owners.
The antecedent facts of the case as found both by the
respondent appellate court and by the trial court are as follows: After the payment of taxes paid by Galileo Delima
since 1958, the heirs of Galileo Delima are ordered to
During his lifetime, Lino Delima acquired Lot No. 7758 of the turn a over to the other heirs their respective shares of
Talisay-Minglanilla Friar Lands Estate in Cebu by sale on the fruits of the lot in question computed at P170.00
installments from the government. Lino Delima later died in per year up to the present time with legal (interest).
1921 leaving as his only heirs three brothers and a sister
namely: Eulalio Delima, Juanita Delima, Galileo Delima and Within sixty (60) days from receipt of this decision
Vicente Delima. After his death, TCT No. 2744 of the property the parties are ordered to petition the lot in question
in question was issued on August 3, 1953 in the name of the and the defendants are directed to immediately turn
Legal Heirs of Lino Delima, deceased, represented by Galileo over possession of the shares here awarded to the
Delima. respective heirs.

On September 22, 1953, Galileo Delima, now substituted by Defendants are condemned to pay the costs of the suit.
respondents, executed an affidavit of "Extra-judicial
Declaration of Heirs." Based on this affidavit, TCT No. 2744
The counterclaim is dismissed.
was cancelled and TCT No. 3009 was issued on February
4,1954 in the name of Galileo Delima alone to the exclusion of
the other heirs. SO ORDERED. (pp. 54-55, Rollo)

Galileo Delima declared the lot in his name for taxation Not satisfied with the decision, respondents appealed to the
purposes and paid the taxes thereon from 1954 to 1965. Court of Appeals. On May 19, 1977, respondent appellate court
reversed the trial court's decision and upheld the claim of
Galileo Delima that all the other brothers and sister of Lino
On February 29, 1968, petitioners, who are the surviving heirs
Delima, namely Eulalio, Juanita and Vicente, had already
of Eulalio and Juanita Delima, filed with the Court of First
relinquished and waived their rights to the property in his
Instance of Cebu (now Regional Trial Court) an action for
favor, considering that he (Galileo Delima) alone paid the
reconveyance and/or partition of property and for the
remaining balance of the purchase price of the lot and the realty
annulment of TCT No. 3009 with damages against their uncles taxes thereon (p. 26, Rollo).
Galileo Delima and Vicente Delima,. Vicente Delima was
joined as party defendant by the petitioners for his refusal to
join the latter in their action. Hence, this petition was filed with the petitioners alleging that
the Court of Appeals erred:
1) In not holding that the right of a co-heir to demand property as exclusive owner for a period sufficient to vest
partition of inheritance is imprescriptible. If it does, ownership by prescription.
the defenses of prescription and laches have already
been waived. It is settled that possession by a co-owner or co-heir is that of a
trustee. In order that such possession is considered adverse to
2) In disregarding the evidence of the the cestui que trust amounting to a repudiation of the co-
petitioners.(p.13, Rollo) ownership, the following elements must concur: 1) that the
trustee has performed unequivocal acts amounting to an ouster
The issue to be resolved in the instant case is whether or not of the cestui que trust; 2) that such positive acts of repudiation
petitioners' action for partition is already barred by the statutory had been made known to the cestui que trust; and 3) that the
period provided by law which shall enable Galileo Delima to evidence thereon should be clear and conclusive (Valdez v.
perfect his claim of ownership by acquisitive prescription to the Olorga, No. L-22571, May 25, 1973, 51 SCRA 71; Pangan v.
exclusion of petitioners from their shares in the disputed Court of Appeals, No. L-39299, October 18, 1988, 166 SCRA
property. Article 494 of the Civil Code expressly provides: 375).

Art. 494. No co-owner shall be obliged to remain in We have held that when a co-owner of the property in question
the co-ownership. Each co-owner may demand at any executed a deed of partition and on the strength thereof
time the partition of the thing owned in common, obtained the cancellation of the title in the name of their
insofar as his share is concerned. predecessor and the issuance of a new one wherein he appears
as the new owner of the property, thereby in effect denying or
repudiating the ownership of the other co-owners over their
Nevertheless, an agreement to keep the thing
shares, the statute of limitations started to run for the purposes
undivided for a certain period of time, not exceeding
of the action instituted by the latter seeking a declaration of the
ten years, shall be valid. This term may be extended
by a new agreement. existence of the co-ownership and of their rights thereunder
(Castillo v. Court of Appeals, No. L-18046, March 31, 1964,
10 SCRA 549). Since an action for reconveyance of land based
A donor or testator may prohibit partition for a period on implied or constructive trust prescribes after ten (10) years,
which shall not exceed twenty years. it is from the date of the issuance of such title that the effective
assertion of adverse title for purposes of the statute of
Neither shall there be any partition when it is limitations is counted (Jaramil v. Court of Appeals, No. L-
prohibited by law. 31858, August 31, 1977, 78 SCRA 420).

No prescription shall run in favor of a co-owner or co- Evidence shows that TCT No. 2744 in the name of the legal
heir against his co-owners or co-heirs so long as he heirs of Lino Delima, represented by Galileo Delima, was
expressly or impliedly recognizes the co-ownership. cancelled by virtue of an affidavit executed by Galileo Delima
and that on February 4, 1954, Galileo Delima obtained the
As a rule, possession by a co-owner will not be presumed to be issuance of a new title in Ms name numbered TCT No. 3009 to
adverse to the others, but will be held to benefit all. It is the exclusion of his co-heirs. The issuance of this new title
understood that the co-owner or co-heir who is in possession of constituted an open and clear repudiation of the trust or co-
an inheritance pro-indiviso for himself and in representation of ownership, and the lapse of ten (10) years of adverse
his co-owners or co-heirs, if, as such owner, he administers or possession by Galileo Delima from February 4, 1954 was
takes care of the rest thereof with the obligation of delivering it sufficient to vest title in him by prescription. As the certificate
to his co-owners or co-heirs, is under the same situation as a of title was notice to the whole world of his exclusive title to
depository, a lessee or a trustee (Bargayo v. Camumot, 40 Phil, the land, such rejection was binding on the other heirs and
857; Segura v. Segura, No. L-29320, September 19, 1988, 165 started as against them the period of prescription. Hence, when
SCRA 368). Thus, an action to compel partition may be filed at petitioners filed their action for reconveyance and/or to compel
any time by any of the co-owners against the actual possessor. partition on February 29, 1968, such action was already barred
In other words, no prescription shall run in favor of a co-owner by prescription. Whatever claims the other co-heirs could have
against his co-owners or co-heirs so long as he expressly or validly asserted before can no longer be invoked by them at
impliedly recognizes the co-ownership (Del Blanco v. this time.
Intermediate Appellate Court, No. 72694, December 1, 1987,
156 SCRA 55). ACCORDINGLY, the petition is hereby DENIED and the
assailed decision of the Court of Appeals dated May 19, 1977
However, from the moment one of the co-owners claims that is AFFIRMED.
he is the absolute and exclusive owner of the properties and
denies the others any share therein, the question involved is no SO ORDERED.
longer one of partition but of ownership (De Castro v. Echarri,
20 Phil. 23; Bargayo v. Camumot, supra; De los Santos v. Narvasa (Chairman), Cruz and Grio-Aquino, JJ., concur.
Santa Teresa, 44 Phil. 811). In such case, the imprescriptibility
of the action for partition can no longer be invoked or applied
when one of the co-owners has adversely possessed the
G.R. No. L-57062 January 24, 1992 No. 496, and the land registration court issued a decree
ordering the registration of the lot. Thus, on April 1, 1971,
MARIA DEL ROSARIO MARIATEGUI, ET OCT No. 8828 was issued in the name of the above-mentioned
AL., petitioners, heirs. Subsequently, the registered owners caused the
vs. subdivision of the said lot into Lots Nos. 163-A to 163-H, for
HON. COURT OF APPEALS, JACINTO MARIATEGUI, which separate transfer certificates of title were issued to the
JULIAN MARIATEGUI and PAULINA respective parties (Rollo, ibid).
MARIATEGUI, respondents.
On April 23, 1973, Lupo's children by his third marriage with
Montesa, Albon & Associates for petitioners. Felipa Velasco (Jacinto, Julian and Paulina) filed with the
lower court an amended complaint claiming that Lot No. 163
together with Lots Nos. 669, 1346 and 154 were owned by
Parmenio B. Patacsil, Patacsil Twins Law Office for the heirs
of the late Maria del Rosario Mariategui. their common father, Lupo Mariategui, and that, with the
adjudication of Lot No. 163 to their co-heirs, they (children of
the third marriage) were deprived of their respective shares in
Tinga, Fuentes & Tagle Firm for private respondents. the lots. Plaintiffs pray for partition of the estate of their
deceased father and annulment of the deed of extrajudicial
partition dated December 2, 1967 (Petition, Rollo, p. 10).
Cresencia Mariategui Abas, Flaviana Mariategui Cabrera and
BIDIN, J.: Isabel Santos were impleaded in the complaint as unwilling
defendants as they would not like to join the suit as plaintiffs
This is a petition for review on certiorari of the decision * of although they acknowledged the status and rights of the
the Court of Appeals dated December 24, 1980 in CA-G.R. No. plaintiffs and agreed to the partition of the parcels of land as
61841, entitled "Jacinto Mariategui, et al. v. Maria del Rosario well as the accounting of their fruits (Ibid., Rollo, p. 8; Record
Mariategui, et al.," reversing the judgment of the then Court of on Appeal, p. 4).
First Instance of Rizal, Branch VIII ** at Pasig, Metro Manila.
The defendants (now petitioners) filed an answer with
The undisputed facts are as follows: counterclaim (Amended Record on Appeal, p. 13). Thereafter,
they filed a motion to dismiss on the grounds of lack of cause
of action and prescription. They specifically contended that the
Lupo Mariategui died without a will on June 26, 1953 (Brief
complaint was one for recognition of natural children. On
for respondents, Rollo, pp. 116; 8). During his lifetime, Lupo
August 14, 1974, the motion to dismiss was denied by the trial
Mariategui contracted three (3) marriages. With his first wife,
court, in an order the dispositive portion of which reads:
Eusebia Montellano, who died on November 8, 1904, he begot
four (4) children, namely: Baldomera, Maria del Rosario,
Urbana and Ireneo. Baldomera died and was survived by her It is therefore the opinion of the Court that
children named Antero, Rufina, Catalino, Maria, Gerardo, Articles 278 and 285 of the Civil Code cited
Virginia and Federico, all surnamed Espina. Ireneo also died by counsel for the defendants are of
and left a son named Ruperto. With his second wife, Flaviana erroneous application to this case. The
Montellano, he begot a daughter named Cresenciana who was motion to dismiss is therefore denied for lack
born on May 8, 1910 (Rollo, Annex "A", p. 36). of merit.

Lupo Mariategui and Felipa Velasco (Lupo's third wife) got SO ORDERED. (Ibid, p. 37).
married sometime in 1930. They had three children, namely:
Jacinto, born on July 3, 1929, Julian, born on February 16, However, on February 16, 1977, the complaint as well as
1931 and Paulina, born on April 19, 1938. Felipa Velasco petitioners' counterclaim were dismissed by the trial court, in
Mariategui died in 1941 (Rollo, Ibid). its decision stating thus:

At the time of his death, Lupo Mariategui left certain properties The plaintiffs' right to inherit depends upon
which he acquired when he was still unmarried (Brief for the acknowledgment or recognition of their
respondents, Rollo, pp. 116; 4). These properties are described continuous enjoyment and possession of
in the complaint as Lots Nos. 163, 66, 1346 and 156 of the status of children of their supposed father.
Muntinglupa Estate (Rollo, Annex "A", p. 39). The evidence fails to sustain either premise,
and it is clear that this action cannot be
On December 2, 1967, Lupo's descendants by his first and sustained. (Ibid, Rollo, pp. 67-68)
second marriages, namely, Maria del Rosario, Urbana, Ruperto,
Cresencia, all surnamed Mariategui and Antero, Rufina, The plaintiffs elevated the case to the Court of Appeals on the
Catalino, Maria, Gerardo, Virginia and Federico, all surnamed ground that the trial court committed an error ". . . in not
Espina, executed a deed of extrajudicial partition whereby they finding that the parents of the appellants, Lupo Mariategui and
adjudicated unto themselves Lot No. 163 of the Muntinglupa Felipa Velasco (were) lawfully married, and in holding (that)
Estate. Thereafter, Lot No. 163 was the subject of a voluntary they (appellants) are not legitimate children of their said
registration proceedings filed by the adjudicatees under Act
parents, thereby divesting them of their inheritance . . . " is what determines the nature of the action (1 Moran, p. 127,
(Rollo, pp. 14-15). 1979 ed., citing Baguioro vs. Barrios, et al., 77 Phil. 120).

