Property Cases No.
8 Page |1
[No. 4656. November 18, 1912.]
Ricardo Pardell y Cruz and Vicenta Ortiz y Felin de Pardell, plaintiffs
and appellees, vs. Gaspar de Bartolome y Escribano and Matilde
Ortiz y Felin de Bartolome, defendants and appellants.
1.Estates; Realty; Rights of Coowners or Tenants in Common.—Each co-
owner or tenant in common of undivided realty has the same rights therein
as the others; he may use and enjoy the same without other limitation
except that he must not prejudice the rights of his coowners, but until a
division is effected, the respective parts belonging to each can not be
determined; each coowner exercises joint dominion and is entitled to joint
use.
2.Id.; Id.; Id.; Rent by One Coowner.—For the use and enjoyment of a
particular portion of the lower part of a house, not used as living quarters, a
coowner must, in strict justice, pay rent, in like manner as other people pay
for similar space in the house; he has no right to the free use and enjoyment
of such space which, if rented to a third party, would produce income.
3.Id.; Id.; Id.; Repairs  and   Improvements; Interest.—Until a cause
instituted to determine the liability of the rest of the coowners for repairs and
improvements made by one of their number is finally decided and the
amount due is fixed, the persons alleged to be liable can not be considered
in default as to interest, because interest is only due from the date of the
decision fixing- the principal liability. (Supreme court of Spain, April 24, 1867,
November 19, 1869, November 22, 1901, in connection with arts. 1108-1110
of the Civil Code.)
4.Id.; Id.; Id.; Voluntary Administrator; Compensation.—To an administrator
or voluntary manager of property belonging to his wife and another, both
coowners, the property being undivided, the law does not concede any
remuneration, without prejudice to his right to be reimbursed for any
necessary and useful expenditures in connection with the property and for
any damages he may have suffered thereby.
5.Id.; Id.; Id.;  Right to Demand Valuation Before Division or Sale.—Any one
of the coowners of undivided property about to be divided or to be sold in
consequence of a mutual petition, has the right to ask that the property be
valued by experts, a valuation which would not be prejudicial but rather
beneficial to all.
APPEAL from a judgment of the Court of First Instance of Ilocos Sur. 
Chanco, J.
The facts are stated in the opinion of the court.
Gaspar de Bartolome, in his own behalf.
B. Gimenez Zoboli, for appellees.
TORRES, J.:
This is an appeal by bill of exceptions, from the judgment of October 5,
1907, whereby the Honorable Dionisio Chanco, judge, absolved the
defendants from the complaint, and the plaintiff from a counterclaim,
without special finding as to costs.
Counsel for the spouses Ricardo y Cruz and Vicente Ortiz y Felin de Pardell,
the first of whom, absent in Spain by reason of his employment, conferred
upon the second sufficient and ample powers to appear before the courts of
justice, on June 8, 1905, in his written complaint, alleged that the plaintiff,
Vicente Ortiz, and the defendant, Matilde Ortiz, are the duly recognized
natural daughters of the spouses Miguel Ortiz and Calixta Felin y Paula who
died in Vigan, Ilocos Sur, in 1875 and 1882, respectively; that Calixta Felin,
prior to her death, executed on August 17, 1876, a nuncupative will in Vigan
whereby she made her four children, named Manuel, Francisca, Vicenta, and
Matilde, surnamed Ortiz y Felin, her sole and universal heirs of all her
property; that, of the persons enumerated, Manuel died before his mother
and Francisca a few years after her death, leaving no heirs by force of law,
and therefore the only existing heirs of the said testatrix are the plaintiff
Vicenta Ortiz and the defendant Matilde Ortiz; that, aside from some
personal property and jewelry already divided among the heirs, the testatrix
possessed, at the time of the execution of her will, and left at her death the
real properties which, with their respective cash values, are as follows:
1. A house of strong material, with the lot on which it is P6,000.0
built, situated on Escolta Street, Vigan, and valued at 0
2. A house of mixed material, with the lot on which it
1,500.00
stands, at No. 88 Washington Street, Vigan; valued at
3. A lot on Magallanes Street, Vigan; valued at 100.00
4. A parcel of rice land, situated in the barrio of San
60.00
Julian, Vigan; valued at
5. A parcel of rice land in the pueblo of Santa Lucia;
86.00
valued at
6. Three parcels of land in the pueblo of Candon; valued
150.00
at
Total 7,896.00
That, on or about the first months of the year 1888, the defendants, without
judicial authorization, nor friendly or extrajudicial agreement, took upon
themselves the administration and enjoyment of the said properties and

collected the rents, fruits, and products thereof, to the serious detriment of
the plaintiffs' interest; that, notwithstanding the different and repeated
demands extrajudicially made upon Matilde Ortiz to divide the
aforementioned properties with the plaintiff Vicente and to deliver to the
latter the one-half thereof, together with one-half of the fruits and rents
collected therefrom, the said defendant and her husband, the self-styled
administrator of the properties mentioned, had been delaying the partition
and delivery of the said properties by means of unkept promises and other
excuses; and that the plaintiffs, on account of the extraordinary delay in the
delivery of one-half of said properties, or their value in cash, as the case
might be, had suffered losses and damages in the sum of P8,000. Said
counsel for the plaintiffs therefore asked that judgment be rendered by
sentencing the defendants, Gaspar de Bartolome, and Matilde Ortiz Felin de
Bartolome, to restore and deliver to the plaintiffs one-half of the total value
in cash, according to appraisal, of the undivided property specified, which
one-half amounted approximately to P3,948, or if deemed proper, to
recognize the plaintiff Vicenta Ortiz to be vested with the full and absolute
right of ownership to the said undivided one-half of the properties in
question, as universal testamentary heir thereof together with the defendant
Matilde Ortiz, to indemnify the plaintiffs in the sum of P8,000, for losses and
damages, and to pay the costs.
Counsel for the defendants, in his answer denied the facts alleged in
paragraphs 1, 4, 6, 7, and 8 thereof, inasmuch as, upon the death of the
litigating sister's brother Manuel, their mother, who was still living, was his
heir by force of law, and the defendants had never refused to give to the
plaintiff Vicente Ortiz her share of the said properties; and stated that he
admitted the facts alleged in paragraph 2, provided it be understood,
however, that the surname of the defendant's mother was Felin, and not
Feliu, and that Miguel Ortiz died in Spain, and not in Vigan; that he also
admitted paragraph 3 of the complaint, with the difference that the said
surname should be Felin, and likewise paragraph 5, except the part thereof
relating to the personal property and the jewelry, since the latter had not yet
been divided; that the said jewelry was in the possession of the plaintiffs and
consisted of: one Lozada gold chronometer watch with a chain in the form of
a bridle curb and a watch charm consisting of the engraving of a postage
stamp on a stone mounted in gold and bearing the initials M. O., a pair of
cuff buttons made of gold coins, four small gold buttons, two finger rings,
another with the initials M. O., and a gold bracelet; and that the defendants
were willing to deliver to the plaintiffs, in conformity with their petitions, one-
half of the total value in cash, according to appraisement, of the undivided
real properties specified in paragraph 5, which half amounted to P3,948.
Property Cases No. 8 Page |2
In a special defense said counsel alleged that the defendants had never
refused to divide the said property and had in fact several years before
solicited the partition of the same; that, from 1886 to 1901, inclusive, there
was collected from the property on Calle Escolta the sum of 288 pesos,
besides a few other small amounts derived from other sources, which were
delivered to the plaintiffs with other larger amounts, in 1891, and from the
property on Calle Washington, called La Quinta, 990.95 pesos, which
proceeds, added together, made a total of 1,278.95 pesos, saving error or
omission; that, between the years abovementioned, Escolta, and that on
Calle Washington, La Quinta, 376.33, which made a total of 1,141.71, saving
error or omission; that, in 1897, the work of reconstruction was begun of the
house on Calle Escolta, which been destroyed by an earthquake, which work
was not finished until 1903 and required an expenditure on the part of the
defendant Matilde Ortiz, of 5,091.52 pesos; that all the collections made up
to August 1, 1905, including the rent from the stores, amounted to only
P3,654.15, and the expenses, to P6,252.32, there being, consequently, a
balance of P2,598.17, which divided between the sisters, the plaintiff and the
defendant, would make the latter's share P1,299.08; that, as shown by the
papers kept by the plaintiffs, in the year 1891 the defendant Bartolome
presented to the plaintiffs a statement in settlements of accounts, and
delivered to the person duly authorized by the latter for the purpose, the
sum of P2,606.29, which the said settlement showed was owing his
principals, from various sources; that, the defendant Bartolome having been
the administrator of the undivided property claimed by the plaintiffs, the
latter were owing the former legal remuneration of the percentage allowed
by law for administration; and that the defendants were willing to pay the
sum of P3,948, one-half of the total value of the said properties, deducting
therefrom the amount found to be owing them by the plaintiffs, and asked
that judgment be rendered in their favor to enable them to recover from the
latter that amount, together with the costs and expenses of the suit.
The defendants, in their counter claim, repeated each and all of the
allegations contained in each of the paragraphs of section 10 of their
answer; that the plaintiffs were obliged to pay to the administrator of the
said property the remuneration allowed him by law; that, as the revenues
collected by the defendants amounted to no more than P3,654.15 and the
expenditures incurred by them, to P6,252.32, it followed that the plaintiffs
owed the defendants P1,299.08, that is one-half of the difference between
the amount collected from and that extended on the properties, and asked
that judgment be therefore rendered in their behalf to enable them to collect
this sum from the plaintiffs, Ricardo Pardell and Vicenta Ortiz, with legal
interest thereon from December 7, 1904, the date when the accounts were

rendered, together with the sums to which the defendant Bartolome was
entitled for the administration of the undivided properties in question.
By a written motion of August 21, 1905, counsel for the plaintiffs requested
permission to amend the complaint by inserting immediately after the words
"or respective appraisal," fifth line of paragraph 5, the phrase "in cash in
accordance with the assessed value," and likewise further to amend the
same, in paragraph 6 thereof, by substituting the following word in lieu of
the petition for the remedy sought: "By reason of all the foregoing, I beg the
court to be pleased to render the judgment by sentencing the defendants,
Gaspar de Bartolome and Matilde Ortiz Felin de Bartolome, to restore and
deliver to the plaintiffs an exact one-half of the total vale of the undivided
properties described in the complaint, such value to be ascertained by the
expert appraisal of two competent persons, one of whom shall be appointed
by the plaintiffs and the other by the defendants, and, in case of
disagreement between these two appointees such value shall be determined
by a third expert appraiser appointed by the court, or, in a proper case, by
the price offered at public auction; or, in lieu thereof, it is requested that the
court recognize the plaintiff, Vicenta Ortiz, to be vested with a full and
absolute right to an undivided one-half of the said properties; furthermore, it
is prayed that the plaintiffs be awarded an indemnity of P8,000 for losses
and damages, and the costs." Notwithstanding the opposition of the
defendants, the said amendment was admitted by the court and counsel for
the defendants were allowed to a period of three days within which to
present a new answer. An exception was taken to this ruling.
The proper proceedings were had with reference to the valuation of the
properties concerned in the division sought and incidental issues were raised
relative to the partition of some of them and their award to one or the other
of the parties. Due consideration was taken of the averments and statements
of both parties who agreed between themselves, before the court, that any
of them might at any time acquire, at the valuation fixed by the expert
judicial appraiser, any of the properties in question, there being none in
existence excluded by the litigants. The court, therefore, by order of
December 28, 1905, ruled that the plaintiffs were entitled to acquire, at the
valuation determined by the said expert appraiser, the building known as La
Quinta, the lot on which it stands and the warehouses and other
improvements comprised within the inclosed land, and the seeds lands
situated in the pueblos of Vigan and Santa Lucia; and that the defendants
were likewise entitled to acquire the house on Calle Escolta, the lot on Calle
Magallanes, and the three parcels of land situated in the pueblo of Candon.
After this partition had been made counsel for the defendants, by a writing
of March 8, 1906, set forth: That, having petitioned for the appraisement of
Property Cases No. 8 Page |3
the properties in question for the purpose of their partition, it was not to be
understood that he desired from the exception duly entered to the ruling
made in the matter of the amendment to the complaint; that the properties
retained by the defendants were valued at P9,310, and those retained by the
plaintiffs, at P2,885, one-half of which amounts each party had to deliver to
the other, as they were pro indiviso  properties; that, therefore, the
defendants had to pay the plaintiffs the sum of P3,212.50, after deducting
the amount which the plaintiffs were obliged to deliver to the defendants, as
one-half of the price of the properties retained by the former; that,
notwithstanding that the amount of the counterclaim for the expenses
incurred in the reconstruction of the pro indiviso property should be
deducted from the sum which the defendants had to pay the plaintiffs, the
former, for the purpose of bringing the matter of the partition to a close,
would deliver to the latter, immediately upon the signing of the instrument of
purchase and sale, the sum of P3,212.50, which was one-half of the value of
the properties alloted to the defendants; such delivery, however, was not to
be understood as a renouncement of the said counterclaim, but only as a
means for the final termination of the pro indiviso  status of the property.
The case having been heard, the court on October 5, 1907, rendered
judgment holding that the revenues and the expenses were compensated by
the residence enjoyed by the defendant party, that no losses or damages
were either caused or suffered, nor likewise any other expense besides those
aforementioned, and absolved the defendants from the complaint and the
plaintiffs from the counterclaim, with no special finding as to costs. An
exception was taken to this judgment by counsel for the defendants who
moved for a new trial on the grounds that the evidence presented did not
warrant the judgment rendered and that the latter was contrary to law. This
motion was denied, exception whereto was taken by said counsel, who filed
the proper bill of exceptions, and the same was approved and forwarded to
the clerk of this court, with a transcript of the evidence.
Both of the litigating sisters assented to a partition by halves of the property
left in her will by their mother at her death; in fact, during the course of this
suit, proceedings were had, in accordance with the agreement made, for the
division between them of the said hereditary property of common ownership,
which division was recognized and approved in the findings of the trial court,
as shown by the judgment appealed from.
The issues raised by the parties, aside from said division made during the
trial, and which have been submitted to this court for decision, concern: (1)
The indemnity claimed for losses and damages, which the plaintiffs allege
amount to P8,000, in addition to the rents which should have been derived
from the house on Calle Escolta, Vigan; (2) the payment by the plaintiffs to

the defendants of the sum of P1,299.08, demanded by way of counterclaim,
together with legal interest thereon from December 7, 1904; (3) the
payment to the husband of the defendant Matilde Ortiz, of a percentage
claimed to be due him as the administrator of the property of common
ownership; (4) the division of certain jewelry in the possession of the plaintiff
Vicenta Ortiz; and (5) the petition that the amendment be held to have been
improperly admitted, which was made by the plaintiffs in their written motion
of August 21, 1905, against the opposition of the defendants, through which
admission the latter were obliged to pay the former P910.50. lawphil.net
Before entering upon an explanation of the propriety or impropriety of the
claims made by both parties, it is indispensable to state that the trial judge,
in absolving the defendants from the complaint, held that they had not
caused losses and damages to the plaintiffs, and that the revenues and the
expenses were compensated, in view of the fact that the defendants had
been living for several years in the Calle Escolta house, which was  pro
indiviso  property of joint ownership.
By this finding absolving the defendants from the complaint, and which was
acquiesced in by the plaintiffs who made no appeal therefrom, the first issue
has been decided  which was raised by the plaintiffs, concerning the
indemnity for losses and damages, wherein are comprised the rents which
should have been obtained from the upper story of the said house during the
time it was occupied by the defendants, Matilde Ortiz and her husband,
Gaspar de Bartolome.
Notwithstanding the acquiescence on the part of the plaintiffs, assenting to
the said finding whereby the defendants were absolved from the complaint,
yet, as such absolution is based on the compensation established in the
judgment of the trial court, between the amounts which each party is
entitled to claim from the other, it is imperative to determine whether the
defendant Matilde Ortiz, as coowner of the house on Calle Escolta, was
entitled, with her husband, to reside therein, without paying to her coowner,
Vicenta Ortiz, who, during the greater part of the time, lived with her
husband abroad, one-half of the rents which the upper story would have
produced, had it been rented to a stranger.
Article 394 of the Civil Code prescribes:
Each coowner may use the things owned in common, provided he
uses them in accordance with their object and in such manner as not
to injure the interests of the community nor prevent the coowners
from utilizing them according to their rights.
Matilde Ortiz and her husband occupied the upper story, designed for use as
a dwelling, in the house of joint ownership; but the record shows no proof
that, by so doing, the said Matilde occasioned any detriment to the interest
Property Cases No. 8 Page |4
of the community property, nor that she prevented her sister Vicenta from
utilizing the said upper story according to her rights. It is to be noted that
the stores of the lower floor were rented and accounting of the rents was
duly made to the plaintiffs.
Each coowner of realty held  pro indiviso  exercises his rights over the whole
property and may use and enjoy the same with no other limitation than that
he shall not injure the interests of his coowners, for the reason that, until a
division be made, the respective part of each holder can not be determined
and every one of the coowners exercises, together with his other
coparticipants, joint ownership over the  pro indiviso  property, in addition to
his use and enjoyment of the same.
As the hereditary properties of the joint ownership of the two sisters, Vicenta
Ortiz, plaintiff, and Matilde Ortiz, defendant, were situated in the Province of
Ilocos Sur, and were in the care of the last named, assisted by her husband,
while the plaintiff Vicenta with her husband was residing outside of the said
province the greater part of the time between 1885 and 1905, when she left
these Islands for Spain, it is not at all strange that delays and difficulties
should have attended the efforts made to collect the rents and proceeds
from the property held in common and to obtain a partition of the latter,
especially during several years when, owing to the insurrection, the country
was in a turmoil; and for this reason, aside from that founded on the right of
coownership of the defendants, who took upon themselves the
administration and care of the properties of joint tenancy for purposes of
their preservation and improvement, these latter are not obliged to pay to
the plaintiff Vicenta one-half of the rents which might have been derived
from the upper of the story of the said house on Calle Escolta, and, much
less, because one of the living rooms and the storeroom thereof were used
for the storage of some belongings and effects of common ownership
between the litigants. The defendant Matilde, therefore, in occupying with
her husband the upper floor of the said house, did not injure the interests of
her coowner, her sister Vicenta, nor did she prevent the latter from living
therein, but merely exercised a legitimate right pertaining to her as coowner
of the property.
Notwithstanding the above statements relative to the joint-ownership rights
which entitled the defendants to live in the upper story of the said house, yet
in view of the fact that the record shows it to have been proved that the
defendant Matilde's husband, Gaspar de Bartolome, occupied for four years a
room or a part of the lower floor of the same house on Calle Escolta, using it
as an office for the justice of the peace, a position which he held in the
capital of that province, strict justice, requires that he pay his sister-in-law,
the plaintiff, one half of the monthly rent which the said quarters could have

produced, had they been leased to another person. The amount of such
monthly rental is fixed at P16 in accordance with the evidence shown in the
record. This conclusion as to Bartolome's liability results from the fact that,
even as the husband of the defendant coowner of the property, he had no
right to occupy and use gratuitously the said part of the lower floor of the
house in question, where he lived with his wife, to the detriment of the
plaintiff Vicenta who did not receive one-half of the rent which those
quarters could and should have produced, had they been occupied by a
stranger, in the same manner that rent was obtained from the rooms on the
lower floor that were used as stores. Therefore, the defendant Bartolome
must pay to the plaintiff Vicenta P384, that is, one-half of P768, the total
amount of the rents which should have been obtained during four years from
the quarters occupied as an office by the justice of the peace of Vigan.
With respect to the second question submitted for decision to this court,
relative to the payment of the sum demanded as a counterclaim, it was
admitted and proved in the present case that, as a result of a serious
earthquake on August 15, 1897, the said house on Calle Escolta was left in
ruins and uninhabitable, and that, for its reconstruction or repair, the
defendants had to expend the sum of P6,252.32. This expenditure,
notwithstanding that it was impugned, during the trial, by the plaintiffs, was
duly proved by the evidence presented by the defendants. Evidence,
unsuccessfully rebutted, was also introduced which proved that the rents
produced by all the rural and urban properties of common ownership
amounted, up to August 1, 1905, to the sum of P3,654.15 which, being
applied toward the cost of the repair work on the said house, leaves a
balance of P2,598.17, the amount actually advanced by the defendants, for
the rents collected by them were not sufficient for the termination of all the
work undertaken on the said building, necessary for its complete repair and
to replace it in a habitable condition. It is therefore lawful and just that the
plaintiff Vicenta Ortiz, who was willing to sell to her sister Matilde for P1,500,
her share in the house in question, when it was in a ruinous state, should
pay the defendants one-half of the amount expanded in the said repair work,
since the building after reconstruction was worth P9,000, according to expert
appraisal. Consequently, the counterclaim made by the defendants for the
payment to them of the sum of P1,299.08, is a proper demand, though from
this sum a reduction must be made of P384, the amount of one-half of the
rents which should have been collected for the use of the quarters occupied
by the justice of the peace, the payment of which is incumbent upon the
husband of the defendant Matilde, as aforesaid, and the balance remaining,
P915.08, is the amount which the plaintiff Vicenta must pay to the
defendants.
Property Cases No. 8 Page |5
The defendants claim to be entitled to the collection of legal interest on the
amount of the counterclaim, from December 7, 1904. This contention can
not be sustained, inasmuch as, until this suit is finally decided, it could not
be known whether the plaintiffs would or would not be obliged to pay the
sum whatever in reimbursement of expenses incurred by the plaintiffs in the
repair work on the said house on Calle Escolta, whether or not the
defendants, in turn, were entitled to collect any such amount, and, finally,
what the net sum would be which the plaintiff's might have to pay as
reimbursement for one-half of the expenditure made by the defendants.
Until final disposal of the case, no such net sum can be determined, nor until
then can the debtor be deemed to be in arrears. In order that there be an
obligation to pay legal interest in connection with a matter at issue between
the parties, it must be declared in a judicial decision from what date the
interest will be due on the principal concerned in the suit. This rule has been
established by the decisions of the supreme court of Spain, in reference to
articles 1108, 1109, and 1110 of the Civil Code, reference on April 24, 1867,
November 19, 1869, and February 22, 1901.
With regard to the percentage, as remuneration claimed by the husband of
the defendant Matilde for his administration of the property of common
ownership, inasmuch as no stipulation whatever was made in the matter by
and between him and his sister-in-law, the said defendant, the claimant is
not entitled to the payment of any remuneration whatsoever. Of his own
accord and as an officious manager, he administered the said  pro
indiviso  property, one-half of which belonged to his wife who held it in joint
tenancy, with his sister-in-law, and the law does not allow him any
compensation as such voluntary administrator. He is merely entitled to a
reimbursement for such actual and necessary expenditures as he may have
made on the undivided properties and an indemnity for the damages he may
have suffered while acting in that capacity, since at all events it was his duty
to care for and preserve the said property, half of which belonged to his
wife; and in exchange for the trouble occasioned him by the administration
of his sister-in-law's half of the said property, he with his wife resided in the
upper story of the house aforementioned, without payment of one-half of the
rents said quarters might have produced had they been leased to another
person.
With respect to the division of certain jewelry, petitioned for by the
defendants and appellants only in their brief in this appeal, the record of the
proceedings in the lower court does not show that the allegation made by
the plaintiff Vicenta is not true, to the effect that the deceased mother of the
litigant sisters disposed of this jewelry during her lifetime, because, had she
not done so, the will made by the said deceased would have been exhibited
 Property Cases No. 8 Page |6

in which the said jewelry would have been mentioned, at least it would have defendants are not obliged to pay one-half of the rents which could have
been proved that the articles in question came into the possession of the been obtained from the upper story of the said house; (2) that the plaintiffs
plaintiff Vicenta without the expressed desire and the consent of the can not be compelled to pay the legal interest from December 7, 1904, on
deceased mother of the said sisters, for the gift of this jewelry was the sum expanded in the reconstruction of the aforementioned house, but
previously assailed in the courts, without success; therefore, and in view of only the interest fixed by law, at the rate of 6 per cent per annum, from the
its inconsiderable value, there is no reason for holding that the said gift was date of the judgment to be rendered in accordance with this decision; (3)
not made. that the husband of the defendant Matilde Ortiz is not entitled to any
As regards the collection of the sum of P910.50, which is the difference remuneration for the administration of the  pro indiviso  property belonging to
between the assessed value of the undivided real properties and the price of both parties; (4) that, neither is he entitled to collect from the plaintiffs the
the same as determined by the judicial expert appraiser, it is shown by the sum of P910.50, the difference between the assessed valuation and the price
record that the ruling of the trial judge admitting the amendment to the set by the expert appraisal solicited by the plaintiffs in their amendment to
original complaint, is in accord with the law and principles of justice, for the the complaint; and, (5) that no participation shall be made of jewelry
reason that any of the coowners of a pro indiviso  property, subject to aforementioned now in the possession of the plaintiff Vicenta Ortiz. The said
division or sale, is entitled to petition for its valuation by competent expert judgment, as relates to the points appealed, is affirmed, in so far as its
appraisers. Such valuation is not prejudicial to any of the joint owners, but is findings agree with those of this decision, and is reversed, in so far as they
beneficial to their interests, considering that, as a general rule, the assessed do not. No special finding is made regarding the costs of both instances. So
value of a building or a parcel of realty is less than the actual real value of ordered.
the property, and this being appraiser to determine, in conjunction with the Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur.
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
 Property Cases No. 8 Page |7

[No. 32047. November 1, 1930]

MANUEL MELENCIO, MARIANO MELENCIO, PURA MELENCIO, and

CARIDAD MELENCIO, plaintiffs and appellants, vs. DY TIAO LAY,
defendant and appellee,

I.CIVIL CODE; COMMUNITY OF PROPERTY; ALTERATIONS.—Article 397 of

the Civil Code provides: "None of the owners shall, without the consent of
the others, make any alterations in the common property even though such
alterations might be advantageous to all." While the property referred to in
this case was leased, without the consent of all the coöwners, building
thereon one house and three warehouses, it cannot be considered that the
alterations are of sufficient importance to nullify the lease, especially so since
none of the coöwners objected to such alterations until over twenty years
after the execution of the contract of lease.

2.ID.; ID.; CONTRACT OF LEASE; RESCISSION.—The provision in the

contract that the lessee, at any time before he erected any building on the
land, might rescind the lease, can hardly be regarded as a violation of article
1256 of the Civil Code.

3.ID.; ID.; ID.; ANNULMENT.—In this case only a small majority of the
coöwners executed the lease here in question, and according to the terms of
the contract the lease might be given a duration of sixty years. This is an
open violation of article 1548 of the Civil Code and the contract of lease
herein in question should therefore be declared null and void.

APPEAL from a judgment of the Court of First Instance of Nueva Ecija.
Gutierrez David, J.
The facts are stated in the opinion of the court.
Jose V. Valladolid, Jose P. Melencio and Camus & Delgado for appellants.
Araneta & Zaragoza f or appellee.
DECISION
OSTRAND, J.:
On August 1, 1927, the plaintiffs, Manuel, Mariano, Pura and Caridad
Melencio, brought the present action against the defendant-appellee, Dy Tiao
Lay, for the recovery of the possession of a parcel of land situated in the
town of Cabanatuan, Nueva Ecija, and containing an area of 4,628.25 square
meters. The plaintiffs further demand a monthly rental of P300 for the use
and occupation of the parcel from May, 1926, until the date of the surrender
to them of the possession thereof; and that if it is found that the said
appellee was occupying the said parcel of land by virtue of a contract of
lease, such contract should be declared null and void for lack of consent,
concurrence, and ratification by the owners thereof.
In his answer, the defendant pleaded the general issue, and as special
defenses, he alleged in substance that he was occupying the said tract of
land by virtue of a contract of lease executed on July 24, 1905, in favor of
his predecessor in interest, by Ruperta Garcia, Pedro Melencio, Juliana
Melencio, and Ruperto Melencio under the terms specified therein, and which
contract is still in force; that Liberata Macapagal, the mother of the plaintiffs,
in her capacity as judicial administratrix of the estate of Ramon Melencio,
one of the original coowners of the parcel of land in question, actually
recognized and ratified the existence and validity of the contract aforesaid by
virtue of the execution of a public document by her on or about November
27, 1920, and by collecting from the assignees of the original lessee the
monthly rent for the premises until April 30, 1926; and that said defendant
deposits with the clerk of court the sum of P20.20 every month as rent
thereof and that as a counterclaim, he seeks the recovery of P272 for goods
and money delivered by him to the plaintiffs.
Property Cases No. 8 Page |8
The plaintiffs filed a reply to the answer alleging, among other things, that
Ruperta Garcia was not one of the coowners of the land in question; that the
persons who signed the alleged contract of lease never represented
themselves as being the sole and exclusive owners of the land subject to the
lease as alleged by the defendant in his answer; that the said contract of
lease of July 24, 1905, is null and void for being executed without the
intervention and consent of two coowners, Ramon Melencio and Jose P.
Melencio, and without the marital consent of the husbands of Juliana and
Ruperta Melencio; that the lessee has repeatedly violated the terms and
conditions of the said contract; and that Liberata Macapagal, in her capacity
as administratrix of the property of her deceased husband, could not lawfully
and legally execute a contract of lease with the conditions and terms similar
to that of the one under consideration, and that from this it follows that she
could not ratify the said lease as claimed by the defendant.
On January 21, 1928, Liberta Macapagal Viuda de Melencio, duly appointed
and qualified as administratrix of the estate of her deceased husbands,
Ramon Melencio, filed a petition praying to be allowed to join the plaintiffs as
party to the present case, which petition was granted in open court on
January 31, 1928. Her amended complaint of intervention of February 14,
1928, contains allegations similar to those alleged in the complaint of the
original plaintiffs, and she further alleges that the defendant-appellee has
occupied the land in question ever since November, 1920, under and by
virtue of a verbal contract of lease for a term from month to month. To this
complaint of intervention, the defendant-appellee filed an answer
reproducing the allegations contained in his answer to the complaint of the
original plaintiffs and setting up prescription as a further special defense.
It appears from the evidence that the land in question was originally owned
by one Julian Melencio. He died prior to the year 1905 leaving his widow,
Ruperta Garcia, and his five children, Juliana, Ramon, Ruperta, Pedro R., and
Emilio Melencio. Emilio Melencio also died before ’905, his son Jose P.
Melencio, then a minor, succeeding to his interest in the said parcel of land
by representation. A question has been raised as to whether the land was
community property of the marriage of Julian Melencio and Ruperta Garcia,
but the evidence is practically undisputed that Ruperta Garcia in reality held
nothing but a widow’s usufruct in the land.
On July 24, 1905, Ruperta Garcia, Pedro R. Melencio, Juliana Melencio, and
Ruperta Melencio executed a contract of lease of the land in favor of one Yap
Kui Chin, but neither Jose P. Melencio nor Ramon Melencio were mentioned
in the lease. The term of the lease was for twenty years, extendible for a like

period at the option of the lessee. The purpose of the lessee was to establish
a rice mill on the land, with the necessary buildings for warehouses and for
quarters for the employees, and it was further stipulated that at the
termination of the original period of the lease, or the extension thereof, the
lessors might purchase all the buildings and improvements on the land at a
price to be fixed by experts appointed by the parties, but that if the lessors
should fail to take advantage of that privilege, the lease would continue for
another and further period of twenty years. The document was duly
acknowledged but was never recorded with the register of deeds. The
original rent agreed upon was P25 per month, but by reason of the
construction of a street through the land, the monthly rent was reduced to
P20.20.
Shortly after the execution of the lease, the lessee took possession of the
parcel in question and erected the mill as well as the necessary buildings,
and it appears that in matters pertaining to the lease, he dealt with Pedro R.
Melencio, who from 1905 until his death in 1920, acted as manager of the
property held in common by the heirs of Julian Melencio and Ruperta Garcia.
The original lessee, Yap Kui Chin, died in 1912, and the lease, as well as the
other property, was transferred to Uy Eng Jui who again transferred it to Uy
Eng Jui & Co., an unregistered partnership. Finally the lease came into the
hands of Dy Tiao Lay, the herein Defendant-Appellee.
Ramon Melencio died in 1914, and his widow, Liberata Macapagal, was
appointed administratrix of his estate. In 1913 the land which includes the
parcel in question was registered under the Torrens system. The lease was
not mentioned in the certificate of title, but it was stated that one house and
three warehouses on the land were the property of Yap Kui Chin.
In 1920 the heirs of Julian Melencio made an extrajudicial partition of parts
of the inheritance, and among other things, the land here in question fell to
the share of the children of Ramon Melencio, who are the original plaintiffs in
the present case. Their mother, Liberta Macapagal, as administratrix of the
estate of her deceased husband, Ramon, collected the rent for the lease at
the rate of P20.20 per month until the month of May, 1926, when she
demanded of the lessee that the rent should be increased to P300 per
month, and she was then informed by the defendant that a written lease
existed and that according to the terms thereof, the defendant was entitled
to an extension of the lease at the original rental. The plaintiffs insisted that
they never had any knowledge of the existence of such a contract of lease
and maintained that in such case the lease was executed without their
consent and was void. It may be noted that upon careful search, a copy of
Property Cases No. 8 Page |9
the contract of lease was found among the papers of the deceased Pedro R.
Melencio. Thereafter the present action was brought to set aside the lease
and to recover possession of the land. Upon trial, the court below rendered
judgment in favor of the defendant declaring the lease valid and ordering the
plaintiffs to pay the P272 demanded by the defendant in his counterclaim.
From this judgment the plaintiffs appealed.
The contention of the appellants is that the aforesaid contract of lease
(Exhibit C) is null and void for the following reasons:jgc:chanrobles.com.ph
"1. That Exhibit C calls for an alteration of the property in question and
therefore ought to have been signed by all the coowners as by law required
in the premises.
"2. That the validity and fulfillment of the said agreement of lease were
made to depend upon the will of the lessee exclusively.
"3. That the said contract of lease being for a term of over six years, the
same is null and void pursuant to the provision of article 1548 of the Civil
Code.
"4. That the duration of the same is unreasonably long, thus being against
public policy.
"5. That the defendant-appellee and his predecessors in interest repeatedly
violated the provisions of the agreements."cralaw virtua1aw library
The first proposition is based on article 397 of the Civil Code which provides
that "none of the owners shall, without the consent of the others, make any
alterations in the common property even though such alterations might be
advantageous to all." We do not think that the alterations are of sufficient
importance to nullify the lease, especially so since none of the coowners
objected to such alterations until over twenty years after the execution of the
contract of lease. The decision of this court in the case of Enriquez v. A. S.
Watson & Co. (22 Phil., 623), contains a full discussion of the effect of
alterations of lease community property, and no further discussion upon that
point need here be considered.
The second proposition is likewise of little merit. Under the circumstances,
the provision in the contract that the lessee, at any time before he erected
any building on the land, might rescind the lease, can hardly be regarded as
a violation of article 1256 of the Civil Code.