On December 24, 1980, the Court of Appeals rendered a With respect to the legal basis of private respondents' demand
decision declaring all the children and descendants of Lupo for partition of the estate of Lupo Mariategui, the Court of
Mariategui, including appellants Jacinto, Julian and Paulina Appeals aptly held that the private respondents are legitimate
(children of the third marriage) as entitled to equal shares in the children of the deceased.
estate of Lupo Mariategui; directing the adjudicatees in the
extrajudicial partition of real properties who eventually Lupo Mariategui and Felipa Velasco were alleged to have been
acquired transfer certificates of title thereto, to execute deeds of lawfully married in or about 1930. This fact is based on the
reconveyance in favor, and for the shares, of Jacinto, Julian and declaration communicated by Lupo Mariategui to Jacinto who
Paulina provided rights of innocent third persons are not testified that "when (his) father was still living, he was able to
prejudiced otherwise the said adjudicatees shall reimburse the mention to (him) that he and (his) mother were able to get
said heirs the fair market value of their shares; and directing all married before a Justice of the Peace of Taguig, Rizal." The
the parties to submit to the lower court a project of partition in spouses deported themselves as husband and wife, and were
the net estate of Lupo Mariategui after payment of taxes, other known in the community to be such. Although no marriage
government charges and outstanding legal obligations. certificate was introduced to this effect, no evidence was
likewise offered to controvert these facts. Moreover, the mere
The defendants-appellees filed a motion for reconsideration of fact that no record of the marriage exists does not invalidate the
said decision but it was denied for lack of merit. Hence, this marriage, provided all requisites for its validity are present
petition which was given due course by the court on December (People vs. Borromeo, 133 SCRA 106 [1984]).
7, 1981.
Under these circumstances, a marriage may be presumed to
The petitioners submit to the Court the following issues: (a) have taken place between Lupo and Felipa. The laws presume
whether or not prescription barred private respondents' right to that a man and a woman, deporting themselves as husband and
demand the partition of the estate of Lupo Mariategui, and (b) wife, have entered into a lawful contract of marriage; that a
whether or not the private respondents, who belatedly filed the child born in lawful wedlock, there being no divorce, absolute
action for recognition, were able to prove their successional or from bed and board is legitimate; and that things have
rights over said estate. The resolution of these issues hinges, happened according to the ordinary course of nature and the
however, on the resolution of the preliminary matter, i.e., the ordinary habits of life (Section 5 (z), (bb), (cc), Rule 131, Rules
nature of the complaint filed by the private respondents. of Court; Corpus v. Corpus, 85 SCRA 567 [1978]; Saurnaba v.
Workmen's Compensation, 85 SCRA 502 [1978]; Alavado v.
The complaint alleged, among other things, that "plaintiffs are City Gov't. of Tacloban, 139 SCRA 230 [1985]; Reyes v. Court
the children of the deceased spouses Lupo Mariategui . . . and of Appeals, 135 SCRA 439 [1985]).
Felipa Velasco"; that "during his lifetime, Lupo Mariategui had
repeatedly acknowledged and confirmed plaintiffs as his Courts look upon the presumption of marriage with great favor
children and the latter, in turn, have continuously enjoyed such as it is founded on the following rationale:
status since their birth"; and "on the basis of their relationship
to the deceased Lupo Mariategui and in accordance with the The basis of human society throughout the
law on intestate succession, plaintiffs are entitled to inherit civilized world is that of marriage. Marriage
shares in the foregoing estate (Record on Appeal, pp. 5 & 6). It in this jurisdiction is not only a civil contract,
prayed, among others, that plaintiffs be declared as children but it is a new relation, an institution in the
and heirs of Lupo Mariategui and adjudication in favor of maintenance of which the public is deeply
plaintiffs their lawful shares in the estate of the decedent (Ibid, interested. Consequently, every intendment
p. 10). of the law leans toward legalizing
matrimony. Persons dwelling together in
A perusal of the entire allegations of the complaint, however, apparent matrimony are presumed, in the
shows that the action is principally one of partition. The absence of any counterpresumption or
allegation with respect to the status of the private respondents evidence special to that case, to be in fact
was raised only collaterally to assert their rights in the estate of married. The reason is that such is the
the deceased. Hence, the Court of Appeals correctly adopted common order of society and if the parties
the settled rule that the nature of an action filed in court is were not what they thus hold themselves out
determined by the facts alleged in the complaint constituting as being, they would be living in the constant
the cause of action (Republic vs. Estenzo, 158 SCRA 282 violation of decency and of
[1988]). law . . . (Adong vs. Cheong Seng Gee, 43
Phil. 43, 56 [1922] quoted in Alavado vs.
It has been held that, if the relief demanded is not the proper City Government of Tacloban, 139 SCRA
one which may be granted under the law, it does not 230 [1985]).
characterize or determine the nature of plaintiffs' action, and
the relief to which plaintiff is entitled based on the facts alleged So much so that once a man and a woman have lived as
by him in his complaint, although it is not the relief demanded, husband and wife and such relationship is not denied nor
contradicted, the presumption of their being married must be vs. De Vega, 148 SCRA 342 [1987]). Furthermore, an action to
admitted as a fact (Alavado v. City Gov't. of Tacloban,supra). demand partition is imprescriptible and cannot be barred by
laches (Del Banco vs. IAC, 156 SCRA 55 [1987]). On the other
The Civil Code provides for the manner under which legitimate hand, an action for partition may be seen to be at once an action
filiation may be proven. However, considering the effectivity for declaration of co-ownership and for segregation and
of the Family Code of the Philippines, the case at bar must be conveyance of a determinate portion of the property involved
decided under a new if not entirely dissimilar set of rules (Roque vs. IAC, 165 SCRA 118 [1988]).
because the parties have been overtaken by events, to use the
popular phrase (Uyguangco vs. Court of Appeals, G.R. No. Petitioners contend that they have repudiated the co-ownership
76873, October 26, 1989). Thus, under Title VI of the Family when they executed the extrajudicial partition excluding the
Code, there are only two classes of children legitimate and private respondents and registered the properties in their own
illegitimate. The fine distinctions among various types of names (Petition, p. 16; Rollo, p. 20). However, no valid
illegitimate children have been eliminated (Castro vs. Court of repudiation was made by petitioners to the prejudice of private
Appeals, 173 SCRA 656 [1989]). respondents. Assuming petitioners' registration of the subject
lot in 1971 was an act of repudiation of the co-ownership,
Article 172 of the said Code provides that the filiation of prescription had not yet set in when private respondents filed in
legitimate children may be established by the record of birth 1973 the present action for partition (Ceniza vs. C.A., 181
appearing in the civil register or a final judgment or by the SCRA 552 [1990]).
open and continuous possession of the status of a legitimate
child. In their complaint, private respondents averred that in spite of
their demands, petitioners, except the unwilling defendants in
Evidence on record proves the legitimate filiation of the private the lower court, failed and refused to acknowledge and convey
respondents. Jacinto's birth certificate is a record of birth their lawful shares in the estate of their father (Record on
referred to in the said article. Again, no evidence which tends Appeal, p. 6). This allegation, though denied by the petitioners
to disprove facts contained therein was adduced before the in their answer (Ibid, p. 14), was never successfully refuted by
lower court. In the case of the two other private respondents, them. Put differently, in spite of petitioners' undisputed
Julian and Paulina, they may not have presented in evidence knowledge of their relationship to private respondents who are
any of the documents required by Article 172 but they therefore their co-heirs, petitioners fraudulently withheld
continuously enjoyed the status of children of Lupo Mariategui private respondent's share in the estate of Lupo Mariategui.
in the same manner as their brother Jacinto. According to respondent Jacinto, since 1962, he had been
inquiring from petitioner Maria del Rosario about their
(respondents) share in the property left by their deceased father
While the trial court found Jacinto's testimonies to be
and had been assured by the latter (Maria del Rosario) not to
inconsequential and lacking in substance as to certain dates and
worry because they will get some shares. As a matter of fact,
names of relatives with whom their family resided, these are
but minor details. The nagging fact is that for a considerable sometime in 1969, Jacinto constructed a house where he now
length of time and despite the death of Felipa in 1941, the resides on Lot No. 163 without any complaint from petitioners.
private respondents and Lupo lived together until Lupo's death
in 1953. It should be noted that even the trial court mentioned Petitioners' registration of the properties in their names in 1971
in its decision the admission made in the affidavit of did not operate as a valid repudiation of the co-ownership.
Cresenciana Mariategui Abas, one of the petitioners herein, that In Adille vs. Court of Appeals (157 SCRA 455, 461-462
" . . . Jacinto, Julian and Paulina Mariategui ay pawang mga [1988]), the Court held:
kapatid ko sa
ama . . ." (Exh. M, Record on Appeal, pp. 65-66). Prescription, as a mode of terminating a
relation of co-ownership, must have been
In view of the foregoing, there can be no other conclusion than preceded by repudiation (of the co-
that private respondents are legitimate children and heirs of ownership). The act of repudiation, in turn, is
Lupo Mariategui and therefore, the time limitation prescribed subject to certain conditions: (1) a co-owner
in Article 285 for filing an action for recognition is inapplicable repudiates the co-ownership; (2) such an act
to this case. Corollarily, prescription does not run against of repudiation is clearly made known to the
private respondents with respect to the filing of the action for other co-owners; (3) the evidence thereon is
partition so long as the heirs for whose benefit prescription is clear and conclusive; and (4) he has been in
invoked, have not expressly or impliedly repudiated the co- possession through open, continuous,
ownership. In other words, prescription of an action for exclusive, and notorious possession of the
partition does not lie except when the co-ownership is properly property for the period required by law.
repudiated by the co-owner (Del Banco vs. Intermediate
Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. xxx xxx xxx
Hollasco, 117 SCRA 532 [1982]).
It is true that registration under the Torrens
Otherwise stated, a co-owner cannot acquire by prescription the system is constructive notice of title, but it
share of the other co-owners absent a clear repudiation of co- has likewise been our holding that the
ownership duly communicated to the other co-owners (Mariano Torrens title does not furnish shield for fraud.
It is therefore no argument to say that the act
of registration is equivalent to notice of
repudiation, assuming there was one,
notwithstanding the long-standing rule that
registration operates as a universal notice of

Inasmuch as petitioners registered the properties in their names

in fraud of their co-heirs prescription can only be deemed to
have commenced from the time private respondents discovered
the petitioners' act of defraudation (Adille vs. Court of
Appeals, supra). Hence, prescription definitely may not be
invoked by petitioners because private respondents commenced
the instant action barely two months after learning that
petitioners had registered in their names the lots involved.

WHEREFORE, the petition is DENIED and the assailed

decision of the Court of Appeals dated December 24, 1980 is


Gutierrez, Jr., Feliciano, Davide, Jr. and Romero, JJ., concur.

G.R. No. 109910 April 5, 1995 Cristal, in representation of Gaudencia, be declared as the
owners of the lots; (b) the Salvador spouses be declared as
REMEDIOS G. SALVADOR and GRACIA G. having no rights thereto except as possible assignees of their
SALVADOR, petitioners, co-defendants, Pastor Makibalo and Enecia Cristal; (c) the lots
vs. be partitioned according to law among the aforementioned co-
COURT OF APPEALS, ALBERTO and ELPIA YABO, owners; and (d) the defendants be made to pay for the value of
FRANCISCA YABO, et al., respondents. the fruits they harvested from the lots and for moral and
exemplary damages, attorney's fees, expenses of the litigation,
and costs of the suit.

The two cases were consolidated and jointly heard by Branch 5

of the Court of First Instance of Cagayan de Oro City.
Assailed in this petition is the legal determination made by the
By evidence, Pastor, Makibalo sought to prove the following
Court of Appeals on the issues of which portion of Lot No.
6080 and Lot No. 6180 formed part of the conjugal assets of
the spouses Pastor Makibalo and Maria Yabo, and of whether
or not the rights of Pastor's co-heirs in the estate of Maria Yabo He was married to Maria Yabo who died on 17 March
were extinguished through prescription or laches. 1962.4 In August 1949, Jose and Victoriano, both surnamed
Yabo, sold their respective shares in the disputed lots to one
Pedro Ebarat, and in 1952 the latter sold both shares to Pastor
Alipio Yabo was the owner of Lot No. 6080 and Lot No. 6180
Makibalo.5 Ebarat formalized this conveyance by executing an
situated in Barrio Bulua, Cagayan de Oro City, containing an
Affidavit of Waiver and Quitclaim dated 30 May 1969 in favor
area of 1,267 and 3,816 square meters, respectively. Title
thereto devolved upon his nine children, namely, Victoriano, of Pastor.6
Procopio, Lope, Jose, Pelagia, Baseliza, Francisca, Maria, and
Gaudencia, upon his death sometime before or during the On 16 January 1951, the heirs of the late Lope Yabo sold
second world war. Lope's shares in the litigated properties to one Dominador
Canomon,7 who, in turn, sold the same to Pastor.8 Canomon
On 28 April 1976, Pastor Makibalo, who is the husband of afterwards executed an Affidavit of Waiver and Quitclaim in
favor of the latter.9
Maria Yabo, one of Alipio's children, filed with the then Court
of First Instance of Misamis Oriental a complaint, docketed as
Civil Case No. 5000, against the spouses Alberto and Elpia Pastor Makibalo likewise purchased the shares of Baseliza in
Yabo for "Quieting of Title, Annulment of Documents, and the two lots in 1942, of Procopio in 1957, of Francisca in 1958,
Damages." In the complaint, he alleged that he owned a total of and of Pelagia in 1967. The only share he did not buy was that
eight shares of the subject lots, having purchased the shares of of Gaudencia. After every purchase, he took possession of the
seven of Alipio's children and inherited the share of his wife, portions bought and harvested the products thereof.10
Maria, and that except for the portion corresponding to
Gaudencia's share which he did not buy, he occupied, In 1966, Pastor sold back to Alberto a portion of Lot No. 6180
cultivated, and possessed continuously, openly, peacefully, and which was formerly the share of Alberto's father, Procopio. 11
exclusively the two parcels of land. He then prayed that he be
declared the absolute owner of 8/9 of the lots in question. 1 In December 1968, Pastor mortgaged the two lots to the
spouses Eulogio and Remedios Salvador. 12 On 26 September
On 8 October 1976, the grandchildren and great-grandchildren 1978, he executed a document denominated as a "Confirmation
of the late Alipio Yabo2 lodged with the same court a and Quitclaim" whereby he waived all his rights, interests, and
complaint for partition and quieting of title with participation in the lots in favor of the Salvador spouses. 13
damages,3 docketed as Civil Case No. 5174, against Pastor
Makibalo, Enecia Cristal, and the spouses Eulogio and On the other hand, by their evidence, l4 the spouses Alberto
Remedies Salvador. They alleged that Lot No. 6080 and Lot and Elpia Yabo tried to prove that they had repurchased from
No. 6180 are the common property of the heirs of Alipio Yabo, Pastor Makibalo the share of Procopio, which was previously
namely, the plaintiffs, defendant Enecia Cristal, Maria Yabo sold to Pastor, and had bought the shares of Jose and Maria. 15
and Jose Yabo, whose share had been sold to Alberto Yabo;
that after Alipio's death, the spouses Pastor and Maria
Filoteo Yabo denied having sold the share of his father, Lope
Makibalo, Enecia Cristal and Jose Yabo became the de
Yabo, in the contested lots and disowned his signature and
facto administrators of the said properties; and that much to those of his mother, brothers, and sisters appearing at the back
their surprise, they discovered that the Salvador spouses, who of Exhibit "C". 16
were strangers to the family, have been harvesting coconuts
from the lots, which act as a cloud on the plaintiffs' title over
the lots. Ignacio Yabo testified that his father, Victoriano Yabo, did not
know how to write and sign his name. He further declared that
he had no knowledge that his father affixed his thumbmark in
The plaintiffs then prayed that (a) they, as well as defendant the document marked as Exhibit "A" purporting to alienate his
Pastor Makibalo, in representation of his wife, and Enecia
father's share in the disputed lots. l7
On 15 January 1983, the trial court rendered its possession of Pastor Makibalo and then the
decision 18 holding as follows: spouses Eulogio and Remedios Salvador
who had an interest in its preservation. The
Assuming that the thumbmark on the claim of Filoteo Yabo that the signatures
typewritten name "Jose Yabo" in Exh. 3 was appearing in Exh. C are not his and those of
that of Jose Yabo, Alberto Yabo and Elpia R. his brothers and sisters are of no avail, for if
Yabo purchased the share of Jose Yabo in they were not the ones who affixed those
bad faith because they knew before and up to signatures and so they did not sell the shares
the execution of Exh. 3 on October 24, 1972 of their father Lope Yabo, why did they not
that Jose Yabo was no longer the owner of then take possession of said shares they
that area because from the documents she remained silent from 1951 to September 16,
borrowed from Mrs. Salvador they came to 1976 a period of 25 years. They are now
know that Jose Yabo had sold his shares to [e]stopped by laches.
Pedro Ebarat, and they have seen that Pastor
Makibalo has been in possession of those And as regards the shares of Baseliza,
shares together with the seven others Francisca and Pelagia, there is no evidence
exclusively as owner, he having mortgaged presented to effectively rebut the testimony
them to Mrs. Salvador. of Pastor Makibalo that he acquired the
shares of Baseliza Yabo in 1942 by changing
As Jose Yabo was no longer the owner of the it with a buffalo; that he bought the shares of
one-ninth (1/9) shares which he sold to Francisca Yabo in 1958 and that he bought
Alberto Yabo and Elpia Yabo under Exh. 3, the shares of Pelagia Yabo in 1967; Pastor
the sale is null and void, and Alberto and Makibalo had been in possession of these
Elpia acquired nothing because Jose Yabo shares from the time he acquired them,
had no more title, right or interest to dispose continuously, adversely, openly, and
of. peacefully, as owner up to the time he sold
his rights and interest therein to the spouses
Eulogio and Remedies Salvador. The heirs of
Baseliza, Francisca and Pelagia have not
taken any step to protect their rights over
Pastor Makibalo had been in possession of those shares for over 40 years in the case of
Jose Yabo's share since 1949 after purchasing Baseliza's share, for about 20 years in the
it from Ebarat, and has been in possession case of Francisca's share, and for more than
thereof up to September 26, 1978 when he 10 years in the case of Pelagia's share.
sold it to the spouses Eulogio Salvador and Laches, likewise has rendered their rights
Remedios Salvador, who are now in stale.
possession of the same.
On March 10, 1966 Pastor Makibalo sold
Exh. A, evidencing the sale of Victoriano back to Alberto Yabo the share of Procopio
Yabo's share to Pedro Ebarat was identified Yabo in Lot 6180 (Exh. 1 and 2), but there is
by the latter who testified that he sold it to nothing to show that. Pastor Makibalo also
Pastor Makibalo in 1951. Exh. A is an sold back Procopio's share in Lot 6080.
ancient document 1949 when the
document came to existence up to now is
So then, by purchase, Pastor Makibalo and
more than 30 years, and the document had
Maria Yabo acquired the shares of Baseliza,
been in the possession of Pastor Makibalo,
then Remedios Salvador who had interest in Victoriano, Jose, Lope, Procopio and
Francisca, or six (6) shares from Lots 6080
its preservation.
and 6180. These belonged to the conjugal
partnership of Pastor Makibalo and Maria
As regards the shares of Lope Yabo, the same Yabo. Maria Yabo had also a share from Lots
had been sold by his surviving spouse Juana 6080 and 6180, and Pastor Makibalo
Legaspi, and his children Filoteo, Andresa, acquired the shares of Pelagia Yabo in both
Jovita, Bonifacio, and Rundino for P105.00 Lots 6080 and 6180. All in all; Pastor
on January 16, 1951 to Dominador Conomon Makibalo acquired eight shares in both Lot
(Exh. C and C-1), who in turn sold it to 6080 and 6180.
Pastor Makibalo in 1952, executing a formal
Deed of Waiver and Quitclaim on May 30,
1969 While Maria Yabo died on March 17, 1962,
and so one-fourth (1/4) of the shares of
(Exh. D).
Baseliza, Victoriano, Jose, Lope, and
Francisca, or one-fourth of five-ninth (5/9) of
Exh. C is an ancient document, being more both lots and one-fourth (1/4) of Lot 6080
than 30 years old and has been in the
should go to the children of the brothers and City Fiscal and City Assessor, both of
sisters of Maria Yabo by virtue of the Cagayan de Oro City.
provisions of Article 1001 of the New Civil
Code, the latter have lost their rights thereto No pronouncement as to damages, attorney's
by laches for their inaction for a very long fees and costs.
period and their rights have become stale. On
the other hand, Pastor Makibalo who had
been in possession of the whole of the eight
shares in both Lots 6080 and 6180, enjoying
the fruits thereof exclusively, The defendants in Civil Case No. 5000 and the plaintiffs in
uninterruptedly, publicly, peacefully, and Civil Case No. 5174 appealed from the decision to the Court of
continuously from the death of Maria Yabo Appeals on 19 August 1983. 20
up to the filing of the complaint in Civil Case
No. 5174 on October 8, 1976, or a period of In its decision of 3 February 1993, 21 the Court of Appeals held
14 years, had acquired title to the whole of that (a) Maria Yabo did not sell her share to Alberto and Elpia
the eight shares in Lot 6080 and seven shares Yabo; (b) prescription and laches have not run against the
in Lot 6180 (the share of Procopio in Lot private respondents with respect to the 1/9 share of Maria Yabo
6180 had been sold back to Alberto Yabo). in the estate of her father and to her conjugal share in the
portions acquired from her brothers and sisters; and (c)
IN VIEW OF ALL THE FOREGOING, Procopio never sold his share in Lot No. 6080 to Pastor
judgment is hereby rendered finding Pastor Makibalo. More specifically it stated:
Makibalo, now Eulogio Salvador and
Remedios Salvador the owner of eight (8) Exh. E is the document found by the lower
shares, equivalent to eight-ninth (8/9) of Lot court to be a falsification. This finding
No. 6080, and of seven (7) shares, equivalent appellants do not dispute and have not raised
to seven-ninth (7/9) of Lot No. 6180, and an error.
therefore, ordering the partition of Lot 6080
so that the one-ninth (1/9) alloted to ...
Gaudencia Yabo will go to her heirs or their
assigns, and the remaining eight-ninth (8/9) While acknowledging. that upon the death of
will go to the spouses Eulogio Salvador and Maria Yabo on March 17, 1962, one-half
Remedios Salvador, as successor of Pastor (1/2) of the share of Maria Yabo in Lots 6080
Makibalo, and the partition of Lot 6180 so and 6180 and one-half (1/2) of Maria Yabo's
that the seven-ninth (7/9) portion which conjugal share in the portions bought from
formerly belonged to Baseliza, Victoriano, Basiliza, Victoriano, Jose, Lope, Pelagia and
Jose, Lope, Maria, Francisca, and Pelagia Francisca should go to the children of the
will go to the spouses Eulogio and Remedios brothers and sisters of Maria in accordance
Salvador, the one-ninth (1/9) which formerly with Article 1001 of the Civil Code, the
belonged to Procopio, will go to Alberto lower court rule that said children have lost
Yabo, and the remaining one-ninth (1/9) their rights by laches "for their inaction for a
which formerly belonged to Gaudencia, will very long period and their rights have
go to Gaudencia's heirs or their assigns. become stale" (Decision, p. 16; Record, Vol.
2, p. 158).
Doc. No. 720, recorded on page 28 of
Notarial Register No. VII, and acknowledged Appellants in their second assignment of
before Notary Public Isidro S. Baculio (Exh. error aver that this is an error.
E) [purportedly executed by Maria Yabo and
Pastor Makibalo] is hereby declared null and
We agree that the lower court erred.
void, and so the Office of the City Fiscal is
directed to cause an investigation of this
matter to find out the person or persons While between March 17, 1962 when Maria
responsible for the falsification of the said Yabo died and October 8, 1976, when Civil
document, and if the evidence warrants, to Case No. 5174 for partition was filed, was a
file the corresponding criminal action in period of more than fourteen (14) years, that
court. The Office of the City Assessor of alone to our mind would not suffice to
Cagayan de Oro City is, likewise, directed to establish laches or prescription. Upon the
cause the cancellation of Tax Declarations death of Maria Yabo, appellee Pastor
Nos. 33553, marked as Exh. H-3, 33557, Makibalo and appellants and the other
marked as Exh. H-2, both in the name of children of the brothers and sisters of Maria,
Alberto Yabo, for having been issued on the by operation of law become co-owners of the
basis of a falsified document. Let copies of one-ninth (1/9) share of Maria as heir of her
this decision be furnished the Offices of the father Alipio and the conjugal share of Maria
in the portions acquired from Basiliza, There is indeed no evidence that Pastor
Victoriano, Jose, Lope, Pelagia and Makibalo also sold back to Alberto, his father
Francisca. Time alone is not a decisive factor. Procopio's share in Lot 6080.
Appellee Pastor Makibalo, it must be
remembered, is the husband of Maria and, But from the evidence it appears that
therefore, an uncle in-law of appellants. In Procopio Yabo never sold his share in Lot
our culture, a demand by an heir or heirs for 6080 to Pastor Makibalo. So there was no
partition immediately upon the death of a need to convey back Procopio's share in Lot
relative is more often taken not as a 6080.
legitimate assertion of a right but of
something else, like greed. It must also be
This fact is evident from the Affidavit of
noted that the spouses, the appellee Pastor
Confirmation of Sale (Exh. M) dated April
Makibalo and his deceased wife Maria, were
22, 1970, executed by Alberto Yabo, which
childless and, therefore, appellants and the is the very document relied upon by the
other children of the brothers and sisters of lower court (Decision, p. 11; Record, Vol. 2,
Maria must have felt that at any rate the
p. 153) in finding that "Alberto Yabo
property would go to them in the course of
admitted that the share of his father Procopio
time. This probably explains why appellants
Yabo was previously bought by Pastor
started asserting their right over the property
Makibalo." A look at Exh. M, particularly
only after appellee Pastor Makibalo sold the par. 3 thereof, reveals that AlbertoYabo
same to the spouses Eulogio and Remedios merely acknowledged or confirmed the sale
Salvador. Besides, Lots 6080 and 6180 have
of his father's share to Pastor Makibalo in Lot
a combined area only of 5,083 square meters
6180. In effect, it at the same time proves that
and before the development of Northern
Lot 6080 was never sold by Procopio to
Mindanao, and even in 1962 when Maria appellee Pastor Makibalo; otherwise, it
Yabo died, were not that valuable. This is would have been included in the said
shown by the fact that each heir sold his other
Affidavit of Confirmation of Sale. The Deed
share only for P110.00.
of Absolute Sale (Exh. 2) subsequently
executed by Pastor Makibalo in favor of
As we have said not time alone. In the early Alberto Yabo on April 23, 1970, further
case of Cortes v. Oliva, 33 Phil. 480, it was proves this point, since the latter merely
held that"(o)rdinarily, possession by one joint bought back what was previously sold, his
owner will not be presumed to be adverse to father's share in Lot 6180.22
the others, but will, as a rule, be held to be
for the benefit of all. Much stronger evidence
The respondent court then concluded and held as follows:
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 In summary, appellee Pastor Makibalo and
of prescription, it must always clearly appear his assigns, the spouses Eulogio and
that one who was originally a joint owner has Remedios Salvador, are entitled only to one-
repudiated the claims of his co-owners, and half () of the one-ninth (1/9) share of Maria
that his co-owners were apprised or should and three-fourths (3/4) of the six-ninth (6/9)
have been apprised of his claim of adverse shares acquired from Basiliza, Victoriano,
and exclusive ownership before the alleged Jose, Lope, Pelagia and Francisca.
prescription began to run (at page 484). This Accordingly, the partition should be done as
ruling on prescription should apply with follows:
equal force to laches.
(1) 1/9 of Lots 6080 end
The third assignment of error challenges the 6180 should be given to the
finding of the lower court that "there is heirs of Gaudencia Yabo or
nothing to show that Pastor Makibalo also their successors and
sold back Procopio's share in Lot 6080" assigns;
(Decision, p. 16; Records, Vol. 2,p. 158).
(2) 1/9 of Lot 6180 should
Exhibits 1 and 2 cover only Procopio's share go to Alberto Yabo and his
in Lot 6180. In other words, Exhibits 1 and. 2 wife Elpia Yabo;
conveyed back to Alberto Yabo only his
father, Procopio's share in Lot 6180. (3) 1/9 of Lot 6080 should
be given to the heirs of
Procopio Yabo and their
successors end assigns,
including Alberto Yabo;
(4) The 1/9 share of Maria unless it be proved that it pertains .exclusively to the husband
Yabo in Lots 6080 and or to the wife. Since the shares of Jose, Victoriano, Lope,
6180 should be partitioned: Baseliza, Procopio, and Francisca in Lot No. 6180 and Lot No.
One-half (1/2) for the 6080 had been purchased by Pastor during his marriage with
surviving spouse Pastor Maria, and there is no proof that these were acquired with his
Makibalo (now the spouses exclusive money, the same are deemed conjugal properties. Not
Eulogio Salvador and forming part of the conjugal partnership are: (1) the 1/9 share
Remedios Salvador) and inherited by Maria which remained as her exclusive property
the other half for the pursuant to Article 146 (2) of the Civil Code; (2) the 1/9 share
children of the brothers and of Gaudencia which was not sold to Pastor; and (3) the 1/9
sisters of Maria Yabo in share of Pelagia which was acquired by Pastor in 1967 or five
equal shares. years after the death of his wife and which was therefore his
exclusive property.
(5) The remaining 6/9, one-
half (1/2) of which is There is, thus; merit in the petitioners' first assigned error. The
conjugal between Maria Court of .Appeals should have excluded from the conjugal
Yabo and appellee Pastor partnership the share of Pelagia which Pastor had acquired after
Makibalo should be his wife's death.
partitioned three-fourths
(3/4) for Pastor Makibalo Upon Maria's death in 1962, the conjugal partnership of gains
(now the spouses Eulogio was dissolved. 26 Half of the conjugal properties, together with
Salvador and Remedios Maria's l/9 hereditary share in the disputed lots, constituted
Salvador) and one-fourth Maria's estate and should thus go to her surviving
(1/4) for the children of the heirs. 27 Under Article 1001 of the Civil Code, her heirs are her
brothers and sisters of spouse, Pastor Makibalo, who shall be entitled to-one-half (1/2)
Maria Yabo in equal of her estate, her brother, Jose, and the children of her other
shares. brothers and sisters, who shall inherit the other half. There
having been no actual partition of the estate yet, the said heirs
(6) Jose Yabo if he is still became co-owners thereof by operation of law. 28
alive should participate in
the partition as heir of We now determine whether prescription and laches can be
Maria otherwise he shall be applied against the co-heirs of Pastor Makibalo.
represented by his children.
It has been said that Article 494 of the Civil Code which
WHEREFORE, premises considered, subject provides that each co-owner may demand at any time the
to the modification in the partition, as partition of the common property implies that an action to
indicated above, the decision appealed from demand partition is imprescriptible or cannot be barred by
is AFFIRMED, without pronouncement as to laches. 29 The imprescriptibility of the action cannot, however,
costs. The lower court is directed if necessary be invoked when one of the co-owners has possessed the
to fully effect the partition, to conduct further property as exclusive owner and for a period sufficient to
hearings and determine whether Jose Yabo is acquire it by prescription. 30
still alive and who are the children of the
brothers and sisters of Maria Yabo.23
What needs to be addressed first is whether or not Pastor
Makibalo has acquired by prescription the shares of his other
Unable to obtain a reconsideration of the said-decision, co-heirs or co-owners. Prescription as a mode of acquiring
Remedios Salvador, together with her daughter, Ma. Gracia ownership requires a continuous, open, peaceful, public, and
Salvador, as one of the successors-in-interest of Eulogio M. adverse possession for a period of time fixed by law.
Salvador who died during the pendency of the
appeal, 24 elevated the case to this Court contending that the
This Court has held that the possession of a co-owner is like
respondent court erred in ruling that: (1) the shares of Pelagia that of a trustee and shall not be regarded as adverse to the
Yabo should be included in the partition; (2) prescription and other co-owners but in fact as beneficial to all of them. 31 Acts
laches have not run against the private respondents in relation
which may be considered adverse to strangers may not be
to the 1/9 share of Maria Yabo in the estate of her father and to
considered adverse insofar as co-owners are concerned. A mere
her conjugal share in those acquired by purchase; (3)
silent possession by a co-owner, his receipt of rents, fruits or
Procopio Yabo never sold to Pastor Makibalo his share in Lot
profits from the property, the erection of buildings and fences
No. 6080; and(4) Jose Yabo should be allowed to participate as and the planting of trees thereon, and the payment of land
heir of Maria even as he had openly rejected this option by taxes, cannot serve as proof of exclusive ownership, if it is not
refusing to participate in both civil cases. 25
borne out by clear and convincing evidence that he exercised
acts of possession which unequivocably constituted an ouster
Article 160 of the Civil Code provides that all property of the or deprivation of the rights of the other co-owners. 32
marriage is presumed to belong to the conjugal partnership,
Thus, in order that a co-owner's possession may be deemed ownership of one of the plaintiffs over his
adverse to the cestui que trust or the other co-owners, the alleged share in the entire lot, that the statute
following elements must concur: (1) that he has performed of limitations started to run for the purposes
unequivocal acts of repudiation amounting to an ouster of of the action instituted by the latter seeking a
the cestui que trust or the other co-owners; (2) that such declaration of the existence of the co-
positive acts of repudiation have been made known to ownership and of their rights thereunder.
the cestui que trust or the other co-owners; and (3) that the
evidence thereon must be clear and convincing. 33 The records do not show that Pastor Makibalo adjudicated to
himself the whole estate of his wife by means of an affidavit
In Pangan vs. Court of Appeals, 34 this Court had occasion to filed with the Office of the Register of Deeds as allowed under
lay down specific acts which are considered as acts of Section 1 Rule 74 of the Rules of Court, or that he caused the
repudiation: issuance of a certificate of title in his name or the cancellation
of the tax declaration in Alipio's name and the issuance of a
Filing by a trustee of an action in new one in his own name. The only act which may be deemed
court against the trustor to quiet title to as a repudiation by Pastor of the co-ownership over the lots is
property, or for recovery of ownership his filing on 28 April 1976 of an action to quiet title (Civil Case
thereof, held in possession by the former, No. 5000). The period of prescription started to run only from
may constitute an act of repudiation of the this repudiation. However, this was tolled when his co-heirs,
trust reposed on him by the latter. the private respondents herein, instituted on 8 October 1976 an
action for partition (Civil Case No. 5174) of the lots. Hence,
the adverse possession by Pastor being for only about six
The issuance of the certificate of title would
months would not vest in him exclusive ownership of his wife's
constitute an open and clear repudiation of
estate, and absent acquisitive prescription of ownership, laches
any trust, and the lapse of more than 20
and prescription of the action for partition will not lie in favor
years, open and adverse possession as owner
would certainly suffice to vest title by of Pastor. 35
The issue presented by the petitioners in their third assigned
error involves a question of fact. This Court is not ordinarily a
An action for the reconveyance of land based
on implied or constructive trust prescribes trier of facts, its jurisdiction being limited to errors of law.
within 10 years. And it is from the date of Thus; the findings of facts of the Court of Appeals are as a rule
deemed conclusive. However, when the findings of facts of the
the issuance of such title that the effective
appellate court vary with those of the trial court, this Court has
assertion of adverse title for purposes of the
to review the evidence in order to arrive at the correct
statute of limitation is counted.
findings. 36
The prescriptive period may only be counted
In the instant case, a conflict in the findings of facts of the
from the time petitioners repudiated the trust
lower courts exists. The trial court found that Pastor was the
relation in 1955 upon the filing of the
owner of Procopio's share in Lot No. 6080, as there was
complaint for recovery of possession against
nothing to show that he sold it back to Alberto Yabo. The
private respondents so that the counterclaim
of the private respondents contained in their respondent court on the other hand, held that Procopio Yabo
amended answer wherein they asserted never sold his share in Lot No. 6080 to pastor, thus, there was
no need to convey it back to Procopio's son, Alberto.
absolute ownership of the disputed realty by
reason of the continuous and adverse
possession of the same is well within the l0- At this juncture, it is worthy to quote pertinent portions of the
year prescriptive period. testimony of Pastor Makibalo:

There is clear repudiation of a trust when one COURT: (To the witness.)
who is an apparent administrator of property
causes the cancellation of the title thereto in Q Where is AlbertoYabo
the name of the apparent beneficiaries and living?
gets a new certificate of title in his own
name. A It is there in their house
at Bulua.
It is only when the defendants, alleged co-
owners of the property in question, executed ATTY. JARAULA:
a deed of partition and on the strength (Continuing.)
thereof obtained the cancellation of the
title in the name of their predecessor and the
Q In whose land?
issuance of a new one wherein they appear as
the new owners of a definite area each,
thereby in effect denying or repudiating the A Alipio Yabo's land.
Q What relation has that Q This is now identified as
land to the two (2) parcels Lot No. 6180?
of land under litigation?
A Yes, Your Honor.
A I bought already.
Q So, will you please tell (Continuing.)
the Honorable Court, why
Alberto Yabo is staying on Q Where did you sign a
that land when you said document ceding that
you have bought that land portion requested by
already. Alberto Yabo?