The third and fourth propositions are, in our opinion, determinative of the
controversy. The court below based its decision principally on the case of
Enriquez v. A. S. Watson & Co. (22 Phil., 623), and on the resolution of the
Direccion General de los Registros dated April 26, 1907. (Jurisprudecia Civil,
vol. 107, p. 222.) An examination of the Enriquez case will show that it
differs materially from the present. In that case all of the coowners of a lot
and building executed a contract of lease of the property for the term of
eighteen years in favor of A. S. Watson & Co.; one of the owners was a
minor, but he was represented by his legally appointed guardian, and the
action of the latter in signing the lease on behalf of the minor was formally
approved by the Court of First Instance. In the present case only a small
majority of the coowners executed the lease here in question, and according
to the terms of the contract the lease might be given a duration of sixty
years; that is widely different from a lease granted by all of the coowners for
a term of only eighteen years.
The resolution of April 26, 1907, is more in point. It relates to the inscription
or registration of a contract of lease of some pasture grounds. The majority
of the coowners of the property executed the lease for the term of twelve
years, but when the lessees presented the lease for inscription in the registry
of property, the registrar denied the inscription on the ground that the term
of the lease exceeded six years and that therefore the majority of the
coowners lacked authority to grant the lease. The Direccion General de los
Registros held that the contract of lease for a period exceeding six years,
constitutes a real right subject to registry and that the lease in question was
valid.
The conclusions reached by the Direccion General led to considerable
criticism and have been overruled by a decision of the Supreme Court of
Spain dated June 1, 1909. In that decision the court made the following
statement of the case (translation):jgc:chanrobles.com.ph
"The joint owners of 511 out of 1,000 parts of the realty denominated El
Mortero, leased out the whole property for twelve years to Doña Josefa de la
Rosa; whereupon the Count and Countess Trespalacios together with other
coowners brought this suit to annul the lease and, in view of the fact that
the land was indivisible, prayed for its sale by public auction and the
distribution of the price so obtained; they alleged that they neither took part
nor consented to the lease; that the decision of the majority of part owners
referred to in article 398 of the Code, implies a common deliberation on the
step to be taken, for to do without it, would, even more than to do without
P r o p e r t y C a s e s N o . 8 P a g e | 10
the minority, be nothing less than plunder; and that, even if this deliberation
were not absolutely necessary, the power of the majority would still be
confined to decisions touching the management and enjoyment of the
common property, and would not include acts of ownership, such as a lease
for twelve years, which according to the Mortgage Law gives rise to a real
right, which must be recorded, and which can be performed only by the
owners of the property leased.
"The part owners who had executed the contract prayed in reconvention that
it be held valid for all the owners in common, and if this could not be, then
for all those who had signed it, and for the rest, for the period of six years;
and the Audiencia of Caceres having rendered judgment holding the contract
null and void, and ordering the sale of the realty and the distribution of the
price, the defendants appealed alleging under the third and fourth
assignments of error, that the judgment was a violation of article 398 of the
Civil Code, which is absolute and sets no limit of time for the efficacy of the
decisions arrived at by the majority of the part owners for the enjoyment of
the common property, citing the decisions of June 30th, 1897, of July 8th,
1902, and of October 30th, 1907; under the fifth assignment of error the
appellants contended that in including joint owners among those referred to
in said article, which sets certain limits to the power of leasing, in the course
of the management of another’s property, the court applied article 1548
unduly; and by the seventh assignment of error, they maintained the
judgment appealed from also violated article 1727, providing that the
principal is not bound where his agent has acted beyond his authority;
whence it may be inferred, that if in order to hold the contract null and void,
the majority of the part owners are looked upon as managers or agents
exercising limited powers, it must at least be conceded that in so far as the
act in question lies within the scope of their powers, it is valid; the contract
cannot be annulled in toto."cralaw virtua1aw library
The Supreme Court held that the appeal from the decision of the Audiencia
of Caceres was not well taken and expressed the following
consideranda:jgc:chanrobles.com.ph
"Considering that, although as a rule the contract of lease constitutes an act
of management, as this court has several times held, cases may yet arise,
either owing to the nature of the subject matter, or to the period of duration,
which may render it imperative to record the contract in the registry of
property, in pursuance of the Mortgage Law, where the contract of lease
may give rise to a real right in favor of the lessee, and it would then
constitute such a sundering of the ownership as transcends mere

management; in such cases it must of necessity be recognized that the part
owners representing the greater portion of the property held in common
have no power to lease said property for a longer period than six years
without the consent of all the coowners, whose proprietary rights, expressly
recognized by the law, would by contracts of long duration be restricted or
annulled; and as under article 1548 of the Civil Code such contracts cannot
be entered into by the husband with respect to his wife’s property, by the
parent or guardian with respect to that of the child or ward, and by the
manager in default of special power, since the contract of lease only
produces personal obligations, and cannot without the consent of all persons
interested or express authority from the owner, be extended to include
stipulations which may alter its character, changing it into a contract of
partial alienation of the property leased;
"Considering that, applying this doctrine to the case before us, one of the
grounds upon which the judgment appealed from, denying the validity of the
lease made by the majority of the part owners of the pasture land El Mortero
is based, must be upheld; to wit, that the period of duration is twelve years
and the consent of all the coowners has not been obtained; hence, the third,
fourth, and fifth assignments of error are without merit; firstly, because
article 398 of the Civil Code, alleged to have been violated, refers to acts
decided upon by the majority of the part owners, touching the management
and enjoyment of the common property, and does not contradict what we
have stated in the foregoing paragraph; secondly, because although the
cases cited were such as arose upon leases for more than sixty years, yet
this point was not raised on appeal, and could not therefore be passed upon;
and thirdly, because it cannot be denied that there is an analogy between a
manager without special authority, who is forbidden by article 1548 of the
Code to give a lease for a period of over six years, and the joint owners
constituting a legal majority, who may decide to lease out the indivisible
property, with respect to the shares of the other coowners; and having come
to the conclusion that the contract is null and void, there is no need to
discuss the first two assignments of error which refer to another of the bases
adopted, however erroneously, by the trial court;
"Considering that the sixth assignment of error is without merit, inasmuch as
the joint ownership of property is not a sort of agency and cannot be
governed by the provisions relating to the latter contract; whence, article
1727 of the Code alleged to have been violated, can no more be applied,
than, the question of the validity or nullity of the lease being raised, upon
the contract as celebrated, it would be allowable to modify a posteriori some
one or other of the main conditions stipulated, like that regarding the
P r o p e r t y C a s e s N o . 8 P a g e | 11
duration of the lease, for this would amount to a novation; still less allowable
would it be to authorize diverse periods for the different persons unequally
interested in the fulfillment."cralaw virtua1aw library
Taking into consideration articles 398, 1548, and 1713 of the Civil Code and
following the aforesaid decision of June 1,1909, we hold that the contract of
lease here in question is null and void.
It has been suggested that by reason of prescription and by acceptance of
benefits under the lease, the plaintiffs are estopped to question the authority
for making the lease. To this we may answer that the burden of proof of
prescription devolved upon the defendant and that as far as we can find,
there is no proof that Ramon Melencio and his successor over had
knowledge of the existence of the lease in question prior to 1926. We cannot
by mere suspicion conclude that they were informed of the existence of the
document and its terms; it must be remembered that under a strict
interpretation of the terms of the lease, the lessees could remain indefinitely
in their tenancy unless the lessors could purchase the mill and the buildings
on the land. In such circumstances, better evidence than that presented by
the defendant in regard to the plaintiffs’ knowledge of the lease must be
required.
The fact that Ramon during his lifetime received his share of the products of
land owned in common with his coheirs is not sufficient proof of knowledge
of the existence of the contract of lease when it is considered that the land
in question was only a small portion of a large tract which Pedro R. Melencio
was administering in connection with other community property.
The appealed judgment as to the validity of the lease is therefore reversed,
and it is ordered that the possession of the land in controversy be delivered
to the intervenor Liberata Macapagal in her capacity as administratrix of the
estate of the deceased Ramon Melencio. It is further ordered that the
defendant pay to said administratrix a monthly rent of P50 for the occupation
of the land from May 1st, 1926, until the land is delivered to the
administratrix. The sum of P272 demanded by the defendant in his
counterclaim may be deducted from the total amount of the rent due and
unpaid. The buildings erected on the land by the defendant and his
predecessors in interest may be removed by him, or otherwise disposed of,
within six months from the promulgation of this decision. Without costs. So
ordered.
Avanceña, C.J., Malcolm, Johns, Romualdez and Villa-Real, JJ., concur.
 P r o p e r t y C a s e s N o . 8 P a g e | 12

[No. L-3404. April 2, 1951]

ANGELA I. TUASON, plaintiff and appellant, vs. ANTONIO TUASON,
JR., and GREGORIO ARANETA, INC., defendants and appellees.
COMMUNITY PROPERTY; PARTITION; RESCISSION.—A contract among land
co-owners wherein they agreed to fill their property, construct roads therein
and then subdivide it into small lots for sale, the proceeds to be later divided
among them, and to this end one of them was to finance the whole
development and subdivision, to prepare a schedule of prices and conditions
of sale subject to the approval of the other two co-owners, to sell the
subdivided lots and execute the corresponding contracts with buyers, and to
receive 50 per cent of the gross selling price of the lots and the rents that
may be collected f rom the property while in the process of sale, the
remaining 50 per cent to be divided in equal portions among the three co-
owners,—does not violate article 400 of the Civil Code. Far from violating the
prohibition against a co-owner being obliged to remain a party to the
community, the contract 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-ownership.
APPEAL from a judgment of the Court of First Instance of Manila. Peña, J.
The facts are stated in the opinion of the Court.
Alcuaz & Eiguren for appellant.
Araneta & Araneta for appellees.
MONTEMAYOR, J.:
In 1941 the sisters Angela I. Tuason and Nieves Tuason de Barreto and their
brother Antonio Tuason Jr., held a parcel of land with an area of 64,928.6
sq. m. covered by Certificate of Title No. 60911 in Sampaloc, Manila, in
common, each owning an undivided 1/3 portion. Nieves wanted and asked
for a partition of the common property, but failing in this, she offered to sell
her 1/3 portion. The share of Nieves was offered for sale to her sister and
her brother but both declined to buy it. The offer was later made to their
mother but the old lady also declined to buy, saying that if the property later
increased in value, she might be suspected of having taken advantage of her
daughter. Finally, the share of Nieves was sold to Gregorio Araneta Inc., a
domestic corporation, and a new Certificate of Title No. 61721 was issued in
lieu of the old title No. 60911 covering the same property. The three co-

owners agreed to have the whole parcel subdivided into small lots and then
sold, the proceeds of the sale to be later divided among them. This
agreement is embodied in a document (Exh. 6) entitled "Memorandum of
Agreement" consisting of ten pages, dated June 30, 1941.
Before, during and after the execution of this contract (Exh. 6), Atty. J.
Antonio Araneta was acting as the attorney-in-fact and lawyer of the two co-
owners, Angela I. Tuason and her brother Antonio Tuason Jr. At the same
time he was a member of the Board of Director of the third co-owner,
Araneta, Inc.
The pertinent terms of the contract (Exh. 6) may be briefly stated as follows:
The three co-owners agreed to improve the property by filling it and
constructing roads and curbs on the same and then subdivide it into small
lots for sale. Araneta Inc. was to finance the whole development and
subdivision; it was prepare a schedule of prices and conditions of sale,
subject to the subject to the approval of the two other co-owners; it was
invested with authority to sell the lots into which the property was to be
subdivided, and execute the corresponding contracts and deeds of sale; it
was also to pay the real estate taxes due on the property or of any portion
thereof that remained unsold, the expenses of surveying, improvements,
etc., all advertising expenses, salaries of personnel, commissions, office and
legal expenses, including expenses in instituting all actions to eject all
tenants or occupants on the property; and it undertook the duty to furnish
each of the two co-owners, Angela and Antonio Tuason, copies of the
subdivision plans and the monthly sales and rents and collections made
thereon. In return for all this undertaking and obligation assumed by Araneta
Inc., particularly the financial burden, it was to receive 50 per cent of the
gross selling price of the lots, and any rents that may be collected from the
property, while in the process of sale, the remaining 50 per cent to be
divided in equal portions among the three co-owners so that each will
receive 16.33 per cent of the gross receipts.
Because of the importance of paragraphs 9, 11 and 15 of the contract (Exh.
6), for purposes of reference we are reproducing them below:
(9) This contract shall remain in full force and effect during all the
time that it may be necessary for the PARTY OF THE SECOND PART
to fully sell the said property in small and subdivided lots and to fully
collect the purchase prices due thereon; it being understood and
agreed that said lots may be rented while there are no purchasers
thereof;
(11) The PARTY OF THE SECOND PART (meaning Araneta Inc.) is
hereby given full power and authority to sign for and in behalf of all
the said co-owners of said property all contracts of sale and deeds of
P r o p e r t y C a s e s N o . 8 P a g e | 13
sale of the lots into which this property might be subdivided; the
powers herein vested to the PARTY OF THE SECOND PART may,
under its own responsibility and risk, delegate any of its powers
under this contract to any of its officers, employees or to third
persons;
(15) No co-owner of the property subject-matter of this contract
shall sell, alienate or dispose of his ownership, interest or
participation therein without first giving preference to the other co-
owners to purchase and acquire the same under the same terms and
conditions as those offered by any other prospective purchaser.
Should none of the co-owners of the property subject-matter of this
contract exercise the said preference to acquire or purchase the
same, then such sale to a third party shall be made subject to all the
conditions, terms, and dispositions of this contract; provided, the
PARTIES OF THE FIRST PART (meaning Angela and Antonio) shall
be bound by this contract as long as the PARTY OF THE SECOND
PART, namely, the GREGORIO ARANETA, INC. is controlled by the
members of the Araneta family, who are stockholders of the said
corporation at the time of the signing of this contract and/or their
lawful heirs;
On September 16, 1944, Angela I. Tuason revoked the powers conferred on
her attorney-in-fact and lawyer, J. Antonio Araneta. Then in a letter dated
October 19, 1946, Angela notified Araneta, Inc. that because of alleged
breach of the terms of the "Memorandum of Agreement" (Exh. 6) and abuse
of powers granted to it in the document, she had decided to rescind said
contract and she asked that the property held in common be partitioned.
Later, on November 20, 1946, Angela filed a complaint in the Court of First
Instance of Manila asking the court to order the partition of the property in
question and that she be given 1/3 of the same including rents collected
during the time that the same including rents collected during the time that
Araneta Inc., administered said property.
The suit was administered principally against Araneta, Inc. Plaintiff's brother,
Antonio Tuason Jr., one of the co-owners evidently did not agree to the suit
and its purpose, for he evidently did not agree to the suit and its purpose,
for he joined Araneta, Inc. as a co-defendant. After hearing and after
considering the extensive evidence introduce, oral and documentary, the trial
court presided over by Judge Emilio Peña in a long and considered decision
dismissed the complaint without pronouncement as to costs. The plaintiff
appealed from that decision, and because the property is valued at more
than P50,000, the appeal came directly to this Court.

Some of the reasons advanced by appellant to have the memorandum
contract (Exh. 6) declared null and void or rescinded are that she had been
tricked into signing it; that she was given to understand by Antonio Araneta
acting as her attorney-in-fact and legal adviser that said contract would be
similar to another contract of subdivision of a parcel into lots and the sale
thereof entered into by Gregorio Araneta Inc., and the heirs of D. Tuason,
Exhibit "L", but it turned out that the two contracts widely differed from each
other, the terms of contract Exh. "L" being relatively much more favorable to
the owners therein the less favorable to Araneta Inc.; that Atty. Antonio
Araneta was more or less disqualified to act as her legal adviser as he did
because he was one of the officials of Araneta Inc., and finally, that the
defendant company has violated the terms of the contract (Exh. 6) by not
previously showing her the plans of the subdivision, the schedule of prices
and conditions of the sale, in not introducing the necessary improvements
into the land and in not delivering to her her share of the proceeds of the
rents and sales.
We have examined Exh. "L" and compared the same with the contract (Exh.
6) and we agree with the trial court that in the main the terms of both
contracts are similar and practically the same. Moreover, as correctly found
by the trial court, the copies of both contracts were shown to the plaintiff
Angela and her husband, a broker, and both had every opportunity to go
over and compare them and decide on the advisability of or disadvantage in
entering into the contract (Exh. 6); that although Atty. Antonio Araneta was
an official of the Araneta Inc.; being a member of the Board of Directors of
the Company at the time that Exhibit "6" was executed, he was not the party
with which Angela contracted, and that he committed no breach of trust.
According to the evidence Araneta, the pertinent papers, and sent to her
checks covering her receive the same; and that as a matter of fact, at the
time of the trial, Araneta Inc., had spent about P117,000 in improvement
and had received as proceeds on the sale of the lots the respectable sum of
P1,265,538.48. We quote with approval that portion of the decision appealed
from on these points:
The evidence in this case points to the fact that the actuations of J.
Antonio Araneta in connection with the execution of exhibit 6 by the
parties, are above board. He committed nothing that is violative of
the fiduciary relationship existing between him and the plaintiff. The
act of J. Antonio Araneta in giving the plaintiff a copy of exhibit 6
before the same was executed, constitutes a full disclosure of the
facts, for said copy contains all that appears now in exhibit 6.
Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing
the terms of the contract in that the defendant corporation has failed
P r o p e r t y C a s e s N o . 8 P a g e | 14
(1) to make the necessary improvements on the property as required
by paragraphs 1 and 3 of the contract; (2) to submit to the plaintiff
from time to time schedule of prices and conditions under which the
subdivided lots are to be sold; and to furnish the plaintiff a copy of
the subdivision plans, a copy of the monthly gross collections from
the sale of the property.
The Court finds from the evidence that he defendant Gregorio
Araneta, Incorporated has substantially complied with obligation
imposed by the contract exhibit 6 in its paragraph 1, and that for
improvements alone, it has disbursed the amount of P117,167.09. It
has likewise paid taxes, commissions and other expenses incidental
to its obligations as denied in the agreement.
With respect to the charged that Gregorio Araneta, Incorporated has
failed to submit to plaintiff a copy of the subdivision plains, list of
prices and the conditions governing the sale of subdivided lots, and
monthly statement of collections form the sale of the lots, the Court
is of the opinion that it has no basis. The evidence shows that the
defendant corporation submitted to the plaintiff periodically all the
data relative to prices and conditions of the sale of the subdivided
lots, together with the amount corresponding to her. But without any
justifiable reason, she refused to accept them. With the indifferent
attitude adopted by the plaintiff, it was thought useless for Gregorio
Araneta, Incorporated to continue sending her statement of
accounts, checks and other things. She had shown on various
occasions that she did not want to have any further dealings with
the said corporation. So, if the defendant corporation proceeded with
the sale of the subdivided lots without the approval of the plaintiff, it
was because it was under the correct impression that under the
contract exhibit 6 the decision of the majority co-owners is binding
upon all the three.
The Court feels that recission of the contract exhibit 6 is not minor
violations of the terms of the agreement, the general rule is that
"recission will not be permitted for a slight or casual breach of the
contract, but only for such breaches as are so substantial and
fundamental as to defeat the object of the parties in making the
agreement" (Song Fo & Co. vs. Hawaiian-Philippine Co., 47 Phil.
821).
As regards improvements, the evidence shows that during the Japanese
occupation from 1942 and up to 1946, the Araneta Inc. although willing to fill
the land, was unable to obtain the equipment and gasoline necessary for
filling the low places within the parcel. As to sales, the evidence shows that

Araneta Inc. purposely stopped selling the lots during the Japanese
occupantion, knowing that the purchase price would be paid in Japanese
military notes; and Atty. Araneta claims that for this, plaintiff should be
thankfull because otherwise she would have received these notes as her
share of the receipts, which currency later became valueles.
But the main contention of the appellant is that the contract (Exh. 6) should
be declared null and void because its terms, particularly paragraphs 9, 11
and 15 which we have reproduced, violate the provisions of Art. 400 of the
Civil Code, which for the purposes of reference we quote below:
ART. 400. No co-owner shall be obliged to remain a party to the
community. Each may, at any time, demand the partition of the
thing held in common.
Nevertheless, an agreement to keep the thing undivided for a
specified length of time, not exceeding ten years, shall be valid. This
period may be a new agreement.
We agree with the trial court that the provisions of Art. 400 of the Civil Code
are not applicable. The contract (Exh., 6) far from violating the legal
provision that forbids a co-owner being obliged to remain a party to the
community, precisely has for its purpose and object the dissolution of the co-
ownership and of the community by selling the parcel held in common and
dividing the proceeds of the sale among the co-owners. The obligation
imposed in the contract to preserve the co-ownership until all the lots shall
have been sold, is a mere incident to the main object of dissolving the co-
owners. By virtue of the document Exh. 6, the parties thereto practically and
substantially entered into a contract of partnership as the best and most
expedient means of eventually dissolving the co-ownership, the life of said
partnership to end when the object of its creation shall have been attained.
This aspect of the contract is very similar to and was perhaps based on the
other agreement or contract (Exh. "L") referred to by appellant where the
parties thereto in express terms entered into partnership, although this
object is not expressed in so many words in Exh. 6. We repeat that we see
no violation of Art. 400 of the Civil Code in the parties entering into the
contract (Exh. 6) for the very reason that Art. 400 is not applicable.
Looking at the case from a practical standpoint as did the trial court, we find
no valid ground for the partition insisted upon the appellant. We find from
the evidence as was done by the trial court that of the 64,928.6 sq. m. which
is the total area of the parcel held in common, only 1,600 sq. m. or 2.5 per
cent of the entire area remained unsold at the time of the trial in the year
1947, while the great bulk of 97.5 per cent had already been sold. As well
observed by the court below, the partnership is in the process of being
dissolved and is about to be dissolved, and even assuming that Art. 400 of
P r o p e r t y C a s e s N o . 8 P a g e | 15
the Civil Code were applicable, under which the parties by agreement may
agree to keep the thing undivided for a period not exceeding 10 years, there
should be no fear that the remaining 1,600 sq. m. could not be disposed of
within the four years left of the ten-years period fixed by Art. 400.
We deem it unnecessary to discuss and pass upon the other points raised in
the appeal and which counsel for appellant has extensively and ably
discussed, citing numerous authorities. As we have already said, we have
viewed the case from a practical standpoint, brushing aside technicalities and
disregarding any minor violations of the contract, and in deciding the case as
we do, we are fully convinced that the trial court and this Tribunal are
carrying out in a practical and expeditious way the intentions and the
agreement of the parties contained in the contract (Exh. 6), namely, to
dissolve the community and co-ownership, in a manner most profitable to
the said parties.
In view of the foregoing, the decision appealed from is hereby affirmed.
There is no pronouncement as to costs.
So ordered.
Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista Angelo,
JJ., concur.
Paras, C. J., I certify that Mr. Justice Feria voted to affirm.
G.R. No. 101522. May 28, 1993.*
LEONARDO MARIANO, AVELINA TIGUE, LAZARO MARIANO,
MERCEDES SAN PEDRO, DIONISIA M. AQUINO, and JOSE N.T.
AQUINO, petitioners, vs. HON. COURT OF APPEALS, (Sixteenth
Division), GRACE GOSIENGFIAO, assisted by her husband CHARLIE
GUILLEN; EMMA GOSIENGFIAO, assisted by her husband GERMAN
GALCOS; ESTER GOSIENGFIAO, assisted by her husband AMADOR
BITONA; FRANCISCO GOSIENGFIAO, JR., NORMA GOSIENGFIAO,
and PINKY ROSE GUENO, respondents.
Civil Law; Property; Co-ownership; Sale of property owned in common; Right
of redemption; Notice required to be given to the co-owners of the sale to a
stranger must be in writing.—Respondents have not lost their right to
redeem, for in the absence of a written notification of the sale by the
vendors, the 30-day period has not even begun to run.
Same; Same; Same; Same; Same; Redemption by a co-owner inures to the
benefit of all the other co-owners.—“Admittedly, as the property in question
was mortgaged by the decedent, a co-ownership existed among the heirs
during the period given by law to redeem the foreclosed property.
Redemption of the whole property by a co-owner does not vest in him sole
ownership over said property but will inure to the benefit of all co-owners. In

other words, it will not put an end to the existing state of co-ownership.
Redemption is not a mode of terminating a co-ownership.
Same; Same; Same; Same; Same; Consignation; It is not necessary when
tender of payment was made to enforce or exercise a right and not to
discharge an obligation.—It has been previously held that consignation is not
required to preserve the right of repurchase as a mere tender of payment is
enough if made on time as a basis for an action to compel the vendee a
retro to resell the property; no subsequent consignation was necessary to
entitle private respondents to such reconveyance.
PETITION for review of the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
 The Barristers Law Office for petitioners.
 Simeon T. Agustin for private respondents.
NOCON, J.:
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, entitled  Grace Gosiengfiao, et
al.  v.  Leonardo Mariano v.  Amparo Gosiengfiao  1 raising as issue the
distinction between Article 10882 and Article 16203 of the Civil Code.
The Court of Appeals summarized the facts as follows:
It appears on record that the decedent Francisco
Gosiengfiao is the registered owner of a residential lot
located at Ugac Sur, Tuguegarao, Cagayan, particularly
described as follows, to wit:
"The eastern portion of Lot 1351,
Tuguegarao Cadastre, and after its
segregation now designated as Lot 1351-A,
Plan PSD-67391, with an area of 1,1346
square meters."
and covered by Transfer Certificate of Title No. T-2416
recorded in the Register of Deeds of Cagayan.
The lot in question was mortgaged by the decedent to the
Rural Bank of Tuguegarao (designated as Mortgagee bank,
for brevity) on several occasions before the last, being on
March 9, 1956 and 29, 1958.
On August 15, 1958, Francisco Gosiengfiao died intestate
survived by his heirs, namely: Third-Party Defendants: wife
Antonia and Children Amparo, Carlos, Severino and herein
plaintiffs-appellants Grace, Emma, Ester, Francisco, Jr.,
P r o p e r t y C a s e s N o . 8 P a g e | 16
Norma, Lina (represented by daughter Pinky Rose), and
Jacinto.
The loan being unpaid, the lot in dispute was foreclosed by
the mortgagee bank and in the foreclosure sale held on
December 27, 1963, the same was awarded to the
mortgagee bank as the highest bidder.
On February 7, 1964, third-party defendant Amparo
Gosiengfiao-Ibarra redeemed the property by paying the
amount of P1,347.89 and the balance of P423.35 was paid
on December 28, 1964 to the mortgagee bank.
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.
On August 15, 1966, Amparo Gosiengfiao sold the entire
property to defendant Leonardo Mariano who subsequently
established residence on the lot subject of this controversy.
It appears in the Deed of Sale dated August 15, 1966 that
Amparo, Antonia, Carlos and Severino were signatories
thereto.
Sometime in 1982, plaintiff-appellant Grace Gosiengfiao
learned of the sale of said property by the third-party
defendants. She went to the Barangay Captain and asked for
a confrontation with defendants Leonardo and Avelina
Mariano to present her claim to said property.
On November 27, 1982, no settlement having been reached
by the parties, the Barangay captain issued a certificate to
file action.
On December 8, 1982, defendant Leonardo Mariano sold the
same property to his children Lazaro F. Mariano and Dionicia
M. Aquino as evidenced by a Deed of Sale notarized by
Hilarion L. Aquino as Doc. No. 143, Page No. 19, Book No. V,
Series of 1982.
On December 21, 1982, plaintiffs Grace Gosiengfiao, et al.
filed a complaint for "recovery of possession and legal
redemption with damages" against defendants Leonardo and
Avelina Mariano. Plaintiffs alleged in their complaint that as
co-heirs and co-owners of the lot in question, they have the

right to recover their respective shares in the same, and
property as they did not sell the same, and the right of
redemption with regard to the shares of other co-owners
sold to the defendants.
Defendants in their answer alleged that the plaintiffs has
(sic) no cause of action against them as the money used to
redeem lot in question was solely from the personal funds of
third-party defendant Amparo Gosiengfiao-Ibarra, who
consequently became the sole owner of the said property
and thus validly sold the entire property to the defendants,
and the fact that defendants had already sold the said
property to the children, Lazaro Mariano and Dionicia M.
Aquino. Defendants further contend that even granting that
the plaintiffs are co-owners with the third-party defendants,
their right of redemption had already been barred by the
Statute of Limitations under Article 1144 of the Civil Code, if
not by laches.4
After trial on the merits, the Regional Trial Court of Cagayan, Branch I,
rendered a decision dated September 16, 1986, dismissing the complaint and
stating that respondents have no right of ownership or possession over the
lot in question. The trial court further said that when the subject property
foreclosed and sold at public auction, the rights of the heirs were reduced to
a mere right of redemption. And when Amparo G. Ibarra redeemed the lot
from the Rural Bank on her own behalf and with her own money she became
the sole owner of the property. Respondents' having failed to redeem the
property from the bank or from Amparo G. Ibarra, lost whatever rights the
might have on the property.5
The Court of Appeals in its questioned decision reversed and set aside the
ruling of the trial court and declared herein respondents as co-owners of the
property in the question. The Court of Appeals said:
The whole controversy in the case at bar revolves on the
question of "whether or not a co-owner who redeems the
whole property with her own personal funds becomes the
sole owner of said property and terminates the existing state
of co-ownership."
Admittedly, as the property in question was mortgaged by
the decedent, a co-ownership existed among the heirs
during the period given by law to redeem the foreclosed
property. Redemption of the whole property by a co-owner
does not vest in him sole ownership over said property but
will inure to the benefit of all co-owners. In other words, it
P r o p e r t y C a s e s N o . 8 P a g e | 17
will not end to the existing state of co-ownership.
Redemption is not a mode of terminating a co-ownership.
xxx xxx xxx
In the case at bar, it is undisputed and supported by
records, that third-party defendant Amparo G. Ibarra
redeemed the propety in dispute within the one year
redemption period. Her redemption of the property, even
granting that the money used was from her own personal
funds did not make her the exclusive owner of the
mortgaged property owned in common but inured to the
benefit of all co-owners. It would have been otherwise if
third-party defendant Amparo G. Ibarra purchased the said
property from the mortgagee bank (highest, bidder in the
foreclosure sale) after the redemption period had already
expired and after the mortgagee bank had consolidated it
title in which case there would no longer be any co-
ownership to speak of .6
The decision of the Court of Appeals is supported by a long line of case law
which states that a redemption by a co-owner within the period prescribed
by law inures to the benefit of all the other co-owners.7
The main argument of petitioners in the case at bar is that the Court of
Appeals incorrectly applied Article 1620 of the Civil Code, instead of Article
1088 of the same code which governs legal redemption by co-heirs since the
lot in question, which forms part of the intestate estate of the late Francisco
Gosiengfiao, was never the subject of partition or distribution among the
heirs, thus, private respondents and third-party defendants had not ceased
to be co-heirs.
On that premise, petitioners further contend that the right of legal
redemption was not timely exercised by the private respondents, since
Article 1088 prescribes that the same must be done within the period of one
month from the time they were notified in writing of the sale by the vendor.
According to Tolentino, the fine distinction between Article 1088 and Article
1620 is that when the sale consists of an interest in some particular property
or properties of the inheritance, the right redemption that arises in favor of
the other co-heirs is that recognized in Article 1620. On the other hand, if
the sale is the hereditary right itself, fully or in part, in the abstract sense,
without specifying any particular object, the right recognized in Article 1088
exists.8
Petitioners allege that upon the facts and circumstances of the present case,
respondents failed to exercise their right of legal redemption during the

period provided by law, citing as authority the case of  Conejero, et al.,
v. Court of Appeals, et al.9  wherein the Court adopted the principle that the
giving of a copy of a deed is equivalent to the notice as required by law in
legal redemption.
We do not dispute the principle laid down in the Conejero case. However,
the facts in the said case are not four square with the facts of the present
case. In Conejero, redemptioner Enrique Conejero was shown and given a
copy  of the deed of sale of the subject property. The Court in that case
stated that the furnishing of a copy of the deed was equivalent to the giving
of a written notice required by law. 11
The records of the present petition, however, show no written notice of the
sale being given whatsoever to private respondents. Although, petitioners
allege that sometime on October 31, 1982 private respondent, Grace
Gosiengfiao was given a copy of the questioned deed of sale and shown a
copy of the document at the Office of the Barangay Captain sometime
November 18, 1982, this was not supported by the evidence presented. On
the contrary, respondent, Grace Gosiengfiao, in her testimony, declared as
follows:
Q. When you went back to the residence of
Atty. Pedro Laggui were you able to see
him?
A. Yes, I did.
Q. When you saw him, what did you tell?
A. I asked him about the Deed of Sale which
Mrs. Aquino had told me and he also
showed me a Deed of Sale. I went over the
Deed of Sale and I asked Atty. Laggui about
this and he mentioned here about the
names of the legal heirs. I asked why my
name is not included and I was never
informed in writing because I would like to
claim and he told me to better consult my
own attorney.
Q. And did you go?
A. Yes, I did.
Q. What kind of copy or document is that?
A. It is a deed of sale signed by my mother,
sister Amparo and my brothers.
Q. If shown to you the copy of the Deed of
Sale will you be able to identify it?
P r o p e r t y C a s e s N o . 8 P a g e | 18
A. Yes, sir.11
Thereafter, Grace Gosiengfiao explicitly stated that she was never given a
copy of the said Deed of Sale.
Q. Where did Don Mariano, Dr. Mariano and
you see each other?
A. In the house of Brgy. Captain Antonio
Bassig.
Q. What transpired in the house of the Brgy.
Captain when you saw each other there?
A. Brgy. Captain Bassig informed my
intention of claiming the lot and I also
informed him about the Deed of Sale that
was not signed by me since it is mine it is
already sold and I was informed in writing
about it. I am a legal heir and I have also
the right to claim.
Q. And what was the reply of Don Mariano
and Dr. Mariano to the information given to
them by Brgy. Captain Bassig regarding your
claim?
A. He insisted that the lot is already his
because of the Deed of Sale. I asked for the
exact copy so that I could show to him that
I did not sign and he said he does not have
a copy. 12
The above testimony was never refuted by Dr. Mariano who was present
before Brgy. Captain Bassig.
The requirement of a written notice has long been settled as early as in the
case of Castillo v.  Samonte,13 where this Court quoted the ruling in Hernaez
v. Hernaez,  32 Phil., 214, thus:
Both the letter and spirit of the New Civil Code argue against
any attempt to widen the scope of the notice specified in
Article 1088 by including therein any other kind of notice,
such as verbal or by registration. If the intention of the law
had been to include verbal notice or any other means of
information as sufficient to give the effect of this notice,
then there would have been no necessity or reasons to
specify in Article 1088 of the New Civil Code that the said
notice be made in writing for, under the old law, a verbal
notice or information was sufficient. 14

Moreover, petitioners themselves adopted in their argument respondents'
allegation In their complaint that sometime on October, 1982 they sought
the redemption of the property from spouses Leonardo Mariano and Avelina
Tigue, by tendering the repurchase money of P12,000.00, which the spouses
rejected.15 Consequently, private respondents exercised their right of
redemption at the first opportunity they have by tendering the repurchase
price to petitioners. The complaint they filed, before the Barangay Captain
and then to the 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 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.
P r o p e r t y C a s e s N o . 8 P a g e | 19
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 retro to resell the property; no
subsequent consignation was necessary to entitle private respondents to
such
reconveyance. 18
Premises considered, respondents have not  lost their right to redeem, for in
the absence of a written notification of the sale by the vendors, the 30-day
period has not even begun to run.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. Cost
against petitioners.
SO ORDERED.
Narvasa, C.J., Padilla and Nocon, JJ., concur.
No. L-24419. July 15, 1968.
LEONORA ESTOQUE, plaintiff-appellant, vs. ELENA M. PAJIMULA,
assisted by her husband CIRIACO PAJIMULA, defendants-appellees.
Evidence; That an act could have been done is no proof that it was done;
Application in sales; Case at bar.—Granting that the seller, Crispina Perez
Vda. de Aquitania could not have sold this particular portion of the lot owned
in common by her and her two brothers, Lorenzo and Ricardo Perez, by no
means does it follow that she intended to sell to appellant Estoque her 1/3
undivided interest in the lot aforementioned. There is nothing in the deed of
sale to justify such inference. That the seller could have validly sold her one-
third undivided interest to appellant is no proof that she did choose to sell
the same. Ab posse ad actu non valet illatio.
Sales; Where seller not the owner of a thing sold later acquires title thereto;
Case at bar.—While on the date of the sale to Estoque said contract may
have been ineffective, for lack of power in the vendor to sell the specific
portion described in the deed, the transaction was validated and became
fully effective when the next day, October 29, 1951, the vendor, Crispina
Perez, became the sole owner of Lot No. 802 of the Rosario Cadastral
survey. Article 1434 of the new Civil Code applies.
Co-ownership; Where the lot sold was clearly specified; Case at bar.—The
deed of sale to Estoque clearly specifies the object sold as the southeastern
third portion of Lot 802 of the Rosario Cadastre, with an area of 840 square
meters more or less. Wherefore, she never acquired an undivided interest in
Lot 802.