A So, I sold back a portion A We did not make any

to them because they receipt in favor of
requested me. AlbertoYabo because they
got only the receipt of that
COURT: (To the witness.) of his father.

Q When was that when you COURT: (To the witness.)

said that Alberto Yabo
requested a portion? Q You mean to say, that
the receipt which Procopio
A In 1967. signed when he sold his
share for [sic] the
COURT: document which Alberto
Q Did you give that portion
which they requested? A Yes.

A Their share being COURT:

inherited from their father
Procopio was the portion All right.
they requested.
COURT (Continuing.)

Q Yes. Did you grant that? Q Now, for how much did
you buy. the shares of each
A Yes. of the brothers and sisters
of your wife?
Q That is the area you sold
to Alberto Yabo, pursuant A One Hundred Ten
to his request? (P110.00) Pesos.

A Because that was the Q When you sold back to

land they inherited from Alberto Yabo, the portion
their father that was what corresponding to the share
they requested. of his father Procopio in
the Poblacion, how much
did he pay you?
Q All right. So that, the
area now being occupied
by Alberto Yabo? A The same.

A Yes. That land in the Q By the same, you are

Centro. referring by the same
amount of One Hundred
Ten (P110.00) Pesos?
A Yes, Sir. The same indispensable parties may bar a partition of Maria's estate.
amount. 37 Considering, however, that such estate or its partition are but
incidents in Civil Case No. 5000 and Civil Case No. 5174, and
The petitioners contend that the sales or conveyances made by the parties have not offered any objection to the propriety of
Alipio's heirs were for their consolidated shares in the two lots. the determination and partition of her estate, then in the light of
If this was so, and the receipt which Procopio signed when he Section 11 of Rule 3 41 and Sections 1 and 5, Rule 10 42 of the
sold his consolidated share to Pastor was turned over to Rules of Court, and following the rulings of this Court in the
Alberto, the inevitable conclusion is that Alberto redeemed his 1910 case of Alonso vs. Villamor43 and the 1947 case
father's share in both lots, not only in Lot: No. 6180. This of Cuyugan vs. Dizon, 44 an amendment of the complaint in
conclusion is further buttressed by the above-quoted testimony Civil Case No. 5174 to implead Jose Yabo as party plaintiff
of Pastor that he bought the shares (consolidated) of each of would be in order.
Alipio's heirs for P110.00 and that when he sold back to
Alberto the former share of Procopio, Alberto paid him the In Alonso, it was held that under Section 110 of the Code of
same amount of P110.00. Civil Procedure whose first paragraph is substantially the
same as the aforesaid Section 1 of Rule 10 and Section 503
However, since the share of Procopio in the two litigated thereof, this Court "has full power, apart from that power and
parcels of land was purchased by Pastor during his marriage authority which is inherent, to amend the process, pleadings,
with Maria, the same became conjugal property, and half of it proceedings, and decision in this case by substituting, as party
formed part of Maria's estate upon her death in 1962. plaintiff, the real party in interest." Our ruling
Accordingly, Pastor's resale in favor of Alberto could only be in Cuyugan states:
valid with respect to Pastor's one-half (1/2) conjugal share and
one-fourth (1/4) hereditary share as heir of Maria. 38 The We, however, do not believe that the case
remaining one-fourth (1/4) should go to Pastor's co-heirs, the should be dismissed for plaintiff's failure to
private respondents herein. join her husband. (Sec. 11, Rule 2, Rules of
Court). Nor should the case be remanded to
Now on the fourth assigned error. the court below and a new trial ordered on
this account. The complaint may and should
be amended here, to cure the defect of party
Section 1, Rule 69 of the Rules of Court requires that all
persons interested in the land sought to be partitioned must be plaintiffs, after final decision is rendered.
joined as defendants in the complaints. All co-owners and Section 11, Rule 2, and Section 2, Rule 17,
explicitly authorize such procedure. As this
persons having an interest in the property are considered
Court had occasion to say in Quison vs.
indispensable parties and an action for partition will not lie
Salud, (12 Phil., 109, 116), "a second action
without the joinder of said persons. 39 It has been held that the
would be but a repetition of the first and
absence of an indispensable party in a case renders ineffective
all the proceedings subsequent to the filing of the complaint would involve both parties, plaintiffs and
including the judgment. 40 defendant, in much additional expense and
would cause much delay, in that way
defeating the purpose of the section, which is
It must be recalled that in Civil Case No. 5174 the private expressly stated to be "that the actual merits
respondents sought the partition of the two lots based on the of the controversy may speedily be
co-ownership which arose from the right of succession to determined without regard to technicalities
Alipio's estate. Since Jose Yabo confirmed, through his and in the most expeditious and inexpensive
thumbmark in the verification of the complaint, that he had manner." (See also Diaz vs. De la Rama, 73
already parted with his share in Alipio's estate, he in effect Phil., 104)
admitted that he had ceased to be a co-owner of the two lots
which comprised his father's estate. Thus, his non-joinder as a
party-plaintiff in the complaint would appear to be proper. He To avoid further delay in the disposition of this case, we
declare Civil Case No. 5174 as thus duly amended.
does not, as well, appear to be an indispensable party in Civil
Consequently, Jose Yabo may participate in the partition of the
Case No. 5000.
estate of Maria Yabo. The fourth assigned error must then be
As it turned out, however, the evidence and the issues which
cropped up rendered imperative the determination of the
In view of the foregoing disquisitions, the appealed judgment
conjugal assets of Pastor Makibalo and Maria Yabo and the
should be modified as follows: (a) the former 1/9 share of
partition of the latter's estate among her heirs. Her estate
Pelagia Yabo in Lots No. 6180 and 6080 which she sold to
consists of one-half() of the conjugal properties, which
Pastor should be treated as the latter's exclusive property which
should then be divided pursuant to Article 1001 of the Civil
Code since the marriage produced no child; thus: one-half () should now pertain to the petitioners, his successors-in-interest;
to Pastor, and the other half to her brother Jose, and to her and (b) the former 1/9 share of Procopio Yabo in both lots
should be divided as follows: 3/4 (respondent Pastor's 1/2
nephews and nieces.
conjugal share and 1/4 representing his share therein as Maria's
heir) for the spouses Alberto and Elpia Yabo, and 1/4
Insofar as the partition of Maria Yabo's estate is concerned, (representing the share therein of Maria's collateral relatives as
Jose is an indispensable party. Strictly, the rule on
Maria's heirs) for the private respondents, including Alberto WHEREFORE, the challenged decision of the Court of
and Jose Yabo. The partition of the two lots in controversy Appeals of 8 February 1993 in CA-G.R. CV No. 12839 is
should therefore be made in this wise: AFFIRMED, subject to the modifications indicated above.
Upon the finality of this decision, let this case be forthwith
(1) 1/9 share of Gaudencia Yabo should be remanded to the court a quo for further proceedings on the
allotted to her heirs or successors-in-interest; partition of Lots Nos. 6180 and 6080 in conformity with this
(2) 1/9 share formerly belonging to Pelagia
Yabo to the petitioners as successors-in- No pronouncement as to costs.
interest of Pastor Makibalo;
(3) 1/9 hereditary share of Maria Yabo to be
divided as follows: Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

(a) 1/2 for the petitioners

(as successors-in-interest of
Pastor Makibalo), and

(b) 1/2 for the private

respondents, including Jose
Yabo or his heirs;

(4) 1/9 share formerly belonging to Procopio

Yabo to be divided thus:

(a) 3/4 for Spouses Alberto

and Elpia Yabo, and

(b) 1/4 for the other private

respondents, including Jose
Yabo or his heirs;

(5) 5/9 shares which became the conjugal

properties of Pastor Makibalo and Maria
Yabo to be divided thus:

(a) 3/4 for the petitioners

(as successors-in-interest of
Pastor Makibalo), and

(b) for the private

respondents, including Jose
Yabo or his heirs.

In sum, Lots Nos. 6180 anid 6080 should be partitioned as


1/9 or 4/36 to Guadencia Yabo's heirs or


3/4 of 1/9 or 3/36 to the spouses Alberto

and Elpina Yabo;

8/36 to the private respondents, including

Jose Yabu or his heirs;

21/36 to the petitioners as successors-in-

interest of Pastor Makibalo.
Petitioner, property[4] dated November 1, 1948, Macario claimed that
Present: Dionisia had donated her share to him in May 1945.

Thereafter, on August 9, 1977, Macario and his daughters Betty

- versus -
CORONA, C.J., Gullaba and Saida Gabelo sold[5] 225 sq. m. to his son Roger

Chairperson, Espinocilla, husband of respondent Belen Espinocilla and

father of respondent Ferdinand Espinocilla. On March 8, 1985,
BELEN* ESPINOCILLA** AN Roger Espinocilla sold[6] 114 sq. m. to Caridad Atienza. Per
CASTRO, actual survey of Lot No. 552, respondent Belen Espinocilla
Respondents. occupies 109 sq. m., Caridad Atienza occupies 120 sq. m.,
Caroline Yu occupies 209 sq. m., and petitioner, Salvacion's
DEL CASTILLO, and son, occupies 132 sq. m.[7]
The case for petitioner

. Petitioner sued the respondents to recover two portions: an area

of 28.5[8] sq. m. which he bought from Aspren and another 28.5
sq. m. which allegedly belonged to him but was occupied by
February 1, 2012 Macarios house.[9] His claim has since been modified to an
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
--------x alleged encroachment of only 39 sq. m. that he claims must be
returned to him. He avers that he is entitled to own and possess
171 sq. m. of Lot No. 552, having inherited 142.5 sq. m. from
his mother Salvacion and bought 28.5 sq. m. from his aunt
Aspren. According to him, his mothers inheritance is 142.5 sq.
The case
m., that is, 114 sq. m. from Doroteo plus 28.5 sq. m. from
Dionisia. Since the area he occupies is only 132 sq. m.,[10] he
Petitioner Celerino E. Mercado appeals the Decision dated
claims that respondents encroach on his share by 39 sq. m. [11]
April 28, 2008 and Resolution[2] dated July 22, 2008 of the
Court of Appeals (CA) in CA-G.R. CV No. 87480. The CA
The case for respondents
dismissed petitioners complaint[3] for recovery of possession,
quieting of title, partial declaration of nullity of deeds and Respondents agree that Doroteos five children each inherited
documents, and damages, on the ground of prescription. 114 sq. m. of Lot No. 552. However, Macarios share increased
when he received Dionisias share. Macarios increased share
The antecedent facts
was then sold to his son Roger, respondents husband and
Doroteo Espinocilla owned a parcel of land, Lot No. 552, with father. Respondents claim that they rightfully possess the land
an area of 570 sq. m., located at Magsaysay Avenue, Zone 5, they occupy by virtue of acquisitive prescription and that there
Bulan, Sorsogon. After he died, his five children, Salvacion, is no basis for petitioners claim of encroachment.[12]
Aspren, Isabel, Macario, and Dionisia divided Lot No. 552
equally among themselves. Later, Dionisia died without issue The trial courts decision
ahead of her four siblings, and Macario took possession of
Dionisias share. In an affidavit of transfer of real
purposes of determining the exact
On May 15, 2006, the Regional Trial Court (RTC) ruled in location of the share (114 sq. m.) of
favor of petitioner and held that he is entitled to 171 sq. m. The the late Dionisia Espinocilla
together with the 28.5 sq.
RTC found that petitioner inherited 142.5 sq. m. from his m. belonging to [petitioners] mother
mother Salvacion and bought 28.5 sq. m. from his aunt Salvacion, as well as, the exact
location of the 39 sq. m. portion
Aspren. The RTC computed that Salvacion, Aspren, Isabel and belonging to the [petitioner] being
Macario each inherited 142.5 sq. m. of Lot No. 552.Each encroached by the [respondents],
with the assistance of the
inherited 114 sq. m. from Doroteo and 28.5 sq. m. from Commissioner (Engr. Fundano)
appointed by this court.
Dionisia. The RTC further ruled that Macario was not entitled
to 228 sq. m. Thus, respondents must return 39 sq. m. to d) To hold in abeyance the transfer of
possession of the 39 sq. m.
petitioner who occupies only 132 sq. m.[13] portion to the [petitioner] pending
the completion of the real partition
There being no public document to prove Dionisias donation,
the RTC also held that Macarios 1948 affidavit is void and is
The CA decision
an invalid repudiation of the shares of his sisters Salvacion,
Aspren, and Isabel in Dionisias share. Accordingly, Macario
On appeal, the CA reversed the RTC decision and dismissed
cannot acquire said shares by prescription. The RTC further
petitioners complaint on the ground that extraordinary
held that the oral partition of Lot No. 552 by Doroteos heirs did
acquisitive prescription has already set in in favor of
not include Dionisias share and that partition should have been
respondents. The CA found that Doroteos four remaining
the main action. Thus, the RTC ordered partition and deferred
children made an oral partition of Lot No. 552 after Dionisias
the transfer of possession of the 39 sq. m. pending
death in 1945 and occupied specific portions. The oral partition
partition.[14] The dispositive portion of the RTC decision reads:
terminated the co-ownership of Lot No. 552 in 1945. Said
WHEREFORE, in view of the foregoing partition also included Dionisias share because the lot was
premises, the court issues the following
ORDER, thus - divided into four parts only. And since petitioners complaint
was filed only on July 13, 2000, the CA concluded that
a) Partially declaring the nullity of the
Deed of Absolute Sale of Property prescription has set in.[16] The CA disposed the appeal as
dated August 9, 1977 x x x executed
by Macario Espinocilla, Betty E. follows:
Gullaba and Saida E. Gabelo in
favor of Roger Espinocilla, insofar WHEREFORE, the appeal is
as it affects the portion or the share GRANTED. The assailed May 15, 2006
belonging to Salvacion Espinocilla, Decision of the Regional Trial Court (RTC)
mother of [petitioner,] relative to the of Bulan, Sorsogon is hereby REVERSED
property left by Dionisia and SET ASIDE. The Complaint of the
Espinocilla, including [Tax [petitioner] is hereby DISMISSED. No
Declaration] No. 13667 and other costs.[17]
documents of the same nature and The instant petition
character which emanated from the
said sale;
The core issue to be resolved is whether petitioners action to
b) To leave as is the Deeds of Absolute
Sale of May 11, 1983 and March 8, recover the subject portion is barred by prescription.
1985, it having been determined that
they did not involve the portion
belonging to [petitioner] x x x. Petitioner confirms oral partition of Lot No. 552 by Doroteo's
heirs, but claims that his share increased from 114 sq. m. to 171
c) To effect an effective and real
partition among the heirs for sq. m. and that respondents encroached on his share by 39 sq.
m. Since an oral partition is valid, the corresponding survey Then, too, respondents uninterrupted adverse possession for 55
ordered by the RTC to identify the 39 sq. m. that must be years of 109 sq. m. of Lot No. 552 was established. Macario
returned to him could be made.[18] Petitioner also alleges that occupied Dionisias share in 1945 although his claim that
Macario committed fraud in acquiring his share; hence, any Dionisia donated it to him in 1945 was only made in a 1948
evidence adduced by him to justify such acquisition is affidavit. We also agree with the CA that Macarios possession
inadmissible. Petitioner concludes that if a person obtains legal of Dionisias share was public and adverse since his other co-
title to property by fraud or concealment, courts of equity will owners, his three other sisters, also occupied portions of Lot
impress upon the title a so-called constructive trust in favor of No. 552. Indeed, the 1977 sale made by Macario and his two
the defrauded party.[19] daughters in favor of his son Roger confirms the adverse nature
of Macarios possession because said sale of 225 sq. m. [23] was
The Courts ruling an act of ownership over Macarios original share and Dionisias
share. In 1985, Roger also exercised an act of ownership when
We affirm the CA ruling dismissing petitioners complaint on he sold 114 sq. m. to Caridad Atienza. It was only in the year
the ground of prescription. 2000, upon receipt of the summons to answer petitioners
complaint, that respondents peaceful possession of the
Prescription, as a mode of acquiring ownership and other real remaining portion (109 sq. m.) was interrupted. By then,
rights over immovable property, is concerned with lapse of however, extraordinary acquisitive prescription has already set
time in the manner and under conditions laid down by law, in in favor of respondents. That the RTC found Macarios 1948
namely, that the possession should be in the concept of an affidavit void is of no moment. Extraordinary prescription is
owner, public, peaceful, uninterrupted, and unconcerned with Macarios title or good faith. Accordingly, the
adverse. Acquisitive prescription of real rights may be ordinary RTC erred in ruling that Macario cannot acquire by
or extraordinary. Ordinary acquisitive prescription requires prescription the shares of Salvacion, Aspren, and Isabel, in
possession in good faith and with just title for 10 years. In Dionisias 114-sq. m. share from Lot No. 552.
extraordinary prescription, ownership and other real rights over
immovable property are acquired through uninterrupted Moreover, the CA correctly dismissed petitioners complaint as
adverse possession for 30 years without need of title or of good an action for reconveyance based on an implied or constructive
faith.[20] trust prescribes in 10 years from the time the right of action
accrues.[24] This is the other kind of prescription under the Civil
Here, petitioner himself admits the adverse nature of Code, called extinctive prescription, where rights and actions
respondents possession with his assertion that Macarios are lost by the lapse of time.[25]Petitioners action for recovery
fraudulent acquisition of Dionisias share created a constructive of possession having been filed 55 years after Macario
trust.In a constructive trust, there is neither a promise nor any occupied Dionisias share, it is also barred by extinctive
fiduciary relation to speak of and the so-called trustee prescription. The CA while condemning Macarios fraudulent
(Macario) neither accepts any trust nor intends holding the act of depriving his three sisters of their shares in Dionisias
property for the beneficiary (Salvacion, Aspren, Isabel). The share, equally emphasized the fact that Macarios sisters wasted
relation of trustee and cestui que trust does not in fact exist, their opportunity to question his acts.
and the holding of a constructive trust is for the trustee himself,
and therefore, at all times adverse.[21] Prescription may WHEREFORE, we DENY the petition for review on

supervene even if the trustee does not repudiate the certiorari for lack of merit and AFFIRM the assailed Decision

dated April 28, 2008 and Resolution dated July 22, 2008 of the
Court of Appeals in CA-G.R. CV No. 87480.

No pronouncement as to costs.

G.R. No. L-27952 February 15, 1982 Diez mil ochocientos seize
(10,806) acciones
MARIA LUISA PALACIOS, Administratrix, petitioner- de la 'Central Luzon Milling Co.', disuelta y
appellee, en
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, liquidacion a P0.15 por accion
JORGE and ROBERTO RAMIREZ, legatees, oppositors- ..............................................1,620.90
Cuenta de Ahorros en el
Philippine Trust

ABAD SANTOS, J.: Co....................................................................

.......................... 2,350.73
The main issue in this appeal is the manner of partitioning the
testate estate of Jose Eugenio Ramirez among the principal TOTAL...............................
beneficiaries, namely: his widow Marcelle Demoron de ...............................
Ramirez; his two grandnephews Roberto and Jorge Ramirez; P512,976.97
and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a
French who lives in Paris, while the companion Wanda is an Deuda al Banco de las Islas
Austrian who lives in Spain. Moreover, the testator provided
Filipinas, garan-
for substitutions.
tizada con prenda de las acciones de La
Jose Eugenio Ramirez, a Filipino national, died in Spain on Carlota ......... P 5,000,00
December 11, 1964, with only his widow as compulsory heir.
His will was admitted to probate by the Court of First Instance
of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios VALOR
was appointed administratrix of the estate. In due time she LIQUIDO...........................
submitted an inventory of the estate as follows: ................ P507,976.97

INVENTARIO The testamentary dispositions are as follows:

Una sexta parte (1/6) A.En nuda propiedad, a D. Roberto y D.

proindiviso de un te Jorge Ramirez, ambas menores de edad,
residentes en Manila, I.F., calle 'Alright, No.
1818, Malate, hijos de su sobrino D. Jose Ma.
rreno, con sus mejoras y edificaciones,
Ramirez, con sustitucion vulgar a favor de
sus respectivos descendientes, y, en su
defecto, con sustitucion vulgar reciprocal
la Escolta, entre ambos.
El precedente legado en nuda propiedad de la
participacion indivisa de la finca Santa Cruz
Una sexta parte (1/6) Building, lo ordena el testador a favor de los
proindiviso de dos legatarios nombrados, en atencion a que
dicha propiedad fue creacion del querido
parcelas de terreno situadas en Antipolo, padre del otorgante y por ser aquellos
Rizal................... 658.34 continuadores del apellido Ramirez,

Cuatrocientos noventa y B.Y en usufructo a saber:

uno (491) acciones
a. En cuanto a una tercera parte, a favor de la
de la 'Central Azucarera de la Carlota a esposa del testador, Da. Marcelle Ramirez,
P17.00 domiciliada en IE PECO, calle del General
Gallieni No. 33, Seine Francia, con
por accion sustitucion vulgar u fideicomisaria a favor de
......................................................................... Da. Wanda de Wrobleski, de Palma de
Mallorca, Son Rapina Avenida de los Reyes could impose no burden, encumbrance, condition or
13, substitution of any kind whatsoever. (Art. 904, par. 2, Civil
b.Y en cuanto a las dos terceras partes
restantes, a favor de la nombrada Da. Wanda It is the one-third usufruct over the free portion which the
de Nrobleski con sustitucion vulgar v appellants question and justifiably so. It appears that the court a
fideicomisaria a saber: quo approved the usufruct in favor of Marcelle because the
testament provides for a usufruct in her favor of one-third of
En cuanto a la mitad de dichas dos terceras the estate. The court a quo erred for Marcelle who is entitled to
partes, a favor de D. Juan Pablo Jankowski, one-half of the estate "en pleno dominio" as her legitime and
de Son Rapina Palma de Mallorca; y which is more than what she is given under the will is not
encuanto a la mitad restante, a favor de su entitled to have any additional share in the estate. To give
sobrino, D. Horace V. Ramirez, San Luis Marcelle more than her legitime will run counter to the
Building, Florida St. Ermita, Manila, I.F. testator's intention for as stated above his dispositions even
impaired her legitime and tended to favor Wanda.
A pesar de las sustituciones fideiconiisarias
precedentemente ordinadas, las 2. The substitutions.
usufiructuarias nombradas conjuntamente
con los nudo propietarios, podran en It may be useful to recall that "Substitution is the appoint-
cualquier memento vender a tercero los judgment of another heir so that he may enter into the
bienes objeto delegado, sin intervencion inheritance in default of the heir originally instituted." (Art.
alguna de los titulares fideicomisaarios. 857, Civil Code. And that there are several kinds of
substitutions, namely: simple or common, brief or
On June 23, 1966, the administratrix submitted a project of compendious, reciprocal, and fideicommissary (Art. 858, Civil
partition as follows: the property of the deceased is to be Code.) According to Tolentino, "Although the Code
divided into two parts. One part shall go to the widow 'en pleno enumerates four classes, there are really only two principal
dominio" in satisfaction of her legitime; the other part or "free classes of substitutions: the simple and the fideicommissary.
portion" shall go to Jorge and Roberto Ramirez "en nuda The others are merely variations of these two." (111 Civil
propriedad." Furthermore, one third (1/3) of the free portion is Code, p. 185 [1973].)
charged with the widow's usufruct and the remaining two-
thirds (2/3) with a usufruct in favor of Wanda. The simple or vulgar is that provided in Art. 859 of the Civil
Code which reads:
Jorge and Roberto opposed the project of partition on the
grounds: (a) that the provisions for vulgar substitution in favor ART. 859. The testator may designate one or
of Wanda de Wrobleski with respect to the widow's usufruct more persons to substitute the heir or heirs
and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, instituted in case such heir or heirs should die
with respect to Wanda's usufruct are invalid because the first before him, or should not wish, or should be
heirs Marcelle and Wanda) survived the testator; (b) that the incapacitated to accept the inheritance.
provisions for fideicommissary substitutions are also invalid
because the first heirs are not related to the second heirs or A simple substitution, without a statement of
substitutes within the first degree, as provided in Article 863 of the cases to which it refers, shall comprise
the Civil Code; (c) that the grant of a usufruct over real the three mentioned in the preceding
property in the Philippines in favor of Wanda Wrobleski, who paragraph, unless the testator has otherwise
is an alien, violates Section 5, Article III of the Philippine provided.
Constitution; and that (d) the proposed partition of the testator's
interest in the Santa Cruz (Escolta) Building between the
The fideicommissary substitution is described in the Civil Code
widow Marcelle and the appellants, violates the testator's
as follows:
express win to give this property to them Nonetheless, the
lower court approved the project of partition in its order dated
May 3, 1967. It is this order which Jorge and Roberto have ART. 863. A fideicommissary substitution by
appealed to this Court. virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to
preserve and to transmit to a second heir the
1. The widow's legitime.
whole or part of inheritance, shall be valid
and shall take effect, provided such
The appellant's do not question the legality of giving Marcelle substitution does not go beyond one degree
one-half of the estate in full ownership. They admit that the from the heir originally instituted, and
testator's dispositions impaired his widow's legitime. Indeed, provided further that the fiduciary or first heir
under Art. 900 of the Civil Code "If the only survivor is the and the second heir are living at time of the
widow or widower, she or he shall be entitled to one-half of the death of the testator.
hereditary estate." And since Marcelle alone survived the
deceased, she is entitled to one-half of his estate over which he
It will be noted that the testator provided for a vulgar one generation or degree from the fiduciary
substitution in respect of the legacies of Roberto and Jorge (Op. cit., pp. 193-194.)
Ramirez, the appellants, thus: con sustitucion vulgar a favor de
sus respectivos descendientes, y, en su defecto, con substitution (b) There is no absolute duty imposed on Wanda to transmit the
vulgar reciprocal entre ambos. usufruct to the substitutes as required by Arts. 865 and 867 of
the Civil Code. In fact, the appellee admits "that the testator
The appellants do not question the legality of the substitution contradicts the establishment of a fideicommissary substitution
so provided. The appellants question the sustitucion vulgar y when he permits the properties subject of the usufruct to be
fideicomisaria a favor de Da. Wanda de Wrobleski" in sold upon mutual agreement of the usufructuaries and the
connection with the one-third usufruct over the estate given to naked owners." (Brief, p. 26.)
the widow Marcelle However, this question has become moot
because as We have ruled above, the widow is not entitled to 3. The usufruct of Wanda.
any usufruct.
The appellants claim that the usufruct over real properties of
The appellants also question the sustitucion vulgar y the estate in favor of Wanda is void because it violates the
fideicomisaria in connection with Wanda's usufruct over two constitutional prohibition against the acquisition of lands by
thirds of the estate in favor of Juan Pablo Jankowski and aliens.
Horace v. Ramirez.
The 1935 Constitution which is controlling provides as follows:
They allege that the substitution in its vulgar aspect as void
because Wanda survived the testator or stated differently
SEC. 5. Save in cases of hereditary
because she did not predecease the testator. But dying before
succession, no private agricultural land shall
the testator is not the only case for vulgar substitution for it also be transferred or assigned except to
includes refusal or incapacity to accept the inheritance as individuals, corporations, or associations
provided in Art. 859 of the Civil Code, supra. Hence, the
qualified to acquire or hold lands of the
vulgar substitution is valid.
public domain in the Philippines. (Art. XIII.)

As regards the substitution in its fideicommissary aspect, the The court a quo upheld the validity of the usufruct given to
appellants are correct in their claim that it is void for the
Wanda on the ground that the Constitution covers not only
following reasons:
succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional
(a) The substitutes (Juan Pablo Jankowski and Horace V. provision which enables aliens to acquire private lands does not
Ramirez) are not related to Wanda, the heir originally extend to testamentary succession for otherwise the prohibition
instituted. Art. 863 of the Civil Code validates a will be for naught and meaningless. Any alien would be able to
fideicommissary substitution "provided such substitution does circumvent the prohibition by paying money to a Philippine
not go beyond one degree from the heir originally instituted." landowner in exchange for a devise of a piece of land.

What is meant by "one degree" from the first heir is explained This opinion notwithstanding, We uphold the usufruct in favor
by Tolentino as follows: of Wanda because a usufruct, albeit a real right, does not vest
title to the land in the usufructuary and it is the vesting of title
Scaevola Maura, and Traviesas construe to land in favor of aliens which is proscribed by the
"degree" as designation, substitution, or Constitution.
transmission. The Supreme Court of Spain
has decidedly adopted this construction. IN VIEW OF THE FOREGOING, the estate of Jose Eugenio
From this point of view, there can be only Ramirez is hereby ordered distributed as follows:
one tranmission or substitution, and the
substitute need not be related to the first heir.
One-half (1/2) thereof to his widow as her legitime;
Manresa, Morell and Sanchez Roman,
however, construe the word "degree" as
generation, and the present Code has One-half (1/2) thereof which is the free portion to Roberto and
obviously followed this interpretation. by Jorge Ramirez in naked ownership and the usufruct to Wanda
providing that the substitution shall not go de Wrobleski with a simple substitution in favor of Juan Pablo
beyond one degree "from the heir originally Jankowski and Horace V. Ramirez.
instituted." The Code thus clearly indicates
that the second heir must be related to and be The distribution herein ordered supersedes that of the court a
one generation from the first heir. quo. No special pronouncement as to costs.

From this, it follows that the fideicommissary SO ORDERED.

can only be either a child or a parent of the
first heir. These are the only relatives who are
Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and
Escolin, JJ., concur.

Aquino J., took no part.