APPEAL from an order of dismissal of the Court of First Instance of La Union.
Flores, J.
The facts are stated in the opinion of the Court.
Jesus P. Mapanao for plaintiff-appellant.
 Vergara & Dayot for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal from an order of the Court of First Instance of La Union, in its
Civil Case No. 1990, granting a motion to dismiss the complaint for legal
redemption by a co-owner (retracto legal de comuneros) on account of
failure to state a cause of action.
The basic facts and issues are stated in the decision appealed from, as
follows:
Plaintiff based her complaint for legal redemption on a claim that she
is a co-owner of Lot No. 802, for having purchased 1/3 portion
thereof, containing an area of 640 square meters as evidenced by a
deed of sale, Annex "A", which was executed on October 28, 1951
by Crispina Perez de Aquitania, one of the co-owners, in her favor.
On the other hand, the defendant, who on December 30, 1959
acquired the other 2/3 portion of Lot No. 802 from Crispina Aquitania
and her children, claimed that the plaintiff bought the 1/3
southeastern portion, which is definitely identified and segregated,
hence there existed no co-ownership at the time and after said
plaintiff bought the aforesaid portion, upon which right of legal
redemption can be exercised or taken advantage of.
From the complaint, it would appear that Lot No. 802 of the
Cadastral survey of Rosario, covered by original certificate of title No.
RO-2720 (N.A.) was originally owned by the late spouses, Rosendo
Perez and Fortunata Bernal, who were survived by her children,
namely, Crispina Perez, Lorenzo Perez and Ricardo Perez. Ricardo
Perez is also now dead. On October 28, 1951, Crispina P. Vda. de
Aquitania sold her right and participation in Lot No. 802 consisting of
1/3 portion with an area of 640 square meters to Leonora Estoque
(Annex A of the complaint). On October 29, 1951, Lorenzo Perez,
Crispina Perez and Emilia P. Posadas, widow of her deceased
husband, Ricardo Perez for herself and in behalf of her minor
children, Gumersindo, Raquel, Emilio and Ricardo, Jr., executed a
deed of extrajudicial settlement wherein Lorenzo Perez, Emilia P.
Posadas and her minor children assigned all their right, interest and
participation in Lot No. 802 to Crispina Perez (Annex B of the
complaint). On December 30, 1959, Crispina Perez and her children
P r o p e r t y C a s e s N o . 8 P a g e | 20
Rosita Aquitania Belmonte, Remedios Aquitania Misa, Manuel
Aquitania, Sergio Aquitania and Aurora Aquitania sold to Elena
Pajimula, the remaining 2/3 western portion of Lot No. 802 with an
area of 958 square meters (Annex C of the complaint).
The action of the plaintiff is premised on the claim of co-ownership.
From the deed of sale executed in favor of the plaintiff, it can be
seen that the 1/3 portion sold to plaintiff is definitely identified as the
1/3 portion located on the southeastern part of Lot No. 802 and
specifically bounded on the north by De Guzman Street, on the east
by Posadas Street, on the south by Perez Street, and on the west by
remaining portion of the same lot, which contained an area of 640
square meters. And in the deed of sale executed by Crispina Perez
and 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 north by De
Guzman Street, on the east by properties of Leonarda Estoque, on
the south by the national road and on the west by Lots Nos. 799 and
801, containing an area of 598 square meters.
The appellant's stand is that the deed in her favor was inoperative to convey
the southeastern third of Lot 802 of the Rosario Cadastre notwithstanding
the description in the deed itself, for the reason that the vendor, being a
mere co-owner, had no right to sell any definite portion of the land held in
common but could only transmit her undivided share, since the specific
portion corresponding to the selling co-owner is not known until partition
takes place (Lopez vs. Ilustre, 5 Phil. 567; Ramirez vs. Bautista, 14 Phil.
528). From this premise, the appellant argues that the sale in her favor,
although describing a definite area, should be construed as having conveyed
only the undivided 1/3 interest in Lot 802 owned at the time by the vendor,
Crispina Perez Vda. de Aquitania. Wherefore, when the next day said vendor
acquired the 2/3 interest of her two other co-owners, Lot 802 became the
common property of appellant and Crispina Perez. Therefore, appellant
argues, when Crispina sold the rest of the property to appellee Pajimula
spouses, the former was selling an undivided 2/3 that appellant, as co-
owner, was entitled to redeem, pursuant to Article 1620 of the New Civil
Code.
ART. 1620. A co-owner of a thing may exercise the right of
redemption in case the shares of all the other co-owners or of any of
them, are sold to a third person. If the price of the alienation is
grossly excessive the redemptioner shall pay only a reasonable one.
 P r o p e r t y C a s e s N o . 8 P a g e | 21

Should two or more co-owners desire to exercise the right of Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and
redemption, they may only do so in proportion to the share they may Fernando, JJ., concur.
respectively have in the thing owned in common.
The lower court, upon motion of defendant, dismissed the complaint, holding
that the deeds of sale show that the lot acquired by plaintiff Estoque was
different from that of the defendants Pajimula; hence they never became co-
owners, and the alleged right of legal redemption was not proper. Estoque
appealed.
We find no error in the order of dismissal, for the facts pleaded negate the
claim that appellant Estoque ever became a co-owner of appellees Pajimula.
(1) The deed of sale to Estoque (Annex A of the complaint) clearly specifies
the object sold as the southeastern third portion of Lot 802 of the Rosario
Cadastre, with an area of 840 square meters, more or less. Granting that the
seller, Crispina Perez Vda. de Aquitania could not have sold this particular
portion of the lot owned in common by her and her two brothers, Lorenzo
and Ricardo Perez, by no means does it follow that she intended to sell to
appellant Estoque her 1/3 undivided interest in the lot forementioned. There
is nothing in the deed of sale to justify such inference. That the seller could
have validly sold her one-third undivided interest to appellant is no proof that
she did choose to sell the same. Ab posse ad actu non valet 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 specific
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 her remaining co-owners (Annex B) and No. L-75884. September 24, 1987.*
thereby became the sole owner of Lot No. 802 of the Rosario Cadastral JULITA GO ONG, FOR HERSELF AND AS JUDICIAL GUARDIAN OF
survey (Llacer vs. Muñoz, 12 Phil. 328). Article 1434 of the Civil Code of the STEVEN GO ONG, petitioners, vs. THE HON. COURT OF APPEALS,
Philippines clearly prescribes that — . ALLIED BANKING CORPORATION and THE CITY SHERIFF OF
When a person who is not the owner of a thing sells or alienates and QUEZON CITY, respondents.
delivers it, and later the seller or grantor acquires title thereto, such Remedial Law; Civil Procedure; Judgments; Rule that the findings of fact of
title passes by operation of law to the buyer or grantee." the trial court are entitled to great respect—The wellsettled rule that the
Pursuant to this rule, appellant Estoque became the actual owner of findings of fact of the trial court are entitled to great respect, even more
the southeastern  third of lot 802 on October 29, 1951. Wherefore, she never weight when affirmed by the Court of Appeals as in the case at bar.
acquired an undivided interest in lot 802. And when eight years later Crispina Same; Special Proceedings; Mortgages; Where the real estate mortgage was
Perez sold to the appellees Pajimula the western two-thirds of the same lot, constituted in petitioner's personal capacity and not in her capacity as
appellant did not acquire a right to redeem the property thus sold, since their administratrix of the estate of her husband, Sec. 7 of Rule 89 of the Rules of
respective portions were distinct and separate. Court requiring judicial approval of the mortgage is not applicable,—Thus, in
IN VIEW OF THE FOREGOING, the appealed order of dismissal is affirmed. confirming the findings of the lower court, as supported by law and the
Costs against appellant Estoque.1äwphï1.ñët evidence, the Court of Appeals aptly ruled that Section 7 of Rule 89 of the
Rules of Court is not applicable, since the mortgage was constituted in her

personal capacity and not in her capacity as administratrix of the estate of
her husband.
Same; Same; Same; Fact alone that in the settlement proceedings of the
estate of the deceased spouse the entire conjugal partnership property of
the marriage is under administration is not sufficient to invalidate the whole
mortgage; Art 493 of the Civil Code applies where the heirs as co-owners
shall each have the full ownership of his part and he may alienate, assign or
mortgage it; Effect of alienation or mortgage with respect to the co-owners.
—Nevertheless, petitioner, citing the cases of Picardal, et al. vs. Lladas (21
SCRA 1483) and Fernandez, et al. vs. Maravilla (10 SCRA 589), further
argues that in the settlement proceedings of the estate of the deceased
spouse, the entire conjugal partnership property of the marriage is under
administration, While such may be in a sense true, that fact alone is not
sufficient to invalidate the whole mortgage, willingly and voluntarily entered
into by the petitioner. An opposite view would result in an injustice. Under
similar circumstances, this Court applied the provisions of Article 493 of the
Civil Code, where the heirs as co-owners shall each have the full ownership
of his part and the fruits and benefits pertaining 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 mortgage, with respect to the co-owners, shall be limited to
the portion which may be allotted to him in the division upon the termination
of the co-ownership (Philippine National Bank vs. Court of Appeals, 98 SCRA
207 [1980]).
Same; Same; Same; The mortgage constituted on the property under
administration, by authority of the petitioner, is valid, notwithstanding lack of
judicial approval with respect to her conjugal share and to her hereditary
rights; Fact that what had been mortgaged was in custodia legis is
immaterial as she was the absolute owner thereof.—Consequently, in the
case at bar, the trial court and the Court of Appeals cannot be faulted in
ruling that the questioned mortgage constituted on the property under
administration, by authority of the petitioner, is valid, notwithstanding the
lack of judicial approval, with respect to her conjugal share and to her
hereditary rights. The fact that what had been mortgaged was in custodia
legis is immaterial insofar as her conjugal share and hereditary share in the
property is concerned, for after all, she was the ABSOLUTE OWNER thereof.
This ownership by hers is not disputed, nor is there any claim that the rights
of the government (with reference to taxes) nor the rights of any heir or
anybody else " have been prejudiced or impaired
Same: Same: Same; Reference to judicial approval in Sec. 7, Rule 89 of the
Rules of Court, cannot adversely affect the substantive rights of petitioner to
P r o p e r t y C a s e s N o . 8 P a g e | 22
dispose of her ideal share in the co-heirship and/or co-ownership between
her and the other heirs/co-owners.—The reference to judicial approval in
Sec. 7, Rule 89 of the Rules of Court cannot adversely affect the substantive
rights 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 Government.
Same; Same; Same; Estoppel, concept of; Petitioner already estopped from
questioning the mortgage; Reason.—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).
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
PARAS, J.:
This is a petition for review on certiorari of the March 21, 1986 Decision * of
the Court of Appeals in AC-G.R. CV No. 02635, "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.
The uncontroverted facts of this case, as found by the Court of Appeals, are
as follows:
...: Two (2) parcels of land in Quezon City Identified as Lot
No. 12, Block 407, Psd 37326 with an area of 1960.6 sq. m.
and Lot No. 1, Psd 15021, with an area of 3,660.8 sq. m. are
covered by Transfer Certificate of Title No. 188705 in the
name of "Alfredo Ong Bio Hong married to Julita Go Ong
"(Exh. D). Alfredo Ong Bio Hong died on January 18, 1975
and Julita Go Ong was appointed administratrix of her
husband's estate in Civil Case No. 107089. The letters of

administration was registered on TCT No. 188705 on
October 23, 1979. Thereafter, Julita Go Ong sold Lot No. 12
to Lim Che Boon, and TCT No. 188705 was partially
cancelled and TCT No. 262852 was issued in favor of Lim
Che Boon covering Lot No. 12 (Exh. D-4). On June 8, 1981
Julita Go Ong through her attorney-in-fact Jovita K. Yeo
(Exh. 1) mortgaged Lot No. 1 to the Allied Banking
Corporation to secure a loan of P900,000.00 obtained by JK
Exports, Inc. The mortgage was registered on TCT No.
188705 on the same date with the following notation: "...
mortgagee's consent necessary in case of subsequent
alienation or encumbrance of the property other conditions
set forth in Doc. No. 340, Page No. 69, Book No. XIX, of the
Not. Public of Felixberto Abad". On the loan there was due
the sum of P828,000.00 and Allied Banking Corporation tried
to collect it from Julita Go Ong, (Exh. E). Hence, the
complaint alleging nullity of the contract for lack of judicial
approval which the bank had allegedly promised to secure
from the court. In response thereto, the bank averred that it
was plaintiff Julita Go Ong who promised to secure the
court's approval, adding that Julita Go Ong informed the
defendant that she was processed the sum of P300,000.00
by the JK Exports, Inc. which will also take charge of the
interest of the loan.
Concluding, the trial court ruled:
Absent (of) any evidence that the property in
question is the capital of the deceased husband
brought into the marriage, said property should be
presumed as acquired during the marriage and,
therefore, conjugal property,
After the dissolution of the marriage with the death
of plaintiff's husband, the plaintiff acquired, by law,
her conjugal share, together with the hereditary
rights thereon. (Margate vs. Rabacal, L-14302, April
30, 1963). Consequently, the mortgage constituted
on said property, upon express authority of plaintiff,
notwithstanding the lack of judicial approval, is valid,
with respect to her conjugal share thereon, together
with her hereditary rights.
P r o p e r t y C a s e s N o . 8 P a g e | 23
On appeal by petitioner, respondent Court of Appeals affirmed, with
modification, the appealed decision (Record, pp. 19-22). The dispositive
portion of the appellate court's decision reads:
WHEREFORE, with the modification that the extrajudicial
foreclosure proceedings instituted by defendant against
plaintiff shall be held in abeyance to await the final result of
Civil Case No. 107089 of the Court of First Instance of
Manila, 6th Judicial District Branch XXXII, entitled "IN THE
MATTER OF THE INTESTATE ESTATE OF THE LATE
ALFREDO ONG BIO: JULITA GO ONG, ADMINISTRATRIX". In
pursuance with which the restraining order of the lower
court in this case restraining the sale of the properties levied
upon is hereby ordered to continue in full force and effect
coterminous with the final result of Civil Case No. 107089,
the decision appealed from is hereby affirmed. Costs against
plaintiff-appellant.
SO ORDERED.
On April 8, 1986, petitioner moved for the reconsideration of the said
decision (Ibid., pp. 24-29), but in a Resolution dated September 11, 1986,
respondent court denied the motion for lack of merit ( Ibid., p. 23). Hence,
the instant petition (Ibid., pp. 6-17).
The Second Division of this Court, in a Resolution dated November 19, 1986
(Rollo, p. 30), without giving due course to the petition, resolved to require
private respondent to comment thereon and it did on February 19, 1987
(Ibid., pp. 37-42). Thereafter, in a Resolution dated April 6, 1987, the
petition was given due course and the parties were required to file their
respective memoranda (Ibid., p. 43).
Petitioner filed her Memorandum on May 13, 1987 (Ibid., pp. 45-56), while
private respondent filed its Memorandum on May 20, 1987 (Ibid., pp. 62-68).
The sole issue in this case is —
WHETHER OR NOT THE MORTGAGE CONSTITUTED OVER THE PARCEL OF
LAND UNDER PETITIONER'S ADMINISTRATION IS NULL AND VOID FOR
WANT OF JUDICIAL APPROVAL.
The instant petition is devoid of merit.
The well-settled rule that the findings of fact of the trial court are entitled to
great respect, carries even more weight when affirmed by the Court of
Appeals as in the case at bar.
In brief, the lower court found: (1) that the property under the
administration of petitioner — the wife of the deceased, is a community
property and not the separate property of the latter; (2) that the mortgage

was constituted in the wife's personal capacity and not in her capacity as
administratrix; and (3) that the mortgage affects the wife's share in the
community property and her inheritance in the estate of her husband.
Petitioner, asserting that the mortgage is void for want of judicial approval,
quoted Section 7 of Rule 89 of the Rules of Court and cited several cases
wherein this Court ruled that the regulations provided in the said section are
mandatory.
While petitioner's assertion may have merit insofar as the rest of the estate
of her husband is concerned the same is not true as regards her conjugal
share and her hereditary rights in the estate. The records show that
petitioner willingly and voluntarily mortgaged the property in question
because she was processed by JK Exports, Inc. the sum of P300,000.00 from
the proceeds of the loan; and that at the time she executed the real estate
mortgage, there was no court order authorizing the mortgage, so she took it
upon herself, to secure an order.
Thus, in confirming the findings of the lower court, as supported by law and
the evidence, the Court of Appeals aptly ruled that Section 7 of Rule 89 of
the Rules of Court is not applicable, since the mortgage was constituted in
her personal capacity and not in her capacity as administratrix of the estate
of her husband.
Nevertheless, petitioner, citing the cases of Picardal, et al. vs. Lladas  (21
SCRA 1483) and Fernandez, et al. vs. Maravilla (10 SCRA 589), further
argues that in the settlement proceedings of the estate of the deceased
spouse, the entire conjugal partnership property of the marriage is under
administration. While such may be in a sense true, that fact alone is not
sufficient to invalidate the whole mortgage, willingly and voluntarily entered
into by the petitioner. An opposite view would result in an injustice. Under
similar circumstances, this Court applied the provisions of Article 493 of the
Civil Code, where the heirs as co-owners shall each have the full ownership
of his part and the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even effect of the alienation or
mortgage, with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the termination of the co-
ownership (Philippine National Bank vs. Court of Appeals, 98 SCRA 207
[1980]).
Consequently, in the case at bar, the trial court and the Court of Appeals
cannot be faulted in ruling that the questioned mortgage constituted on the
property under administration, by authority of the petitioner, is valid,
notwithstanding the lack of judicial approval, with respect to her conjugal
share and to her hereditary rights. The fact that what had been mortgaged
was in custodia legis is immaterial, insofar as her conjugal share and
P r o p e r t y C a s e s N o . 8 P a g e | 24
hereditary share in the property is concerned for after all, she was the
ABSOLUTE OWNER thereof. This ownership by hers is not disputed, nor is
there any claim that the rights of the government (with reference to taxes)
nor the rights of any heir or anybody else have been prejudiced for impaired.
As stated by Associate Justice (later Chief Justice) Manuel Moran
in Jakosalem vs. Rafols, et al.,  73 Phil. 618 —
The land in question, described in the appealed decision,
originally belonged to Juan Melgar. The latter died and the
judicial administration of his estate was commenced in 1915
and came to a close on December 2, 1924, only. During the
pendency of the said administration, that is, on July 5, 1917,
Susana Melgar, daughter of the deceased Juan Melgar, sold
the land with the right of repurchase to Pedro Cui, subject to
the stipulation that during the period for the repurchase she
would continue in possession of the land as lessee of the
purchase. On December 12, 1920, the partition of the estate
left by the deceased Juan Melgar was made, and the land in
question was adjudicated to Susana Melgar. In 1921, she
conveyed, in payment of professional fees, one-half of the
land in favor of the defendant-appellee Nicolas Rafols, who
entered upon the portion thus conveyed and has been in
possession thereof up to the present. On July 23, 1921,
Pedro Cui brought an action to recover said half of the land
from Nicolas Rafols and the other half from the other
defendants, and while that case was pending, or about
August 4, 1925, Pedro Cui donated the whole land in
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 Rafols.
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 substantive rights 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 government.
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.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
SECOND DIVISION [G.R. No. 102380. January 18, 1993.]
HERODOTUS P. ACEBEDO, and DEMOSTHENES P.
ACEBEDO, Petitioners, v. HON. BERNARDO P. ABESAMIS, MIGUEL
ACEBEDO, ALEXANDER ACEBEDO, NAPOLEON ACEBEDO, RIZALINO
ACEBEDO, REPUBLICA ACEBEDO, FILIPINAS ACEBEDO and YU HWA
PING, Respondents.
Herminio L. Ruiz, for Petitioners.
Vicente D. Millora for Private Respondents.
Romero A. Yu for respondent Yu Hua Ping.
P r o p e r t y C a s e s N o . 8 P a g e | 25
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDING; SALE OF PROPERTY OF
DECEDENT; JURISDICTION OF PROBATE COURT TO APPROVE THEREOF
BEFORE FINAL ADJUDICATION. — In the case of Dillena v. Court of Appeals
(163 SCRA 30 (1988), this Court made a pronouncement that it is within the
jurisdiction of the probate court to approve the sale of properties of a
deceased person by his prospective heirs before final adjudication. Hence, it
is error to say that this matter should be threshed out in a separate action.
The Court further elaborated that although the Rules of Court do not
specifically state that the sale of an immovable property belonging to an
estate of a decedent, in a special proceeding, should be made with the
approval of the court, this authority is necessarily included in its capacity as a
probate court. Therefore, it is clear that the probate court in the case at bar,
acted within its jurisdiction in issuing the Order approving the Deed of
Conditional Sale.
2. ID.; ID.; ID.; COURT’S APPROVAL, NECESSARY FOR THE VALIDITY OF
ANY DISPOSITION OF DECEDENT’S ESTATE; EFFECT OF ABSENCE THEREOF
TO THE SUBSTANTIVE RIGHTS OF HEIRS. — Petitioners herein anchor their
claim on Section 7, Rule 89 of the Rules of Court. 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. 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.
3. CIVIL LAW; POSSESSION; POSSESSION OF HEREDITARY PROPERTY;
WHEN DEEMED ACQUIRED; RULE. — 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 provision 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.
4. ID.; CO-OWNERSHIP; RIGHT OF A CO-OWNER TO SELL, ALIENATE OR
MORTGAGE HIS SHARE IN THE PROPERTY HELD IN COMMON. — The Civil
Code, under the provisions on co-ownership, further qualifies this right.

Although it is mandated that each co-owner shall have the full ownership of
his part and of the fruits and benefits pertaining thereto, and thus may
alienate, assign or mortgage it, and even substitute another person in its
enjoyment, the effect of the alienation or the mortgage, with respect to the
co-owners, shall be limited to the portion which may be allotted to him in the
division upon the termination of the co-ownership. In other words, the law
does not prohibit a co-owner from selling, alienating or mortgaging his ideal
share in the property held in common. 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 v. Rafols, Et Al., (73 Phil. 628 [1942]) it
was said that 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 Court then relied on the provision of the Old Civil
Code, Article 440 and Article 399 which are still in force as Article 533 and
Article 493, respectively, in the new Civil Code. The Court also cited the
words of a noted civilist, Manresa: "Upon the death of a person, each of his
heirs ‘becomes the undivided owner of the whole estate left with respect to
the part or portion which might be adjudicated to him, a community of
ownership being thus formed among the co-owners of the estate which
remains undivided.’"
DECISION
CAMPOS, JR., J.:
The lower court’s jurisdiction in approving a Deed of Conditional Sale
executed by respondents-heirs and ordering herein administrator-petitioner
Herodotus Acebedo to sell the remaining portions of said properties, despite
the absence of its prior approval as a probate court, is being challenged in
the case at bar.
The late Felix Acebedo left an estate consisting of several real estate
properties located in Quezon City and Caloocan City, with a conservative
estimated value of about P30 million. Said estate allegedly has only the
following unsettled claims:chanrob1es virtual 1aw library
a. P87,937.00 representing unpaid real estate taxes due Quezon City;
b. P20,244.00 as unpaid real estate taxes due Caloocan City;
P r o p e r t y C a s e s N o . 8 P a g e | 26
c. The unpaid salaries/allowances of former Administrator Miguel Acebedo,
and the incumbent Administrator Herodotus Acebedo; and
d. Inheritance taxes that may be due on the net estate.
The decedent was succeeded by eight heirs, two of whom are the petitioner
herein, and the others are the private respondents.
Due to the prolonged pendency of the case before the respondent Court for
sixteen years, respondent-heirs filed a "Motion for Approval of Sale", on
October 4, 1989. The said sale involved the properties covered by Transfer
Certificate of Title Nos. 155569, 120145, 9145, and 18709, all of which are
registered in Quezon City, and form part of the estate. The consideration for
said lots was twelve (12) million pesos and by that time, they already had a
buyer. It was further stated in said Motion that respondent-heirs have
already received their proportionate share of the six (6) million pesos paid by
the buyer, Yu Hwa Ping, as earnest money; that the balance of
P6,000,000.00 is more than enough to pay the unsettled claims against the
estate. Thus, they prayed for the Court to direct the administrator,
Herodotus Acebedo (referred to as petitioner-administrator
hereafter):chanrobles lawlibrary : rednad
1. to sell the properties mentioned in the motion;
2. with the balance of P6 million, to pay all the claims against the Estate; and
3. to distribute the residue among the Heirs in final settlement of the Estate.
To the aforesaid Motion, herein petitioner-administrator interposed an
"Opposition to Approval of Sale", to wit:jgc:chanrobles.com.ph
"1. That he has learned that some of the heirs herein have sold some real
estate property of the Estate located at Balintawak, Quezon City, without the
knowledge of the herein administrator, without the approval of this
Honorable Court and of some heirs, and at a shockingly low price;
2. That he is accordingly hereby registering his vehement objection to the
approval of the sale, perpetrated in a manner which can even render the
proponents of the sale liable for punishment for contempt of this Honorable
Court;

3. The herein Administrator instead herein prays this Honorable Court to
authorize the sale of the above mentioned property of the Estate to generate
funds to pay certain liabilities of the Estate and with the approval of this
Honorable Court if warranted, to give the heirs some advances chargeable
against theirs (sic) respective shares, and, for the purpose to authorize the
herein Administrator, and the other heirs to help the Administrator personally
or through a broker, to look for a buyer for the highest obtainable price,
subject always to the approval of this Honorable Court." 1
On October 30, 1989, herein petitioners moved to be given a period of forty-
five (45) days within which to look for a buyer who will be willing to buy the
properties at a price higher than P12,000,000.00.
The case was set for hearing on December 15, 1989. However, by said date,
petitioners have not found any buyer offering better terms. Thus, they asked
the Court, on February 8, 1990, for an inextendible period of thirty days to
look for a buyer.
Petitioner-administrator then filed a criminal complaint for falsification of a
public document against Yu Hwa Ping and notary public Eugenio Obon on
February 26, 1990. He initiated this complaint upon learning that it was Yu
Hwa Ping who caused the notarization of the Deed of Conditional Sale
wherein allegedly petitioner-administrator’s signature was made to appear.
He also learned that after he confronted the notary public of the questioned
document, the latter revoked his notarial act on the same.chanrobles law
library
On April 2, 1990, petitioner-administrator filed the civil action to secure the
declaration by the Court of the nullity of the Deed of Conditional Sale and the
Deed of Absolute Sale.
The period granted herein petitioners having lapsed without having found a
buyer, petitioner Demosthenes Acebedo sought to nullify the Orders granting
them several periods within which to look for a better buyer. Respondents
filed a comment thereon.
Having miserably failed to find a better buyer, after seven long months,
petitioner-administrator filed another "Opposition to Approval of Sale", dated
May 10, 1990, maintaining that the sale should wait for the country to
recover from the effects of the coup d’etat attempts, otherwise, the
properties should be divided among the heirs.
P r o p e r t y C a s e s N o . 8 P a g e | 27
On June 21, 1990, petitioners filed a "Motion for Leave of Court to Mortgage
and Lease some of the Properties of the Estate." To this Motion, respondents
filed an Opposition on the following grounds: that the motion is not proper
because of the pending motion to approve the sale of the same properties;
that 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 Ping’s assumption of payment of the realty
taxes; that the estate has no further debts and thus, the intestate
administrator may be terminated.
On August 17, 1990, respondent Court issued an Order, the dispositive
portion of which, stated, among others, to wit: 2
"b. the motion filed by the heirs-movants, dated October 4, 1989, praying
that the new administrator be directed to sell the properties covered by TCT
Nos. 155569, 120145, 9145 and 18709, in favor of Yu Hwa Ping is hereby
denied; and
c. the new administrator is hereby granted leave to mortgage some
properties of the estate at a just and reasonable amount, subject to the
approval of the Court."cralaw virtua1aw library
On December 4, 1990, the respondent Judge issued an order resolving to
call the parties to a conference on December 17, 1990. The conference was
held, but still the parties were unable to arrive at an agreement. So, on
January 4, 1991, it was continued, wherein the parties actually agreed that
the heirs be allowed to sell their shares of the properties to Yu Hwa Ping for
the price already agreed upon, while herein petitioners negotiate for a higher
price with Yu Hwa Ping.chanroblesvirtualawlibrary
Petitioners, then, instead filed a "Supplemental Opposition" to the approval
of the Deed of Conditional Sale.
On March 29, 1991, the respondent Court issued the challenged Order, the
dispositive portion of which states, to wit:jgc:chanrobles.com.ph
"WHEREFORE, the Order dated August 7, 1990, is hereby lifted, reconsidered
and set aside, and another one is hereby issued as follows:chanrob1es
virtual 1aw library
1. Approving the conditional sale, dated September 10, 1989, executed by
the heirs-movants, in favor of Yu Hwa Ping, pertaining to their respective

shares in the properties covered by TCT Nos. 155569, 120145, 1945 and
18709 of the Register of Deeds of Quezon City;
2. Ordering the administrator Herodotus Acebedo to sell the remaining
portions of the said properties also in favor of Yu Hwa Ping at the same price
as the sale executed by the herein heirs-movants;
3. Ordering Yu Hwa Ping to deposit with the Court the total remaining
balance of the purchase price for the said lots within TWENTY (20) DAYS
from notice hereof; 4. The motion to cite former administrator Miguel
Acebedo in contempt of court, resulting from his failure to submit the
owner’s copy of TCT Nos. 155569, and 120145 is hereby denied." 3
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.
Petitioners herein received the questioned Order on April 11, 1991. Twenty
one (21) days thereafter, they filed a Motion for Reconsideration, praying
that the Court reinstate its Order of August 17, 1990. To this, private
respondents filed their Opposition. 4
Instead of making a reply, petitioners herein filed a Supplemental Motion for
Reconsideration. The motions for reconsideration of herein petitioners were
denied by the respondent Court on August 23, 1991.
On September 23, 1991, herein petitioners filed a Motion for Partial
Reconsideration, hoping for the last time that they would be able to convince
the Court that its Order dated March 29, 1991 in effect approving the
conditional sale is erroneous and beyond its jurisdiction.
On October 17, 1991, the respondent Court denied the Motion for Partial
Reconsideration for "lack of merit"
On November 7, 1991, private respondents filed a Motion for Execution of
the Order dated March 29, 1991. This was pending resolution when the
petitioners filed this Petition for Certiorari.
The controversy in the case at bar revolves around one question: Is it within
the jurisdiction of the lower court, acting as a probate court, to issue an
Order approving the Deed of Conditional Sale executed by respondents-heirs
without prior court approval and to order herein Administrator to sell the
P r o p e r t y C a s e s N o . 8 P a g e | 28
remaining portion of said properties?
We answer in the positive.
In the case of Dillena v. Court of Appeals, 5 this Court made a
pronouncement that it is within the jurisdiction of the probate court to
approve the sale of properties of a deceased person by his prospective heirs
before final adjudication. Hence, it is error to say that this matter should be
threshed out in a separate action.
The Court further elaborated that although the Rules of Court do not
specifically state that the sale of an immovable property belonging to an
estate of a decedent, in a special proceeding, should be made with the
approval of the court, this authority is necessarily included in its capacity as a
probate court. Therefore, it is clear that the probate court in the case at bar,
acted within its jurisdiction in issuing the Order approving the Deed of
Conditional Sale. chanrobles.com.ph : virtual law library
We cannot countenance the position maintained by herein petitioners that
said conditional sale is null and void for lack of prior court approval. The sale
precisely was made conditional, 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 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 provision 9 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

The Civil Code, under the provisions on co-ownership, further qualifies this
right. 11 Although it is mandated that each co-owner shall have the full
ownership of his part and of the fruits and benefits pertaining thereto, and
thus may alienate, assign or mortgage it, and even substitute another person
in its enjoyment, the effect of the alienation or the mortgage, with respect to
the co-owners, shall be limited to the portion which may be allotted to him in
the division upon the termination of the co-ownership. 12 In other words,
the law does not prohibit a co-owner from selling, alienating or mortgaging
his ideal share in the property held in common. 13
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 v. Rafols,
Et Al., 14 it was said that 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 Court then relied on the
provision of the Old Civil Code, Article 440 and Article 399 which are still in
force as Article 533 and Article 493, respectively, in the new Civil Code. The
Court also cited the words of a noted civilist, Manresa: "Upon the death of a
person, each of his heirs ‘becomes the undivided owner of the whole estate
left with respect to the part or portion which might be adjudicated to him, a
community of ownership being thus formed among the co-owners of the
estate which remains undivided’." chanrobles.com : virtual law library
Private respondents having secured the approval of the probate court, a
matter which is unquestionably within its jurisdiction, and having established
private respondents’ right to alienate the decedent’s property subject of
administration, this Petition should be dismissed for lack of merit.
PREMISES considered, Petition is hereby DISMISSED. With Costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur.
G.R. No. 61584.November 25, 1992.*
DONATO S. PAULMITAN, JULIANA P. FANESA and RODOLFO
FANESA, petitioners, vs. COURT OF APPEALS, ALICIO PAULMITAN,
ELENA PAULMITAN, ABELINO PAULMITAN, ANITA PAULMITAN,
BAKING PAULMITAN, ADELINA PAULMITAN and ANITO
PAULMITAN, respondents.
Civil Law; Succession; In every inheritance the relative nearest in degree
excludes the more distant ones.—Since it is well-settled by virtue of Article
777 of the Civil Code that “[t]he rights to the succession are transmitted
P r o p e r t y C a s e s N o . 8 P a g e | 29
from the moment of the death of the decedent,” the right of ownership, not
only of Donato but also of Pascual, over their respective shares in the
inheritance was automatically and by operation of law vested in them in
1953 when their mother died intestate. At that stage, the children of Donato
and Pascual did not yet have any right over the inheritance since “[i]n every
inheritance the relative nearest in degree excludes the more distant ones.”
Donato and Pascual excluded their children as to the right to inherit from
Agatona Sagario Paulmitan, their mother.
Same; Property; Co-ownership; Even if a co-owner sells the whole property
as his, the sale will affect only his own share but not those of the other co-
owners who did not consent to the sale.—This Court has ruled that even if a
co-owner sells the whole property as his, the sale will affect only his own
share but not those of the other co-owners who did not consent to the sale
[Punsalan v. Boon Liat, 44 Phil. 320 (1923)].
Same; Same; Same; Same; Since a co-owner is entitled to sell his undivided
share, a sale of the entire property by one co-owner without the consent of
the other co-owners is not null and void.—This is because under the
aforementioned codal provision, the sale or other disposition affects only his
undivided share and the transferee gets only what would correspond to his
grantor in the partition of the thing owned in common.
Remedial Law; Appeal; The settled rule is that only questions of law may be
raised in a petition for review; Generally, findings of fact made by the trial
court and the Court of Appeals are final and conclusive and cannot be
reviewed on appeal.—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.
PETITION for review on certiorari, from the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
ROMERO,J.:

This is a petition for review on certiorari seeking the reversal of the decision1
of the Court of Appeals, dated July 14, 1982 in CA-G.R. No. 62255-R entitled
“Alicio Paulmitan, et al. v. Donato Sagario Paulmitan, et al.” which affirmed
the decision2 of the then Court of First Instance (now RTC) of Negros
Occidental, 12th Judicial District, Branch IV, Bacolod City, in Civil Case No.
11770.
The antecedent facts are as follows:
Agatona Sagario Paulmitan, who died sometime in 1953,3 left the two
following parcels of land located in the Province of Negros Occidental: (1) Lot
No. 757 with an area of 1,946 square meters covered by Original Certificate
of Title (OCT) No. RO8376; and (2) Lot No. 1091 with an area of 69,080
square meters and covered by OCT No. RO-11653. From her marriage with
Ciriaco Paulmitan, who is also now deceased, Agatona begot two legitimate
children, namely: Pascual Paulmitan, who also died in 1953,4 apparently
shortly after his mother passed away, and Donato Paulmitan, who is one of
the petitioners. Petitioner Juliana P. Fanesa is Donato’s daughter while the
third petitioner, Rodolfo Fanesa, is Juliana’s husband. Pascual Paulmitan, the
other son of Agatona Sagario, is survived by the respondents, who are his
children, namely: Alicio, Elena, Abelino, Adelina, Anita, Baking and Anito, all
surnamed Paulmitan.
Until 1963, the estate of Agatona Sagario Paulmitan remained unsettled and
the titles to the two lots mentioned above remained in the name of Agatona.
However, on August 11, 1963, petitioner Donato Paulmitan executed an
Affidavit of Declaration of Heirship, extrajudicially adjudicating unto himself
Lot No. 757 based on the claim that he is the only surviving heir of Agatona
Sagario. The affidavit was filed with the Register of Deeds of Negros
Occidental who, on August 20, 1963, cancelled OCT No. RO-8376 in the
name of Agatona Sagario and issued Transfer Certificate of Title (TCT) No.
35979 in Donato’s name.
As regards Lot No. 1091, Donato executed on May 28, 1974 a Deed of Sale
over the same in favor of petitioner Juliana P. Fanesa, his daughter.5
In the meantime, sometime in 1952, for non-payment of taxes, Lot No. 1091
was forfeited and sold at a public auction, with the Provincial Government of
Negros Occidental being the buyer. A Certificate of Sale over the land was
executed by the Provincial Treasurer in favor of the Provincial Board of
Negros Occidental.6
P r o p e r t y C a s e s N o . 8 P a g e | 30
On May 29, 1974, Juliana P. Fanesa redeemed the property from the
Provincial Government of Negros Occidental for the amount of P2,959.09.7
On learning of these transactions, respondents children of the late Pascual
Paulmitan filed on January 18, 1975 with the Court of First Instance of
Negros Occidental a Complaint against petitioners to partition the properties
plus damages.
Petitioners set up the defense of prescription with respect to Lot No. 757 as
an affirmative defense, contending that the Complaint was filed more than
eleven years after the issuance of a transfer certificate of title to Donato
Paulmitan over the land as a consequence of the registration with the
Register of Deeds, of Donato’s affidavit extrajudicially adjudicating unto
himself Lot No. 757. As regards Lot No. 1091, petitioner Juliana P. Fanesa
claimed in her Answer to the Complaint that she acquired exclusive
ownership thereof not only by means of a deed of sale executed in her favor
by her father, petitioner Donato Paulmitan, but also by way of redemption
from the Provincial Government of Negros Occidental.
Acting on the petitioners’ affirmative defense of prescription with respect to
Lot No. 757, the trial court issued an order dated April 22, 1976 dismissing
the complaint as to the said property upon finding merit in petitioners’
affirmative defense. This order, which is not the object of the present
petition, has become final after respondents’ failure to appeal therefrom.
Trial proceeded with respect to Lot No. 1091. In a decision dated May 20,
1977, the trial court decided in favor of respondents as to Lot No. 1091.
According to the trial court, the respondents, as descendants of Agatona
Sagario Paulmitan were entitled to one-half (1/2) of Lot No. 1091, pro
indiviso. The sale by petitioner Donato Paulmitan to his daughter, petitioner
Juliana P. Fanesa, did not prejudice their rights. And the repurchase by
Juliana P. Fanesa of the land from the Provincial Government of Negros
Occidental did not vest in Juliana exclusive ownership over the entire land
but only gave her the right to be reimbursed for the amount paid to redeem
the property. The trial court ordered the partition of the land and directed
petitioners Donato Paulmitan and Juliana P. Fanesa to pay private
respondents certain amounts representing the latter’s share in the fruits of
the land. On the other hand, respondents were directed to pay P1,479.55 to
Juliana P. Fanesa as their share in the redemption price paid by Fanesa to
the Provincial Government of Negros Occidental. The dispositive portion of
the trial court’s decision reads:

“WHEREFORE, judgment is hereby rendered on the second cause of action
pleaded in the complaint as follows:
“1.The deed of sale (Exh. ‘F’) dated May 28, 1974 is valid insofar as the one-
half undivided portion of Lot 1091 is concerned as to vest ownership over
said half portion in favor of defendant Juliana Fanesa and her husband
Rodolfo Fanesa, while the remaining half shall belong to plaintiffs, pro-
indiviso;
“2.Lot 1091, Cadastral Survey of Pontevedra, Province of Negros Occidental,
now covered by TCT No. RO-11653 (N.A.), is ordered partitioned. The parties
must proceed to an actual partition by property instrument of partition,
submitting the corresponding subdivision within sixty (60) days from finality
of this decision, and should they fail to agree, commissioners of partition
may be appointed by the Court;
“3.Pending the physical partition, the Register of Deeds of Negros Occidental
is ordered to cancel Original Certificate of Title No. RO-11653 (N.A.) covering
Lot 1091, Pontevedra Cadastre, and to issue in lieu thereof of a new
certificate of title in the name of plaintiffs and defendants, one-half portion
each, pro-indiviso, as indicated in paragraph 1 above;
“4.Plaintiffs are ordered to pay, jointly and severally, defendant Juliana
Fanesa the amount of P1,479.55 with interest at the legal rate from May 28,
1974 until paid;
“5.Defendants Donato Sagario Paulmitan and Juliana Paulmitan Fanesa are
ordered to account to plaintiffs and to pay them, jointly and severally, the
value of the produce from Lot 1091 representing plaintiffs’ share in the
amount of P5,000.00 per year from 1966 up to the time of actual partition of
the property, and to pay them the sum of P2,000.00 as attorney’s fees as
well as the costs of the suit.”
***
On appeal, the Court of Appeals affirmed the trial court’s decision. Hence this
petition.
To determine the rights and obligations of the parties to the land in question,
it is well to review, initially, the relatives who survived the decedent Agatona
Sagario Paulmitan. When Agatona died in 1953, she was survived by two (2)
sons, Donato and Pascual. A few months later in the same year, Pascual
died, leaving seven children, the private respondents. On the other hand,
Donato’s sole offspring was petitioner Juliana P. Fanesa.
At the time of the relevant transactions over the properties of decedent
Agatona Sagario Paulmitan, her son Pascual had died, survived by
respondents, his children. It is, thus, tempting to apply the principles
P r o p e r t y C a s e s N o . 8 P a g e | 31
pertaining to the right of representation as regards respondents. It must,
however, be borne in mind that Pascual did not predecease his mother,8
thus precluding the operation of the provisions in the Civil Code on the right
of representation9 with respect to his children, the respondents. When
Agatona Sagario Paulmitan died intestate in 1952, her two (2) sons Donato
and Pascual were still alive. Since it is well-settled by virtue of Article 777 of
the Civil Code that “[t]he rights to the succession are transmitted from the
moment of the death of the decedent,”10 the right of ownership, not only of
Donato but also of Pascual, over their respective shares in the inheritance
was automatically and by operation of law vested in them in 1953 when their
mother died intestate. At that stage, the children of Donato and Pascual did
not yet have any right over the inheritance since “[i]n every inheritance the
relative nearest in degree excludes the more distant ones.”11 Donato and
Pascual excluded their children as to the right to inherit from Agatona
Sagario Paulmitan, their mother.
From the time of the death of Agatona Sagario Paulmitan to the subsequent
passing away of her son Pascual in 1953, the estate remained unpartitioned.
Article 1078 of the Civil Code provides: “Where there are two or more heirs,
the whole estate of the decedent is, before its partition, owned in common
by such heirs, subject to the payment of debts of the deceased.”12 Donato
and Pascual Paulmitan were therefore, co-owners of the estate left by their
mother as no partition was ever made.
When Pascual Paulmitan died intestate in 1953, his children, the
respondents, succeeded him in the co-ownership of the disputed property.
Pascual Paulmitan’s right of ownership over an undivided portion of the
property passed on to his children, who, from the time of Pascual’s death,
became co-owners with their uncle Donato over the disputed decedent
estate.
Petitioner Juliana P. Fanesa claims ownership over Lot No. 1091 by virtue of
two transactions, namely: (a) the sale made in her favor by her father
Donato Paulmitan; and (b) her redemption of the land from the Provincial
Government of Negros Occidental after it was forfeited for non-payment of
taxes.
When Donato Paulmitan sold on May 28, 1974 Lot No. 1091 to his daughter
Juliana P. Fanesa, he was only a co-owner with respondents and as such, he
could only sell that portion which may be allotted to him upon termination of
the co-ownership.13 The sale did not prejudice the rights of respondents to
one half (1/2) undivided share of the land which they inherited from their

father. It did not vest ownership in the entire land with the buyer but
transferred only the seller’s pro-indiviso share in the property14 and
consequently made the buyer a co-owner of the land until it is partitioned. In
Bailon-Casilao v. Court of Appeals,15 The Court, through Justice Irene R.
Cortes, outlined the effects of a sale by one co-owner without the consent of
all the co-owners, thus:
“The rights of a co-owner of a certain property are clearly specified in Article
493 of the Civil Code. Thus:
Art.493.Each co-owner shall have the full ownership of his part and of the
fruits and benefits pertaining thereto, and he may therefore alienate, assign
or mortgage it and even substitute another person in its enjoyment, except
when personal rights are involved. But the effect of the alienation or
mortgage, with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the termination of the co-
ownership. [Italics supplied.]
As early as 1923, this Court has ruled that even if a co-owner sells the whole
property as his, the sale will affect only his own share but not those of the
other co-owners who did not consent to the sale [Punsalan v. Boon Liat, 44
Phil. 320 (1923)]. This is because under the aforementioned codal provision,
the sale or other disposition affects only his undivided share and the
transferee gets only what would correspond to his grantor in the partition of
the thing owned in common. [Ramirez v. Bautista, 14 Phil. 528 (1909)].
Consequently, by virtue of the sales made by Rosalia and Gaudencio Bailon
which are valid with respect to their proportionate shares, and the
subsequent transfers which culminated in the sale to private respondent
Celestino Afable, the said Afable thereby became a co-owner of the disputed
parcel of land as correctly held by the lower court since the sale produced
the effect of substituting the buyers in the enjoyment thereof [Mainit v.
Bandoy, 14 Phil. 730 (1910)].
From the foregoing, it may be deduced that since a co-owner is entitled to
sell his undivided share, a sale of the entire property by one co-owner
without the consent of the other co-owners is not null and void. However,
only the rights of the co-owner-seller are transferred, thereby making the
buyer a co-owner of the property.”
Applying this principle to the case at bar, the sale by petitioner Donato
Paulmitan of the land to his daughter, petitioner Juliana P. Fanesa, did not
give to the latter ownership over the entire land but merely transferred to
P r o p e r t y C a s e s N o . 8 P a g e | 32
her the one half (1/2) undivided share of her father, thus making her the co-
owner of the land in question with the respondents, her first cousins.
Petitioner Juliana P. Fanesa also claims ownership of the entire property by
virtue of the fact that when the Provincial Government of Negros Occidental
bought the land after it was forfeited for non-payment of taxes, she
redeemed it.
The contention is without merit.
The redemption of the land made by Fanesa did not terminate the co-
ownership nor give her title to the entire land subject of the co-ownership.
Speaking on the same issue raised by petitioners, the Court, in Adille v. Court
of Appeals,16 resolved the same with the following pronouncements:
“The petition raises a purely legal issue: May a co-owner acquire exclusive
ownership over the property held in common?
Essentially, it is the petitioners’ contention that the property subject of
dispute devolved upon him upon the failure of his co-heirs to join him in its
redemption within the period required by law. He relies on the provisions
Article 1515 of the old Civil Code, Article 1613 of the present Code, giving
the vendee a retro the right to demand redemption of the entire property.
There is no merit in this petition.
The right of repurchase may be exercised by a co-owner with respect to his
share alone (CIVIL CODE, art. 1612; CIVIL CODE (1889), art. (1514.). While
the records show that petitioner redeemed the property in its entirety,
shouldering the expenses therefor, that did not make him the owner of all of
it. In other words, it did not put to end the existing state of co-ownership
(Supra, Art. 489). There is no doubt that redemption of property entails a
necessary expense. Under the Civil Code:
ART.488.Each co-owner shall have a right to compel the other co-owners to
contribute to the expenses of preservation of the thing or right owned in
common and to the taxes. Any one of the latter may exempt himself from
this obligation by renouncing so much of his undivided interest as may be
equivalent to his share of the expenses and taxes. No such waiver shall be
made if it is prejudicial to the co-ownership.
 P r o p e r t y C a s e s N o . 8 P a g e | 33

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

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

Although petitioner Fanesa did not acquire ownership over the entire lot by
virtue of the redemption she made, nevertheless, she did acquire the right to
be reimbursed for half of the redemption price she paid to the Provincial
Government of Negros Occidental on behalf of her co-owners. Until
reimbursed, Fanesa holds 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.

SO ORDERED.

     Gutierrez, Jr. (Chairman), Bidin, Davide, Jr. and Melo, JJ., concur.
Petition denied; decision affirmed.
Note.—Rights to the succession are transmitted from the moment of the
death of the decedent (Jimenez vs. Fernandez, 184 SCRA 190).
——o0o——
G.R. No. 76351. October 29, 1993.*
VIRGILIO B. AGUILAR, petitioner, vs. COURT OF APPEALS and
SENEN B. AGUILAR, respondents.
Remedial Law; Civil Procedure; Pre-Trial; Pre-trial is mandatory; a party who
fails to appear at a pre-trial conference may be non-suited or considered as
in default.—As regards the first issue, the law is clear that the appearance of
parties at the pre-trial is mandatory. A party who fails to appear at a pre-trial
conference may be non-suited or considered as in default. In the case at bar,

where private respondent and counsel failed to appear at the scheduled pre-
trial, the trial court has authority to declare respondent in default.
Same; Same; Same; Same; Grant or denial of motion to postpone pre-trial
hearing is within the sound discretion of the trial court.—Although
respondent’s counsel filed a motion to postpone pre-trial hearing, the grant
or denial thereof is within the sound discretion of the trial court, which
should take into account two factors in the grant or denial of motions for
postponement, namely: (a) the reason for the postponement and (b) the
merits of the case of movant.
Same; Same; Same; Same; Same; Court sustains the trial court and rules
that it did not abuse its discretion in denying the postponement for lack of
merit.—In the instant case, the trial court found the reason stated in the
motion of counsel for respondent to cancel the pretrial to be without merit.
Counsel’s explanation that he had to go to Iloilo by boat as early as 25 March
1979 to fetch his wife and accompany her to a wedding in Dumaguete City
on 27 April 1979 where she was one of the principal sponsors, cannot be
accepted. We find it insufficient to justify postponement of the pre-trial, and
the Court of Appeals did not act wisely in overruling the denial. We sustain
the trial court and rule that it did not abuse its discretion in denying the
postponement for lack of merit. Certainly, to warrant a postponement of a
mandatory process as pre-trial would require much more than mere
attendance in a social function. It is time indeed we emphasize that there
should be much more than mere perfunctory treatment of the pre-trial
procedure. Its observance must be taken seriously if it is to attain its
objective, i.e., the speedy and inexpensive disposition of cases.
Same; Same; Same; Same; Same; Respondent should have personally
appeared in order not to be declared as in default.—Moreover, the trial court
denied the motion for postponement three (3) days before the scheduled
pre-trial. If, indeed, counsel for respondent could not attend the pre-trial on
the scheduled date, respondent at least should have personally appeared in
order not to be declared as in default. But, since nobody appeared for him,
the order of the trial court declaring him as in default and directing the
presentation of petitioner’s evidence ex parte was proper.
Civil Law; Property; Co-ownership; No co-owner shall be obliged to remain in
the co-ownership and that each co-owner may demand at any time partition
of the thing owned in common insofar as his share is concerned.—Article 494
of the Civil Code provides that no co-owner shall be obliged to remain in the
co-ownership, and that each co-owner may demand at any time partition of
the thing owned in common insofar as his share is concerned. Corollary to
this rule, Art. 498 of the Code states that whenever the thing is essentially
P r o p e r t y C a s e s N o . 8 P a g e | 34
indivisible and the co-owners cannot agree that it be allotted to one of them
who shall indemnify the others, it shall be sold and its proceeds accordingly
distributed. This is resorted to (1) when the right to partition the property is
invoked by any of the co-owners but because of the nature of the property it
cannot be subdivided or its subdivision would prejudice the interests of the
co-owners, and (b) the co-owners are not in agreement as to who among
them shall be allotted or assigned the entire property upon proper
reimbursement of the co-owners. In one case, this Court upheld the order of
the trial court directing the holding of a public sale of the properties owned
in common pursuant to Art. 498 of the Civil Code.
Same; Same; Same; 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 limitations than that he shall not injure the interests of his co-owners.
—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 so 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. 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.
Same; Same; Same; Co-ownership deemed terminated and the right to
enjoy possession jointly also ceased upon filing and the granting of action to
compel the sale of the property and the ejectment of respondent.—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.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Jose F. Manacop for petitioner.
Siruelo, Muyco & Associates Law Office for private respondent.
BELLOSILLO, J.:

This is a petition for review on certiorari seeking to reverse and set aside the
Decision of the Court of Appeals in CA-GR CV No. 03933 declaring null and
void the orders of 23 and 26 April, 1979, the judgment by default of 26 July
1979, and the 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.
Petitioner Virgilio and respondent Senen are brothers; Virgilio is the youngest
of seven (7) children of the late Maximiano Aguilar, while Senen is the fifth.
On 28 October 1969, the two brothers purchased a house and lot in
Parañaque where their father could spend and enjoy his remaining years in a
peaceful neighborhood. Initially, the brothers agreed that Virgilio's share in
the co-ownership was two-thirds while that of Senen was one-third. By virtue
of a written memorandum dated 23 February 1970, Virgilio and Senen
agreed that henceforth their 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 his possession
and enjoyment of the house together with their father.
Since Virgilio was then disqualified from obtaining a loan from SSS, the
brothers agreed that the deed of sale would be executed and the title
registered in the meantime in the name of Senen. It was further agreed that
Senen would take care of their father and his needs since Virgilio and his
family were staying in Cebu.
After Maximiano Aguilar died in 1974, petitioner demanded from private
respondent that the latter vacate the house and that the property be sold
and proceeds thereof divided among them.
Because of the refusal of respondent to give in to petitioner's demands, the
latter filed on 12 January 1979 an action to compel the sale of the house and
lot so that the they could divide the proceeds between them.
In his complaint, petitioner prayed that the proceeds of the sale, 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 rentals for the use of the
house by respondent after their father died.
In his answer with counterclaim, respondent alleged that he had no
objection to the sale as long as the best selling price could be obtained; that
if the sale would be effected, the proceeds thereof should be divided equally;
and, that being a co-owner, he was entitled to the use and enjoyment of the
property.
Upon issues being joined, the case was set for pre-trial on 26 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
P r o p e r t y C a s e s N o . 8 P a g e | 35
his lawyer 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 he would be accompanying
his wife to Dumaguete City where she would be a principal sponsor in a
wedding.
On 23 April 1979, finding the reasons of counsel to be without merit, the trial
court denied the motion and directed that the pre-trial should continue as
scheduled.
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 special power of attorney to represent
him at the pre-trial. Consequently, the trial court, on motion of plaintiff,
declared defendant as in default and ordered reception of plaintiff's
evidence ex parte.
On 7 May 1979, defendant through counsel filed an omnibus motion to
reconsider the order of default and to defer reception of evidence. The trial
court denied the motion and plaintiff presented his evidence.
On 26 July 1979, rendering judgment by default against defendant, the trial
court found him and plaintiff to be co-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 defendant's
continued enjoyment of the house and lot, free of rent, despite demands for
rentals and continued maneuvers of defendants, to delay partition. The trial
court also upheld the right of plaintiff as co-owner to demand partition. Since
plaintiff could not agree to the amount offered by defendant for the former's
share, the trial court held that this property should be sold to a third person
and the proceeds divided equally between the parties.
The trial court likewise ordered defendant to vacate the property and pay
plaintiff P1,200.00 as rentals2 from January 1975 up to the date of decision
plus interest from the time the action was filed.
On 17 September 1979, defendant filed an omnibus motion for new trial but
on 22 October 1979 the trial court denied the motion.
Defendant sought relief from the Court of Appeals praying that the following
orders and decision of the trial court be set aside: (a) the order of 23 April
1970 denying defendants motion for postponement of the pre-trial set on 26
April 1979; (b) the order of 26 April 1979 declaring him in default and
authorizing plaintiff to present his evidence ex-parte; (e) the default
judgment of 26 July 1979; and, (d) the order dated 22 October 1979 denying
his omnibus motion for new trial.

On 16 October 1986, the Court of Appeals set aside the order of the trial
court of 26 April 1979 as well as the assailed judgment rendered by default.,
The appellate court found the explanation of counsel for defendant in his
motion to cancel pre-trial as satisfactory and devoid of a manifest intention
to delay the disposition of the case. It also ruled that the trial court should
have granted the motion for postponement filed by counsel for defendant
who should not have been declared as in default for the absence of his
counsel.
Petitioner now comes to us alleging that the Court of Appeals erred (1) in not
holding that the motion of defendant through counsel to cancel the pre-trial
was dilatory in character and (2) in remanding the case to the trial court for
pre-trial and trial.
The issues to be resolved are whether the trial court correctly declared
respondent as in default for his failure to appear at the pre-trial and in
allowing petitioner to present his evidence ex-parte, and whether the trial
court correctly rendered the default judgment against respondent.
We find merit in the petition.
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 appear at a pre-trial
conference may be non-suited or considered as in default.4 In the case at
bar, where private respondent and counsel failed to appear at the scheduled
pre-trial, the trial, court has authority to declare respondent in default. 5
Although respondent's counsel filed a motion to postpone pre-trial hearing,
the grant or denial thereof is within the sound discretion of the trial court,
which should take into account two factors in the grant or denial of motions
for postponement, namely: (a) the reason for the postponement and (b) the
merits of the case of movant.6
In the instant case, the trial court found the reason stated in the motion of
counsel for respondent to cancel the pre-trial to be without merit. Counsel's
explanation that he had to go to by boat as early as 25 March 1979 to fetch
his wife and accompany her to a wedding in Dumaguete City on 27 April
1979 where she was one of the principal sponsors, cannot be accepted. We
find it insufficient to justify postponement of the pre-trial, and the Court of
Appeals did not act wisely in overruling the denial. We sustain the trial court
and rule that it did not abuse its discretion in denying the postponement for
lack of merit. Certainly, to warrant a postponement of a mandatory process
as pre-trial would require much more than mere attendance in a social
function. It is time indeed we emphasize that there should be much more
than mere perfunctory treatment of the pre-trial procedure. Its observance
must be taken seriously if it is to attain its objective, i.e., the speedy and
inexpensive disposition of cases.
P r o p e r t y C a s e s N o . 8 P a g e | 36
Moreover, the trial court denied the motion for postponement three (3) days
before the scheduled pre-trial. If indeed, counsel for respondent could not
attend the pre-trial on the scheduled date, respondent at least should have
personally appeared in order not to be declared as in default. But, since
nobody appeared for him, the order of the trial court declaring him as in
default and directing the presentation of petitioner's evidence ex parte was
proper.7
With regard to the merits of the judgment of the trial court by default, which
respondent appellate court did not touch upon in resolving the appeal, the
Court holds that on the basis of the pleadings of the parties and the evidence
presented ex parte, petitioner and respondents are co-owners of subject
house and lot in equal shares; either one of them may demand the sale of
the house and lot at any time and the other cannot object to such demand;
thereafter the proceeds of the sale shall be divided equally according to their
respective interests.
Private respondent and his family refuse to pay monthly rentals to petitioner
from the time their father died in 1975 and to vacate the house so that it can
be sold to third persons. Petitioner alleges that respondent's continued stay
in the property hinders its disposal to the prejudice of petitioner. On the part
of petitioner, he claims that he should be paid two-thirds (2/3) of a monthly
rental of P2,400.00 or the sum of P1,600.00.
In resolving the dispute, the trial court ordered respondent to vacate the
property so that it could be sold to third persons and the proceeds divided
between them equally, and for respondent to pay petitioner one-half (1/2) of
P2,400.00 or the sum of P1,200.00 as monthly rental, conformably with their
stipulated sharing reflected in their written agreement.
We uphold the trial court in ruling in favor of petitioner, except as to the
effectivity of the payment of monthly rentals by respondent as co-owner
which we here declare to commence only after the trial court ordered
respondent to vacate in accordance with its order of 26 July 1979.
Article 494 of the Civil Code provides that no co-owner shall be obliged to
remain in the co-ownership, and that each co-owner may demand at any
time partition of the thing owned in common insofar as his share is
concerned. Corollary to this rule, Art. 498 of the Code states that whenever
the thing is essentially, indivisible and the co-owners cannot agree that it be,
allotted to one of them who shall indemnify the others, it shall be sold and
its proceeds accordingly distributed. This is resorted to (1) when the right to
partition the property is invoked by any of the co-owners but because of the
nature of the property it cannot be subdivided or its subdivision would
prejudice the interests of the co-owners, and (b) the co-owners are not in
agreement as to who among them shall be allotted or assigned the entire
 P r o p e r t y C a s e s N o . 8 P a g e | 37

property upon proper reimbursement of the co-owners. In one case,8 this The trial court is further directed to take immediate steps to implement this
Court upheld the order of the trial court directing the holding of a public sale decision conformably with Art. 498 of the Civil Code and the Rules of Court.
of the properties owned in common pursuant to Art. 498 of the Civil Code. This decision is final and executory.
However, being a co-owner respondent has the right to use the house and SO ORDERED.
lot without paying any compensation to petitioner, as he may use the Cruz, Davide, Jr., Quiason, JJ., concur.
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
G.R. No. L-33187 March 31, 1980
co-ownership was deemed terminated and the right to enjoy the possession
jointly also ceased. Thereafter, the continued stay of respondent and his CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and
family in the house prejudiced the interest of petitioner as the property APOLONIA ONTE, petitioners, vs. VIVENCIO MORETO, VICTOR
should have been sold and the proceeds divided equally between them. To MORETO, ELIGIO MORETO, MARCELO MORETO, PAULINA MORETO,
this extent and from then on, respondent should be held liable for monthly ROSARIO MORETO, MARTA MORETO, SEVERINA MENDOZA, PABLO
rentals until he and his family vacate. MENDOZA, LAZARO MENDOZA, VICTORIA TUIZA, JOSEFINA
MORETO, LEANDRO MORETO and LORENZO MENDOZA,
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of
respondents.
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 Property; Sale; Equity; Laches; Estoppel; The petitioners are estopped from
REINSTATED, with the modification that respondent Senen B. Aguilar is assailing the reality of the sale of conjugal estate made by their widowed
ordered to vacate the premises in question within ninety (90) days from father where for years they and the vendees have been neighbors each
receipt of this and to pay petitioner Virgilio B. Aguilar a monthly rental of believing that the area occupied by the private respondents-vendees was the
P1,200.00 with interest at the legal rate from the time he received the one so sold and petitioners had not questioned the sale made by their father
decision of the trial court directing him to vacate until he effectively leaves of the area in question.—Again, there is no dispute that the houses of the
the premises. spouses Cornelio Pamplona and Apolonia Ante as well as that of their son

Rafael Pamplona, including the concrete piggery coral adjacent thereto,
stood on the land from 1952 up to the filing of the complaint by the private
respondents on July 25, 1961, or a period of over nine (9) years. And during
said period, the private respondents who are the heirs of Monica Maniega as
well as of Flaviano Moreto who also died intestate on August 12, 1956, lived
as neighbors to the petitioners-vendees, yet lifted no finger to question the
occupation, possession and ownership of the land purchased by the
Pamplonas, so that We are persuaded and convinced to rule that private
respondents are in estoppel by laches to claim half of the property in dispute
as null and void. Estoppel by laches is a rule of equity which bars a claimant
from presenting his claim when, by reason of abandonment and negligence,
he allowed a long time to elapse without presenting the same. (International
Banking Corporation vs. Yared, 59 Phil. 92).
Same; Same; A co-owner has the right to sell his portion of the co-owned
property. The sale of a particular lot thus co-owned by one co-owner where
within his right pro-indiviso is valid in it’s en-tirety.—We reject respondent
Court’s ruling that the sale was valid as to one-half and invalid as to the
other half for the very simple reason that Flaviano Moreto, the vendor, had
the legal right to more than 781 sq. meters of the communal estate, a title
which he could dispose, alienate in favor of the vendees-petitioners. The title
may be pro-indiviso or inchoate but the moment the co-owner as vendor
pointed out its location and even indicated the boundaries over which the
fences were to be erected without objection, protest or complaint by the
other co-owners, on the contrary they acquiesced and tolerated such
alienation, occupation and possession, We rule that a factual partition or
termination of the co-ownership, although partial, was created, and barred
not only the vendor, Flaviano Moreto, but also his heirs, the private
respondents herein from asserting as against the vendees-petitioners any
right or title in derogation of the deed of sale executed by said vendor
Flaviano Moreto.
Same; Same; Succession; Heirs are obliged to deliver land sold by their
parents to the vendee thereof.—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 onehalf
P r o p e r t y C a s e s N o . 8 P a g e | 38
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.
APPEAL from the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
E.P. Caguioa for petitioners.
Benjamin C. Yatco for respondents.
GUERRERO, J.:
This is a petition for certiorari  by way of appeal from the decision of the
Court of Appeals 1 in CA-G.R. No. 35962-R, entitled "Vivencio Moreto, et al.,
Plaintiff-Appellees vs. Cornelio Pamplona, et al., Defendants-Appellants,"
affirming the decision of the Court of First Instance of Laguna, Branch I at
Biñan.
The facts, as stated in the decision appealed from, show that:
Flaviano Moreto and Monica Maniega were husband and wife. During their
marriage, they acquired adjacent lots Nos. 1495, 4545, and 1496 of the
Calamba Friar Land Estate, situated in Calamba, Laguna, containing 781-544
and 1,021 square meters respectively and covered by certificates of title
issued in the name of "Flaviano Moreto, married to Monica Maniega."
The spouses Flaviano Moreto and Monica Maniega begot during their
marriage six (6) children, namely, Ursulo, Marta, La Paz, Alipio, Pablo, and
Leandro, all surnamed Moreto.
Ursulo Moreto died intestate on May 24, 1959 leaving as his heirs herein
plaintiffs Vivencio, Marcelo, Rosario, Victor, Paulina, Marta and Eligio, all
surnamed Moreto.
Marta Moreto died also intestate on April 30, 1938 leaving as her heir plaintiff
Victoria Tuiza.
La Paz Moreto died intestate on July 17, 1954 leaving the following heirs,
namely, herein plaintiffs Pablo, Severina, Lazaro, and Lorenzo, all surnamed
Mendoza.
Alipio Moreto died intestate on June 30, 1943 leaving as his heir herein
plaintiff Josefina Moreto.
Pablo Moreto died intestate on April 25, 1942 leaving no issue and as his
heirs his brother plaintiff Leandro Moreto and the other plaintiffs herein.
On May 6, 1946, Monica Maniega died intestate in Calamba, Laguna.

On July 30, 1952, or more than six (6) years after the death of his wife
Monica Maniega, Flaviano Moreto, without the consent of the heirs of his said
deceased wife Monica, and before any liquidation of the conjugal partnership
of Monica and Flaviano could be effected, executed in favor of Geminiano
Pamplona, married to defendant Apolonia Onte, the deed of absolute sale
(Exh. "1") covering lot No. 1495 for P900.00. The deed of sale (Exh. "1")
contained a description of lot No. 1495 as having an area of 781 square
meters and covered by transfer 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 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").
After the execution of the above-mentioned deed of sale (Exh. "1"), the
spouses Geminiano Pamplona and Apolonia Onte constructed their house on
the eastern part of lot 1496 as Flaviano Moreto, at the time of the sale,
pointed to it as the land which he sold to Geminiano Pamplona. Shortly
thereafter, Rafael Pamplona, son of the spouses Geminiano Pamplona and
Apolonia Onte, also built his house within lot 1496 about one meter from its
boundary with the adjoining lot. The vendor Flaviano Moreto and the vendee
Geminiano Pamplona thought 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 No. 1495 appears to be the subject matter in the deed of sale
(Exh. "1") although the fact is that the said portion sold thought of by the
parties to be lot No. 1495 is a part of lot No. 1496.
From 1956 to 1960, the spouses Geminiano Pamplona and Apolonio Onte
enlarged their house and they even constructed a piggery corral at the back
of their said house about one and one-half meters from the eastern
boundary of lot 1496.
On August 12, 1956, Flaviano Moreto died intestate. In 1961, the plaintiffs
demanded on the defendants to vacate the premises where they had their
house and piggery on the ground that Flaviano Moreto had no right to sell
the lot which he sold 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 consent of the
plaintiffs who are the heirs of Monica. The spouses Geminiano Pamplona and
Apolonia Onte refused to vacate the premises occupied by them and hence,
this suit was instituted by the heirs of Monica Maniega seeking for the
declaration of the nullity of the deed of sale of July 30, 1952 above-
mentioned as regards one-half of the property subject matter of said deed;
to declare the plaintiffs as the rightful owners of the other half of said lot; to
P r o p e r t y C a s e s N o . 8 P a g e | 39
allow the plaintiffs to redeem the one-half portion thereof sold to the
defendants. "After payment of the other half of the purchase price"; to order
the defendants to vacate the portions occupied by them; to order the
defendants to pay actual and moral damages and 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 occupancy of the same.
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 Flaviano Moreto and they
are purchasers believing in good faith that the vendor was the sole owner of
the lot sold.
After a relocation of lots 1495, 1496 and 4545 made by agreement of the
parties, it was found out that there was mutual error between Flaviano
Moreto and the defendants in the execution of the deed of sale because
while the said deed recited that the lot sold is lot No. 1495, the real intention
of the parties is that it was a portion consisting of 781 square meters of lot
No. 1496 which was the subject matter of their sale transaction.
After trial, the lower court rendered judgment, the dispositive part thereof
being as follows:
WHEREFORE, judgment is hereby rendered for the plaintiffs
declaring the deed of absolute sale dated July 30, 1952
pertaining to the eastern portion of Lot 1496 covering an
area of 781 square meters null and void as regards the
390.5 square meters of which plaintiffs are hereby declared
the rightful owners and entitled to its possession.
The sale is ordered valid with respect to the eastern one-half
(1/2) of 1781 square meters of Lot 1496 measuring 390.5
square meters of which defendants are declared lawful
owners and entitled to its possession.
After proper survey segregating the eastern one-half portion
with an area of 390.5 square meters of Lot 1496, the
defendants shall be entitled to a certificate of title covering
said portion and Transfer Certificate of Title No. 9843 of the
office of the Register of Deeds of Laguna shall be cancelled
accordingly and new titles issued to the plaintiffs and to the
defendants covering their respective portions.
Transfer Certificate of Title No. 5671 of the office of the
Register of Deeds of Laguna covering Lot No. 1495 and
registered in the name of Cornelio Pamplona, married to
Apolonia Onte, is by virtue of this decision 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. 5671 within thirty (30) days
after this decision shall have become final for cancellation in
accordance with this decision.
Let copy of this decision be furnished the Register of Deeds
for the province of Laguna for his information and guidance.
With costs against the defendants. 2
The defendants-appellants, not being satisfied with said judgment, appealed
to the Court of Appeals, which affirmed the judgment, hence they now come
to this Court.
The fundamental and crucial issue in the case at bar is whether under the
facts and circumstances duly established by the evidence, petitioners are
entitled to the full ownership of the property in litigation, or only one-half of
the same.
There is no question that when the petitioners purchased the property on
July 30, 1952 from Flaviano Moreto for the price of P900.00, his wife Monica
Maniega had already been dead six years before, Monica having died on May
6, 1946. Hence, the conjugal partnership of the spouses Flaviano Moreto and
Monica Maniega had already been dissolved. (Article 175, (1) New Civil Code;
Article 1417, Old Civil Code). The records show that the conjugal estate had
not been inventoried, liquidated, settled and divided by the heirs thereto in
accordance with law. The necessary proceedings for the liquidation of the
conjugal partnership were not instituted by the heirs either in the testate or
intestate proceedings of the deceased spouse pursuant to Act 3176
amending Section 685 of Act 190. Neither was there an extra-judicial
partition between the surviving spouse and the heirs of the deceased spouse
nor was an ordinary action for partition brought for the purpose. Accordingly,
the estate became the property of a community between the surviving
husband, Flaviano Moreto, and his children with the deceased Monica
Maniega in the concept of a co-ownership.
The community property of the marriage, at the dissolution
of this bond by the death of one of the spouses, ceases to
belong to the legal partnership and becomes the property of
a community, by operation of law, between the surviving
spouse and the heirs of the deceased spouse, or the
exclusive property of 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 the fruits and benefits
derived therefrom, and he therefore may alienate, assign or
mortgage it, and even substitute another person in its
P r o p e r t y C a s e s N o . 8 P a g e | 40
enjoyment, unless personal rights are in question. (Marigsa
vs. Macabuntoc, 17 Phil. 107)
In Borja vs. Addision, 44 Phil. 895, 906, the Supreme Court said that "(t)here
is no reason in law why the heirs of the deceased wife may not form a
partnership with the surviving 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 husband, as administrator of the community
property, has authority to sell the property withut the concurrence of the
children of the marriage, nevertheless this power can be waived in favor of
the children, with the result of bringing about a conventional ownership in
common between the father and children as to such property; and any one
purchasing with knowledge of the changed status of the property will acquire
only the undivided interest of those members of the family who join in the
act of conveyance.
It is also not disputed that immediately after the execution of the sale in
1952, the vendees constructed their house on the eastern part of Lot 1496
which the vendor pointed out to them as the area sold, and two weeks
thereafter, Rafael who is a son of the vendees, also built his house within Lot
1496. Subsequently, a cemented piggery coral was constructed by the
vendees at the back of their house about one and one-half meters from the
eastern boundary of Lot 1496. Both vendor and vendees believed all the time
that the area of 781 sq. meters subject of the sale was Lot No. 1495 which
according to its title (T.C.T. No. 14570) contains an area of 781 sq. meters
so that the deed of sale between the parties Identified and described the
land sold as Lot 1495. But actually, as verified later by a surveyor upon
agreement of the parties during the proceedings of the case below, the area
sold was within Lot 1496.
Again, there is no dispute that the houses of the spouses Cornelio Pamplona
and Apolonia Onte as well as that of their son Rafael Pamplona, including the
concrete piggery coral adjacent thereto, stood on the land from 1952 up to
the filing of the complaint by the private respondents on July 25, 1961, or a
period of over nine (9) years. And during said period, the private
respondents who are the heirs of Monica Maniega as well as of Flaviano
Moreto who also died intestate on August 12, 1956, lived as neighbors to the
petitioner-vendees, yet lifted no finger to question the occupation,
possession and ownership of the land purchased by the Pamplonas, so that
We are persuaded and convinced to rule that private respondents are in
estoppel by laches to claim half of the property, in dispute as null and void.

Estoppel by laches is a rule of equity which bars a claimant from presenting
his claim when, by reason of abandonment and negligence, he allowed a
long time to elapse without presenting the same. (International Banking
Corporation vs. Yared, 59 Phil. 92)
We have ruled that at the time of the sale in 1952, the conjugal partnership
was already dissolved six years before and therefore, the estate became a
co-ownership between Flaviano Moreto, the surviving husband, and the heirs
of his deceased wife, Monica Maniega. Article 493 of the New Civil Code is
applicable and it provides a follows:
Art. 493. Each co-owner shall have the full ownership of his
part and of the fruits and benefits pertaining thereto, and he
may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when
personal rights are involve. But the effect of the alienation or
the mortgage, with respect to the co-owners, shall be limited
to the portion which may be allotted to him in the division
upon the termination of the co-ownership.
We agree with the petitioner that there was a partial partition of the co-
ownership when at the time of the sale Flaviano Moreto pointed out the area
and location of the 781 sq. meters sold by him to the petitioners-vendees on
which the latter built their house and also that whereon Rafael, the son of
petitioners likewise erected his house and an adjacent coral for piggery.
Petitioners point to the fact that spouses Flaviano Moreto and Monica
Maniega owned three parcels of land denominated as Lot 1495 having an
area of 781 sq. meters, Lot 1496 with an area of 1,021 sq. meters, and Lot
4545 with an area of 544 sq. meters. The three lots have a total area of
2,346 sq. meters. These three parcels of lots are contiguous with one
another as each is bounded on one side by the other, thus: Lot 4545 is
bounded on the northeast by Lot 1495 and on the southeast by Lot 1496.
Lot 1495 is bounded on the west by Lot 4545. Lot 1496 is bounded on the
west by Lot 4545. It is therefore, clear that the three lots constitute one big
land. They are not separate properties located in different places but they
abut each other. This is not disputed by private respondents. Hence, at the
time of the sale, the co-ownership constituted or covered these three lots
adjacent to each other. And since Flaviano Moreto was entitled to one-half
pro-indiviso of the entire land area or 1,173 sq. meters as his share, he had
a perfect legal and lawful right to dispose of 781 sq. meters of his share to
the Pamplona spouses. Indeed, there was still a remainder of some 392 sq.
meters belonging to him at the time of the sale.
We reject respondent Court's ruling that the sale was valid as to one-half and
invalid as to the other half for the very simple reason that Flaviano Moreto,
P r o p e r t y C a s e s N o . 8 P a g e | 41
the vendor, had the legal right to more than 781 sq. meters of the communal
estate, a title which he could dispose, alienate in favor of the vendees-
petitioners. The title may be pro-indiviso or inchoate but the moment the co-
owner as vendor pointed out its location and even indicated the boundaries
over which the fences were to be erectd without objection, protest or
complaint by the other co-owners, on the contrary they acquiesced and
tolerated such alienation, occupation and possession, We rule that a factual
partition or termination of the co-ownership, although partial, was created,
and barred not only the vendor, Flaviano Moreto, but also his heirs, the
private respondents herein from asserting as against the vendees-petitioners
any right or title in derogation of the deed of sale executed by said vendor
Flaiano Moreto.
Equity commands that the private respondents, the successors of both the
deceased spouses, Flaviano Moreto and Monica Maniega be not allowed to
impugn the sale executed by Flaviano Moreto who indisputably received the
consideration of P900.00 and which he, including his children, benefitted
from the same. Moreover, as the heirs of both Monica Maniega and Flaviano
Moreto, private respondents are duty-bound to comply with the provisions of
Articles 1458 and 1495, Civil Code, which is the obligation of the vendor of
the property of delivering and transfering the ownership of the whole
property sold, which is transmitted on his death to his heirs, the herein
private respondents. The articles cited provide, thus:
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 equivalent.
A contract of sale may be absolute or conditionial.
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 sale.
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.
 P r o p e r t y C a s e s N o . 8 P a g e | 42

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.
WHEREFORE, IN VIEW OF THE FOREGOING, the 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 stand.
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.
No. L-25014. October 17, 1973.
SO ORDERED.
DOLORES LAHORA VDA. DE CASTRO, ARSENIO DE CASTRO, JR.,
Teehankee (Chairman), Makasiar, Fernandez, De Castro and Melencio- WlLFREDO DE CASTRO, IRINEO DE CASTRO and VlRGINIA DE
Herrera, JJ., concur. CASTRO ALEJANDRO, (in substitution for the deceased defendant-
appellant ARSENIO DE CASTRO, SR.)., petitioners, vs. GREGORIO ATIENZA,
respondent.
Co-ownership; Co-owner may validly lease his half-interest to third party
independently of other co-owner; Case at bar.—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 benefits pertaining 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 coowners, shall be limited to
the portion which may be allotted to him in the division upon the termination
of the co-ownership.”
APPEAL from a judgment of the Court of Appeals.
The facts are stated in the opinion of the Court.
Arsenio de Castro, Jr. & F.T. Papa for petitioners.
Dakila Castro & Z.D. de Mesa for respondent.