G.R. No. L-45142 April 26, 1991 Simprosa presently occupies parcel No. 2 while parcel No. 3 is
occupied by Timoteo, although the same is actually titled in the
SIMPROSA VDA. DE ESPINA, RECAREDO ESPINA, name of Sofia. Parcel No. 4 is occupied by Recaredo.
ESPINA and NECIFORA ESPINA, petitioners, Petitioners have several times demanded the partition of the
vs. aforementioned properties, but notwithstanding such demands
THE HON. OTILIO ABAYA and SOFIA ESPINA and private respondents refused to accede.
JOSE ESPINA, respondents.
Private respondents alleged in their answer that in or about
Cipriano C. Alvizo, Sr. for private respondents. April, 1951, the late Marcos Espina and his widow, Simprosa,
together with their children made a temporary verbal division
and assignment of shares among their children. After the death
of Marcos, the temporary division was finalized by the heirs.
Thereafter the heirs took immediate possession of their
respective shares on April 20, 1952. Private respondents took
actual physical possession of their respective shares including
the portions ceded to them by Simprosa upon their payment of
This is a petition for certiorari with prayer for the issuance of a P50.00 each per quarter starting April, 1952 until the latter's
writ of preliminary injunction seeking the nullification of the death pursuant to their contract of procession The assignment
orders issued by the respondent Judge Otilio Abaya, in his of shares was as follows:
capacity as the presiding judge of the Court of First Instance of
Surigao del Sur, Branch II, Lianga, Surigao del Sur in Civil
(a) To the surviving spouses, (sic) Simprosa Vda. de
Case No. L-108, entitled "Simprosa Vda. de Espina, et. al. v.
Sofia Espina, et. al." dated May 9, 1975 dismissing the Espina, herein plaintiffs, one-half (1/2) of the parcel of
complaint for partition; July 25, 1975 denying the motion for land adjudicated to each of said plaintiffs-heirs and
reconsideration; August 13, 1975 denying the second motion
for reconsideration and March 15, 1976 denying plaintiffs'
notice of appeal. (b) To each of the following compulsory heirs, to wit:

The antecedent facts are as follows: 1. To Recaredo (sic) Espina, one-half (1/2) portion
which contains an area of one and three-fourths (1
3/4) hectares and which forms part of Parcel 4 whose
Marcos Espina died on February 14, 1953 and was survived by
his spouses, Simprosa Vda. de Espina and their children description is given in paragraph III of the complaint,
namely, Recaredo, Timoteo, Celia, Gaudiosa, Necifora, Sora the said Parcel IV has been in the possession of both
Recaredo Espina and plaintiff Simprosa Vda. de
and Jose, all surnamed Espina. Decedent's estate comprises of
Espina from April 20, 1952 until the present time;
four (4) parcels of land located at the Municipality of Barobo
Province of Surigao del Sur.
2. To Timoteo Espina, one half (1/2) portion which
On August 23, 1973 an action for partition of the contains an area of not less than one-half (1/2) hectare
and which forms part of Parcel 3 whose description is
aforementioned parcels of land was filed by petitioners
given in paragraph III of the complaint, the said Parcel
Simprosa and her children Recaredo, Timoteo, Celia,
III was originally assigned by Marcos Espina who
Gaudencia and Necifora.
thereupon obtained an Original Certificate of Title in
her (sic) name but was finally adjudicated to said
The complaint alleges that parcel No. 1 is the exclusive Timoteo Espina in April, 1952, the other half (1/2)
property of the deceased, hence the same is owned in common portion of which parcel III was the share of the
by petitioners and private respondents in eight (8) equal parts, surviving spouses (sic), Simprosa Vda. de Espina, and
while the other three (3) parcels of land being conjugal said Parcel III has been in the possession of said
properties, are also owned in common, one-half (1/2) belongs Timoteo Espina and Simprosa Vda. de Espina from
to the widow Simprosa and the other half is owned by her and April, 1952 until the present time as their share;
her children in eight (8) equal parts.
3. To Cecilia (sic) Espina, Gaudiosa Espina and
It also alleges that parcel No. 1 has been subdivided into two Necifora Espina, one-half (1/2) portion, share and
lots. Lot No. 994 PL8-44 is covered by Original Certificate of share alike which contains two (2) hectares and which
Title No. 5570 in the name of one of the heirs, Sofia Espina, forms part of Parcel II whose description is given in
who acquired the title as a trustee for the beneficiaries or heirs paragraph III of the complaint, the other half (1/2) of
of Marcos Espina, while lot No. 1329 PCS-44 is covered by said Parcel III (sic) is the share of the surviving
Original Certificate of Title No. 3732 issued in the name of one spouses (sic) Simprosa Vda. de Espina, and said
of the heirs, Jose Espina as trustee for the heirs of Marcos Parcel III (sic) has been in the possession of said
Espina. Said parcel of land is in the possession of petitioners Cecilia. (sic) Espina, Gaudiosa Espina and Necifora
and private respondents who have their respective houses Espina and Simprosa Vda. de Espina from April, 1952
thereon. until the present time;
4. To Sofia Espina, one-half (1/2) portion of the parcel xxx xxx xxx
of land included in the deception of Parcel 1 in
paragraph III of the complaint, the other half (1/2) of On May 9, 1975 the trial court granted the motion and
said parcel being the share of the surviving spouses thereafter dismissed the complaint. On May 23, 1975
(sic) Simprosa Vda. de Espina and having been ceded petitioners filed a motion for reconsideration on the following
by said Simprosa Vda. de Espina to said Sofia Espina grounds, to wit:
for a valuable consideration payable quarterly at the
rate of P50.00 beginning April, 1952 until her death, 1. THAT THE ORDER OF DISMISSAL HAS NO
and said Sofia Espina has been regularly paying to LEGAL BASIS IN FACT AND IN LAW.
said Simprosa Vda. de Espina quarterly from April,
1952 the said amount of P50.00 until the present time,
and by virtue of said agreement, Sofia Espina obtained 2. THAT THE STATUTE OF LIMITATIONS IS
Original Certificate of Title in her name of said parcel NOT APPLICABLE IN THE CASE AT BAR. (Rollo,
of land which is included in the description of said p. 50)
parcel 1, as her exclusive property;
However, petitioners' motion was denied in an order dated July
5. To Jose Espina, one-half (1/2) portion of the other 23, 1975. On August 11, 1975 petitioners filed another motion
parcel of land included in the description of Parcel 1 for reconsideration stressing that they were denied due process
in paragraph 1 of the complaint, the other half (1/2) of when their motion was not heard. Again said motion was
said parcel being the share of the surviving spouses denied on August 13, 1975.
(sic) Simprosa Vda. de Espina and having been coded
(sic) by said Simprosa Vda. de Espina to said Jose Thereafter, petitioners filed their notice of appeal on September
Espina for a valuable consideration payable quarterly 11, 1975 and a motion for extension of time to file their Record
at the rate of P50.00 beginning April, 1952 until her on Appeal on September 18, 1975.
death, and said Jose Espina has been regularly
quarterly paying to said Simprosa Vda. de Espina On March 15, 1976, the respondent judge disapproved
from April, 1952 until the present time, the said petitioners' Record on Appeal and appeal bond on the ground
amount of P50.00, and by virtue of said agreement, that the notice of appeal was filed out of time. Hence, this
Jose Espina obtained Original Certificate of Title in petition. The petitioners raised four (,41) assignment of errors:
his name of said parcel of land which is included in
the description of said Parcel 1 as his exclusive 1. Whether or not an action for partition among co-
property. (Rollo, pp. 27-28) heirs prescribes.

On February 13, 1974 private respondents filed a motion to 2. Whether or not an oral partition among co-heirs is
dismiss the complaint alleging the following grounds, to wit: valid.

I 3. Whether or not a hearing on a motion for

reconsideration is indispensable the lack of which is a
THAT THE FACTS ALLEGED IN THE deal of due process.
COURT COMPLETE AND LAWFUL 4. Whether or not the second motion for
JURISDICTION OVER THE CASE FOR NON- reconsideration is pro forma Rollo, p. 10)
Petitioners maintain that the present action is not for
reconveyance but one for partition. Hence, the rule insisted by
the private respondents on prescriptibility of an action for
xxx xxx xxx reconcile conveyance of real property based on an implied trust
is not applicable in the case at bar. In addition, petitioners,
II argue that private respondents cannot set up the defense of
prescription or laches because their possession of the property
THAT THE CAUSE OF ACTION IS BARRED BY . no matter how long cannot ripen into ownership.
. . . STATUTE OF LIMITATIONS. (Memorandum for Petitioners, p. 7)

xxx xxx xxx However, the private respondents stress that 'any supposed
right of the petitioners to demand a new division or partition of
III said estate of Marcos Espina has long been barred by the
Statute of Limitations and has long prescribed." (Memorandum
for Private Respondents, p. 5)
CAPACITY TO SUE, (Motion to Dismiss Complaint,
pp. 1-5; Rollo, pp. 34-38)
The petitioners claim that the alleged oral partition is invalid property owned in common is valid and enforceable upon the
and strictly under the coverage of the statute of Frauds on two parties. The Statute of Frauds has no operation in this kind of
grounds, to wit: agreements, for partition is not a conveyance of property but
simply a segregation and designation of the part of the property
Firstly, parcel No. 1 being an exclusive property of the which belong to the co-owners." (Tolentino, Commentaries and
deceased should have been divided into eight (8) equal parts. Jurisprudence on the Civil Code of the Philippines, Vol. II,
Therefore, Simprosa . could only cede her share of the land 1983 Edition, 182-183 citing Hernandez v. Andal, et. al., G.R.
which is 1/8 portion thereof and cannot validly cede the shares No. L275, March 29, 1957)
of her then minor children without being duly appointed as
guardian. Time and again, the Court stresses that the hearing of a motion
for reconsideration in oral argument is a matter which rests
Secondly, under Article 1358 of the New Civil Code, Simprosa upon the sound discretion of the Court. Its refusal does not
could not have ceded her right and that of her other children constitute a denial of due process in the absence of a showing
except by a public document. (Memorandum of Petitioners, pp. of abuse of discretion. (see Philippine Manufacturing Co. v.
8-9) Ang Bisig ng PMC et. al., 118 Phil. 431, 434)

On the other hand, private respondents insist that the oral The absence of a formal hearing on the petitioners' motion for
partition is valid and binding and does not fall under the reconsideration is thoroughly explained in the order of the
coverage of the Statute of Frauds. respondent judge dated August 13, 1975, which is hereunder
quoted as follows:
Petitioners claim that they were denied due process when the
motion for reconsideration was denied without any hearing. When the court issued its order of June 5, 1975
requiring counsel for defendants to answer plaintiffs'
However, private respondents maintain that the hearing of a motion for reconsideration, the court opted to resolve
plaintiffs' motion based on the pleadings of the parties,
motion for reconsideration in oral argument is a matter which
without further oral arguments. The court considered
rest upon the sound discretion of the Court.
the arguments of the parties stated in their pleadings
as already sufficient to apprise the court of the issues
Finally, petitioners stress that the second motion for involved in said motion.
reconsideration is not pro forma, thus, it suspends the running
of the period of appeal. Hence, the notice of appeal was timely
Plaintiffs' allegation that the Clerk of Court failed to
calendar their motion for reconsideration for oral
argument has not deprived the plaintiffs of any
On this point, private respondent maintain that the order of substantial right or his right to due process.
respondent judge dated March 1 5, 1976 disapproving
petitioners' Record on Appeal and appeal bond may not
SO ORDERED. (Memorandum of Private
properly be a subject of a petition for certiorari. (Memorandum
Respondents, pp. 1213)
of Private Respondents, p. 13)

A cursory reading of the aforequoted order will show that there

We find the petition devoid of merit.
was indeed no formal hearing on the motion for
reconsideration. There is no question however, that the motion
We already ruled in Lebrilla, et al. v. Intermediate Appellate is grounded on the lack of basis in fact and in law of the order
Court (G.R. No. 72623, December 18, 1989, 180 SCRA 188; of dismissal and the existence or lack of it is determined by a
192) that an action for partition is imprescriptible. However, an reference to the facts alleged in the challenged pleading. The
action for partition among co-heirs ceases to be such, and issue raised in the motion was fully discussed therein and in the
becomes one for title where the defendants allege exclusive opposition thereto. Under such circumstances, oral argument
ownership. on the motion is reduced to an unnecessary ceremony and
should be overlooked (see Ethel Case, et al. v. Jugo, 77 Phil.
In the case at bar, the imprescriptibility of the action for 517, 522).
partition cannot be invoked because two of the co-heirs,
namely private respondents Sora and Jose Espina possessed the We adhere to the findings of the trial court that the second
property as exclusive owners and their possession for a period motion for reconsideration dated August 11, 1975 is pro forma,
of twenty one (21) years is sufficient to acquire it by to it
prescription. Hence, from the moment these co-heirs claim that
they are the absolute and exclusive owners of the properties
The grounds stated in said motion being in reiteration
and deny the others any share therein, the question involved is
of the same grounds alleged in his first motion, the
no longer one of partition but of ownership.
same is pro-forma. (Order dated March 15, 1976, p.
2, Rollo, p. 74)
Anent the issue of oral partition, We sustain the validity of said
partition.1wphi1 "An agreement of partition may be made
xxx xxx xxx
orally or in writing. An oral agreement for the partition of the
Furthermore, the second motion for reconsideration
has not stated new grounds considering that the
alleged failure of the Clerk of Court to set plaintiffs'
motion for reconsideration, although seemingly a
different ground than those alleged in their first
motion for reconsideration, is only incidental to the
issues raised in their first motion for reconsideration,
as it only refers to the right of plaintiffs' counsel to
argue his motion in court just to amplify the same
grounds already deed by the court. (Ibid, p. 3, Rollo, p.

Therefore, it is very evident that the second motion for

reconsideration being pro-forma did not suspend the running of
the period of appeal. Thus, the lower court committed no error
when it held that the notice of appeal was filed after the lapse
of thirty five (35) days, which is clearly beyond the period of
thirty (30) days allowed by the rules.

Finally, it has been a basic rule that certiorari is not a substitute

for appeal which had been lost. (see Edra v. Intermediate
Appellate Court, G.R. No. 75041, November 13, 1989, 179
SCRA 344) A special civil action under Rule 65 of the Rules of
Court will not be a substitute or cure for failure to file a timely
petition for review on certiorari(appeal) under Rule 45 of the
Rules of Court. (Escudero v. Dulay, G.R. No. 60578, February
23, 1988, 158 SCRA 69, 77)

The application of the abovecited rule should be relaxed where

it is shown that it will result in a manifest failure or miscarriage
of justice. (Ibid, p. 77) However, as emphasized earlier, the
case at bar is totally devoid of merit, thus, the strict application
of the said file will not in any way override sub-substantial

Therefore, the delay of five (5) days in filing a notice of appeal

and a motion for extension to file a record on appeal cannot be
excused on the basis of equity.

All premises considered, the Court is convinced that the acts of

respondent judge, in dismissing the action for partition and in
subsequently denying the motions for reconsideration of the
petitioners, does not amount to grave abuse of discretion.



Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

G.R. No. 180269 February 20, 2013 adjudicated Lot No. 4618 to themselves. In the same
instrument, respondents Mario, Angelo and Rodolfo renounced
JOSE Z. CASILANG, SR., substituted by his heirs, namely: their respective shares in Lot No. 4618 in favor of Rosario.
C. CASILANG, JR., RICARDO C. CASILANG, MARIA In his Answer, Jose raised the defense that he was the "lawful,
LOURDES C. CASILANG, CHRISTOPHER C. absolute, exclusive owner and in actual possession" of the said
CASILANG, BEN C. CASILANG, DANTE C. lot, and that he acquired the same "through intestate succession
CASILANG, GREGORIO C. CASILANG, HERALD C. from his late father."4 For some reason, however, he and his
CASILANG; and FELICIDAD Z. CASILANG, lawyer, who was from the Public Attorneys Office, failed to
MARCELINA Z. CASILANG, JACINTA Z. CASILANG, appear at the scheduled pre-trial conference, and Jose was
BONIFACIO Z. CASILANG, LEONORA Z. CASILANG, declared in default; thus, the adverse judgment against him.5
and FLORA Z. CASILANG, Petitioners,
vs. On February 18, 1998, the MTC rendered judgment finding
ROSARIO Z. CASILANG-DIZON, MARIO A. Rosario to be the owner of Lot No. 4618, and ordering Jose to
CASILANG, ANGELO A. CASILANG, RODOLFO A. remove his house, vacate Lot No. 4618, and pay Rosario
CASILANG, and ATTY. ALICIA B. FABIA, in her 500.00 in monthly rentals from the filing of the complaint
capacity as Clerk of Court and Ex-Officio Sheriff of until she was placed in possession, plus attorneys fees of
Pangasinan and/or her duly authorized 5,000.00, litigation expenses and costs. On March 23, 1998,
representative, Respondents. the MTC issued a writ of execution; and on August 28, 1998, a
Writ of Demolition6 was issued.
On June 2, 1998, the petitioners, counting 7 of the 8 children of
REYES, J.: Liborio and Francisca,7 filed with the RTC of Dagupan City a
Complaint,8 docketed as Civil Case No. 98-02371-D for
Before us is a petition for review of the Decision1 dated July "Annulment of Documents, Ownership and Peaceful
19, 2007 of the Court of Appeals (CA) in CA-G.R. CV No. Possession with Damages" against the respondents. On June
79619, which reversed and set aside the Decision2 dated April 10, 1998, the petitioners moved for the issuance of a writ of
21, 2003 of the Regional Trial Court (RTC) of Dagupan City, preliminary injunction or temporary restraining order, which
Branch 41, in Civil Case No. 98-02371-D. the RTC however denied on June 23, 1998.

Antecedent Facts Among the documents sought to be annulled was the 1997
Deed of Extrajudicial Partition executed by Ireneos children
The late spouses Liborio Casilang (Liborio) and Francisca over Lot No. 4618, as well as TD No. 555, and by necessary
Zacarias (Francisca) had eight (8) children, namely: Felicidad implication its derivatives, TD No. 15177 (for the lot) and TD
No. 15176 (for the house), both of which were issued in 1998
Casilang (Felicidad), Ireneo Casilang (Ireneo), Marcelina
in the name of Rosario Casilang-Dizon.9
Casilang (Marcelina), Jacinta Casilang (Jacinta), Bonifacio
Casilang (Bonifacio), Leonora Casilang (Leonora), Jose
Casilang (Jose) and Flora Casilang (Flora). Liborio died The petitioners alleged in their complaint that all eight (8)
intestate on October 11, 1982 at the age of 83, followed not children of Liborio entered into a verbal partition of his estate,
long after by his wife Francisca on December 25, 1982. Their pursuant to which Jose was allotted Lot No. 4618 as his share;
son Bonifacio also died in 1986, survived by his child Bernabe that Ireneo never claimed ownership of Lot No. 4618, nor took
Casilang (Bernabe), while son Ireneo died on June 11, 1992, possession of it, because his share was the southwestern 1/5
survived by his four (4) children, namely: Mario Casilang portion of Lot No. 4676, containing an area of 1,308 sq m, 10 of
(Mario), Angelo Casilang (Angelo), Rosario Casilang-Dizon which he took exclusive possession during his lifetime; that
(Rosario) and Rodolfo Casilang (Rodolfo), herein respondents. Jose has always resided in Lot No. 4618 since childhood,
where he built his familys semi-concrete house just a few steps
away from his parents old bamboo hut; that he took in and
The estate of Liborio, which left no debts, consisted of three (3)
cared for his aged parents in his house until their deaths in
parcels of land located in Barangay Talibaew, Calasiao,
Pangasinan, namely: (1) Lot No. 4676, with an area of 4,164 1982; that one of his children has also built a house on the
square meters; (2) Lot No. 4704, containing 1,164 sq m; and lot.11 Jose, said to be the most educated of the Casilang
siblings, worked as an insurance agent.12 The complete
(3) Lot No. 4618, with 897 sq m.
disposition of the intestate estate of Liborio per the parties
verbal partition appears as follows:
On May 26, 1997, respondent Rosario filed with the Municipal
Trial Court (MTC) of Calasiao, Pangasinan a complaint for
unlawful detainer, docketed as Civil Case No. 847, to evict her 1. Lot No. 4676, with 4,164 sq m, declared under TD
No. 534 in Liborios name,13 was verbally partitioned
uncle, petitioner Jose from Lot No. 4618. Rosario claimed that
among Marcelina (236 sq m), Leonora (1,965 sq m),
Lot No. 4618 was owned by her father Ireneo, as evidenced by
Flora (655 sq m), and Ireneo, represented by his
Tax Declaration (TD) No. 555 issued in 1994 under her
children, the herein respondents-defendants (1,308 sq
fathers name. On April 3, 1997, the respondents executed
a Deed of Extrajudicial Partition with Quitclaim3 whereby they m), as shown in a Deed of Extrajudicial Partition with
Quitclaim dated January 8, 1998, subsequently
executed by all the Casilang siblings and their e) No protestation or objection was ever made by
representatives. Appellee JOSE in Civil Case No. 847 (Unlawful
Detainer case) where he was the defendant; that the
2. Lot No. 4704, with 1,164 sq m, declared under TD truth was that his possession of the subject property
No. 276 in Liborios name,14 was divided among was upon the tolerance and benevolence of his late
Jacinta and Bonifacio, who died in 1986 and is now brother IRENEO during the latters lifetime and that
represented by his son Bernabe; and Appellant ROSARIO;

3. Lot No. 4618, containing 897 sq m, declared since f) The RTC Clerk of Court and Ex-officio Provincial
1994 under TD No. 555 in Ireneos name, 15 is now the Sheriff would just be doing her job if she and her
subject of the controversy below. Jose insists that he deputies would implement the writ of
succeeded to it per verbal partition, and that he and his execution/demolition issued by the MTC of Calasiao,
family have always occupied the same peacefully, Pangasinan since it is its ministerial duty to do so;
adversely and exclusively even while their parents
were alive.16 g) The Appellees have no cause of action; not having
shown in their complaint the basis, the reason and the
For her part, Rosario alleged in her answer with very core of their claim as to why the questioned
counterclaim,17 which she filed on September 15, 1998, that: document should be nullified.18 (Citation omitted)

a) She is the actual and lawful owner of Lot No. 4618 In their reply19 to Rosarios aforesaid answer, the petitioners
with an area of 897 square meters, having acquired the asserted that the MTC committed a grave error in failing to
same by way of a Deed of Extra judicial Partition with consider a material fact-that Jose had long been in prior
Quitclaim dated 3 April 1997 which was duly possession under a claim of title which he obtained by
executed among herein Appellant ROSARIO and her partition.
brothers, namely, MARIO, ANGELO and
RODOLFO, all surnamed CASILANG; At the pre-trial conference in Civil Case No. 98-02371-D, the
parties entered into the following stipulations:
b) Her ownership over subject property could be
traced back to her late father IR[E]NEO which the 1. That the late LIBORIO is the father of
latter inherited by way of intestate succession from his FELICIDAD, MARCELINA, JUANITA,
deceased father LIBORIO sometime in 1992; that the LEONORA, FLORA and IRENEO, all surnamed
residential house described in herein Appellee JOSEs CASILANG;
complaint is an illegal structure built by him in 1997
without her (ROSARIOs) knowledge and consent; 2. That the late LIBORIO died in 1982; That the late
that in fact, an ejectment suit was filed against LIBORIO and his family resided on Lot [No.] 4618 up
Appellee JOSE with the Municipal Trial Court in to his death in 1982; That the house of the late
Calasiao, Pangasinan in Civil Case No. 847; LIBORIO is located on Lot [No.] 4618;

c) The subject lot is never a portion of Appellee 3. That Plaintiff JOSE used to reside on the lot in
JOSEs share from the intestate of his deceased father, question because there was a case for ejectment filed
LIBORIO; that on the contrary, the lot is his deceased against him;
brother IR[E]NEOs share from the late LIBORIOs
intestate estate; that in fact, the property has long been 4. That the house which was demolished is the family
declared in the name of the late IRENEO as shown by house of the late LIBORIO and FRANCISCA
Tax Declaration No. 555 long before his children
ZACARIAS with the qualification that it was given to
the defendants;
RODOLFO, all surnamed CASILANG, executed the
Deed of Partition dated 18 February 1998; that
Appellee JOSE had actually consumed his shares 5. That the action involves members of the same
which he inherited from his late father, and after a family; and
series of sales and dispositions of the same made by
him, he now wants to take Appellants property; 6. That no earnest efforts were made prior to the
institution of the case in court. 20
d) Appellee JOSE is never the rightful owner of the lot
in question and has not shown any convincing proof Ruling of the RTC
of his supposed ownership; that the improvements
introduced by him, specifically the structures he cited After a full trial on the merits, the RTC in its Decision21 dated
are the subject of a Writ of Demolition dated 28 April 21, 2003 decreed as follows:
August 1998 pursuant to the Order dated 17 August
1998 of the MTC of Calasiao, Pangasinan;
WHEREFORE, premises considered, judgment is hereby tax declaration is not conclusive proof of ownership. The RTC
rendered in favor of the plaintiffs and against the defendants as even noted that the tax declaration of Ireneo started only in
follows: 1994, although he had been dead since 1992. "Such being the
case, the heirs of Ir[e]neo Casilang has [sic] no basis in
1. Declaring the Deed of Extrajudicial Partition with adjudicating unto themselves Lot No. 4618 and partitioning the
Quitclaim dated April 3, 1997 null and void; same by executing the Deed of Extrajudicial Partition with
2. Declaring plaintiff Jose Z. Casilang Sr. as the
lawful owner and possessor of the subject Lot No. Appeal to the CA
4618 and as such, entitled to the peaceful possession
of the same; Undeterred, Rosario appealed to the CA averring that: (1) the
lower court erred in declaring the Deed of Extrajudicial
3. Ordering the defendants to pay to plaintiff Jose Z. Partition with Quitclaim dated April 3, 1997 as null and void;
Casilang Sr. attorneys fees in the amount of and (2) the lower court erred in declaring Jose as the lawful
20,000.00 and litigation expenses in the amount of owner and possessor of the subject Lot No. 4618. 28
5,000.00, and to pay the costs of suit.
In the now assailed decision, the CA reversed the RTC by
SO ORDERED.22 relying mainly on the factual findings and conclusions of the
MTC in Civil Case No. 847, viz:
The RTC affirmed Joses ownership and possession of Lot No.
4618 by virtue of the oral partition of the estate of Liborio by Per the records, the above described property was subject of
all the siblings. In the Deed of Extrajudicial Partition with Civil Case No. 847 decided by the MTC of Calasiao, First
Quitclaim23 dated January 8, 1998, subsequently executed by Judicial Region, Province of Pangasinan which rendered a
all the eight (8) Casilang siblings and their legal judgment, supra, in favor of Appellant ROSARIO ordering
representativeswith Ireneo represented by his four (4) herein Appellee JOSE and all persons claiming rights under
children, and Bonifacio by his son Bernabepetitioners Jose, him to vacate the land of Appellant ROSARIO. It was found by
Felicidad, Jacinta and Bernabe, acknowledged that they had the MTC that the latter is the owner of the subject parcel of
already received their respective shares of inheritance in land located at Talibaew, Calasiao, Pangasinan; that the former
advance,"24 and therefore, renounced their claims over Lot No. owner of the land is the late IRENEO (who died on 11 June
4676 in favor of co-heirs Marcelina, Leonora, Flora and Ireneo, 1992), father of Appellant ROSARIO; that Extra Judicial
as follows: Partition with Quitclaim was executed by and among the heirs
of the late IRENEO; that MAURO [sic], ANGELO and
We hereby RENOUNCED, WAIVED AND QUITCLAIM, all RODOLFO, all surnamed CASILANG waived and quitclaimed
our rights, interests and participations over the WHOLE parcel their respective shares over the subject property in favor of
Appellant ROSARIO; that Appellee JOSE was allowed by the
of land [Lot No. 4676], left by the late, LIBORIO CASILANG,
late IRENEO during his lifetime to occupy a portion of the land
in favor of our coheirs, namely: MARCELINA Z.
without a contract of lease and no rentals being paid by the
former; that Appellant ROSARIO allowed Appellee JOSE to
CASILANG, ANGELO A. CASILANG, ROSARIO A. continue occupying the land after the Extra Judicial Partition
CASILANGDIZON AND RODOLFO A. CASILANG.25 with Quitclaim was executed.29

Moreover, noting that the decision in Civil Case No. 847 in

Thus, Jose expressly renounced his share in Lot No. 4676,
favor of Rosario was issued on February 18, 1998 while the
which has an area of 4,164 sq m, because he had already
received in advance his share in his fathers estate, Lot No. petitioners complaint in Civil Case No. 98-02371-D was filed
4618 with 897 sq m: on June 2, 1998, the CA concluded that the latter case was a
mere afterthought:
To the mind of the court, Jose Casilang could have not [sic]
If the latter has really a strong and valid reason to question the
renounced and waived his rights and interests over Lot [No.]
4676 if he believes that Lot [No.] 4618 is not his, while the validity of the Deed of Extra Judicial Partition with
Quitclaim, supra, he could have done it soon after the said
other lot, Lot [No.] 470[4], was divided between sister Jacinta
Deed was executed on 3 April 1997. However, curiously
Casilang and brother Bonifacio Casilang[,] Sr., who was
enough, it was only when the MTC ordered his eviction from
represented by his son. In the same [way] as testified to by
the subject property that he decided to file the instant case
plaintiffs Felicidad Casilang and Jacinta Casilang, they signed
the Deed of Extrajudicial Partition with Quitclaim wherein they against the Appellants.30
waived and renounced their rights and interests over Lot [No.]
4676 because they have already received their share, which is Petition for Review in the Supreme Court
Lot [No.] 470[4].26
Now in this petition for review on certiorari, petitioners
The RTC found baseless the claim of Rosario that Lot No. maintain that:
4618 was an inheritance of her father Ireneo considering that a
IN UPHOLDING THE LEGALITY [OF] THE DEED OF It is imperative to review the CAs factual conclusions since
EXTRAJUDICIAL PARTITION AND QUITCLAIM DATED they are entirely contrary to those of the RTC, they have no
APRIL 3, 1997, THE HONORABLE COURT OF APPEALS citation of specific supporting evidence, and are premised
GROSSLY VIOLATED THE SUBSTANTIVE RIGHT OF on the supposed absence of evidence, particularly on the
JOSE Z. CASILANG, SR. AS DIRECT COMPULSORY parties verbal partition, but are directly contradicted by
HEIR.31 the evidence on record.