TEEHANKEE, J.:
The Court rejects petitioners' appeal as without merit and affirms the
judgment of the appellate court. Petitioners' predecessor-in-interest as co-
owner of an undivided one-half interest in the fishpond could validly lease his
interest to a third party, respondent Atienza, independently of his co-owner
(although said co-owner had also leased his other undivided one-half interest
to the same third party) and could likewise by mutual agreement
independently cancel his lease agreement with said third party. Said
predecessor-in-interest (and petitioners who have substituted him as his
heirs) therefore stands liable on his express undertaking to refund the
advance 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.
The Court of Appeals, in its decision affirming in toto the judgment of the
Manila court of first instance ordering therein defendant-appellant Arsenio de
Castro, Sr. (now deceased and substituted by above-named petitioners as his
heirs) "to return to the plaintiff (respondent) Gregorio Atienza the sum
P2,500.00 with legal interest from the date of the filing of 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 January 24, 1956 the brothers Tomas de Castro and
Arsenio de Castro, Sr. leased to plaintiff a fishpond
containing an area of 26 hectares situated in Polo, Bulacan
and forming part of a bigger parcel of land covered by
Transfer Certificate of Title No. 196450 of the registry of the
property of Bulacan. The lessors are co-owners in equal
shares of the leased property.
According to the contract of lease (Exh. 1) the term of the
lease was for five years from January 24, 1956 at a rental of
P5,000 a year, the first year's rental to be paid on February
1, 1956, the second on February 1, 1957 and the rental for
the last three years on February 1, 1958. The first year's
rental was paid on time.
In the meantime, Tomas de Castro died.
In the month of November, 1956, plaintiff as lessee and
defendant Arsenio de Castro, Sr. as one of the lessors,
agreed to set aside and annul the contract of lease and for
this purpose an agreement (Exh. A) was signed by them,
Exhibit A as signed by plaintiff and defendant shows that
Felisa Cruz Vda. de 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.
P r o p e r t y C a s e s N o . 8 P a g e | 43
Condition No. 2 of Exhibit A reads as follows:
"2. Na sa pamamagitan nito ay pinawawalang kabuluhan
namin ang nasabing kasulatan at nagkasundo kami na ang
bawat isa sa amin ni Arsenio de Castro at Felisa Cruz Vda.
de Castro ay isauli kay GREGORIO ATIENZA ang tig
P2,500.00 o kabuuang halagang P5,000.00 na paunang
naibigay nito alinsunod sa nasabing kasulatan; na ang
nasabing tig P2,500.00 ay isasauli ng bawat isa sa amin sa o
bago dumating ang Dec. 30, 1956."
Felisa Cruz Vda. de Castro refused to sign Exhibit A.
Defendant did not pay the P2,500.00 which under the
above-quoted paragraph of Exhibit A, he should have paid
on December 30, 1956. Demand for payment was made by
plaintiff's counsel on January 7, 1957 but to no avail, hence
the present action.
On the conflicting contentions between the parties as to who between them
would attend to securing the signature of Mrs. Felisa Cruz Vda. de Castro
(widow of Tomas de Castro) to the agreement of cancellation of the lease
with respondent Atienza, the appellate court found that "the testimony of the
defendant (Arsenio de Castro, Sr.) ... supports the contention of the plaintiff
(Atienza) "that it was the defendant Arsenio who was interested and
undertook to do so, citing Arsenio's own declaration that "I agreed to sign
this document (referring to the cancellation) because of my desire to cancel
our original agreement" and that his purpose in obtaining the cancellation of
said lease agreement with plaintiff Atienza was "(B)ecause I had the
intention of having said fishpond leased to other persons and I cannot lease
it to third parties unless I can secure the signature of Felisa Vda. de Castro."
The appellate court thus held in effect that as Arsenio "was the 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 such signature to elude his own undertaking and
liability to refund respondent (plaintiff) his share of the rental paid in
advance by respondent on the cancelled lease in the sum of P2,500.00.
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 benefits pertaining 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.
Makalintal, Actg. C.J., Zaldivar, Castro, Fernando, Barredo, Makasiar, Antonio
and Esguerra, JJ., concur.
P r o p e r t y C a s e s N o . 8 P a g e | 44
G.R. No. 137152. January 29, 2001.*
CITY OF MANDALUYONG, petitioner, vs. ANTONIO N., FRANCISCO
N., THELMA N., EUSEBIO N., RODOLFO N., all surnamed AGUILAR,
respondents.
Constitutional Law; Expropriation; Order in acquiring lands for socialized
housing.—Lands for socialized housing are to be acquired in the following
order: (1) government lands; (2) alienable lands of the public domain; (3)
unregistered or abandoned or idle lands; (4) lands within the declared Areas
for Priority Development (APD), Zonal Improvement Program (ZIP) sites,
Slum Improvement and Resettlement (SIR) sites which have not yet been
acquired; (5) BLISS sites which have not yet been acquired; and (6)
privately-owned lands.
Same; Same; Modes for acquiring lands for socialized housing under
Republic Act 7279; Mode of expropriation is subject to two conditions.—
Lands for socialized housing under R.A. 7279 are to be acquired in several
modes. Among these modes are the following: (1) community mortgage; (2)
land swapping; (3) land assembly or consolidation; (4) land banking; (5)
donation to the government; (6) joint venture agreement; (7) negotiated
purchase; and (8) expropriation. The mode of expropriation is subject to two
conditions: (a) it shall be resorted to only when the other modes of
acquisition have been exhausted; and (b) parcels of land owned by small
property owners are exempt from such acquisition.
Same; Same; The type of lands that may be acquired in the order of priority
in Section 9 are to be acquired only in the modes authorized under Section
20.—Section 9 of R.A. 7279 speaks of priorities in the acquisition of lands. It
enumerates the type of lands to be acquired and the heirarchy in their
acquisition. Section 10 deals with the modes of land acquisition or the
process of acquiring lands for socialized housing. These are two different
things. They mean that the type of lands that may be acquired in the order
of priority in Section 9 are to be acquired only in the modes authorized under
Section 10. The acquisition of the lands in the priority list must be made
subject to the modes and conditions set forth in the next provision. In other
words, land that lies within the APD, such as in the instant case, may be

acquired only in the modes under, and subject to the conditions of Section
10.
Same; Same; Republic Act No. 7279 limits the size of the land sought to be
expropriated for socialized housing.—While we adhere to the expanded
notion of public use, the passage of R.A. No. 7279, the “Urban Development
and Housing Act of 1992” introduced a limitation on the size of the land
sought to be expropriated for socialized housing. The law expressly
exempted “small property owners” from expropriation of their land for urban
land reform.
Same; Same; Two elements defining “Small-Property Owners.”—“Small-
property owners” are defined by two elements: (1) those owners of real
property whose property consists of residential lands with an area of not
more than 300 square meters in highly urbanized cities and 800 square
meters in other urban areas; and (2) that they do not own real property
other than the same.
Civil Law; Property; Co-ownership; During the existence of the co-ownership,
no individual can claim title to any definite portion of the community property
until the partition thereof and prior to the partition ail-that the co-owner has
is an ideal or abstract quota or proportionate share in the entire land or
thing.—Under a co-ownership, the ownership of an undivided thing or right
belongs to different persons. During the existence of the co-ownership, no
individual can claim title to any definite portion of the community property
until the partition thereof, and prior to the partition, all that the co-owner
has is an ideal or abstract quota or proportionate share in the entire land or
thing, x x x Before partition in a co-ownership, every co-owner has the
absolute ownership of his undivided interest in the common property. The
co-owner is free to alienate, assign or mortgage his interest, except as to
purely personal rights. He may also validly lease his undivided interest to a
third party independently of the other co-owners. The effect of any such
transfer is limited to the portion which may be awarded to him upon the
partition of the property.
Same; Same; Same; The rights of the co-owners to have the property
partitioned and their share in the same delivered to them cannot be
questioned for no co-owner shall be obliged to remain in the co-ownership.—
As co-owners, all that the respondents had was an ideal or abstract quota or
proportionate share in the lots. This, however, did not mean that they could
not separately exercise any rights over the lots. Each respondent had the full
ownership of his undivided interest in the property. He could freely sell or
dispose of his interest independently of the other co-owners. And this
interest could have even been attached by his creditors. The partition in
1998, six (6) months after the filing of the expropriation case, terminated the
P r o p e r t y C a s e s N o . 8 P a g e | 45
co-ownership by converting into certain and definite parts the respective
undivided shares of the co-owners. The subject property is not a thing
essentially indivisible. The rights of the co-owners to have the property
partitioned and their share in the same delivered to them cannot be
questioned for “[n]o co-owner shall be obliged to remain in the co-
ownership.” The partition was merely a necessary incident of the co-
ownership; and absent any evidence to the contrary, this partition is
presumed to have been done in good faith.
PETITION for review on certiorari of a decision of the Regional Trial Court of
Pasig City, Br. 168.
The facts are stated in the opinion of the Court.
Jimmy D. Lacebal for petitioner.
Ricardo J.M. Rivera Law Office for private respondents.
PUNO, J.:
This is a petition for review under Rule 45 of the Rules of Court of the Orders
dated September 17, 1998 and December 29, 1998 of the Regional Trial
Court, Branch 168, Pasig City1 dismissing the petitioner's Amended Complaint
in SCA No. 1427 for expropriation of two (2) parcels of land in Mandaluyong
City. 1âwphi1.nêt
The antecedent facts are as follows:
On August 4, 1997, petitioner filed with the Regional Trial Court, Branch 168,
Pasig City a complaint for expropriation entitled "City of Mandaluyong,
plaintiff v. Antonio N., Francisco N, Thelma N, Eusebio N, Rodolfo N., all
surnamed Aguilar, defendants."  Petitioner sought to expropriate three (3)
adjoining parcels of land with an aggregate area of 1,847 square meters
registered under Transfer Certificates of Title Nos. 59780, 63766 and 63767
in the names of the defendants, herein respondents, located at 9 de Febrero
Street, Barangay Mauwag, City of Mandaluyong; on a portion of the 3 lots,
respondents constructed residential houses several decades ago which they
had since leased out to tenants until the present; on the vacant portion of
the lots, other families constructed residential structures which they likewise
occupied; in 1983, the lots were classified by Resolution No. 125 of the
Board of the Housing and Urban Development Coordinating Council as an
Area for Priority Development for urban land reform under Proclamation Nos.
1967 and 2284 of then President Marcos; as a result of this classification, the
tenants and occupants of the 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, adopted Resolution
No. 516, Series of 1996 authorizing Mayor Benjamin Abalos of the City of

Mandaluyong to initiate action for the expropriation of the subject lots and
construction of a medium-rise condominium for qualified occupants of the
land; on January 10, 1996, Mayor Abalos sent a letter to respondents
offering to purchase the said property at P3,000.00 per square meter;
respondents did not answer the letter. Petitioner thus prayed for the
expropriation of the said lots and the fixing of just compensation at the fair
market value of P3,000.00 per square meter.2
In their answer, respondents, except Eusebio N. Aguilar who died in 1995,
denied having received a copy of Mayor Abalos' offer to purchase their lots.
They alleged that the 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 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
Respondents filed a "Motion for Preliminary Hearing" claiming that the
defenses alleged in their Answer are valid grounds for dismissal of the
complaint for lack of jurisdiction over the person of the defendants and lack
of cause of action. Respondents prayed that the affirmative defenses be set
for preliminary hearing and that the complaint be dismissed.4 Petitioner
replied.
On November 5, 1997, petitioner filed an Amended Complaint and named as
an additional defendant Virginia N. Aguilar and, at the same time, substituted
Eusebio Aguilar with his heirs. Petitioner also excluded from expropriation
TCT No. 59870 and thereby reduced the area sought to be expropriated from
three (3) parcels of land to two (2) parcels totalling 1,636 square meters
under TCT Nos. 63766 and 63767.5
The Amended Complaint was admitted by the trial court on December 18,
1997. Respondents, who, with the exception of Virginia Aguilar and the Heirs
of Eusebio Aguilar had yet to be served with summons and copies of the
Amended Complaint, filed a "Manifestation and Motion" adopting their
"Answer with Counterclaim" and "Motion for Preliminary Hearing" as their
answer to the Amended Complaint. 6
The motion was granted. At the hearing of February 25, 1998, respondents
presented Antonio Aguilar who testified and identified several documentary
evidence. Petitioner did not present any evidence. Thereafter, both parties
filed their respective memoranda. 7
On September 17, 1998, the trial court issued an order dismissing the
Amended Complaint after declaring respondents as "small property owners"
whose land is exempt from expropriation under Republic Act No. 7279. The
P r o p e r t y C a s e s N o . 8 P a g e | 46
court also found that the expropriation was not for a public purpose for
petitioner's failure to present any evidence that the intended beneficiaries of
the expropriation are landless and homeless residents of Mandaluyong. The
court thus disposed of as follows:
"WHEREFORE, the Amended Complaint is hereby ordered dismissed
without pronouncement as to cost.
SO ORDERED."8
Petitioner moved for reconsideration. On December 29, 1998, the court
denied the motion. Hence this petition.
Petitioner claims that the trial court erred
"IN UPHOLDING RESPONDENT'S CONTENTION THAT THEY QUALIFY
AS SMALL PROPERTY OWNERS AND ARE THUS EXEMPT FROM
EXPROPRIATION."9
Petitioner mainly claims that the size of the lots in litigation does not exempt
the same from expropriation in view of the fact that the said lots have been
declared to be within the Area for Priority Development (APD) No. 5 of
Mandaluyong by virtue of Proclamation No. 1967, as amended by
Proclamation No. 2284 in relation to Presidential Decree No. 1517.10 This
declaration allegedly authorizes petitioner to expropriate the property, ipso
facto,  regardless of the area of the land.
Presidential Decree (P.D.) No. 1517, the Urban Land Reform Act, was issued
by then President Marcos in 1978. The decree adopted as a State policy the
liberation of human communities from blight, congestion and hazard, and
promotion of their development and modernization, the optimum use of land
as a national resource for public 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 Proclamation No. 2284 which
identified and specified 245 sites in Metro Manila as Areas for Priority
Development and Urban Land Reform Zones.
In 1992, the Congress of the Philippines passed Republic Act No. 7279, the
"Urban Development and Housing Act of 1992." The law lays down as a
policy that the state, in cooperation with the private sector, undertake a
comprehensive and continuing Urban Development and Housing Program;
uplift the conditions of the underprivileged and homeless citizens in urban,
areas and resettlement areas by making available to them decent housing at
affordable cost, basic services and employment opportunities and provide for
the rational use and development of urban land to bring about, among
others, equitable utilization of residential lands; encourage more effective
people's participation in the urban development process and improve the

capability of local government units in undertaking urban development and
housing programs and projects.12 Towards this end, all city and municipal
governments are mandated to conduct an inventory of all lands and
improvements within their respective localities, and in coordination with the
National Housing Authority, the Housing and Land Use Regulatory Board, the
National Mapping Resource Information Authority, and the Land
Management Bureau, identify lands for socialized housing and resettlement
areas for the immediate and future needs of the underprivileged and
homeless in the urban areas, acquire the lands, and dispose of said lands
to the beneficiaries of the program.13
The acquisition of lands for socialized housing is governed by several
provisions in the law. Section 9 of R.A. 7279 provides:
"Sec.  9. Priorities in the Acquisition of Land. —  Lands for socialized
housing shall be acquired in the following order:
(a) Those owned by the Government or any of its
subdivisions, instrumentalities, or agencies, including
government-owned or controlled corporations and their
subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas for Priority
Development, Zonal Improvement Program sites, and Slum
Improvement and Resettlement Program sites which have
not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and Services or
BLISS Sites which have not yet been acquired;
(f) Privately-owned lands.
Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities mentioned in this
section shall not apply. The local government units shall give
budgetary priority to on-site development of government lands."
Lands for socialized housing are to be acquired in the following order: (1)
government lands; (2) alienable lands of the public domain; (3) unregistered
or abandoned or idle lands; (4) lands within the declared Areas for Priority
Development (APD), Zonal Improvement Program (ZIP) sites, Slum
Improvement and Resettlement (SIR) sites which have not yet been
acquired; (5) BLISS sites which have not yet been acquired; and (6)
privately-owned lands.
There is no dispute that the two lots in litigation are privately-owned and
therefore last in the order of priority acquisition. However, the law also
P r o p e r t y C a s e s N o . 8 P a g e | 47
provides that lands within the declared APD's which have not yet been
acquired by the government are fourth in the order of priority. According to
petitioner, since the subject lots lie within the declared APD, this fact
mandates that the lots be given priority in acquisition.14
Section 9, however, is not a single provision that can be read separate from
the other provisions of the law. It must be read together with Section 10 of
R.A. 7279 which also provides:
"Section  10. Modes of Land Acquisition. —  The modes of acquiring
lands for purposes of this Act shall include, among others,
community mortgage, land swapping, land assembly or
consolidation, land banking, donation to the Government, joint-
venture agreement, negotiated purchase, and
expropriation: Provided, however,  That expropriation shall be
resorted to only when other modes of acquisition have been
exhausted: Provided, further,  That where expropriation is
resorted to, parcels of land owned by small property owners
shall be exempted for purposes of this Act: Provided,
finally,  That abandoned property, as herein defined, shall be
reverted and escheated to the State in a proceeding analogous to
the procedure laid down in Rule 91 of the Rules of Court. 15
For the purposes of socialized housing, government-owned and
foreclosed properties shall be acquired by the local government
units, or by the National Housing Authority primarily through
negotiated purchase: Provided,  That qualified beneficiaries who are
actual occupants of the land shall be given the right of first refusal."
Lands for socialized housing under R.A. 7279 are to be acquired in several
modes. Among these modes are the following: (1) community mortgage; (2)
land swapping, (3) land assembly or consolidation; (4) land banking; (5)
donation to the government; (6) joint venture agreement; (7) negotiated
purchase; and (8) expropriation. The mode of expropriation is subject to two
conditions: (a) it shall be resorted to only when the other modes of
acquisition have been exhausted; (b) parcels of land owned by small
property owners are exempt from such acquisition.
Section 9 of R.A. 7279 speaks of priorities in the acquisition of lands. It
enumerates the type of lands to be acquired and the heirarchy in their
acquisition. Section 10 deals with the modes of land acquisition or the
process of acquiring lands for socialized housing. These are two different
things. They mean that the type of lands that may be acquired in the
order of priority in Section 9 are to be acquired only in the modes
authorized under Section 10. The acquisition of the lands in the priority
list must be made subject to the modes and conditions set forth in the next

provision. In other words, land that lies within the APD, such as in the
instant case, may be acquired only in the modes under, and subject to the
conditions of, Section 10.
Petitioner claims that it had faithfully observed the different modes of land
acquisition for socialized housing under R.A. 7279 and adhered to the
priorities in the acquisition for socialized housing under said law. 16 It,
however, did not state with particularity whether it exhausted the other
modes of acquisition in Section 9 of the law before it decided to expropriate
the subject lots. The law states "expropriation shall be resorted to when
other modes of acquisition have been exhausted." Petitioner alleged only one
mode of acquisition, i.e., by negotiated purchase. Petitioner, through the City
Mayor, tried to purchase the lots from respondents but the latter refused to
sell.17 As to the other modes of acquisition, no mention has been made. Not
even Resolution No. 516, Series of 1996 of the Sangguniang Panlungsod
authorizing the Mayor of Mandaluyong to effect the expropriation of the
subject property states whether the city government tried to acquire the
same by community mortgage, land swapping, land assembly or
consolidation, land banking, donation to the government, or joint venture
agreement under Section 9 of the law.
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 conditioned on the size of the land sought to
be expropriated.19 By the expanded notion of public use, present
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 property does not diminish its public use character. 21 It
simply is not possible to provide, in one instance, land and shelter for all who
need them.22
While we adhere to the expanded notion of public use, the passage of R.A.
No. 7279, the "Urban Development and Housing Act of 1992" introduced a
limitation on the size of the 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
Senate Bill No. 234 authored by Senator Joey Lina23 and House Bill No.
34310. Senate Bill No. 234 then provided that one of those lands not covered
by the urban land reform and housing program was "land actually used by
small property owners within the just and equitable retention limit as
provided under this Act."24 "Small property owners" were defined in Senate
Bill No. 234 as:
P r o p e r t y C a s e s N o . 8 P a g e | 48
"4. Small Property Owners — are those whose rights are protected
under Section 9, Article XIII of the Constitution of the Philippines,
who own small parcels of land within the fair and just retention limit
provided under this Act and which are adequate to meet the
reasonable needs of the small property owner's family and their
means of livelihood.25
The exemption from expropriation of lands of small-property owners was
never questioned on the Senate floor.26 This exemption, although with a
modified definition, was actually retained in the consolidation of Senate Bill
No. 234 and House Bill No. 34310 which became R.A. No. 7279.27
The question now is whether respondents qualify as "small property owners"
as defined in Section 3 (q) of R.A. 7279. Section 3 (q) provides:
"Section  3 x x x  (q).  "Small property owners" refers to those whose
only real property consists of residential lands not exceeding three
hundred square meters (300 sq.m.) in highly urbanized cities and
eight hundred square meters (800 sq.m.) in other urban areas."
"Small-property owners" are defined by two elements: (1) those owners of
real property whose property consists of residential lands with an area of not
more than 300 square meters in highly urbanized cities and 800 square
meters in other urban areas; and (2) that they do not own real property
other than the same.
The case at bar involves two (2) residential lots in Mandaluyong City, a
highly urbanized city. The lot under TCT No. 63766 is 687 square meters in
area and the second under TCT No. 63767 is 949 square meters, both
totalling 1,636 square meters in area. TCT No. 63766 was issued in the
names of herein five (5) respondents, viz:
"FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR, single;
EUSEBIO N. AGUILAR, JR., widower; RODOLFO N. AGUILAR, single
and ANTONIO N. AGUILAR, married to Teresita Puig; all of legal age,
Filipinos."28
TCT No. 63767 was issued in the names of the five (5)
respondents plus  Virginia Aguilar, thus:
"FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR, single;
EUSEBIO N. AGUILAR, JR., widower; RODOLFO N. AGUILAR, single
and ANTONIO N. AGUILAR, married to Teresita Puig; and VIRGINIA
N. AGUILAR, single, all of legal age, Filipinos."29
Respondent Antonio Aguilar testified that he and the other registered owners
are all siblings who inherited the subject property by intestate succession
from their parents.30 Their father died in 1945 and their mother in
1976.31 Both TCT's were issued in the siblings' names on September 2,

1987.31 In 1986, however, the siblings agreed to extrajudicially partition the
lots among themselves, but no action was taken by them to this end. It was
only eleven (11) years later, on November 28, 1997 that a survey of the two
lots was made33 and on February 10, 1998, a consolidation subdivision plan
was approved by the Lands Management Service of the Department of
Environment and Natural Resources.34 The co-owners signed a Partition
Agreement on February 24, 199835 and on May 21, 1998, TCT Nos. 63766
and 63767 were cancelled and new titles issued in the names of the
individual owners pursuant to the Partition Agreement.
Petitioner argues that the consolidation of the subject lots and their partition
was made more than six (6) months after the complaint for expropriation
was filed on August 4, 1997, hence, the partition was made in bad faith, for
the purpose of circumventing the provisions of R.A. 7279.36
At the time of filing of the complaint for expropriation, the lots subject of this
case were owned in common by respondents; Under a co-ownership, the
ownership of an undivided thing or right belongs to different
persons.37 During the existence of the co-ownership, no individual can claim
title to any definite portion of the community property until the partition
thereof; and prior to the partition, all that the co-owner has is an ideal or
abstract quota or proportionate share in the entire land or thing. 38 Article 493
of the Civil Code however provides that:
"Art.  493. Each co-owner shall have the full ownership of his part
and of the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are
involved. But the effect of the alienation or the mortgage, with
respect to the co-owners shall be limited to the portion which may
be allotted to him in the division upon termination of the co-
ownership.39
Before partition in a co-ownership, every co-owner has the absolute
ownership of his undivided interest in the common property. The co-owner is
free to alienate, assign or mortgage his interest, except as to purely personal
rights.40 He may also validly lease his undivided interest to a third party
independently of the other co-owners.41 The effect of any such transfer is
limited to the portion which may be awarded to him upon the partition of the
property.42
Article 493 therefore gives the owner of an undivided interest in the property
the right to freely sell and dispose of his undivided interest. 43 The co-owner,
however, has no right to sell or alienate a concrete specific or determinate
part of the thing owned in common, because his right over the thing is
represented by a quota or ideal portion without any physical
P r o p e r t y C a s e s N o . 8 P a g e | 49
adjudication.44 If the co-owner sells a concrete portion, this, nonetheless,
does not render the sale void. Such a sale affects only his own share, subject
to the results of the partition but not those of the other co-owners who did
not consent to the sale.45
In the instant case, the titles to the subject lots were issued in respondents'
names as co-owners in 1987—ten (10) years before the expropriation case
was filed in 1997. As co-owners, all that the respondents had was an ideal or
abstract quota or proportionate share in the lots. This, however, did not
mean that they could not separately exercise any rights over the lots. Each
respondent had the full ownership of his undivided interest in the property.
He could freely sell or dispose of his interest independently of the other co-
owners. And this interest could have even been attached by his
creditors.46 The partition in 1998, six (6) months after the filing of the
expropriation case, terminated the co-ownership by converting into certain
and definite parts the respective undivided shares of the co-owners. 47 The
subject property is not a thing essentially indivisible. The rights of the co-
owners to have the property partitioned and their share in the same
delivered to them cannot be questioned for "[n]o co-owner shall be obliged
to remain in the co-ownership."48 The partition was merely a necessary
incident of the co-ownership;49 and absent any evidence to the contrary, this
partition is presumed to have been done in good faith.
Upon partition, four (4) co-owners, namely, Francisco, Thelma, Rodolfo and
Antonio Aguilar each had a share of 300 square meters under TCT Nos.
13849, 13852, 13850, 13851.50 Eusebio Aguilar's share was 347 square
meters under TCT No. 1385351 while Virginia Aguilar's was 89 square meters
under TCT No. 13854.52
It is noted that Virginia Aguilar, although granted 89 square meters only of
the subject lots, is, at the same time, the sole registered owner of TCT No.
59780, one of the three (3) titles initially sought to be expropriated in the
original complaint. TCT No. 59780, with a land area of 211 square meters,
was dropped in the amended complaint. Eusebio Aguilar was granted 347
square meters, which is 47 square meters more than the maximum of 300
square meters set by R.A. 7279 for small property owners. In TCT No.
13853, Eusebio's title, however, appears the following annotation:
"... subject to x x x, and to the prov. of Sec. 4 Rule 74 of the Rules
of Court with respect to the inheritance left by the deceased Eusebio
N. Aguilar."53
Eusebio died on March 23, 1995,54 and, according to Antonio's testimony, the
former was survived by five (5) children.55 Where there are several co-
owners, and some of them die, the heirs of those who die, with respect to
that part belonging to the deceased, become also co-owners of the property
 P r o p e r t y C a s e s N o . 8 P a g e | 50

together with those who survive.56 After Eusebio died, his five heirs became
co-owners of his 347 square-meter portion. Dividing the 347 square meters
among the five entitled each heir to 69.4 square meters of the land subject
of litigation.
Consequently, the share of each co-owner did not exceed the 300 square
meter limit set in R.A. 7279. The second question, however, is whether the
subject property is the only real property of respondents for them to comply
with the second requisite for small property owners.
Antonio Aguilar testified that he and most of the original co-owners do not
reside on the subject property but in their 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 anyone of them. Petitioner did not present any title or proof
of this fact despite Antonio Aguilar's testimony.
On the other hand, respondents claim that the subject lots are their only real
property58 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
City;63 Paranaque;64 Caloocan City;65 Pasig
City;66 Muntinlupa;67 Marikina;68 and the then municipality of Las Piñas69 and
the municipality of San Juan del Monte70 as having no real property THIRD DIVISION G.R. No. L-29727 December 14, 1988
registered for taxation in their individual names.1âwphi1.nêt PEDRO OLIVERAS, TEODORA GASPAR, MELECIO OLIVERAS and
Finally, this court notes that the subject lots are now in the possession of ANICETA MINOR, plaintiffs-appellees, vs. CANDIDO LOPEZ, SEVERO
respondents. Antonio Aguilar testified that he and the other co-owners filed LOPEZ, HIPOLITO LOPEZ, EUGENIA LOPEZ, PRIMITIVO GASPAR,
ejectment cases against the occupants of the land before the Metropolitan CORAZON LOPEZ, ALEJANDRO CACAYURIN, FAUSTINA BOTUYAN,
Trial Court, Mandaluyong, Branches 59 and 60. Orders of eviction were MODESTO SALAZAR, ADORACION BOTUYAN, CLAUDIO GANOTICE
issued and executed on September 17, 1997 which resulted in the eviction of and ENONG BOTUYAN, defendants-appellants.
the tenants and other occupants from the land in question. 71 Venancio B. Fernando for defendants-appellants.
IN VIEW WHEREOF, the petition is DENIED and the orders dated FERNAN, C.J.:
September 17. 1998 and December 29, 1998 of the Regional Trial Court, This case exemplifies the Filipino custom of keeping inherited property in a
Branch 168, Pasig City in SCA No. 1427 are AFFIRMED. prolonged juridical condition of co-owner ship.
SO ORDERED. Lorenzo Lopez owned Lot 4685 of the Cadastral survey of Villasis,
Davide, Jr., Kapunan, Pardo, and Ynares-Santiago, JJ.,  concur. Pangasinan with an area of 69,687 square meters as evidenced by Original
Certificate of Title No. 15262.1 In December, 1931, Lorenzo Lopez
died, 2 leaving said property to his wife, Tomasa Ramos and six (6) children.

From that time on, the heirs of Lorenzo Lopez did not initiate any moves to
legally partition the property.
More than twenty-one years later, or on February 11, 1953, Tomasa Ramos
and her eldest son, Candido Lopez, executed a deed of absolute sale of the
"eastern undivided four thousand two hundred and fifty seven-square meters
(4,257) more or less, of the undivided portion of (their) interests, rights and
participation" over Lot 4685, in favor of the spouses Melecio Oliveras and
Aniceta Minor, in consideration of the amount of one thousand pesos
(P1,000). 3
On the same day, Tomasa and Candido executed another deed of absolute
sale of the "undivided" four thousand two hundred and fifty-seven (4,257)
square meters of the "eastern part" of Lot 4685 in favor of the spouses
Pedro Oliveras and Teodora Gaspar, also in consideration of P1,000. 4 Each
of the said documents bear the thumbmark of Tomasa and the signature of
Candido.
In his affidavit also executed on February 11, 1953, Candido stated that a
month prior to the execution of the deed of sale in favor of Melecio Oliveras,
he offered his: "undivided portion" of Lot 4685 to his "adjacent owners" but
none of them was "in a position to purchase" said property. 5
Since the execution of the two deeds of absolute sale, the vendees, brothers
Melecio and Pedro, had been paying the real property taxes for their
respectively purchased properties. 6 They also had been in possession of
their purchased properties which, being planted to palay and peanuts, were
segregated from the rest of Lot 4685 by dikes. 7
More than thirteen years later or on November 21, 1966, the counsel of the
Oliveras brothers wrote the heirs of Lorenzo Lopez reminding them of the
Oliverases' demands to partition the property so that they could acquire their
respective titles thereto without resorting to court action, and that, should
they fail to respond, he would be forced to file a case in court. 8 Apparently,
the Lopezes did not answer said letter since on December 15, 1966, the
Oliveras brothers and their wives filed a complaint for partition and
damages 9 in the Court of First Instance of Pangasinan. 10
The Oliverases stated in their complaint that possession of the disputed
properties was delivered to them with the knowledge and consent of the
defendants; that they had been paying the real estate taxes thereon; that
prior to the sale, said properties were offered to the other co-owners for sale
but they refused to buy them; that on February 18, 1953, the transactions
were duly annotated and entered in the Memorandum of encumbrances of
OCT No. 15262 as adverse claims; and that their desire to segregate the
portions of Lot 4685 sold to them was frustrated by defendants' adamant
P r o p e r t y C a s e s N o . 8 P a g e | 51
refusal to lend them the owner's duplicate of OCT No. 15262 and to execute
a deed of partition of the whole lot.
In claiming moral damages in the amount of P2,000.00 plaintiffs alleged that
defendants also refused to allow them to survey and segregate the portions
bought by them. Plaintiffs prayed that the court order the defendants to
partition Lot 4685 and to allow them to survey and segregate the portions
they had purchased. They also demanded payment of P800.00 as attorney's
fees and cost of the suit.
In their answer, the defendants alleged that no sale ever transpired as the
alleged vendors could not have sold specific portions of the property; that
plaintiffs' possession and occupation of specific portions of the properties
being illegal, they could not ripen into ownership; and that they were not
under any obligation to lend their copy of the certificate of title or to accede
to plaintiffs' request for the partition or settlement of the property. As special
and affirmative defenses, the defendants contended that the deeds of sale
were null and void and hence, unenforceable against them; that the
complaint did not state a cause of action and that the cause or causes of
action if any, had prescribed.
Defendants averred in their counterclaim that despite repeated demands,
plaintiffs refused and failed to vacate the premises; that the properties
occupied by the plaintiffs yielded an average net produce in palay and
peanuts in the amount of P1,600.00 annually, and that the complaint was
filed to harass them. They prayed for the dismissal of the complaint and the
payment of P1,600.00 per year from 1953 until plaintiffs shall have vacated
the premises and P1,000.00 for attorney's fees.
Plaintiffs filed an answer to defendants' counterclaim, denying all the
allegations therein and stating that defendants never demanded that
plaintiffs vacate the portions of Lot 4685 they had bought.
The lower court explored the possibility of an amicable settlement between
the parties without success. Hence, it set the case for trial and thereafter, it
rendered a
decision 11 declaring valid the deeds of absolute sale 12 and ordering the
defendants to allow the segregation of the sold portions of Lot 4685 by a
licensed surveyor in order that the plaintiffs could obtain their respective
certificates of title over their portions of said lot.
In resolving the case, the lower court passed upon the issue of whether the
two deeds of absolute sale were what they purported to be or merely
mortgage documents. It considered as indicia of plaintiffs' absolute dominion
over the portions sold to them their actual possession thereof without any
opposition from the defendants until the filing of the complaint, their
payment of taxes thereon and their having benefited from the produce of the

land. The court ruled that the defendants' testimonial evidence that the
deeds in question were merely mortgage documents cannot overcome the
evidentiary value of the public instruments presented by the plaintiffs.
On the issue of whether the two deeds of absolute sale were null and void
considering that the land subject thereof had not yet been partitioned, the
court observed that the total area of 8,514 square meters sold to plaintiffs by
Candido was less than his share should Lot 4685 with an area of 69,687
square meters be divided among the six children of Lorenzo Lopez and their
mother. In this connection, the lower court also found that during his
lifetime, and before Candido got married, Lorenzo Lopez had divided Lot
4685 among his children who then took possession of their respective
shares. *
The defendants appealed said decision to this Court contending that the
lower court erred in declaring the two deeds of absolute sale as valid, in
ordering the segregation of the sold portions of Lot 4685 to enable the
plaintiffs to obtain their respective certificates of title, and in not considering
their defense of prescription.
The extrinsic validity of the two deeds of absolute sale is not in issue in this
case in view of the finding of the trial court that the defendants admittedly
do not question their due execution. 13 What should pre-occupy the Court is
the intrinsic validity of said deeds insofar as they pertain to sales of
designated portions of an undivided, co-owned property.
In a long line of decisions, this Court has held that before the partition of a
land or thing held in common, no individual co-owner can claim title to any
definite portion thereof. All that the co-owner has is an Ideal or abstract
quota or proportionate share in the entire land or thing. 14
However, the duration of the juridical condition of co-ownership is not
limitless. Under Article 494 and 1083 of the Civil Code, co-ownership of an
estate should not exceed the period of twenty (20) years. And, under the
former article, any agreement to keep a thing or property undivided should
be for a ten-year period only. Where the parties stipulate a definite period of
in division which exceeds the maximum allowed by law, said stipulation shall
be void only as to the period beyond such maximum.15
Although the Civil Code is silent as to the effect of the in division of a
property for more than twenty years, it would be contrary to public policy to
sanction co-ownership beyond the period set by the law. Otherwise, the 20-
year limitation expressly mandated by the Civil Code would be rendered
meaningless.
In the instant case, the heirs of Lorenzo Lopez maintained the co-ownership
for more than twenty years. We hold that when Candido and his mother
P r o p e r t y C a s e s N o . 8 P a g e | 52
(who died before the filing of the complaint for partition) sold definite
portions of Lot 4685, they validly exercised dominion over them because, by
operation of law, the co-ownership had ceased. The filing of the complaint
for partition by the Oliverases who, as vendees, are legally considered as
subrogated to the rights of Candido over portions of Lot 4685 in their
possession, 16 merely served to put a stamp of formality on Candido's
otherwise accomplished act of terminating the co-ownership.
The action for partition has not prescribed. Although the complaint was filed
thirteen years from the execution of the deeds of sale and hence, as
contended by the defendants-appellants, prescription might have barred its
filing under the general provision of Article 1144 (a) of the Civil Code, Article
494 specifically mandates that each
co-owner may demand at any time the partition of the thing owned in
common insofar as his share is concerned. Hence, considering the validity of
the conveyances of portions of Lot 4685 in their favor and as subrogees of
Candido Lopez, the Oliverases' action for partition was timely and properly
filed. 17
We cannot write finis to this decision without commenting on the compliance
with the resolution of September 1, 1986 of counsel for defendants-
appellants. In said resolution, the court required the parties to move in the
premises "considering the length of time that this case has remained pending
in this Court and to determine whether or not there might be supervening
events which may render the case moot and academic. 18 In his
manifestation and motion dated August 12, 1987, said counsel informed the
Court that he had contacted the defendants-appellants whom he advised "to
move in the premises which is the land in question and to maintain the
status quo with respect to their actual possession thereon" and that he had
left a copy of said resolution with the defendants-appellants" for their
guidance in the compliance of their obligations (sic) as specified in said
resolution." 19
Obviously, said counsel interpreted literally the Court's directive "to move in
the premises." For the enlightenment of said counsel and all others of similar
perception, a "move in the premises" resolution is not a license to occupy or
enter the premises subject of litigation especially in cases involving real
property. A "move in the premises" resolution simply means what is stated
therein: the parties are obliged to inform the Court of developments
pertinent to the case which may be of help to the Court in its immediate
disposition.
WHEREFORE, the decision of the lower court insofar as it declares the
validity of the two deeds of sale and directs the partition of Lot 4685, is
AFFIRMED. The lower court is hereby ordered to facilitate with dispatch the
 P r o p e r t y C a s e s N o . 8 P a g e | 53

preparation of a project of partition which it should thereafter approve. This EPITACIO DELIMA, PACLANO DELIMA, FIDEL DELIMA, VIRGILIO
decision is immediately executory. No costs. DELIMA, GALILEO DELIMA, JR., BIBIANO BACUS, OLIMPIO BACUS
SO ORDERED. and PURIFICACION BACUS, petitioners, vs. HON. COURT OF APPEALS,
Gutierrez, Jr., Bidin and Cortes, JJ., concur. GALILEO DELIMA (deceased), substituted by his legal heirs,
namely: FLAVIANA VDA. DE DELIMA, LILY D. ARIAS, HELEN
Feliciano, J., concur in the result. NIADAS, ANTONIO DELIMA, DIONISIO DELIMA, IRENEA DELIMA,
ESTER DELIMA AND FELY DELIMA, respondents.
Gabriel J. Canete for petitioners.
Emilio Lumontad, Jr. for private respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari of the decision of the Court of
Appeals reversing the trial court's judgment which declared as null and void
the certificate of title in the name of respondents' predecessor and which
ordered the partition of the disputed lot among the parties as co-owners.
The antecedent facts of the case as found both by the respondent appellate
court and by the trial court are as follows:
During his lifetime, Lino Delima acquired Lot No. 7758 of the Talisay-
Minglanilla Friar Lands Estate in Cebu by sale on installments from the
government. Lino Delima later died in 1921 leaving as his only heirs three
brothers and a sister namely: Eulalio Delima, Juanita Delima, Galileo Delima
and Vicente Delima. After his death, TCT No. 2744 of the property in
question was issued on August 3, 1953 in the name of the Legal Heirs of
Lino Delima, deceased, represented by Galileo Delima.
On September 22, 1953, Galileo Delima, now substituted by respondents,
executed an affidavit of "Extra-judicial Declaration of Heirs." Based on this
affidavit, TCT No. 2744 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.
Galileo Delima declared the lot in his name for taxation purposes and paid
the taxes thereon from 1954 to 1965.
On February 29, 1968, petitioners, who are the surviving heirs of Eulalio and
Juanita Delima, filed with the Court of First Instance of Cebu (now Regional
Trial Court) an action for reconveyance and/or partition of property and for
the annulment of TCT No. 3009 with damages against their uncles 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.
On January 16, 1970, the trial court rendered a decision in favor of
FIRST DIVISION G.R. No. L-46296 September 24, 1991 petitioners, the dispositive portion of which states:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the following are
the declared owners of Lot No. 7758 of the Talisay-Minglanilla Friar

Lands Estate presently covered by transfer Certificate of Title No.
3009, each sharing a pro-indiviso share of one-fourth;
1) Vicente Delima (one-fourth)
2) Heirs of Juanita Delima, namely: Bibiano Bacus, Olimpio Bacus
and Purificacion Bacus (on-fourth);
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. de Delima, Lily
D. Arias, Helen Niadas and Dionisio, Antonio, Eotu Irenea, and Fely,
all surnamed Delima (one-fourth).
Transfer Certificate of Title No. 3009 is declared null and void and
the Register of Deeds of Cebu is ordered to cancel the same and
issue in lieu thereof another title with the above heirs as pro-indiviso
owners.
After the payment of taxes paid by Galileo Delima since 1958, the
heirs of Galileo Delima are ordered to turn a over to the other heirs
their respective shares of the fruits of the lot in question computed
at P170.00 per year up to the present time with legal (interest).
Within sixty (60) days from receipt of this decision the parties are
ordered to petition the lot in question and the defendants are
directed to immediately turn over possession of the shares here
awarded to the respective heirs.
Defendants are condemned to pay the costs of the suit.
The counterclaim is dismissed.
SO ORDERED. (pp. 54-55, Rollo)
Not satisfied with the decision, respondents appealed to the 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 Delima, namely Eulalio, Juanita and Vicente, had
already relinquished and waived their rights to the property in his favor,
considering that he (Galileo Delima) alone paid the remaining balance of the
purchase price of the lot and the realty taxes thereon (p. 26, Rollo).
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 partition of
inheritance is imprescriptible. If it does, the defenses of prescription
and laches have already been waived.
2) In disregarding the evidence of the petitioners.(p.13, Rollo)
P r o p e r t y C a s e s N o . 8 P a g e | 54
The issue to be resolved in the instant case is whether or not petitioners'
action for partition is already barred by the statutory period provided by law
which shall enable Galileo Delima to perfect his claim of ownership by
acquisitive prescription to the exclusion of petitioners from their shares in the
disputed property. Article 494 of the Civil Code expressly provides:
Art. 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the partition of
the thing owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain
period of time, not exceeding ten years, shall be valid. This term
may be extended by a new agreement.
A donor or testator may prohibit partition for a period which shall not
exceed twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his
co-owners or co-heirs so long as he expressly or impliedly recognizes
the co-ownership.
As a rule, possession by a co-owner will not be presumed to be adverse to
the others, but will be held to benefit all. It is understood that the co-owner
or co-heir who is in possession of an inheritance pro-indiviso for himself and
in representation of his co-owners or co-heirs, if, as such owner, he
administers or takes care of the rest thereof with the obligation of delivering
it to his co-owners or co-heirs, is under the same situation as a depository, a
lessee or a trustee (Bargayo v. Camumot, 40 Phil, 857; Segura v. Segura,
No. L-29320, September 19, 1988, 165 SCRA 368). Thus, an action to
compel partition may be filed at any time by any of the co-owners against
the actual possessor. In other words, no prescription shall run in favor of a
co-owner against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership (Del Blanco v. Intermediate Appellate
Court, No. 72694, December 1, 1987, 156 SCRA 55).
However, from the moment one of the co-owners claims that he is the
absolute and exclusive owner of the properties and denies the others any
share therein, the question involved is no longer one of partition but of
ownership (De Castro v. Echarri, 20 Phil. 23; Bargayo v. Camumot, supra; De
los Santos v. 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 property as exclusive owner for a
period sufficient to vest ownership by prescription.
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 the cestui que
 P r o p e r t y C a s e s N o . 8 P a g e | 55

trust amounting to a repudiation of the co-ownership, the following elements

must concur: 1) that the trustee has performed unequivocal acts amounting
to an ouster of the cestui que trust; 2) that such positive acts of repudiation
had been made known to the cestui que trust; and 3) that the evidence
thereon should be clear and conclusive (Valdez v. Olorga, No. L-22571, May
25, 1973, 51 SCRA 71; Pangan v. Court of Appeals, No. L-39299, October 18,
1988, 166 SCRA 375).
We have held that when a co-owner of the property in question executed a
deed of partition and on the strength thereof obtained the cancellation of the
title in the name of their 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 shares, the
statute of limitations started to run for the purposes of the action instituted
by the latter seeking a declaration of the 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 on
implied or constructive trust prescribes after ten (10) 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 limitations is counted (Jaramil v. Court of
Appeals, No. L-31858, August 31, 1977, 78 SCRA 420).
Evidence shows that TCT No. 2744 in the name of the legal heirs of Lino
Delima, represented by Galileo Delima, was cancelled by virtue of an affidavit
executed by Galileo Delima and that on February 4, 1954, Galileo Delima
obtained the issuance of a new title in Ms name numbered TCT No. 3009 to
the exclusion of his co-heirs. The issuance of this new title constituted an
open and clear repudiation of the trust or co-ownership, and the lapse of ten
(10) years of adverse possession by Galileo Delima from February 4, 1954
was sufficient to vest title in him by prescription. As the certificate of title
was notice to the whole world of his exclusive title to the land, such rejection
was binding on the other heirs and started as against them the period of
prescription. Hence, when petitioners filed their action for reconveyance
and/or to compel partition on February 29, 1968, such action was already
barred by prescription. Whatever claims the other co-heirs could have validly
asserted before can no longer be invoked by them at this time.
ACCORDINGLY, the petition is hereby DENIED and the assailed decision of
the Court of Appeals dated May 19, 1977 is AFFIRMED.
SO ORDERED. THIRD DIVISION G.R. No. L-57062 January 24, 1992
Narvasa (Chairman), Cruz and Griño-Aquino, JJ., concur. MARIA DEL ROSARIO MARIATEGUI, ET AL., petitioners, vs. HON.
COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN MARIATEGUI
and PAULINA MARIATEGUI, respondents.

Montesa, Albon & Associates for petitioners.
Parmenio B. Patacsil, Patacsil Twins Law Office for the heirs of the late Maria
del Rosario Mariategui.
Tinga, Fuentes & Tagle Firm for private respondents.
BIDIN, J.:
This is a petition for review on certiorari  of the decision * of the Court of
Appeals dated December 24, 1980 in CA-G.R. No. 61841, entitled "Jacinto
Mariategui, et al. v. Maria del Rosario Mariategui, et al.," reversing the
judgment of the then Court of First Instance of Rizal, Branch VIII ** at
Pasig, Metro Manila.
The undisputed facts are as follows:
Lupo Mariategui died without a will on June 26, 1953 (Brief for
respondents, Rollo, pp. 116; 8). During his lifetime, Lupo Mariategui
contracted three (3) marriages. With his first wife, 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 children named Antero, Rufina, Catalino, Maria, Gerardo, Virginia and
Federico, all surnamed Espina. Ireneo also died and left a son named
Ruperto. With his second wife, Flaviana Montellano, he begot a daughter
named Cresenciana who was born on May 8, 1910 (Rollo, Annex "A", p. 36).
Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married sometime
in 1930. They had three children, namely: Jacinto, born on July 3, 1929,
Julian, born on February 16, 1931 and Paulina, born on April 19, 1938. Felipa
Velasco Mariategui died in 1941 (Rollo, Ibid).
At the time of his death, Lupo Mariategui left certain properties which he
acquired when he was still unmarried (Brief for respondents, Rollo, pp. 116;
4). These properties are described in the complaint as Lots Nos. 163, 66,
1346 and 156 of the Muntinglupa Estate (Rollo, Annex "A", p. 39).
On December 2, 1967, Lupo's descendants by his first and second marriages,
namely, Maria del Rosario, Urbana, Ruperto, Cresencia, all surnamed
Mariategui and Antero, Rufina, Catalino, Maria, Gerardo, Virginia and
Federico, all surnamed Espina, executed a deed of extrajudicial partition
whereby they adjudicated unto themselves Lot No. 163 of the Muntinglupa
Estate. Thereafter, Lot No. 163 was the subject of a voluntary registration
proceedings filed by the adjudicatees under Act No. 496, and the land
registration court issued a decree ordering the registration of the lot. Thus,
on April 1, 1971, OCT No. 8828 was issued in the name of the above-
mentioned heirs. Subsequently, the registered owners caused the subdivision
of the said lot into Lots Nos. 163-A to 163-H, for which separate transfer
certificates of title were issued to the respective parties ( Rollo, ibid).
P r o p e r t y C a s e s N o . 8 P a g e | 56
On April 23, 1973, Lupo's children by his third marriage with 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 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 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 Isabel
Santos were impleaded in the complaint as unwilling defendants as they
would not like to join the suit as plaintiffs although they acknowledged the
status and rights of the plaintiffs and agreed to the partition of the parcels of
land as well as the accounting of their fruits ( Ibid., Rollo, p. 8; Record on
Appeal, p. 4).
The defendants (now petitioners) filed an answer with 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 complaint was one for recognition of natural
children. On August 14, 1974, the motion to dismiss was denied by the trial
court, in an order the dispositive portion of which reads:
It is therefore the opinion of the Court that Articles 278 and
285 of the Civil Code cited by counsel for the defendants are
of erroneous application to this case. The motion to dismiss
is therefore denied for lack of merit.
SO ORDERED. (Ibid, p. 37).
However, on February 16, 1977, the complaint as well as petitioners'
counterclaim were dismissed by the trial court, in its decision stating thus:
The plaintiffs' right to inherit depends upon the
acknowledgment or recognition of their continuous
enjoyment and possession of status of children of their
supposed father. The evidence fails to sustain either
premise, and it is clear that this action cannot be sustained.
(Ibid, Rollo, pp. 67-68)
The plaintiffs elevated the case to the Court of Appeals on the ground that
the trial court committed an error ". . . in not finding that the parents of the
appellants, Lupo Mariategui and Felipa Velasco (were) lawfully married, and
in holding (that) they (appellants) are not legitimate children of their said
parents, thereby divesting them of their inheritance . . . " (Rollo, pp. 14-15).
On December 24, 1980, the Court of Appeals rendered a decision declaring
all the children and descendants of Lupo Mariategui, including appellants

Jacinto, Julian and Paulina (children of the third marriage) as entitled to
equal shares in the estate of Lupo Mariategui; directing the adjudicatees in
the extrajudicial partition of real properties who eventually acquired transfer
certificates of title thereto, to execute deeds of reconveyance in favor, and
for the shares, of Jacinto, Julian and Paulina provided rights of innocent third
persons are not prejudiced otherwise the said adjudicatees shall reimburse
the said heirs the fair market value of their shares; and directing all the
parties to submit to the lower court a project of partition in the net estate of
Lupo Mariategui after payment of taxes, other government charges and
outstanding legal obligations.
The defendants-appellees filed a motion for reconsideration of said decision
but it was denied for lack of merit. Hence, this petition which was given due
course by the court on December 7, 1981.
The petitioners submit to the Court the following issues: (a) whether or not
prescription barred private respondents' right to demand the partition of the
estate of Lupo Mariategui, and (b) whether or not the private respondents,
who belatedly filed the action for recognition, were able to prove their
successional rights over said estate. The resolution of these issues hinges,
however, on the resolution of the preliminary matter, i.e., the nature of the
complaint filed by the private respondents.
The complaint alleged, among other things, that "plaintiffs are the children of
the deceased spouses Lupo Mariategui . . . and Felipa Velasco"; that "during
his lifetime, Lupo Mariategui had repeatedly acknowledged and confirmed
plaintiffs as his children and the latter, in turn, have continuously enjoyed
such status since their birth"; and "on the basis of their relationship to the
deceased Lupo Mariategui and in accordance with the law on intestate
succession, plaintiffs are entitled to inherit shares in the foregoing estate
(Record on Appeal, pp. 5 & 6). It prayed, among others, that plaintiffs be
declared as children and heirs of Lupo Mariategui and adjudication in favor of
plaintiffs their lawful shares in the estate of the decedent (Ibid, p. 10).
A perusal of the entire allegations of the complaint, however, shows that the
action is principally one of partition. The allegation with respect to the status
of the private respondents was raised only collaterally to assert their rights in
the estate of the deceased. Hence, the Court of Appeals correctly adopted
the settled rule that the nature of an action filed in court is determined by
the facts alleged in the complaint constituting the cause of action (Republic
vs. Estenzo, 158 SCRA 282 [1988]).
It has been held that, if the relief demanded is not the proper one which
may be granted under the law, it does not characterize or determine the
nature of plaintiffs' action, and the relief to which plaintiff is entitled based
on the facts alleged by him in his complaint, although it is not the relief
P r o p e r t y C a s e s N o . 8 P a g e | 57
demanded, is what determines the nature of the action (1 Moran, p. 127,
1979 ed., citing Baguioro vs. Barrios, et al., 77 Phil. 120).
With respect to the legal basis of private respondents' demand for partition
of the estate of Lupo Mariategui, the Court of Appeals aptly held that the
private respondents are legitimate children of the deceased.
Lupo Mariategui and Felipa Velasco were alleged to have been lawfully
married in or about 1930. This fact is based on the declaration
communicated by Lupo Mariategui to Jacinto who testified that "when (his)
father was still living, he was able to mention to (him) that he and (his)
mother were able to get married before a Justice of the Peace of Taguig,
Rizal." The spouses deported themselves as husband and wife, and were
known in the community to be such. Although no marriage certificate was
introduced to this effect, no evidence was likewise offered to controvert
these facts. Moreover, the mere fact that no record of the marriage exists
does not invalidate the marriage, provided all requisites for its validity are
present (People vs. Borromeo, 133 SCRA 106 [1984]).
Under these circumstances, a marriage may be presumed to have taken
place between Lupo and Felipa. The laws presume that a man and a woman,
deporting themselves as husband and wife, have entered into a lawful
contract of marriage; that a child born in lawful wedlock, there being no
divorce, absolute or from bed and board is legitimate; and that things have
happened according to the ordinary course of nature and the ordinary habits
of life (Section 5 (z), (bb), (cc), Rule 131, Rules of Court; Corpus v. Corpus,
85 SCRA 567 [1978]; Saurnaba v. Workmen's Compensation, 85 SCRA 502
[1978]; Alavado v. City Gov't. of Tacloban, 139 SCRA 230 [1985]; Reyes v.
Court of Appeals, 135 SCRA 439 [1985]).
Courts look upon the presumption of marriage with great favor as it is
founded on the following rationale:
The basis of human society throughout the civilized world is
that of marriage. Marriage in this jurisdiction is not only a
civil contract, but it is a new relation, an institution in the
maintenance of which the public is deeply interested.
Consequently, every intendment of the law leans toward
legalizing matrimony. Persons dwelling together in apparent
matrimony are presumed, in the absence of any
counterpresumption or evidence special to that case, to be
in fact married. The reason is that such is the common order
of society and if the parties were not what they thus hold
themselves out as being, they would be living in the
constant violation of decency and of
law . . . (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56 [1922]

quoted in Alavado vs. City Government of Tacloban, 139
SCRA 230 [1985]).
So much so that once a man and a woman have lived as husband and wife
and such relationship is not denied nor contradicted, the presumption of their
being married must be admitted as a fact (Alavado v. City Gov't. of
Tacloban,  supra).
The Civil Code provides for the manner under which legitimate filiation may
be proven. However, considering the effectivity of the Family Code of the
Philippines, the case at bar must be decided under a new if not entirely
dissimilar set of rules because the parties have been overtaken by events, to
use the popular phrase (Uyguangco vs. Court of Appeals, G.R. No. 76873,
October 26, 1989). Thus, under Title VI of the Family Code, there are only
two classes of children — legitimate and illegitimate. The fine distinctions
among various types of illegitimate children have been eliminated (Castro vs.
Court of Appeals, 173 SCRA 656 [1989]).
Article 172 of the said Code provides that the filiation of legitimate children
may be established by the record of birth appearing in the civil register or a
final judgment or by the open and continuous possession of the status of a
legitimate child.
Evidence on record proves the legitimate filiation of the private respondents.
Jacinto's birth certificate is a record of birth referred to in the said article.
Again, no evidence which tends to disprove facts contained therein was
adduced before the lower court. In the case of the two other private
respondents, Julian and Paulina, they may not have presented in evidence
any of the documents required by Article 172 but they continuously enjoyed
the status of children of Lupo Mariategui in the same manner as their brother
Jacinto.
While the trial court found Jacinto's testimonies to be inconsequential and
lacking in substance as to certain dates and names of relatives with whom
their family resided, these are but minor details. The nagging fact is that for
a considerable length of time and despite the death of Felipa in 1941, the
private respondents and Lupo lived together until Lupo's death in 1953. It
should be noted that even the trial court mentioned in its decision the
admission made in the affidavit of Cresenciana Mariategui Abas, one of the
petitioners herein, that " . . . Jacinto, Julian and Paulina Mariategui ay
pawang mga kapatid ko sa
ama . . ." (Exh. M, Record on Appeal, pp. 65-66).
In view of the foregoing, there can be no other conclusion than that private
respondents are legitimate children and heirs of Lupo Mariategui and
therefore, the time limitation prescribed in Article 285 for filing an action for
recognition is inapplicable to this case. Corollarily, prescription does not run
P r o p e r t y C a s e s N o . 8 P a g e | 58
against private respondents with respect to the filing of the action for
partition so long as the heirs for whose benefit prescription is invoked, have
not expressly or impliedly repudiated the co-ownership. In other words,
prescription of an action for partition does not lie except when the co-
ownership is properly repudiated by the co-owner (Del Banco vs.
Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco,
117 SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the share of the
other co-owners absent a clear repudiation of co-ownership duly
communicated to the other co-owners (Mariano vs. De Vega, 148 SCRA 342
[1987]). Furthermore, an action to demand partition is imprescriptible and
cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 [1987]). On the
other hand, an action for partition may be seen to be at once an action for
declaration of co-ownership and for segregation and conveyance of a
determinate portion of the property involved (Roque vs. IAC, 165 SCRA 118
[1988]).
Petitioners contend that they have repudiated the co-ownership when they
executed the extrajudicial partition excluding the private respondents and
registered the properties in their own names (Petition, p. 16; Rollo, p. 20).
However, no valid repudiation was made by petitioners to the prejudice of
private respondents. Assuming petitioners' registration of the subject lot in
1971 was an act of repudiation of the co-ownership, prescription had not yet
set in when private respondents filed in 1973 the present action for partition
(Ceniza vs. C.A., 181 SCRA 552 [1990]).
In their complaint, private respondents averred that in spite of their
demands, petitioners, except the unwilling defendants in the lower court,
failed and refused to acknowledge and convey their lawful shares in the
estate of their father (Record on Appeal, p. 6). This allegation, though
denied by the petitioners in their answer ( Ibid, p. 14), was never successfully
refuted by them. Put differently, in spite of petitioners' undisputed
knowledge of their relationship to private respondents who are therefore
their co-heirs, petitioners fraudulently withheld private respondent's share in
the estate of Lupo Mariategui. 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 and had
been assured by the latter (Maria del Rosario) not to worry because they will
get some shares. As a matter of fact, sometime in 1969, Jacinto constructed
a house where he now resides on Lot No. 163 without any complaint from
petitioners.

Petitioners' registration of the properties in their names in 1971 did not
operate as a valid repudiation of the co-ownership. In Adille vs. Court of
Appeals  (157 SCRA 455, 461-462 [1988]), the Court held:
Prescription, as a mode of terminating a relation of co-
ownership, must have been preceded by repudiation (of the
co-ownership). The act of repudiation, in turn, is subject to
certain conditions: (1) a co-owner repudiates the co-
ownership; (2) such an act of repudiation is clearly made
known to the other co-owners; (3) the evidence thereon is
clear and conclusive; and (4) he has been in possession
through open, continuous, exclusive, and notorious
possession of the property for the period required by law.
xxx xxx xxx
It is true that registration under the Torrens system is
constructive notice of title, but it has likewise been our
holding that the 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 title.
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 Affirmed.
SO ORDERED.
Gutierrez, Jr., Feliciano, Davide, Jr. and Romero, JJ., concur.
FIRST DIVISION
 
G.R. No. 109910 April 5, 1995
REMEDIOS G. SALVADOR and GRACIA G. SALVADOR, petitioners,
vs.
P r o p e r t y C a s e s N o . 8 P a g e | 59
COURT OF APPEALS, ALBERTO and ELPIA YABO, FRANCISCA YABO,
et al., respondents.
DAVIDE, JR., J.:
Assailed in this petition is the legal determination made by the 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 were extinguished through prescription or laches.
Alipio Yabo was the owner of Lot No. 6080 and Lot No. 6180 situated in
Barrio Bulua, Cagayan de Oro City, containing an area of 1,267 and 3,816
square meters, respectively. Title thereto devolved upon his nine children,
namely, Victoriano, Procopio, Lope, Jose, Pelagia, Baseliza, Francisca, Maria,
and Gaudencia, upon his death sometime before or during the second world
war.
On 28 April 1976, Pastor Makibalo, who is the husband of 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 Yabo for "Quieting of Title, Annulment of Documents, and
Damages." In the complaint, he alleged that he owned a total of eight shares
of the subject lots, having purchased the shares of seven of Alipio's children
and inherited the share of his wife, Maria, and that except for the portion
corresponding to Gaudencia's share which he did not buy, he occupied,
cultivated, and possessed continuously, openly, peacefully, and 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
On 8 October 1976, the grandchildren and great-grandchildren of the late
Alipio Yabo2 lodged with the same court a complaint for partition and
quieting of title with damages,3 docketed as Civil Case No. 5174, against
Pastor Makibalo, Enecia Cristal, and the spouses Eulogio and Remedies
Salvador. They alleged that Lot No. 6080 and Lot No. 6180 are the common
property of the heirs of Alipio Yabo, namely, the plaintiffs, defendant Enecia
Cristal, Maria Yabo and Jose Yabo, whose share had been sold to Alberto
Yabo; that after Alipio's death, the spouses Pastor and Maria Makibalo,
Enecia Cristal and Jose Yabo became the de facto  administrators of the said
properties; and that much to their surprise, they discovered that the
Salvador spouses, who were strangers to the family, have been harvesting
coconuts from the lots, which act as a cloud on the plaintiffs' title over the
lots.

The plaintiffs then prayed that (a) they, as well as defendant Pastor
Makibalo, in representation of his wife, and Enecia Cristal, in representation
of Gaudencia, be declared as the owners of the lots; (b) the Salvador
spouses be declared as having no rights thereto except as possible assignees
of their co-defendants, Pastor Makibalo and Enecia Cristal; (c) the lots be
partitioned according to law among the aforementioned co-owners; and (d)
the defendants be made to pay for the value of 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.
By evidence, Pastor, Makibalo sought to prove the following allegations:
He was married to Maria Yabo who died on 17 March 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 Makibalo.5 Ebarat formalized this conveyance by executing an Affidavit
of Waiver and Quitclaim dated 30 May 1969 in favor of Pastor. 6
On 16 January 1951, the heirs of the late Lope Yabo sold Lope's shares in
the litigated properties to one Dominador Canomon, 7 who, in turn, sold the
same to Pastor.8 Canomon afterwards executed an Affidavit of Waiver and
Quitclaim in favor of the latter.9
Pastor Makibalo likewise purchased the shares of Baseliza in the two lots in
1942, of Procopio in 1957, of Francisca in 1958, and of Pelagia in 1967. The
only share he did not buy was that of Gaudencia. After every purchase, he
took possession of the portions bought and harvested the products thereof. 10
In 1966, Pastor sold back to Alberto a portion of Lot No. 6180 which was
formerly the share of Alberto's father, Procopio. 11
In December 1968, Pastor mortgaged the two lots to the spouses Eulogio
and Remedios Salvador. 12 On 26 September 1978, he executed a document
denominated as a "Confirmation and Quitclaim" whereby he waived all his
rights, interests, and participation in the lots in favor of the Salvador
spouses. 13
On the other hand, by their evidence, l4 the spouses Alberto and Elpia Yabo
tried to prove that they had repurchased from Pastor Makibalo the share of
Procopio, which was previously sold to Pastor, and had bought the shares of
Jose and Maria. 15
Filoteo Yabo denied having sold the share of his father, Lope Yabo, in the
contested lots and disowned his signature and those of his mother, brothers,
and sisters appearing at the back of Exhibit "C". 16
P r o p e r t y C a s e s N o . 8 P a g e | 60
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 document marked as Exhibit "A"
purporting to alienate his father's share in the disputed lots. l7
On 15 January 1983, the trial court rendered its decision 18 holding as
follows:
Assuming that the thumbmark on the typewritten name
"Jose Yabo" in Exh. 3 was that of Jose Yabo, Alberto Yabo
and Elpia R. Yabo purchased the share of Jose Yabo in bad
faith because they knew before and up to the execution of
Exh. 3 on October 24, 1972 that Jose Yabo was no longer
the owner of that area because from the documents she
borrowed from Mrs. Salvador they came to know that Jose
Yabo had sold his shares to Pedro Ebarat, and they have
seen that Pastor Makibalo has been in possession of those
shares together with the seven others exclusively as owner,
he having mortgaged them to Mrs. Salvador.
As Jose Yabo was no longer the owner of the one-ninth
(1/9) shares which he sold to Alberto Yabo and Elpia Yabo
under Exh. 3, the sale is null and void, and Alberto and Elpia
acquired nothing because Jose Yabo had no more title, right
or interest to dispose of.
...
Pastor Makibalo had been in possession of Jose Yabo's share
since 1949 after purchasing it from Ebarat, and has been in
possession thereof up to September 26, 1978 when he sold
it to the spouses Eulogio Salvador and Remedios Salvador,
who are now in possession of the same.
Exh. A, evidencing the sale of Victoriano Yabo's share to
Pedro Ebarat was identified by the latter who testified that
he sold it to Pastor Makibalo in 1951. Exh. A is an ancient
document — 1949 when the document came to existence up
to now is more than 30 years, and the document had been
in the possession of Pastor Makibalo, then Remedios
Salvador who had interest in its preservation.
As regards the shares of Lope Yabo, the same had been sold
by his surviving spouse Juana Legaspi, and his children
Filoteo, Andresa, Jovita, Bonifacio, and Rundino for P105.00
on January 16, 1951 to Dominador Conomon (Exh. C and C-
1), who in turn sold it to Pastor Makibalo in 1952, executing

a formal Deed of Waiver and Quitclaim on May 30, 1969
(Exh. D).
Exh. C is an ancient document, being more than 30 years old
and has been in the possession of Pastor Makibalo and then
the spouses Eulogio and Remedios Salvador — who had an
interest in its preservation. The claim of Filoteo Yabo that
the signatures appearing in Exh. C are not his and those of
his brothers and sisters are of no avail, for if they were not
the ones who affixed those signatures and so they did not
sell the shares of their father Lope Yabo, why did they not
then take possession of said shares — they remained silent
from 1951 to September 16, 1976 a period of 25 years. They
are now [e]stopped by laches.
And as regards the shares of Baseliza, Francisca and Pelagia,
there is no evidence presented to effectively rebut the
testimony of Pastor Makibalo that he acquired the shares of
Baseliza Yabo in 1942 by changing it with a buffalo; that he
bought the shares of Francisca Yabo in 1958 and that he
bought the shares of Pelagia Yabo in 1967; Pastor Makibalo
had been in possession of these shares from the time he
acquired them, continuously, adversely, openly, and
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 those shares
for over 40 years in the case of Baseliza's share, for about
20 years in the case of Francisca's share, and for more than
10 years in the case of Pelagia's share. Laches, likewise has
rendered their rights stale.
On March 10, 1966 Pastor Makibalo sold back to Alberto
Yabo the share of Procopio Yabo in Lot 6180 (Exh. 1 and 2),
but there is nothing to show that. Pastor Makibalo also sold
back Procopio's share in Lot 6080.
So then, by purchase, Pastor Makibalo and Maria Yabo
acquired the shares of Baseliza, Victoriano, Jose, Lope,
Procopio and Francisca, or six (6) shares from Lots 6080 and
6180. These belonged to the conjugal partnership of Pastor
Makibalo and Maria Yabo. Maria Yabo had also a share from
Lots 6080 and 6180, and Pastor Makibalo acquired the
shares of Pelagia Yabo in both Lots 6080 and 6180. All in all;
P r o p e r t y C a s e s N o . 8 P a g e | 61
Pastor Makibalo acquired eight shares in both Lot 6080 and
6180.
While Maria Yabo died on March 17, 1962, and so one-fourth
(1/4) of the shares of Baseliza, Victoriano, Jose, Lope, and
Francisca, or one-fourth of five-ninth (5/9) of both lots and
one-fourth (1/4) of Lot 6080 should go to the children of the
brothers and sisters of Maria Yabo by virtue of the provisions
of Article 1001 of the New Civil Code, the latter have lost
their rights thereto by laches for their inaction for a very
long 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, uninterruptedly,
publicly, peacefully, and continuously from the death of
Maria Yabo up to the filing of the complaint in Civil Case No.
5174 on October 8, 1976, or a period of 14 years, had
acquired title to the whole of the eight shares in Lot 6080
and seven shares in Lot 6180 (the share of Procopio in Lot
6180 had been sold back to Alberto Yabo).
IN VIEW OF ALL THE FOREGOING, judgment is hereby
rendered finding Pastor Makibalo, now Eulogio Salvador and
Remedios Salvador the owner of eight (8) shares, equivalent
to eight-ninth (8/9) of Lot No. 6080, and of seven (7)
shares, equivalent to seven-ninth (7/9) of Lot No. 6180, and
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) will go to
the spouses Eulogio Salvador and Remedios Salvador, as
successor of Pastor Makibalo, and the partition of Lot 6180
so that the seven-ninth (7/9) portion which formerly
belonged to Baseliza, Victoriano, Jose, Lope, Maria,
Francisca, and Pelagia will go to the spouses Eulogio and
Remedios Salvador, the one-ninth (1/9) which formerly
belonged to Procopio, will go to Alberto Yabo, and the
remaining one-ninth (1/9) which formerly belonged to
Gaudencia, will go to Gaudencia's heirs or their assigns.
Doc. No. 720, recorded on page 28 of Notarial Register No.
VII, and acknowledged before Notary Public Isidro S. Baculio
(Exh. E) [purportedly executed by Maria Yabo and Pastor
Makibalo] is hereby declared null and 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 responsible for the
falsification of the said document, and if the evidence
warrants, to file the corresponding criminal action in court.
The Office of the City Assessor of Cagayan de Oro City is,
likewise, directed to cause the cancellation of Tax
Declarations Nos. 33553, marked as Exh. H-3, 33557,
marked as Exh. H-2, both in the name of Alberto Yabo, for
having been issued on the basis of a falsified document. Let
copies of this decision be furnished the Offices of the City
Fiscal and City Assessor, both of Cagayan de Oro City.
No pronouncement as to damages, attorney's fees and
costs.
SO ORDERED. 19
The defendants in Civil Case No. 5000 and the plaintiffs in Civil Case No.
5174 appealed from the decision to the Court of Appeals on 19 August
1983. 20
In its decision of 3 February 1993, 21 the Court of Appeals held that (a) Maria
Yabo did not sell her share to Alberto and Elpia Yabo; (b) prescription and
laches have not run against the private respondents with respect to the 1/9
share of Maria Yabo in the estate of her father and to her conjugal share in
the portions acquired from her brothers and sisters; and (c) Procopio never
sold his share in Lot No. 6080 to Pastor Makibalo. More specifically it stated:
Exh. E is the document found by the lower court to be a
falsification. This finding appellants do not dispute and have
not raised an error.
...
While acknowledging. that upon the death of Maria Yabo on
March 17, 1962, one-half (1/2) of the share of Maria Yabo in
Lots 6080 and 6180 and one-half (1/2) of Maria Yabo's
conjugal share in the portions bought from Basiliza,
Victoriano, Jose, Lope, Pelagia and Francisca should go to
the children of the brothers and sisters of Maria in
accordance with Article 1001 of the Civil Code, the lower
court rule that said children have lost their rights by laches
"for their inaction for a very long period and their rights have
become stale" (Decision, p. 16; Record, Vol. 2, p. 158).
Appellants in their second assignment of error aver that this
is an error.
We agree that the lower court erred.
P r o p e r t y C a s e s N o . 8 P a g e | 62
While between March 17, 1962 when Maria Yabo died and
October 8, 1976, when Civil Case No. 5174 for partition was
filed, was a period of more than fourteen (14) years, that
alone to our mind would not suffice to establish laches or
prescription. Upon the death of Maria Yabo, appellee Pastor
Makibalo and appellants and the other children of the
brothers and sisters of Maria, by operation of law become
co-owners of the one-ninth (1/9) share of Maria as heir of
her father Alipio and the conjugal share of Maria in the
portions acquired from Basiliza, Victoriano, Jose, Lope,
Pelagia and Francisca. Time alone is not a decisive factor.
Appellee Pastor Makibalo, it must be remembered, is the
husband of Maria and, therefore, an uncle in-law of
appellants. In our culture, a demand by an heir or heirs for
partition immediately upon the death of a relative is more
often taken not as a legitimate assertion of a right but of
something else, like greed. It must also be noted that the
spouses, the appellee Pastor Makibalo and his deceased wife
Maria, were childless and, therefore, appellants and the
other children of the brothers and sisters of Maria must have
felt that at any rate the property would go to them in the
course of time. This probably explains why appellants
started asserting their right over the property only after
appellee Pastor Makibalo sold the same to the spouses
Eulogio and Remedios Salvador. Besides, Lots 6080 and
6180 have a combined area only of 5,083 square meters and
before the development of Northern Mindanao, and even in
1962 when Maria Yabo died, were not that valuable. This is
shown by the fact that each heir sold his other share only for
P110.00.
As we have said not time alone. In the early case of Cortes
v. Oliva, 33 Phil. 480, it was held that"(o)rdinarily,
possession by one joint owner will not be presumed to be
adverse to the others, but will, as a rule, be held to be for
the benefit of all. Much stronger evidence is required to
show an adverse holding by one of several joint owners than
by a stranger; and in such cases, to sustain a plea of
prescription, it must always clearly appear that one who was
originally a joint owner has repudiated the claims of his co-
owners, and that his co-owners were apprised or should
have been apprised of his claim of adverse and exclusive
ownership before the alleged prescription began to run (at