Our Ruling and Discussions It must be noted that the factual findings of the MTC, which
the CA adopted without question, were obtained through
There is merit in the petition. Summary Procedure and were based solely on the complaint
and affidavits of Rosario, after Jose had been declared in
default. But since a full trial was had in Civil Case No. 98-
Inferior courts are empowered to rule on the question of
02371-D, the CA should have pointed out the specific errors
ownership raised by the defendant in an ejectment suit, but
and weaknesses in the RTCs factual conclusions before it
only to resolve the issue of possession; its determination is
could rule that Jose was unable to present "any evidentiary
not conclusive on the issue of ownership.
support" to establish his title, and that his continued possession
of Lot No. 4618 was by mere tolerance of Rosario. At most,
It is well to be reminded of the settled distinction between a however, the CA only opined that it was conjectural for the
summary action of ejectment and a plenary action for recovery RTC to conclude, that Jose had already received his inheritance
of possession and/or ownership of the land. What really when he renounced his share in Lot No. 4676. It then ruled that
distinguishes an action for unlawful detainer from a possessory the RTC erred in not considering the findings of the MTC in
action (accion publiciana) and from a reinvindicatory action Civil Case No. 847-that Joses possession over subject property
(accion reinvindicatoria) is that the first is limited to the was by mere tolerance. Said the appellate court:
question of possession de facto. Unlawful detainer suits (accion
interdictal) together with forcible entry are the two forms of
Given the claim of the Appellee that Lot [No.] 4618
ejectment suit that may be filed to recover possession of real
was orally given/assigned to him by his deceased father
property. Aside from the summary action of ejectment, accion
LIBORIO, or that his claim was corroborated by his sisters (his
publiciana or the plenary action to recover the right of
co-plaintiffs-Appellees), or that their claim is indubitably tied
possession and accion reinvindicatoria or the action to recover
ownership which also includes recovery of possession, make up with the Deed of Extrajudicial Partition with Quitclaim over
up the three kinds of actions to judicially recover possession. 32 Lot No. 4676, still We cannot fully agree with the
pronouncement of the court a quo that Appellee JOSE could
not have renounced and waived his rights and interest over Lot
Under Section 3 of Rule 70 of the Rules of Court, the Summary [No.] 4676 if he believes that Lot [No.] 4618 is not his.
Procedure governs the two forms of ejectment suit, the purpose Wanting any evidentiary support, We find this stance as
being to provide an expeditious means of protecting actual conjectural being unsubstantiated by law or convincing
possession or right to possession of the property. They are not evidence. At the most and taking the factual or legal
processes to determine the actual title to an estate. If at all, circumstances as shown by the records, We hold that the
inferior courts are empowered to rule on the question of court a quo erred in not considering the findings of the MTC in
ownership raised by the defendant in such suits, only to resolve Civil Case No. 847 ruling that herein Appellee JOSEs
the issue of possession and its determination on the ownership possession over subject property was by mere tolerance. Based
issue is not conclusive.33 As thus provided in Section 16 of as it is on mere tolerance, Appellee JOSEs possession
Rule 70: therefore could not, in any way, ripen into
ownership.35 (Citations omitted)
Sec. 16. Resolving defense of ownership.When the defendant
raises the defense of ownership in his pleadings and the By relying solely on the MTCs findings, the CA completely
question of possession cannot be resolved without deciding the ignored the testimonial, documentary and circumstantial
issue of ownership, the issue of ownership shall be resolved evidence of the petitioners, obtained by the RTC after a full
only to determine the issue of possession. trial on the merits. More importantly, the CA did not point to
any evidence of Rosario that Ireneo had inherited Lot No. 4618
It is apropos, then, to note that in contrast to Civil Case No. from Liborio. All it did was adopt the findings of the MTC.
847, which is an ejectment case, Civil Case No. 98-02371-D is
for "Annulment of Documents, Ownership and Peaceful The Supreme Court is not a trier of facts, and unless the case
Possession;" it is an accion reinvindicatoria, or action to falls under any of the well-defined exceptions, the Supreme
recover ownership, which necessarily includes recovery of Court will not delve once more into the findings of facts.
possession34 as an incident thereof. Jose asserts his ownership In Sps. Sta. Maria v. CA,36 this Court stated:
over Lot No. 4618 under a partition agreement with his co-
heirs, and seeks to invalidate Ireneos "claim" over Lot No.
Settled is the rule that the jurisdiction of this Court in cases
4618 and to declare TD No. 555 void, and consequently, to
brought before it from the Court of Appeals via Rule 45 of the
annul the Deed of Extrajudicial Partition and Quitclaim
Rules of Court is limited to reviewing errors of law. Findings
executed by Ireneos heirs.
of fact of the latter are conclusive, except in the following
instances: (1) when the findings are grounded entirely on
speculation, surmises, or conjectures; (2) when the inference No. 4618, which he used as his permanent address;
made is manifestly mistaken, absurd, or impossible; (3) when only Lot No. 4676 was included in the Deed of
there is grave abuse of discretion; (4) when the judgment is Extrajudicial Partition dated January 8, 1998 because
based on a misapprehension of facts; (5) when the findings of Lot No. 4618 had already been distributed to Jose, and
fact are conflicting; (6) when in making its findings the Court Lot No. 4704 had already been assigned to Jacinta and
of Appeals went beyond the issues of the case, or its findings Bonifacio as their share in their fathers estate.38
are contrary to the admissions of both the appellant and the
appellee; (7) when the findings are contrary to those of the trial 2. Joses testimony was corroborated by petitioners
court; (8) when the findings are conclusions without citation of Felicidad,39 Jacinta,40 Leonora,41 and Flora,42 who all
specific evidence on which they are based; (9) when the facts confirmed that their brother Jose has always resided in
set forth in the petition as well as in the petitioners main and Lot No. 4618 from his childhood up to the present,
reply briefs are not disputed by the respondent; and (10) when that he took their aged parents into his house after
the findings of fact are premised on the supposed absence of their bamboo house was destroyed, and he attended to
evidence and contradicted by the evidence on their needs until they died in 1982. The sisters were
record.37 (Citation omitted) also one in saying that their father Liborio verbally
willed Lot No. 4618 to Jose as his share in his estate,
In the instant case, the factual findings of the CA and the RTC and that their actual partition affirmed their fathers
are starkly contrasting. Moreover, we find that the CA decision dispositions. Jacinta claimed that she and Bonifacio
falls under exceptions (7), (8) and (10) above, which warrants have since taken possession of Lot No. 4704 pursuant
another review of its factual findings. to their partition, and have also declared their
respective portions for tax purposes.43 Flora
The evidence supporting Rosarios claim of sole ownership of corroborated Jacinta on their taking possession of Lot
Lot No. 4618 is the Deed of Extrajudicial Partition with No. 4704, as well as that Jose built his house on Lot
Quitclaim, which she executed with her brothers Mario, Angelo No. 4618 next to his parents and they came to live
and Rodolfo. There is no question that by itself, the said with him in their old age. Flora affirmed that Exhibit
document would have fully conveyed to Rosario whatever "F" correctly reflects their verbal partition of Lot No.
rights her brothers might have in Lot No. 4618. But what needs 4676, and that she was fully in accord with it. She
to be established first is whether or not Ireneo did in fact own added that Felicidad and Marcelina had since
Lot No. 4618 through succession, as Rosario claims. And here constructed their own houses on the portions of Lot
now lies the very crux of the controversy. No. 4676 assigned to them.44Felicidad mentioned that
in their partition, Ireneo was given a portion of Lot
No. 4676, while Lot No. 4704 was divided between
A review of the parties evidence shows that they entered
Jacinta and Bonifacio, and Jose alone got Lot No.
into an oral partition, giving Lot No. 4618 to Jose as his
4618. Leonora confirmed that they were all present
share, whereas Rosario presented no proof whatsoever that
when their father made his above dispositions of his
her father inherited Lot No. 4618 from his father Liborio.
Rosarios only proof of Ireneos ownership is TD No. 555,
3. Benjamin Lorenzo, a long-time neighbor of the
issued in his name, but she did not bother to explain why it was
Casilangs testified that Joses house stands on Lot No.
dated 1994, although Ireneo died on June 11, 1992. Liborios
4618 and Ireneo did not live with his family on the
ownership of Lot No. 4618 is admitted by all the parties, but it
must be asked whether in his lifetime Liborio did in fact said lot but was a tenant in another farm some distance
transmit it to Ireneo, and if not, whether it was conveyed to him away.45
by Liborios heirs. It is imperative for Rosario to have
presented proof of this transfer to Ireneo, in such a form as 4. For her part, Rosario merely asserted that her father
would have vested ownership in him. We find, instead, a Ireneo succeeded to Lot No. 4618 from Liborio, as
preponderance of contrary evidence. shown in TD No. 555 (Exhibit "1"); that she and her
brothers extra-judicially settled Ireneos estate, and
that they each waived their shares in her favor; and,
1. In his testimony, Jose claimed that his parents
that she has been paying taxes on Lot No. 4618.
bamboo house in Lot No. 4618 disintegrated from
Rosario admitted, however, that Jose has lived in the
wear and tear; so he took them in to his semi-concrete
house in the same lot, which was just a few steps lot since he was a child, and he has reconstructed his
away, and he cared for them until they died; shortly house thereon after its court-ordered demolition.46 But
Rosario on cross-examination backtracked by
before Liborios death, and in the presence of all his
claiming that it was her father Ireneo and grandfather
siblings, his father Liborio assigned Lot No. 4618 to
Liborio who built the old house in Lot No. 4618,
him as his inheritance; his house was demolished in
where Ireneo resided until his death; he even planted
1998 as a result of the ejectment case filed against
him; but his family continued to live thereat after various fruit trees. Yet, there is no mention
reconstructing the house; Ireneo and his family did not whatsoever to this effect by any of the witnesses.
Rosario also contradicted herself when she denied that
live in Lot No. 4618; although Joses job as an
Jose lived there because his job as insurance agent
insurance agent took him around Pangasinan, he
took him away often and yet admitted that Joses
always came home to his family in his house in Lot
house stands there, which he reconstructed after it was each of his eight children received his or her share of his estate,
ordered demolished by the MTC. Inexplicably, and that Joses share was Lot No. 4618.
Rosario disclaimed knowledge of Ireneos share in
Lot No. 4676, although she was a signatory, along The parties verbal partition is valid, and has been ratified
with her brothers and all the petitioners, in the deed of by their taking possession of their respective shares.
partition of the said lot, whereby she got 1,308 sq m.
Rosario also admitted that taxes were paid on the lot
The validity of an oral partition is well-settled in our
only beginning in 1997, not before.47 jurisdiction. In Vda. de Espina v. Abaya,53 this Court declared
that an oral partition is valid:
5. Benjamin Dizon, husband of Rosario, testified that
Rosario was losing appetite and sleep because of the
Anent the issue of oral partition, We sustain the validity of said
case filed by Jose; that Ireneo died in another farm;
partition. "An agreement of partition may be made orally or in
that Ireneo had a house in Lot No. 4618 but Jose took writing. An oral agreement for the partition of the property
over the house after he died in 1992.48 Respondent owned in common is valid and enforceable upon the parties.
Angelo, brother of Rosario, claimed that when he was
The Statute of Frauds has no operation in this kind of
13 or 14 years old, he heard his grandfather tell his
agreements, for partition is not a conveyance of property but
father Ireneo that he would inherit Lot No. 4618. On
simply a segregation and designation of the part of the property
cross-examination, Angelo insisted that his father had
which belong to the co-owners."54
always lived with his family in his grandfathers house
in Lot No. 4618, that Jose did not live there but was
given another lot, although he could not say which lot In Maestrado v. CA,55 the Supreme Court upheld the partition
it was; he admitted that his grandmother lived with after it found that it conformed to the alleged oral partition of
Jose when she died, and Ireneos share was in Lot No. the heirs, and that the oral partition was confirmed by the
4676.49 notarized quitclaims executed by the heirs
subsequently.56 In Maglucot-Aw v. Maglucot,57 the Supreme
Court elaborated on the validity of parol partition:
6. On rebuttal, Jose recounted that after his four
children were married, Ireneo lived as a tenant in
another farm; that during a period of illness he lived in On general principle, independent and in spite of the statute of
Manila for some time, and later resided in Cagayan frauds, courts of equity have enforce [sic] oral partition when it
with his two married sons; and lastly on his return, has been completely or partly performed.
worked as a tenant of the Maningding family for about
10 years in Calasiao, staying in a hut one kilometer Regardless of whether a parol partition or agreement to
away. Jose also claimed that Ireneo had asked Liborio partition is valid and enforceable at law, equity will [in] proper
for a portion of Lot No. 4676, a lot which is bigger cases, where the parol partition has actually been consummated
than Lot No. 4618 by several hundreds of square by the taking of possession in severalty and the exercise of
meters.50 ownership by the parties of the respective portions set off to
each, recognize and enforce such parol partition and the rights
7. On sur-rebuttal, Rosario claimed that her of the parties thereunder. Thus, it has been held or stated in a
grandparents, father and mother lived in Lot No. 4618 number of cases involving an oral partition under which the
when she was a child until she married and left in parties went into possession, exercised acts of ownership, or
1976; that her uncle Jose asked permission from otherwise partly performed the partition agreement, that equity
Liborio to be allowed to stay there with his family. will confirm such partition and in a proper case decree title in
She admitted that Jose built his house in 1985, three accordance with the possession in severalty.
years after Liborio died, but as if to correct herself,
she also claimed that Jose built his house in Lot No. In numerous cases it has been held or stated that parol partition
4676, and not in Lot No. 4618. (Contrarily, her aunt may be sustained on the ground of estoppel of the parties to
Leonora testified that Jose built his house in Lot No. assert the rights of a tenant in common as to parts of land
4618 while their parents were alive.)51 Moreover, if divided by parol partition as to which possession in severalty
such was the case, Rosario did not explain why she was taken and acts of individual ownership were exercised.
filed Civil Case No. 847, if she thought her uncle built And a court of equity will recognize the agreement and decree
his house in Lot No. 4676, and not in Lot No. it to be valid and effectual for the purpose of concluding the
4618.52 Rosario also claimed that Ireneo always came right of the parties as between each other to hold their
home in the evenings to his father Liborios house respective parts in severalty.
from the Maningding farm, which he tenanted for 10
years, but obviously, by then Liborios house had long A parol partition may also be sustained on the ground that the
been gone. Again, confusedly, Rosario denied that she parties thereto have acquiesced in and ratified the partition by
knew of her fathers share in Lot No. 4676. taking possession in severalty, exercising acts of ownership
with respect thereto, or otherwise recognizing the existence of
From the testimonies of the parties, we are convinced that the the partition.
conclusion of the RTC is well-supported that there was indeed
a verbal partition among the heirs of Liborio, pursuant to which
A number of cases have specifically applied the doctrine of part
performance, or have stated that a part performance is
necessary, to take a parol partition out of the operation of the
statute of frauds. It has been held that where there was a
partition in fact between tenants in common, and a part
performance, a court of equity would have regard to and
enforce such partition agreed to by the parties.58

Joses possession of Lot No. 4618 under a claim of ownership

is well borne out by the records. It is also consistent with the
claimed verbal partition with his siblings, and fully
corroborated by his sisters Felicidad, Jacinta, Leonora, and
Flora, who further testified that they each had taken possession
of their own shares and built their houses thereon.

A possessor of real estate property is presumed to have title

thereto unless the adverse claimant establishes a better
right.59 Moreover, under Article 541 of the Civil Code, one
who possesses in the concept of owner has in his favor the legal
presumption that he possesses with a just title, and he cannot be
obliged to show or prove it. Similarly, Article 433 of the Civil
Code provides that actual possession under a claim of
ownership raises a disputable presumption of ownership. Thus,
actual possession and exercise of dominion over definite
portions of the property in accordance with an alleged partition
are considered strong proof of an oral partition60 which the
Court will not hesitate to uphold.

Tax declarations and tax receipts are not conclusive

evidence of ownership.

It is settled that tax declarations and tax receipts alone are not
conclusive evidence of ownership. They are merely indicia of a
claim of ownership,61 but when coupled with proof of actual
possession of the property, they can be the basis of claim of
ownership through prescription.62 In the absence of actual,
public and adverse possession, the declaration of the land for
tax purposes does not prove ownership.63 We have seen that
there is no proof that Liborio, or the Casilang siblings
conveyed Lot No. 4618 to Ireneo. There is also no proof that
Ireneo himself declared Lot No. 4618 for tax purposes, and
even if he or his heirs did, this is not enough basis to claim
ownership over the subject property. The Court notes that TO
No. 555 was issued only in 1994, two years after Ireneo's
death. Rosario even admitted that she began paying taxes only
in 1997.64 More impmiantly, Ireneo never claimed Lot No.
4618 nor took possession of it in the concept of owner.

WHEREFORE, premises considered, the Petition

is GRANTED. The Decision dated July 19, 2007 of the Court
of Appeals in CA-G.R. CV No. 79619 is hereby REVERSED
and SET ASIDE, and the Decision dated April 21, 2003 of the
Regional Trial Court of Dagupan City, Branch 41 in Civil Case
No. 98-02371-D is REINSTATED.