page 484). This ruling on prescription should apply with
equal force to laches.
The third assignment of error challenges the finding of the
lower court that "there is nothing to show that Pastor
Makibalo also sold back Procopio's share in Lot 6080"
(Decision, p. 16; Records, Vol. 2,p. 158).
Exhibits 1 and 2 cover only Procopio's share in Lot 6180. In
other words, Exhibits 1 and. 2 conveyed back to Alberto
Yabo only his father, Procopio's share in Lot 6180.
There is indeed no evidence that Pastor Makibalo also sold
back to Alberto, his father Procopio's share in Lot 6080.
But from the evidence it appears that Procopio Yabo never
sold his share in Lot 6080 to Pastor Makibalo. So there was
no need to convey back Procopio's share in Lot 6080.
This fact is evident from the Affidavit of Confirmation of Sale
(Exh. M) dated April 22, 1970, executed by Alberto Yabo,
which is the very document relied upon by the lower court
(Decision, p. 11; Record, Vol. 2, p. 153) in finding that
"Alberto Yabo admitted that the share of his father Procopio
Yabo was previously bought by Pastor Makibalo." A look at
Exh. M, particularly par. 3 thereof, reveals that AlbertoYabo
merely acknowledged or confirmed the sale of his father's
share to Pastor Makibalo in Lot 6180. In effect, it at the
same time proves that Lot 6080 was never sold by Procopio
to appellee Pastor Makibalo; otherwise, it would have been
included in the said Affidavit of Confirmation of Sale. The
Deed of Absolute Sale (Exh. 2) subsequently executed by
Pastor Makibalo in favor of Alberto Yabo on April 23, 1970,
further proves this point, since the latter merely bought back
what was previously sold, his father's share in Lot 6180.22
The respondent court then concluded and held as follows:
In summary, appellee Pastor Makibalo and his assigns, the
spouses Eulogio and Remedios Salvador, are entitled only to
one-half (½) of the one-ninth (1/9) share of Maria and
three-fourths (3/4) of the six-ninth (6/9) shares acquired
from Basiliza, Victoriano, Jose, Lope, Pelagia and Francisca.
Accordingly, the partition should be done as follows:
(1) 1/9 of Lots 6080 end 6180 should be
given to the heirs of Gaudencia Yabo or
their successors and assigns;
P r o p e r t y C a s e s N o . 8 P a g e | 63
(2) 1/9 of Lot 6180 should go to Alberto
Yabo and his wife Elpia Yabo;
(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 Yabo in Lots
6080 and 6180 should be partitioned: One-
half (1/2) for the surviving spouse Pastor
Makibalo (now the spouses Eulogio Salvador
and Remedios Salvador) and the other half
for the children of the brothers and sisters
of Maria Yabo in equal shares.
(5) The remaining 6/9, one-half (1/2) of
which is conjugal between Maria Yabo and
appellee Pastor Makibalo should be
partitioned three-fourths (3/4) for Pastor
Makibalo (now the spouses Eulogio Salvador
and Remedios Salvador) and one-fourth
(1/4) for the children of the brothers and
sisters of Maria Yabo in equal shares.
(6) Jose Yabo if he is still alive should
participate in the partition as heir of Maria
otherwise he shall be represented by his
children.
WHEREFORE, premises considered, subject to the
modification in the partition, as indicated above, the decision
appealed from is AFFIRMED, without pronouncement as to
costs. The lower court is directed if necessary to fully effect
the partition, to conduct further hearings and determine
whether Jose Yabo is still alive and who are the children of
the brothers and sisters of Maria Yabo.23
Unable to obtain a reconsideration of the said-decision, Remedios Salvador,
together with her daughter, Ma. Gracia Salvador, as one of the successors-
in-interest of Eulogio M. Salvador who died during the pendency of the
appeal, 24 elevated the case to this Court contending that the respondent
court erred in ruling that: (1) the shares of Pelagia Yabo should be included
in the partition; (2) prescription and laches have not run against the private
respondents in relation to the 1/9 share of Maria Yabo in the estate of her
father and to her ½ conjugal share in those acquired by purchase; (3)
Procopio Yabo never sold to Pastor Makibalo his share in Lot No. 6080;
and(4) Jose Yabo should be allowed to participate as heir of Maria even as

he had openly rejected this option by refusing to participate in both civil
cases. 25
Article 160 of the Civil Code provides that all property of the marriage is
presumed to belong to the conjugal partnership, unless it be proved that it
pertains .exclusively to the husband or to the wife. Since the shares of Jose,
Victoriano, Lope, Baseliza, Procopio, and Francisca in Lot No. 6180 and Lot
No. 6080 had been purchased by Pastor during his marriage with Maria, and
there is no proof that these were acquired with his exclusive money, the
same are deemed conjugal properties. Not forming part of the conjugal
partnership are: (1) the 1/9 share inherited by Maria which remained as her
exclusive property pursuant to Article 146 (2) of the Civil Code; (2) the 1/9
share of Gaudencia which was not sold to Pastor; and (3) the 1/9 share of
Pelagia which was acquired by Pastor in 1967 or five years after the death of
his wife and which was therefore his exclusive property.
There is, thus; merit in the petitioners' first assigned error. The Court of
.Appeals should have excluded from the conjugal partnership the share of
Pelagia which Pastor had acquired after his wife's death.
Upon Maria's death in 1962, the conjugal partnership of gains was
dissolved. 26 Half of the conjugal properties, together with Maria's l/9
hereditary share in the disputed lots, constituted Maria's estate and should
thus go to her surviving heirs. 27 Under Article 1001 of the Civil Code, her
heirs are her spouse, Pastor Makibalo, who shall be entitled to-one-half (1/2)
of her estate, her brother, Jose, and the children of her other brothers and
sisters, who shall inherit the other half. There having been no actual partition
of the estate yet, the said heirs became co-owners thereof by operation of
law. 28
We now determine whether prescription and laches can be applied against
the co-heirs of Pastor Makibalo.
It has been said that Article 494 of the Civil Code which provides that each
co-owner may demand at any time the partition of the common property
implies that an action to demand partition is imprescriptible or cannot be
barred by laches. 29 The imprescriptibility of the action cannot, however, be
invoked when one of the co-owners has possessed the property as exclusive
owner and for a period sufficient to acquire it by prescription. 30
What needs to be addressed first is whether or not Pastor Makibalo has
acquired by prescription the shares of his other co-heirs or co-owners.
Prescription as a mode of acquiring ownership requires a continuous, open,
peaceful, public, and adverse possession for a period of time fixed by law.
This Court has held that the possession of a co-owner is like that of a trustee
and shall not be regarded as adverse to the other co-owners but in fact as
P r o p e r t y C a s e s N o . 8 P a g e | 64
beneficial to all of them. 31 Acts which may be considered adverse to
strangers may not be considered adverse insofar as co-owners are
concerned. A mere silent possession by a co-owner, his receipt of rents,
fruits or profits from the property, the erection of buildings and fences and
the planting of trees thereon, and the payment of land taxes, cannot serve
as proof of exclusive ownership, if it is not borne out by clear and convincing
evidence that he exercised acts of possession which unequivocably
constituted an ouster or deprivation of the rights of the other co-owners. 32
Thus, in order that a co-owner's possession may be deemed adverse to
the cestui que trust  or the other co-owners, the following elements must
concur: (1) that he has performed unequivocal acts of repudiation amounting
to an ouster of the cestui que trust  or the other co-owners; (2) that such
positive acts of repudiation have been made known to the cestui que trust  or
the other co-owners; and (3) that the evidence thereon must be clear and
convincing. 33
In Pangan vs. Court of Appeals, 34 this Court had occasion to lay down
specific acts which are considered as acts of repudiation:
Filing by a trustee of an action in court  against the trustor to
quiet title to property, or for recovery of ownership thereof,
held in possession by the former, may constitute an act of
repudiation of the trust reposed on him by the latter.
The issuance of the certificate of title  would constitute an
open and clear repudiation of any trust, and the lapse of
more than 20 years, open and adverse possession as owner
would certainly suffice to vest title by prescription.
An action for the reconveyance of land based on implied or
constructive trust prescribes within 10 years. And it is from
the date of the issuance of such title  that the effective
assertion of adverse title for purposes of the statute of
limitation is counted.
The prescriptive period may only be counted from the time
petitioners repudiated the trust relation in 1955 upon
the  filing of the complaint for recovery of possession  against
private respondents so that the counterclaim of the private
respondents contained in their amended answer wherein
they asserted absolute ownership of the disputed realty by
reason of the continuous and adverse possession of the
same is well within the l0-year prescriptive period.
There is clear repudiation of a trust when one who is an
apparent administrator of property causes the cancellation
 P r o p e r t y C a s e s N o . 8 P a g e | 65

of the title  thereto in the name of the apparent beneficiaries At this juncture, it is worthy to quote pertinent portions of the testimony of
and gets a new certificate of title in his own name. Pastor Makibalo:
It is only when the defendants, alleged co-owners of the COURT: (To the witness.)
property in question, executed a deed of partition and on Q Where is AlbertoYabo living?
the strength thereof obtained the cancellation of the title  in A It is there in their house at Bulua.
the name of their predecessor and the issuance of a new
one wherein they appear as the new owners of a definite ATTY. JARAULA: (Continuing.)
area each, thereby in effect denying or repudiating the Q In whose land?
ownership of one of the plaintiffs over his alleged share in A Alipio Yabo's land.
the entire lot, that the statute of limitations started to run Q What relation has that land to the two (2) parcels of land under
for the purposes of the action instituted by the latter seeking litigation?
a declaration of the existence of the co-ownership and of A I bought already.
their rights thereunder.
Q So, will you please tell the Honorable Court, why Alberto Yabo is
The records do not show that Pastor Makibalo adjudicated to himself the
staying on that land when you said you have bought that land
whole estate of his wife by means of an affidavit filed with the Office of the
already.
Register of Deeds as allowed under Section 1 Rule 74 of the Rules of Court,
or that he caused the issuance of a certificate of title in his name or the A So, I sold back a portion to them because they requested me.
cancellation of the tax declaration in Alipio's name and the issuance of a new COURT: (To the witness.)
one in his own name. The only act which may be deemed as a repudiation Q When was that when you said that Alberto Yabo requested a
by Pastor of the co-ownership over the lots is his filing on 28 April 1976 of an portion?
action to quiet title (Civil Case No. 5000). The period of prescription started A In 1967.
to run only from this repudiation. However, this was tolled when his co-heirs,
COURT:
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 Q Did you give that portion which they requested?
Pastor being for only about six months would not vest in him exclusive A Their share being inherited from their father Procopio was the
ownership of his wife's estate, and absent acquisitive prescription of portion they requested.
ownership, laches and prescription of the action for partition will not lie in COURT
favor of Pastor. 35 Q Yes. Did you grant that?
The issue presented by the petitioners in their third assigned error involves a A Yes.
question of fact. This Court is not ordinarily a trier of facts, its jurisdiction
Q That is the area you sold to Alberto Yabo, pursuant to his request?
being limited to errors of law. Thus; the findings of facts of the Court of
Appeals are as a rule deemed conclusive. However, when the findings of A Because that was the land they inherited from their father that
facts of the appellate court vary with those of the trial court, this Court has was what they requested.
to review the evidence in order to arrive at the correct findings. 36 Q All right. So that, the area now being occupied by Alberto Yabo?
In the instant case, a conflict in the findings of facts of the lower courts A Yes. That land in the Centro.
exists. The trial court found that Pastor was the owner of Procopio's share in Q This is now identified as Lot No. 6180?
Lot No. 6080, as there was nothing to show that he sold it back to Alberto A Yes, Your Honor.
Yabo. The respondent court on the other hand, held that Procopio Yabo
ATTY. JARAULA: (Continuing.)
never sold his share in Lot No. 6080 to pastor, thus, there was no need to
convey it back to Procopio's son, Alberto. Q Where did you sign a document ceding that portion requested by
Alberto Yabo?

A We did not make any receipt in favor of AlbertoYabo because they
got only the receipt of that of his father.
COURT: (To the witness.)
Q You mean to say, that the receipt which Procopio signed when he
sold his share for [sic] the document which Alberto got?
A Yes.
COURT:
All right.
ATTY. JARAULA (Continuing.)
Q Now, for how much did you buy. the shares of each of the
brothers and sisters of your wife?
A One Hundred Ten (P110.00) Pesos.
Q When you sold back to Alberto Yabo, the portion corresponding to
the share of his father Procopio in the Poblacion, how much did he
pay you?
A The same.
Q By the same, you are referring by the same amount of One
Hundred Ten (P110.00) Pesos?
A Yes, Sir. The same amount. 37
The petitioners contend that the sales or conveyances made by Alipio's heirs
were for their consolidated shares in the two lots. If this was so, and the
receipt which Procopio signed when he sold his consolidated share to Pastor
was turned over to Alberto, the inevitable conclusion is that Alberto
redeemed his father's share in both lots, not only in Lot: No. 6180. This
conclusion is further buttressed by the above-quoted testimony of Pastor
that he bought the shares (consolidated) of each of Alipio's heirs for P110.00
and that when he sold back to Alberto the former share of Procopio, Alberto
paid him the same amount of P110.00.
However, since the share of Procopio in the two litigated parcels of land was
purchased by Pastor during his marriage with Maria, the same became
conjugal property, and half of it formed part of Maria's estate upon her death
in 1962. Accordingly, Pastor's resale in favor of Alberto could only be 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 remaining one-fourth (1/4) should
go to Pastor's co-heirs, the private respondents herein.
Now on the fourth assigned error.
Section 1, Rule 69 of the Rules of Court requires that all persons interested
in the land sought to be partitioned must be joined as defendants in the
complaints. All co-owners and persons having an interest in the property are
P r o p e r t y C a s e s N o . 8 P a g e | 66
considered indispensable parties and an action for partition will not lie
without the joinder of said persons. 39 It has been held that the absence of
an indispensable party in a case renders ineffective all the proceedings
subsequent to the filing of the complaint including the judgment. 40
It must be recalled that in Civil Case No. 5174 the private respondents
sought the partition of the two lots based on the co-ownership which arose
from the right of succession to Alipio's estate. Since Jose Yabo confirmed,
through his thumbmark in the verification of the complaint, that he had
already parted with his share in Alipio's estate, he in effect 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 does not, as well, appear to be an indispensable
party in Civil Case No. 5000.
As it turned out, however, the evidence and the issues which cropped up
rendered imperative the determination of the conjugal assets of Pastor
Makibalo and Maria Yabo and the partition of the latter's estate among her
heirs. Her estate consists of one-half(½) of the conjugal properties, which
should then be divided pursuant to Article 1001 of the Civil Code since the
marriage produced no child; thus: one-half (½) to Pastor, and the other half
to her brother Jose, and to her nephews and nieces.
Insofar as the partition of Maria Yabo's estate is concerned, Jose is an
indispensable party. Strictly, the rule on indispensable parties may bar a
partition of Maria's estate. Considering, however, that such estate or its
partition are but incidents in Civil Case No. 5000 and Civil Case No. 5174,
and the parties have not offered any objection to the propriety of the
determination and partition of her estate, then in the light of Section 11 of
Rule 3 41 and Sections 1 and 5, Rule 10 42 of the Rules of Court, and following
the rulings of this Court in the 1910 case of Alonso vs. Villamor 43 and the
1947 case of Cuyugan vs. Dizon, 44 an amendment of the complaint in Civil
Case No. 5174 to implead Jose Yabo as party plaintiff would be in order.
In Alonso, it was held that under Section 110 of the Code of Civil Procedure
— whose first paragraph is substantially the same as the aforesaid Section 1
of Rule 10 — and Section 503 thereof, this Court "has full power, apart from
that power and authority which is inherent, to amend the process, pleadings,
proceedings, and decision in this case by substituting, as party plaintiff, the
real party in interest." Our ruling in Cuyugan states:
We, however, do not believe that the case should be
dismissed for plaintiff's failure to join her husband. (Sec. 11,
Rule 2, Rules of Court). Nor should the case be remanded to
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 plaintiffs, after final decision is rendered.
Section 11, Rule 2, and Section 2, Rule 17, explicitly
authorize such procedure. As this Court had occasion to say
in Quison vs. Salud, (12 Phil., 109, 116), "a second action
would be but a repetition of the first and would involve both
parties, plaintiffs and defendant, in much additional expense
and would cause much delay, in that way defeating the
purpose of the section, which is expressly stated to be "that
the actual merits of the controversy may speedily be
determined without regard to technicalities and in the most
expeditious and inexpensive manner." (See also Diaz vs. De
la Rama, 73 Phil., 104)
To avoid further delay in the disposition of this case, we declare Civil Case
No. 5174 as thus duly amended. Consequently, Jose Yabo may participate in
the partition of the estate of Maria Yabo. The fourth assigned error must
then be rejected.
In view of the foregoing disquisitions, the appealed judgment should be
modified as follows: (a) the former 1/9 share of Pelagia Yabo in Lots No.
6180 and 6080 which she sold to Pastor should be treated as the latter's
exclusive property which should now pertain to the petitioners, his
successors-in-interest; 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 conjugal
share and 1/4 representing his share therein as Maria's heir) for the spouses
Alberto and Elpia Yabo, and 1/4 (representing the share therein of Maria's
collateral relatives as Maria's heirs) for the private respondents, including
Alberto and Jose Yabo. The partition of the two lots in controversy should
therefore be made in this wise:
(1) 1/9 share of Gaudencia Yabo should be allotted to her heirs or
successors-in-interest;
(2) 1/9 share formerly belonging to Pelagia Yabo — to the
petitioners as successors-in-interest of Pastor Makibalo;
(3) 1/9 hereditary share of Maria Yabo to be divided as follows:
(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
P r o p e r t y C a s e s N o . 8 P a g e | 67
(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) ¼ for the private respondents, including Jose
Yabo or his heirs.
In sum, Lots Nos. 6180 anid 6080 should be partitioned as follows:
1/9 or 4/36 — to Guadencia Yabo's heirs or successors-in-
interest;
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.
WHEREFORE, the challenged decision of the Court of Appeals of 8 February
1993 in CA-G.R. CV No. 12839 is AFFIRMED, subject to the modifications
indicated above. Upon the finality of this decision, let this case be forthwith
remanded to the court a quo for further proceedings on the partition of Lots
Nos. 6180 and 6080 in conformity with this decision.
No pronouncement as to costs.
SO ORDERED.
Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.
FIRST DIVISION G.R. No. 184109               February 1, 2012
CELERINO E. MERCADO, Petitioner, vs. BELEN* ESPINOCILLA** AND
FERDINAND ESPINOCILLA, Respondents.
DECISION
VILLARAMA, JR., J.:
The Case

Petitioner Celerino E. Mercado appeals the Decision 1 dated April 28, 2008 and
Resolution2 dated July 22, 2008 of the Court of Appeals (CA) in CA-G.R. CV
No. 87480. The CA dismissed petitioner’s complaint 3 for recovery of
possession, quieting of title, partial declaration of nullity of deeds and
documents, and damages, on the ground of prescription.
The Antecedent Facts
Doroteo Espinocilla owned a parcel of land, Lot No. 552, with an area of 570
sq. m., located at Magsaysay Avenue, Zone 5, Bulan, Sorsogon. After he
died, his five children, Salvacion, Aspren, Isabel, Macario, and Dionisia
divided Lot No. 552 equally among themselves. Later, Dionisia died without
issue ahead of her four siblings, and Macario took possession of Dionisia’s
share. In an affidavit of transfer of real property 4 dated November 1, 1948,
Macario claimed that Dionisia had donated her share to him in May 1945.
Thereafter, on August 9, 1977, Macario and his daughters Betty Gullaba and
Saida Gabelo sold5 225 sq. m. to his son Roger Espinocilla, husband of
respondent Belen Espinocilla and father of respondent Ferdinand Espinocilla.
On March 8, 1985, Roger Espinocilla sold 6 114 sq. m. to Caridad Atienza. Per
actual survey of Lot No. 552, respondent Belen Espinocilla occupies 109 sq.
m., Caridad Atienza occupies 120 sq. m., Caroline Yu occupies 209 sq. m.,
and petitioner, Salvacion's 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 Macario’s house. 9 His claim has since
been modified to an 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 mother’s inheritance is 142.5 sq. 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 claims that respondents encroach on his share by 39 sq. m.11
The Case For Respondents
Respondents agree that Doroteo’s five children each inherited 114 sq. m. of
Lot No. 552. However, Macario’s share increased when he received Dionisia’s
share. Macario’s increased share was then sold to his son Roger,
respondents’ husband and father. Respondents claim that they rightfully
possess the land they occupy by virtue of acquisitive prescription and that
there is no basis for petitioner’s claim of encroachment. 12
The Trial Court’s Decision
P r o p e r t y C a s e s N o . 8 P a g e | 68
On May 15, 2006, the Regional Trial Court (RTC) ruled in favor of petitioner
and held that he is entitled to 171 sq. m. The RTC found that petitioner
inherited 142.5 sq. m. from his mother Salvacion and bought 28.5 sq. m.
from his aunt Aspren. The RTC computed that Salvacion, Aspren, Isabel and
Macario each inherited 142.5 sq. m. of Lot No. 552. Each inherited 114 sq.
m. from Doroteo and 28.5 sq. m. from Dionisia. The RTC further ruled that
Macario was not entitled to 228 sq. m. Thus, respondents must return 39 sq.
m. to petitioner who occupies only 132 sq. m.13
There being no public document to prove Dionisia’s donation, the RTC also
held that Macario’s 1948 affidavit is void and is an invalid repudiation of the
shares of his sisters Salvacion, Aspren, and Isabel in Dionisia’s share.
Accordingly, Macario cannot acquire said shares by prescription. The RTC
further held that the oral partition of Lot No. 552 by Doroteo’s heirs did not
include Dionisia’s share and that partition should have been the main action.
Thus, the RTC ordered partition and deferred the transfer of possession of
the 39 sq. m. pending partition. 14 The dispositive portion of the RTC decision
reads:
WHEREFORE, in view of the foregoing premises, the court issues the
following ORDER, thus -
a) Partially declaring the nullity of the Deed of Absolute Sale of
Property dated August 9, 1977 x x x executed by Macario Espinocilla,
Betty E. Gullaba and Saida E. Gabelo in favor of Roger Espinocilla,
insofar as it affects the portion or the share belonging to Salvacion
Espinocilla, mother of [petitioner,] relative to the property left by
Dionisia Espinocilla, including [Tax Declaration] No. 13667 and other
documents of the same nature and character which emanated from
the said sale;
b) To leave as is the Deeds of Absolute Sale of May 11, 1983 and
March 8, 1985, it having been determined that they did not involve
the portion belonging to [petitioner] x x x.
c) To effect an effective and real partition among the heirs for
purposes of determining the exact location of the share (114 sq. m.)
of the late Dionisia Espinocilla together with the 28.5 sq.
m. belonging to [petitioner’s] mother Salvacion, as well as, the exact
location of the 39 sq. m. portion belonging to the [petitioner] being
encroached by the [respondents], with the assistance of the
Commissioner (Engr. Fundano) appointed by this court.
d) To hold in abeyance the transfer of possession of the 39 sq. m.
portion to the [petitioner] pending the completion of the real
partition above-mentioned.15

The CA Decision
On appeal, the CA reversed the RTC decision and dismissed petitioner’s
complaint on the ground that extraordinary acquisitive prescription has
already set in in favor of respondents. The CA found that Doroteo’s four
remaining children made an oral partition of Lot No. 552 after Dionisia’s
death in 1945 and occupied specific portions. The oral partition terminated
the co-ownership of Lot No. 552 in 1945. Said partition also included
Dionisia’s share because the lot was divided into four parts only. And since
petitioner’s complaint was filed only on July 13, 2000, the CA concluded that
prescription has set in.16 The CA disposed the appeal as follows:
WHEREFORE, the appeal is GRANTED. The assailed May 15, 2006 Decision of
the Regional Trial Court (RTC) of Bulan, Sorsogon is hereby REVERSED and
SET ASIDE. The Complaint of the [petitioner] is hereby DISMISSED. No
costs.17
The Instant Petition
The core issue to be resolved is whether petitioner’s action to recover the
subject portion is barred by prescription.
Petitioner confirms oral partition of Lot No. 552 by Doroteo's heirs, but
claims that his share increased from 114 sq. m. to 171 sq. m. and that
respondents encroached on his share by 39 sq. m. Since an oral partition is
valid, the corresponding survey ordered by the RTC to identify the 39 sq. m.
that must be returned to him could be made. 18 Petitioner also alleges that
Macario committed fraud in acquiring his share; hence, any evidence
adduced by him to justify such acquisition is inadmissible. Petitioner
concludes that if a person obtains legal title to property by fraud or
concealment, courts of equity will impress upon the title a so-called
constructive trust in favor of the defrauded party. 19
The Court’s Ruling
We affirm the CA ruling dismissing petitioner’s complaint on the ground of
prescription.1âwphi1
Prescription, as a mode of acquiring ownership and other real rights over
immovable property, is concerned with lapse of time in the manner and
under conditions laid down by law, namely, that the possession should be in
the concept of an owner, public, peaceful, uninterrupted, and adverse.
Acquisitive prescription of real rights may be ordinary or extraordinary.
Ordinary acquisitive prescription requires possession in good faith and with
just title for 10 years. In extraordinary prescription, ownership and other real
rights over immovable property are acquired through uninterrupted adverse
possession for 30 years without need of title or of good faith. 20
P r o p e r t y C a s e s N o . 8 P a g e | 69
Here, petitioner himself admits the adverse nature of respondents’
possession with his assertion that Macario’s fraudulent acquisition of
Dionisia’s share created a constructive trust. In a constructive trust, there is
neither a promise nor any fiduciary relation to speak of and the so-called
trustee (Macario) neither accepts any trust nor intends holding the property
for the beneficiary (Salvacion, Aspren, Isabel). The relation of trustee
and cestui que trust does not in fact exist, and the holding of a constructive
trust is for the trustee himself, and therefore, at all times
adverse.21 Prescription may supervene even if the trustee does not repudiate
the relationship.22
Then, too, respondents’ uninterrupted adverse possession for 55 years of
109 sq. m. of Lot No. 552 was established. Macario occupied Dionisia’s share
in 1945 although his claim that Dionisia donated it to him in 1945 was only
made in a 1948 affidavit. We also agree with the CA that Macario’s
possession of Dionisia’s share was public and adverse since his other co-
owners, his three other sisters, also occupied portions of Lot No. 552.
Indeed, the 1977 sale made by Macario and his two daughters in favor of his
son Roger confirms the adverse nature of Macario’s possession because said
sale of 225 sq. m.23 was an act of ownership over Macario’s original share
and Dionisia’s share. In 1985, Roger also exercised an act of ownership
when he sold 114 sq. m. to Caridad Atienza. It was only in the year 2000,
upon receipt of the summons to answer petitioner’s complaint, that
respondents’ peaceful possession of the remaining portion (109 sq. m.) was
interrupted. By then, however, extraordinary acquisitive prescription has
already set in in favor of respondents. That the RTC found Macario’s 1948
affidavit void is of no moment. Extraordinary prescription is unconcerned
with Macario’s title or good faith. Accordingly, the RTC erred in ruling that
Macario cannot acquire by prescription the shares of Salvacion, Aspren, and
Isabel, in Dionisia’s 114-sq. m. share from Lot No. 552.
Moreover, the CA correctly dismissed petitioner’s complaint as an action for
reconveyance based on an implied or constructive trust prescribes in 10
years from the time the right of action accrues. 24 This is the other kind of
prescription under the Civil Code, called extinctive prescription, where rights
and actions are lost by the lapse of time. 25 Petitioner’s action for recovery of
possession having been filed 55 years after Macario occupied Dionisia’s
share, it is also barred by extinctive prescription. The CA while condemning
Macario’s fraudulent act of depriving his three sisters of their shares in
Dionisia’s share, equally emphasized the fact that Macario’s sisters wasted
their opportunity to question his acts.

WHEREFORE, we DENY the petition for review on 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.
SO ORDERED.
SECOND DIVISION G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA
PALACIOS, Administratrix, petitioner-appellee, vs. MARCELLE D. VDA.
DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.
ABAD SANTOS, J.:
The main issue in this appeal is the manner of partitioning the testate estate
of Jose Eugenio Ramirez among the principal beneficiaries, namely: his
P r o p e r t y C a s e s N o . 8 P a g e | 70
widow Marcelle Demoron de Ramirez; his two grandnephews Roberto and
Jorge Ramirez; 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 Austrian who lives in Spain.
Moreover, the testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on 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 was appointed administratrix of the estate. In due time
she submitted an inventory of the estate as follows:
INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la Escolta, Manila.............................................................
P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en Antipolo, Rizal................... 658.34
Cuatrocientos noventa y uno (491) acciones
de la 'Central Azucarera de la Carlota a P17.00
por
accion ................................................................................8,347.0
0
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 por
accion ..............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co..............................................................................................
2,350.73
TOTAL..............................................................
P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garan-
tizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR LIQUIDO...........................................
P507,976.97
The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas
menores de edad, residentes en Manila, I.F., calle 'Alright, No. 1818,
Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion
vulgar a favor de sus respectivos descendientes, y, en su defecto,
con sustitucion vulgar reciprocal entre ambos.
El precedente legado en nuda propiedad de la participacion indivisa
de la finca Santa Cruz Building, lo ordena el testador a favor de los
legatarios nombrados, en atencion a que dicha propiedad fue
creacion del querido padre del otorgante y por ser aquellos
continuadores del apellido Ramirez,
B.—Y en usufructo a saber: —
a. En cuanto a una tercera parte, a favor de la esposa del testador,
Da. Marcelle Ramirez, domiciliada en IE PECO, calle del General
Gallieni No. 33, Seine Francia, con sustitucion vulgar u fideicomisaria
a favor de Da. Wanda de Wrobleski, de Palma de Mallorca, Son
Rapina Avenida de los Reyes 13,
b.—Y en cuanto a las dos terceras partes restantes, a favor de la
nombrada Da. Wanda de Nrobleski con sustitucion vulgar v
fideicomisaria a saber:—
En cuanto a la mitad de dichas dos terceras partes, a favor de D.
Juan Pablo Jankowski, de Son Rapina Palma de Mallorca; y encuanto
a la mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San
Luis Building, Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente
ordinadas, las usufiructuarias nombradas conjuntamente con los
nudo propietarios, podran en cualquier memento vender a tercero
los bienes objeto delegado, sin intervencion alguna de los titulares
fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as
follows: the property of the deceased is to be divided into two parts. One
part shall go to the widow 'en pleno dominio" in satisfaction of her legitime;
the other part or "free portion" shall go to Jorge and Roberto Ramirez "en
nuda propriedad." Furthermore, one third (1/3) of the free portion is charged
with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct
in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that
the provisions for vulgar substitution in favor of Wanda de Wrobleski with
respect to the widow's usufruct and in favor of Juan Pablo Jankowski and
Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the
first heirs Marcelle and Wanda) survived the testator; (b) that the provisions
P r o p e r t y C a s e s N o . 8 P a g e | 71
for fideicommissary substitutions are also invalid because the first heirs are
not related to the second heirs or substitutes within the first degree, as
provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over
real property in the Philippines in favor of Wanda Wrobleski, who is an alien,
violates Section 5, Article III of the Philippine Constitution; and that (d) the
proposed partition of the testator's interest in the Santa Cruz (Escolta)
Building between the widow Marcelle and the appellants, violates the
testator's 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 appealed to this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle one-half of the
estate in full ownership. They admit that the testator's dispositions impaired
his widow's legitime. Indeed, under Art. 900 of the Civil Code "If the only
survivor is the widow or widower, she or he shall be entitled to one-half of
the hereditary estate." And since Marcelle alone survived the deceased, she
is entitled to one-half of his estate over which he could impose no burden,
encumbrance, condition or substitution of any kind whatsoever. (Art. 904,
par. 2, Civil Code.)
It is the one-third usufruct over the free portion which the appellants
question and justifiably so. It appears that the court a quo approved the
usufruct in favor of Marcelle because the testament provides for a usufruct in
her favor of one-third of the estate. The court a quo erred for Marcelle who
is entitled to one-half of the estate "en pleno dominio" as her legitime and
which is more than what she is given under the will is not entitled to have
any additional share in the estate. To give Marcelle more than her legitime
will run counter to the testator's intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the appoint- judgment of
another heir so that he may enter into the inheritance in default of the heir
originally instituted." (Art. 857, Civil Code. And that there are several kinds of
substitutions, namely: simple or common, brief or compendious, reciprocal,
and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although
the Code enumerates four classes, there are really only two principal classes
of substitutions: the simple and the fideicommissary. The others are merely
variations of these two." (111 Civil Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code which
reads:

ART. 859. The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or heirs
should die before him, or should not wish, or should be incapacitated
to accept the inheritance.
A simple substitution, without a statement of the cases to which it
refers, shall comprise the three mentioned in the preceding
paragraph, unless the testator has otherwise provided.
The fideicommissary substitution is described in the Civil Code as follows:
ART. 863. A fideicommissary substitution by virtue of which the
fiduciary or first heir instituted is entrusted with the obligation to
preserve and to transmit to a second heir the whole or part of
inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally
instituted, and provided further that the fiduciary or first heir and the
second heir are living at time of the death of the testator.
It will be noted that the testator provided for a vulgar substitution in respect
of the legacies of Roberto and Jorge Ramirez, the appellants, thus: con
sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto,
con substitution vulgar reciprocal entre ambos.
The appellants do not question the legality of the substitution so provided.
The appellants question the sustitucion vulgar y fideicomisaria a favor de Da.
Wanda de Wrobleski" in connection with the one-third usufruct over the
estate given to the widow Marcelle However, this question has become moot
because as We have ruled above, the widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in
connection with Wanda's usufruct over two thirds of the estate in favor of
Juan Pablo Jankowski and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda
survived the testator or stated differently because she did not predecease
the testator. But dying before the testator is not the only case for vulgar
substitution for it also includes refusal or incapacity to accept the inheritance
as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar
substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are
correct in their claim that it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not
related to Wanda, the heir originally instituted. Art. 863 of the Civil Code
validates a fideicommissary substitution "provided such substitution does not
go beyond one degree from the heir originally instituted."
P r o p e r t y C a s e s N o . 8 P a g e | 72
What is meant by "one degree" from the first heir is explained by Tolentino
as follows:
Scaevola Maura, and Traviesas construe "degree" as designation,
substitution, or transmission. The Supreme Court of Spain has
decidedly adopted this construction. From this point of view, there
can be only one tranmission or substitution, and the substitute need
not be related to the first heir. Manresa, Morell and Sanchez Roman,
however, construe the word "degree" as generation, and the present
Code has obviously followed this interpretation. by providing that the
substitution shall not go beyond one degree "from the heir originally
instituted." The Code thus clearly indicates that the second heir must
be related to and be one generation from the first heir.
From this, it follows that the fideicommissary can only be either a
child or a parent of the first heir. These are the only relatives who
are one generation or degree from the fiduciary ( Op. cit., pp. 193-
194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to
the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact,
the appellee admits "that the testator contradicts the establishment of a
fideicommissary substitution when he permits the properties subject of the
usufruct to be sold upon mutual agreement of the usufructuaries and the
naked owners." (Brief, p. 26.)
3. The usufruct of Wanda.
The appellants claim that the usufruct over real properties of the estate in
favor of Wanda is void because it violates the constitutional prohibition
against the acquisition of lands by aliens.
The 1935 Constitution which is controlling provides as follows:
SEC. 5. Save in cases of hereditary succession, no private
agricultural land shall be transferred or assigned except to
individuals, corporations, or associations qualified to acquire
or hold lands of the public domain in the Philippines. (Art.
XIII.)
The court a quo upheld the validity of the usufruct given to Wanda on the
ground that the Constitution covers not only succession by operation of law
but also testamentary succession. We are of the opinion that the
Constitutional provision which enables aliens to acquire private lands does
not extend to testamentary succession for otherwise the prohibition will be
for naught and meaningless. Any alien would be able to circumvent the
prohibition by paying money to a Philippine landowner in exchange for a
devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor 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 to land in favor of aliens which is
proscribed by the Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby
ordered distributed as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge
Ramirez in naked ownership and the usufruct to Wanda de Wrobleski with a
simple substitution in favor of Juan Pablo Jankowski and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No
special pronouncement as to costs.
SO ORDERED.
Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and Escolin, JJ.,
concur.
Aquino J., took no part.
P r o p e r t y C a s e s N o . 8 P a g e | 73
FIRST DIVISION G.R. No. L-45142             April 26, 1991
SIMPROSA VDA. DE ESPINA, RECAREDO ESPINA, TIMOTEO ESPINA,
CELIA ESPINA, GAUDIOSA ESPINA and NECIFORA
ESPINA, petitioners, vs. THE HON. OTILIO ABAYA and SOFIA ESPINA
and JOSE ESPINA, respondents.
Cipriano C. Alvizo, Sr. for private respondents.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the issuance of a writ of
preliminary injunction seeking the nullification of the orders issued by the
respondent Judge Otilio Abaya, in his capacity as the presiding judge of the
Court of First Instance of Surigao del Sur, Branch II, Lianga, Surigao del Sur
in Civil Case No. L-108, entitled "Simprosa Vda. de Espina, et. al. v. Sofia
Espina, et. al." dated May 9, 1975 dismissing the complaint for partition; July
25, 1975 denying the motion for reconsideration; August 13, 1975 denying
the second motion for reconsideration and March 15, 1976 denying plaintiffs'
notice of appeal.
The antecedent facts are as follows:
Marcos Espina died on February 14, 1953 and was survived by his spouses,
Simprosa Vda. de Espina and their children namely, Recaredo, Timoteo,
Celia, Gaudiosa, Necifora, Sora and Jose, all surnamed Espina. Decedent's
estate comprises of four (4) parcels of land located at the Municipality of
Barobo Province of Surigao del Sur.
On August 23, 1973 an action for partition of the aforementioned parcels of
land was filed by petitioners Simprosa and her children Recaredo, Timoteo,
Celia, Gaudencia and Necifora.
The complaint alleges that parcel No. 1 is the exclusive property of the
deceased, hence the same is owned in common by petitioners and private
respondents in eight (8) equal parts, while the other three (3) parcels of land
being conjugal properties, are also owned in common, one-half (1/2) belongs
to the widow Simprosa and the other half is owned by her and her children
in eight (8) equal parts.
It also alleges that parcel No. 1 has been subdivided into two lots. Lot No.
994 PL8-44 is covered by Original Certificate of Title No. 5570 in the name of
one of the heirs, Sofia Espina, who acquired the title as a trustee for the
beneficiaries or heirs of Marcos Espina, while lot No. 1329 PCS-44 is covered
by Original Certificate of Title No. 3732 issued in the name of one of the
heirs, Jose Espina as trustee for the heirs of Marcos Espina. Said parcel of
land is in the possession of petitioners and private respondents who have
their respective houses thereon.

Simprosa presently occupies parcel No. 2 while parcel No. 3 is occupied by
Timoteo, although the same is actually titled in the name of Sofia. Parcel No.
4 is occupied by Recaredo.
Petitioners have several times demanded the partition of the aforementioned
properties, but notwithstanding such demands private respondents refused
to accede.
Private respondents alleged in their answer that in or about April, 1951, the
late Marcos Espina and his widow, Simprosa, together with their children
made a temporary verbal division and assignment of shares among their
children. After the death of Marcos, the temporary division was finalized by
the heirs. Thereafter the heirs took immediate possession of their respective
shares on April 20, 1952. Private respondents took actual physical possession
of their respective shares including the portions ceded to them by Simprosa
upon their payment of P50.00 each per quarter starting April, 1952 until the
latter's death pursuant to their contract of procession The assignment of
shares was as follows:
(a) To the surviving spouses, (sic) Simprosa Vda. de Espina, herein
plaintiffs, one-half (1/2) of the parcel of land adjudicated to each of
said plaintiffs-heirs and defendants;
(b) To each of the following compulsory heirs, to wit:
1. To Recaredo (sic) Espina, one-half (1/2) portion which contains an
area of one and three-fourths (1 3/4) hectares and which forms part
of Parcel 4 whose description is given in paragraph III of the
complaint, the said Parcel IV has been in the possession of both
Recaredo Espina and plaintiff Simprosa Vda. de Espina from April 20,
1952 until the present time;
2. To Timoteo Espina, one half (1/2) portion which contains an area
of not less than one-half (1/2) hectare and which forms part of
Parcel 3 whose description is given in paragraph III of the complaint,
the said Parcel III was originally assigned by Marcos Espina who
thereupon obtained an Original Certificate of Title in her ( sic) name
but was finally adjudicated to said Timoteo Espina in April, 1952, the
other half (1/2) portion of which parcel III was the share of the
surviving spouses (sic), Simprosa Vda. de Espina, and said Parcel III
has been in the possession of said Timoteo Espina and Simprosa
Vda. de Espina from April, 1952 until the present time as their share;
3. To Cecilia (sic) Espina, Gaudiosa Espina and Necifora Espina, one-
half (1/2) portion, share and share alike which contains two (2)
hectares and which forms part of Parcel II whose description is given
in paragraph III of the complaint, the other half (1/2) of said Parcel
P r o p e r t y C a s e s N o . 8 P a g e | 74
III (sic) is the share of the surviving spouses ( sic) Simprosa Vda. de
Espina, and said Parcel III (sic) has been in the possession of said
Cecilia. (sic) Espina, Gaudiosa Espina and Necifora Espina and
Simprosa Vda. de Espina from April, 1952 until the present time;
4. To Sofia Espina, one-half (1/2) portion of the parcel of land
included in the deception of Parcel 1 in paragraph III of the
complaint, the other half (1/2) of said parcel being the share of the
surviving spouses (sic) Simprosa Vda. de Espina and having been
ceded by said Simprosa Vda. de Espina to said Sofia Espina for a
valuable consideration payable quarterly at the rate of P50.00
beginning April, 1952 until her death, and said Sofia Espina has been
regularly paying to said Simprosa Vda. de Espina quarterly from
April, 1952 the said amount of P50.00 until the present time, and by
virtue of said agreement, Sofia Espina obtained Original Certificate of
Title in her name of said parcel of land which is included in the
description of said parcel 1, as her exclusive property;
5. To Jose Espina, one-half (1/2) portion of the other parcel of land
included in the description of Parcel 1 in paragraph 1 of the
complaint, the other half (1/2) of said parcel being the share of the
surviving spouses (sic) Simprosa Vda. de Espina and having been
coded (sic) by said Simprosa Vda. de Espina to said Jose Espina for a
valuable consideration payable quarterly at the rate of P50.00
beginning April, 1952 until her death, and said Jose Espina has been
regularly quarterly paying to said Simprosa Vda. de Espina from
April, 1952 until the present time, the said amount of P50.00, and by
virtue of said agreement, Jose Espina obtained Original Certificate of
Title in his name of said parcel of land which is included in the
description of said Parcel 1 as his exclusive property. ( Rollo, pp. 27-
28)
On February 13, 1974 private respondents filed a motion to dismiss the
complaint alleging the following grounds, to wit:
I
THAT THE FACTS ALLEGED IN THE COMPLAINT FAIL TO CONFER
UPON THE COURT COMPLETE AND LAWFUL JURISDICTION OVER
THE CASE FOR NON-COMPLIANCE WITH THE CONDITION SINE
QUA NON CONCERNING SUIT BETWEEN MEMBERS OF THE SAME
FAMILY.
x x x           x x x          x x x
II

THAT THE CAUSE OF ACTION IS BARRED BY . . . . STATUTE OF
LIMITATIONS.
x x x           x x x          x x x
III
THAT THE PLAINTIFFS HAS NO LEGAL CAPACITY TO SUE, (Motion
to Dismiss Complaint, pp. 1-5; Rollo, pp. 34-38)
x x x           x x x          x x x
On May 9, 1975 the trial court granted the motion and thereafter dismissed
the complaint. On May 23, 1975 petitioners filed a motion for reconsideration
on the following grounds, to wit:
1. THAT THE ORDER OF DISMISSAL HAS NO LEGAL BASIS IN FACT
AND IN LAW.
2. THAT THE STATUTE OF LIMITATIONS IS NOT APPLICABLE IN
THE CASE AT BAR. (Rollo, p. 50)
However, petitioners' motion was denied in an order dated July 23, 1975. On
August 11, 1975 petitioners filed another motion for reconsideration
stressing that they were denied due process when their motion was not
heard. Again said motion was denied on August 13, 1975.
Thereafter, petitioners filed their notice of appeal on September 11, 1975
and a motion for extension of time to file their Record on Appeal on
September 18, 1975.
On March 15, 1976, the respondent judge disapproved petitioners' Record on
Appeal and appeal bond on the ground that the notice of appeal was filed
out of time. Hence, this petition. The petitioners raised four (,41) assignment
of errors:
1. Whether or not an action for partition among co-heirs prescribes.
2. Whether or not an oral partition among co-heirs is valid.
3. Whether or not a hearing on a motion for reconsideration is
indispensable the lack of which is a deal of due process.
4. Whether or not the second motion for reconsideration is pro
forma Rollo, p. 10)
Petitioners maintain that the present action is not for reconveyance but one
for partition. Hence, the rule insisted by the private respondents on
prescriptibility of an action for reconcile conveyance of real property based
on an implied trust is not applicable in the case at bar. In addition,
petitioners, argue that private respondents cannot set up the defense of
prescription or laches because their possession of the property no matter
how long cannot ripen into ownership. (Memorandum for Petitioners, p. 7)
P r o p e r t y C a s e s N o . 8 P a g e | 75
However, the private respondents stress that 'any supposed right of the
petitioners to demand a new division or partition of said estate of Marcos
Espina has long been barred by the Statute of Limitations and has long
prescribed." (Memorandum for Private Respondents, p. 5)
The petitioners claim that the alleged oral partition is invalid and strictly
under the coverage of the statute of Frauds on two grounds, to wit:
Firstly, parcel No. 1 being an exclusive property of the deceased should have
been divided into eight (8) equal parts. Therefore, Simprosa . could only
cede her share of the land which is 1/8 portion thereof and cannot validly
cede the shares of her then minor children without being duly appointed as
guardian.
Secondly, under Article 1358 of the New Civil Code, Simprosa could not have
ceded her right and that of her other children except by a public document.
(Memorandum of Petitioners, pp. 8-9)
On the other hand, private respondents insist that the oral partition is valid
and binding and does not fall under the coverage of the Statute of Frauds.
Petitioners claim that they were denied due process when the motion for
reconsideration was denied without any hearing.
However, private respondents maintain that the hearing of a motion for
reconsideration in oral argument is a matter which rest upon the sound
discretion of the Court.
Finally, petitioners stress that the second motion for reconsideration is not
pro forma, thus, it suspends the running of the period of appeal. Hence, the
notice of appeal was timely filed.
On this point, private respondent maintain that the order of respondent
judge dated March 1 5, 1976 disapproving petitioners' Record on Appeal and
appeal bond may not properly be a subject of a petition for certiorari.
(Memorandum of Private Respondents, p. 13)
We find the petition devoid of merit.
We already ruled in Lebrilla, et al. v. Intermediate Appellate Court  (G.R. No.
72623, December 18, 1989, 180 SCRA 188; 192) that an action for partition
is imprescriptible. However, an action for partition among co-heirs ceases to
be such, and becomes one for title where the defendants allege exclusive
ownership.
In the case at bar, the imprescriptibility of the action for partition cannot be
invoked because two of the co-heirs, namely private respondents Sora and
Jose Espina possessed the property as exclusive owners and their possession
for a period of twenty one (21) years is sufficient to acquire it by
prescription. Hence, from the moment these co-heirs claim that they are the
absolute and exclusive owners of the properties and deny the others any

share therein, the question involved is no longer one of partition but of
ownership.
Anent the issue of oral partition, We sustain the validity of said
partition.1âwphi1 "An agreement of partition may be made orally or in
writing. An oral agreement for the partition of the property owned in
common is valid and enforceable upon the parties. The Statute of Frauds has
no operation in this kind of agreements, for partition is not a conveyance of
property but simply a segregation and designation of the part of the property
which belong to the co-owners." (Tolentino, Commentaries and
Jurisprudence on the Civil Code of the Philippines,  Vol. II, 1983 Edition, 182-
183 citing Hernandez v. Andal, et. al., G.R. No. L275, March 29, 1957)
Time and again, the Court stresses that the hearing of a motion for
reconsideration in oral argument is a matter which rests upon the sound
discretion of the Court. Its refusal does not constitute a denial of due process
in the absence of a showing of abuse of discretion. ( see Philippine
Manufacturing Co. v. Ang Bisig ng PMC et. al., 118 Phil. 431, 434)
The absence of a formal hearing on the petitioners' motion for
reconsideration is thoroughly explained in the order of the respondent judge
dated August 13, 1975, which is hereunder quoted as follows:
When the court issued its order of June 5, 1975 requiring counsel for
defendants to answer plaintiffs' motion for reconsideration, the court
opted to resolve plaintiffs' motion based on the pleadings of the
parties, without further oral arguments. The court considered the
arguments of the parties stated in their pleadings as already
sufficient to apprise the court of the issues involved in said motion.
Plaintiffs' allegation that the Clerk of Court failed to calendar their
motion for reconsideration for oral argument has not deprived the
plaintiffs of any substantial right or his right to due process.
SO ORDERED. (Memorandum of Private Respondents, pp. 1213)
A cursory reading of the aforequoted order will show that there was indeed
no formal hearing on the motion for reconsideration. There is no question
however, that the motion is grounded on the lack of basis in fact and in law
of the order of dismissal and the existence or lack of it is determined by a
reference to the facts alleged in the challenged pleading. The issue raised in
the motion was fully discussed therein and in the opposition thereto. Under
such circumstances, oral argument on the motion is reduced to an
unnecessary ceremony and should be overlooked ( see Ethel Case, et al. v.
Jugo, 77 Phil. 517, 522).
We adhere to the findings of the trial court that the second motion for
reconsideration dated August 11, 1975 is pro forma, to it
P r o p e r t y C a s e s N o . 8 P a g e | 76
The grounds stated in said motion being in reiteration of the same
grounds alleged in his first motion, the same is pro-forma. (Order
dated March 15, 1976, p. 2, Rollo, p. 74)
x x x           x x x          x x x
Furthermore, the second motion for reconsideration has not stated
new grounds considering that the alleged failure of the Clerk of
Court to set plaintiffs' motion for reconsideration, although seemingly
a different ground than those alleged in their first motion for
reconsideration, is only incidental to the issues raised in their first
motion for reconsideration, as it only refers to the right of plaintiffs'
counsel to argue his motion in court just to amplify the same
grounds already deed by the court. (Ibid, p. 3, Rollo, p. 75)
Therefore, it is very evident that the second motion for reconsideration
being  pro-forma did not suspend the running of the period of appeal. Thus,
the lower court committed no error when it held that the notice of appeal
was filed after the lapse of thirty five (35) days, which is clearly beyond the
period of thirty (30) days allowed by the rules.
Finally, it has been a basic rule that certiorari is not a substitute for appeal
which had been lost. ( see Edra v. Intermediate Appellate Court, G.R. No.
75041, November 13, 1989, 179 SCRA 344) A special civil action under Rule
65 of the Rules of Court will not be a substitute or cure for failure to file a
timely petition for review 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 justice.
Therefore, the delay of five (5) days in filing a notice of appeal and a motion
for extension to file a record on appeal cannot be excused on the basis of
equity.
All premises considered, the Court is convinced that the acts of respondent
judge, in dismissing the action for partition and in subsequently denying the
motions for reconsideration of the petitioners, does not amount to grave
abuse of discretion.
ACCORDINGLY, the petition is DISMISSED.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

FIRST DIVISION G.R. No. 180269               February 20, 2013
JOSE Z. CASILANG, SR., substituted by his heirs, namely:
FELICIDAD CUD lAMA T VDA. DE CASILANG, JOSE C. CASILANG, JR.,
RICARDO C. CASILANG, MARIA LOURDES C. CASILANG,
CHRISTOPHER C. CASILANG, BEN C. CASILANG, DANTE C.
P r o p e r t y C a s e s N o . 8 P a g e | 77
CASILANG, GREGORIO C. CASILANG, HERALD C. CASILANG; and
FELICIDAD Z. CASILANG, MARCELINA Z. CASILANG, JACINTA Z.
CASILANG, BONIFACIO Z. CASILANG, LEONORA Z. CASILANG, and
FLORA Z. CASILANG, Petitioners, vs. ROSARIO Z. CASILANG-DIZON,
MARIO A. CASILANG, ANGELO A. CASILANG, RODOLFO A.
CASILANG, and ATTY. ALICIA B. FABIA, in her capacity as Clerk of
Court and Ex-Officio Sheriff of Pangasinan and/or her duly
authorized representative, Respondents.
DECISION
REYES, J.:
Before us is a petition for review of the Decision 1 dated July 19, 2007 of the
Court of Appeals (CA) in CA-G.R. CV No. 79619, which reversed and set
aside the Decision2 dated April 21, 2003 of the Regional Trial Court (RTC) of
Dagupan City, Branch 41, in Civil Case No. 98-02371-D.
Antecedent Facts
The late spouses Liborio Casilang (Liborio) and Francisca Zacarias (Francisca)
had eight (8) children, namely: Felicidad Casilang (Felicidad), Ireneo Casilang
(Ireneo), Marcelina Casilang (Marcelina), Jacinta Casilang (Jacinta), Bonifacio
Casilang (Bonifacio), Leonora Casilang (Leonora), Jose Casilang (Jose) and
Flora Casilang (Flora). Liborio died intestate on October 11, 1982 at the age
of 83, followed not long after by his wife Francisca on December 25, 1982.
Their son Bonifacio also died in 1986, survived by his child Bernabe Casilang
(Bernabe), while son Ireneo died on June 11, 1992, survived by his four (4)
children, namely: Mario Casilang (Mario), Angelo Casilang (Angelo), Rosario
Casilang-Dizon (Rosario) and Rodolfo Casilang (Rodolfo), herein respondents.
The estate of Liborio, which left no debts, consisted of three (3) parcels of
land located in Barangay  Talibaew, Calasiao, Pangasinan, namely: (1) Lot
No. 4676, with an area of 4,164 square meters; (2) Lot No. 4704, containing
1,164 sq m; and (3) Lot No. 4618, with 897 sq m.
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 uncle, petitioner Jose from Lot No. 4618.
Rosario claimed that Lot No. 4618 was owned by her father Ireneo, as
evidenced by Tax Declaration (TD) No. 555 issued in 1994 under her father’s
name. On April 3, 1997, the respondents executed a Deed of Extrajudicial
Partition with  Quitclaim3 whereby they adjudicated Lot No. 4618 to
themselves. In the same instrument, respondents Mario, Angelo and Rodolfo
renounced their respective shares in Lot No. 4618 in favor of Rosario.
In his Answer, Jose raised the defense that he was the "lawful, absolute,
exclusive owner and in actual possession" of the said lot, and that he

acquired the same "through intestate succession from his late father." 4 For
some reason, however, he and his lawyer, who was from the Public
Attorney’s Office, failed to appear at the scheduled pre-trial conference, and
Jose was declared in default; thus, the adverse judgment against him. 5
On February 18, 1998, the MTC rendered judgment finding Rosario to be the
owner of Lot No. 4618, and ordering Jose to remove his house, vacate Lot
No. 4618, and pay Rosario ₱500.00 in monthly rentals from the filing of the
complaint until she was placed in possession, plus attorney’s fees of
₱5,000.00, litigation expenses and costs. On March 23, 1998, the MTC issued
a writ of execution; and on August 28, 1998, a Writ of Demolition 6 was
issued.
On June 2, 1998, the petitioners, counting 7 of the 8 children of Liborio and
Francisca,7 filed with the RTC of Dagupan City a Complaint, 8 docketed as Civil
Case No. 98-02371-D for "Annulment of Documents, Ownership and Peaceful
Possession with Damages" against the respondents. On June 10, 1998, the
petitioners moved for the issuance of a writ of preliminary injunction or
temporary restraining order, which the RTC however denied on June 23,
1998.
Among the documents sought to be annulled was the 1997 Deed of
Extrajudicial Partition executed by Ireneo’s children over Lot No. 4618, as
well as TD No. 555, and by necessary implication its derivatives, TD No.
15177 (for the lot) and TD No. 15176 (for the house), both of which were
issued in 1998 in the name of Rosario Casilang-Dizon.9
The petitioners alleged in their complaint that all eight (8) children of Liborio
entered into a verbal partition of his estate, pursuant to which Jose was
allotted Lot No. 4618 as his share; that Ireneo never claimed ownership of
Lot No. 4618, nor took possession of it, because his share was the
southwestern 1/5 portion of Lot No. 4676, containing an area of 1,308 sq
m,10 of which he took exclusive possession during his lifetime; that Jose has
always resided in Lot No. 4618 since childhood, where he built his family’s
semi-concrete house just a few steps away from his parents’ old bamboo
hut; that he took in and cared for his aged parents in his house until their
deaths in 1982; that one of his children has also built a house on the
lot.11 Jose, said to be the most educated of the Casilang siblings, worked as
an insurance agent.12 The complete disposition of the intestate estate of
Liborio per the parties’ verbal partition appears as follows:
1. Lot No. 4676, with 4,164 sq m, declared under TD No. 534 in
Liborio’s name,13 was verbally partitioned among Marcelina (236 sq
m), Leonora (1,965 sq m), Flora (655 sq m), and Ireneo,
represented by his children, the herein respondents-defendants
(1,308 sq m), as shown in a Deed of Extrajudicial Partition with
P r o p e r t y C a s e s N o . 8 P a g e | 78
Quitclaim  dated January 8, 1998, subsequently executed by all the
Casilang siblings and their representatives.
2. Lot No. 4704, with 1,164 sq m, declared under TD No. 276 in
Liborio’s name,14 was divided among Jacinta and Bonifacio, who died
in 1986 and is now represented by his son Bernabe; and
3. Lot No. 4618, containing 897 sq m, declared since 1994 under TD
No. 555 in Ireneo’s name,15 is now the subject of the controversy
below. Jose insists that he succeeded to it per verbal partition, and
that he and his family have always occupied the same peacefully,
adversely and exclusively even while their parents were alive. 16
For her part, Rosario alleged in her answer with counterclaim, 17 which she
filed on September 15, 1998, that:
a) She is the actual and lawful owner of Lot No. 4618 with an area of
897 square meters, having acquired the same by way of a Deed of
Extra judicial Partition with Quitclaim dated 3 April 1997 which was
duly executed among herein Appellant ROSARIO and her brothers,
namely, MARIO, ANGELO and RODOLFO, all surnamed CASILANG;
b) Her ownership over subject property could be traced back to her
late father IR[E]NEO which the latter inherited by way of intestate
succession from his deceased father LIBORIO sometime in 1992;
that the residential house described in herein Appellee JOSE’s
complaint is an illegal structure built by him in 1997 without her
(ROSARIO’s) knowledge and consent; that in fact, an ejectment suit
was filed against Appellee JOSE with the Municipal Trial Court in
Calasiao, Pangasinan in Civil Case No. 847;
c) The subject lot is never a portion of Appellee JOSE’s share from
the intestate of his deceased father, LIBORIO; that on the contrary,
the lot is his deceased brother IR[E]NEO’s share from the late
LIBORIO’s intestate estate; that in fact, the property has long been
declared in the name of the late IRENEO as shown by Tax
Declaration No. 555 long before his children ROSARIO DIZON,
MARIO, ANGELO and RODOLFO, all surnamed CASILANG, executed
the Deed of Partition dated 18 February 1998; that Appellee JOSE
had actually consumed his shares which he inherited from his late
father, and after a series of sales and dispositions of the same made
by him, he now wants to take Appellants’ property;
d) Appellee JOSE is never the rightful owner of the lot in question
and has not shown any convincing proof of his supposed ownership;
that the improvements introduced by him, specifically the structures
he cited are the subject of a Writ of Demolition dated 28 August

1998 pursuant to the Order dated 17 August 1998 of the MTC of
Calasiao, Pangasinan;
e) No protestation or objection was ever made by Appellee JOSE in
Civil Case No. 847 (Unlawful Detainer  case) where he was the
defendant; that the truth was that his possession of the subject
property was upon the tolerance and benevolence of his late brother
IRENEO during the latter’s lifetime and that Appellant ROSARIO;
f) The RTC Clerk of Court and Ex-officio Provincial Sheriff would just
be doing her job if she and her deputies would implement the writ of
execution/demolition issued by the MTC of Calasiao, Pangasinan
since it is its ministerial duty to do so;
g) The Appellees have no cause of action; not having shown in their
complaint the basis, the reason and the very core of their claim as to
why the questioned document should be nullified. 18 (Citation
omitted)
In their reply19 to Rosario’s aforesaid answer, the petitioners asserted that
the MTC committed a grave error in failing to consider a material fact-that
Jose had long been in prior possession under a claim of title which he
obtained by partition.
At the pre-trial conference in Civil Case No. 98-02371-D, the parties entered
into the following stipulations:
1. That the late LIBORIO is the father of FELICIDAD, MARCELINA,
JUANITA, LEONORA, FLORA and IRENEO, all surnamed CASILANG;
2. That the late LIBORIO died in 1982; That the late LIBORIO and
his family resided on Lot [No.] 4618 up to his death in 1982; That
the house of the late LIBORIO is located on Lot [No.] 4618;
3. That Plaintiff JOSE used to reside on the lot in question because
there was a case for ejectment filed against him;
4. That the house which was demolished is the family house of the
late LIBORIO and FRANCISCA ZACARIAS with the qualification that it
was given to the defendants;
5. That the action involves members of the same family; and
6. That no earnest efforts were made prior to the institution of the
case in court.20
Ruling of the RTC
After a full trial on the merits, the RTC in its Decision 21 dated April 21, 2003
decreed as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of
the plaintiffs and against the defendants as follows:
P r o p e r t y C a s e s N o . 8 P a g e | 79
1. Declaring the Deed of Extrajudicial Partition with Quitclaim dated
April 3, 1997 null and void;
2. Declaring plaintiff Jose Z. Casilang Sr. as the lawful owner and
possessor of the subject Lot No. 4618 and as such, entitled to the
peaceful possession of the same;
3. Ordering the defendants to pay to plaintiff Jose Z. Casilang Sr.
attorney’s fees in the amount of ₱20,000.00 and litigation expenses
in the amount of ₱5,000.00, and to pay the costs of suit.
SO ORDERED.22
The RTC affirmed Jose’s ownership and possession of Lot No. 4618 by virtue
of the oral partition of the estate of Liborio by all the siblings. In the Deed of
Extrajudicial Partition with Quitclaim23 dated January 8, 1998, subsequently
executed by all the eight (8) Casilang siblings and their legal
representatives―with Ireneo represented by his four (4) children, and
Bonifacio by his son Bernabe―petitioners Jose, Felicidad, Jacinta and
Bernabe, acknowledged that they had “ already received their respective
shares of inheritance in advance ,"24 and therefore, renounced their claims
over Lot No. 4676 in favor of co-heirs Marcelina, Leonora, Flora and Ireneo,
as follows:
We hereby RENOUNCED, WAIVED AND QUITCLAIM, all our rights, interests
and participations over the WHOLE parcel of land [Lot No. 4676], left by the
late, LIBORIO CASILANG, in favor of our coheirs, namely: MARCELINA Z.
CASILANG-PARAYNO, LEONORA Z. CASILANG-SARMIENTO, FLORA Z.
CASILANG, MARIO A. CASILANG, ANGELO A. CASILANG, ROSARIO A.
CASILANGDIZON AND RODOLFO A. CASILANG.25
Thus, Jose expressly renounced his share in Lot No. 4676, which has an area
of 4,164 sq m, because he had already received in advance his share in his
father’s estate, Lot No. 4618 with 897 sq m:
To the mind of the court, Jose Casilang could have not [sic] renounced and
waived his rights and interests over Lot [No.] 4676 if he believes that Lot
[No.] 4618 is not his, while the other lot, Lot [No.] 470[4], was divided
between sister Jacinta Casilang and brother Bonifacio Casilang[,] Sr., who
was represented by his son. In the same [way] as testified to by plaintiffs
Felicidad Casilang and Jacinta Casilang, they signed the Deed of Extrajudicial
Partition with Quitclaim wherein they waived and renounced their rights and
interests over Lot [No.] 4676 because they have already received their share,
which is Lot [No.] 470[4].26
The RTC found baseless the claim of Rosario that Lot No. 4618 was an
inheritance of her father Ireneo considering that a tax declaration is not
conclusive proof of ownership. The RTC even noted that the tax declaration

of Ireneo started only in 1994, although he had been dead since 1992. "Such
being the case, the heirs of Ir[e]neo Casilang has [sic] no basis in
adjudicating unto themselves Lot No. 4618 and partitioning the same by
executing the Deed of Extrajudicial Partition with Quitclaim." 27
Appeal to the CA
Undeterred, Rosario appealed to the CA averring that: (1) the lower court
erred in declaring the Deed of Extrajudicial Partition with Quitclaim dated
April 3, 1997 as null and void; and (2) the lower court erred in declaring Jose
as the lawful owner and possessor of the subject Lot No. 4618.28
In the now assailed decision, the CA reversed the RTC by relying mainly on
the factual findings and conclusions of the MTC in Civil Case No. 847, viz:
Per the records, the above described property was subject of Civil Case No.
847 decided by the MTC of Calasiao, First Judicial Region, Province of
Pangasinan which rendered a judgment, supra, in favor of Appellant
ROSARIO ordering herein Appellee JOSE and all persons claiming rights
under him to vacate the land of Appellant ROSARIO. It was found by the
MTC that the latter is the owner of the subject parcel of land located at
Talibaew, Calasiao, Pangasinan; that the former owner of the land is the late
IRENEO (who died on 11 June 1992), father of Appellant ROSARIO; that
Extra Judicial Partition with Quitclaim was executed by and among the heirs
of the late IRENEO; that MAURO [sic], ANGELO and RODOLFO, all surnamed
CASILANG waived and quitclaimed their respective shares over the subject
property in favor of Appellant ROSARIO; that Appellee JOSE was allowed by
the late IRENEO during his lifetime to occupy a portion of the land without a
contract of lease and no rentals being paid by the former; that Appellant
ROSARIO allowed Appellee JOSE to continue occupying the land after the
Extra Judicial Partition with Quitclaim was executed.29
Moreover, noting that the decision in Civil Case No. 847 in favor of Rosario
was issued on February 18, 1998 while the petitioners’ complaint in Civil
Case No. 98-02371-D was filed on June 2, 1998, the CA concluded that the
latter case was a mere afterthought:
If the latter has really a strong and valid reason to question the validity of
the Deed of Extra Judicial Partition with Quitclaim, supra, he could have done
it soon after the said Deed was executed on 3 April 1997. However, curiously
enough, it was only when the MTC ordered his eviction from the subject
property that he decided to file the instant case against the Appellants. 30
Petition for Review in the Supreme Court
Now in this petition for review on certiorari, petitioners maintain that:
IN UPHOLDING THE LEGALITY [OF] THE DEED OF EXTRAJUDICIAL
PARTITION AND QUITCLAIM DATED APRIL 3, 1997, THE HONORABLE
P r o p e r t y C a s e s N o . 8 P a g e | 80
COURT OF APPEALS GROSSLY VIOLATED THE SUBSTANTIVE RIGHT OF
JOSE Z. CASILANG, SR. AS DIRECT COMPULSORY HEIR.31
Our Ruling and Discussions
There is merit in the petition.
Inferior courts are empowered to rule on the question of ownership
raised by the defendant in an ejectment suit, but only to resolve the
issue of possession; its determination is not conclusive on the issue
of ownership.
It is well to be reminded of the settled distinction between a summary action
of ejectment and a plenary action for recovery of possession and/or
ownership of the land. What really distinguishes an action for unlawful
detainer from a possessory action (accion publiciana) and from a
reinvindicatory action (accion reinvindicatoria) is that the first is limited to
the question of possession de facto. Unlawful detainer suits ( accion
interdictal) together with forcible entry are the two forms of ejectment suit
that may be filed to recover possession of real property. Aside from the
summary action of ejectment, accion publiciana  or the plenary action to
recover the right of possession and accion reinvindicatoria  or the action to
recover ownership which also includes recovery of possession, make up the
three kinds of actions to judicially recover possession.32
Under Section 3 of Rule 70 of the Rules of Court, the Summary Procedure
governs the two forms of ejectment suit, the purpose being to provide an
expeditious means of protecting actual possession or right to possession of
the property. They are not processes to determine the actual title to an
estate. If at all, inferior courts are empowered to rule on the question of
ownership raised by the defendant in such suits, only to resolve the issue of
possession and its determination on the ownership issue is not
conclusive.33 As thus provided in Section 16 of Rule 70:
Sec. 16. Resolving defense of ownership.―When the defendant raises the
defense of ownership in his pleadings and the question of possession cannot
be resolved without deciding the issue of ownership, the issue of ownership
shall be resolved only to determine the issue of possession.
It is apropos, then, to note that in contrast to Civil Case No. 847, which is an
ejectment case, Civil Case No. 98-02371-D is for "Annulment of Documents,
Ownership and Peaceful Possession;" it is an accion reinvindicatoria, or
action to recover ownership, which necessarily includes recovery of
possession34 as an incident thereof. Jose asserts his ownership over Lot No.
4618 under a partition agreement with his co-heirs, and seeks to invalidate
Ireneo’s "claim" over Lot No. 4618 and to declare TD No. 555 void, and

consequently, to annul the Deed of Extrajudicial Partition and Quitclaim
executed by Ireneo’s heirs.
It is imperative to review the CA’s factual conclusions since they
are entirely contrary to those of the RTC, they have no citation of
specific supporting evidence, and are premised on the supposed
absence of evidence, particularly on the parties’ verbal partition,
but are directly contradicted by the evidence on record.
It must be noted that the factual findings of the MTC, which the CA adopted
without question, were obtained through 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. 98-02371-
D, the CA should have pointed out the specific errors and weaknesses in the
RTC’s factual conclusions before it could rule that Jose was unable to present
"any evidentiary support" to establish his title, and that his continued
possession of Lot No. 4618 was by mere tolerance of Rosario. At most,
however, the CA only opined that it was conjectural for the RTC to conclude,
that Jose had already received his inheritance when he renounced his share
in Lot No. 4676. It then ruled that the RTC erred in not considering the
findings of the MTC in Civil Case No. 847-that Jose’s possession over subject
property was by mere tolerance. Said the appellate court:
Given the claim of the Appellee that Lot [No.] 4618
was orally given/assigned to him by his deceased father LIBORIO, or that
his claim was corroborated by his sisters (his co-plaintiffs-Appellees), or that
their claim is indubitably tied up with the Deed of Extrajudicial Partition with
Quitclaim over 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 [No.] 4676 if he
believes that Lot [No.] 4618 is not his. Wanting any evidentiary support, We
find this stance as conjectural being unsubstantiated by law or convincing
evidence. At the most and taking the factual or legal circumstances as shown
by the records, We hold that the court a quo  erred in not considering the
findings of the MTC in Civil Case No. 847 ruling that herein Appellee JOSE’s
possession over subject property was by mere tolerance. Based as it is on
mere tolerance, Appellee JOSE’s possession therefore could not, in any way,
ripen into ownership.35 (Citations omitted)
By relying solely on the MTC’s findings, the CA completely ignored the
testimonial, documentary and circumstantial evidence of the petitioners,
obtained by the RTC after a full trial on the merits. More importantly, the CA
did not point to any evidence of Rosario that Ireneo had inherited Lot No.
4618 from Liborio. All it did was adopt the findings of the MTC.
P r o p e r t y C a s e s N o . 8 P a g e | 81
The Supreme Court is not a trier of facts, and unless the case falls under any
of the well-defined exceptions, the Supreme Court will not delve once more
into the findings of facts. In Sps. Sta. Maria v. CA,36 this Court stated:
Settled is the rule that the jurisdiction of this Court in cases brought before it
from the Court of Appeals via Rule 45 of the Rules of Court is limited to
reviewing errors of law. Findings 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 made is
manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of
discretion; (4) when the judgment is based on a misapprehension of facts;
(5) when the findings of fact are conflicting; (6) when in making its findings
the Court of Appeals went beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant and the appellee; (7) when
the findings are contrary to those of the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are based; (9)
when the facts set forth in the petition as well as in the petitioner’s main and
reply briefs are not disputed by the respondent; and (10) when the findings
of fact are premised on the supposed absence of evidence and contradicted
by the evidence on record.37 (Citation omitted)
In the instant case, the factual findings of the CA and the RTC are starkly
contrasting. Moreover, we find that the CA decision falls under exceptions
(7), (8) and (10) above, which warrants another review of its factual
findings.
The evidence supporting Rosario’s claim of sole ownership of Lot No. 4618 is
the Deed of Extrajudicial Partition with Quitclaim , which she executed with
her brothers Mario, Angelo and Rodolfo. There is no question that by itself,
the said document would have fully conveyed to Rosario whatever rights her
brothers might have in Lot No. 4618. But what needs to be established first
is whether or not Ireneo did in fact own Lot No. 4618 through succession, as
Rosario claims. And here now lies the very crux of the controversy.
A review of the parties’ evidence shows that they entered into an
oral partition, giving Lot No. 4618 to Jose as his share, whereas
Rosario presented no proof whatsoever that her father inherited
Lot No. 4618 from his father Liborio.
Rosario’s only proof of Ireneo’s ownership is TD No. 555, issued in his name,
but she did not bother to explain why it was dated 1994, although Ireneo
died on June 11, 1992. Liborio’s ownership of Lot No. 4618 is admitted by all
the parties, but it must be asked whether in his lifetime Liborio did in fact
transmit it to Ireneo, and if not, whether it was conveyed to him by Liborio’s
heirs. It is imperative for Rosario to have presented proof of this transfer to

Ireneo, in such a form as would have vested ownership in him. We find,
instead, a preponderance of contrary evidence.
1. In his testimony, Jose claimed that his parents’ bamboo house in
Lot No. 4618 disintegrated from wear and tear; so he took them in
to his semi-concrete house in the same lot, which was just a few
steps away, and he cared for them until they died; shortly before
Liborio’s death, and in the presence of all his siblings, his father
Liborio assigned Lot No. 4618 to him as his inheritance; his house
was demolished in 1998 as a result of the ejectment case filed
against him; but his family continued to live thereat after
reconstructing the house; Ireneo and his family did not live in Lot
No. 4618; although Jose’s job as an insurance agent took him
around Pangasinan, he always came home to his family in his house
in Lot No. 4618, which he used as his permanent address; only Lot
No. 4676 was included in the Deed of Extrajudicial Partition dated
January 8, 1998 because Lot No. 4618 had already been distributed
to Jose, and Lot No. 4704 had already been assigned to Jacinta and
Bonifacio as their share in their father’s estate. 38
2. Jose’s testimony was corroborated by petitioners
Felicidad,39 Jacinta,40 Leonora,41 and Flora,42 who all confirmed that
their brother Jose has always resided in Lot No. 4618 from his
childhood up to the present, that he took their aged parents into his
house after their bamboo house was destroyed, and he attended to
their needs until they died in 1982. The sisters were also one in
saying that their father Liborio verbally willed Lot No. 4618 to Jose
as his share in his estate, and that their actual partition affirmed
their father’s dispositions. Jacinta claimed that she and Bonifacio
have since taken possession of Lot No. 4704 pursuant to their
partition, and have also declared their respective portions for tax
purposes.43 Flora corroborated Jacinta on their taking possession of
Lot No. 4704, as well as that Jose built his house on Lot No. 4618
next to his parents and they came to live with him in their old age.
Flora affirmed that Exhibit "F" correctly reflects their verbal partition
of Lot No. 4676, and that she was fully in accord with it. She added
that Felicidad and Marcelina had since constructed their own houses
on the portions of Lot No. 4676 assigned to them. 44 Felicidad
mentioned that in their partition, Ireneo was given a portion of Lot
No. 4676, while Lot No. 4704 was divided between Jacinta and
Bonifacio, and Jose alone got Lot No. 4618. Leonora confirmed that
they were all present when their father made his above dispositions
of his estate.
P r o p e r t y C a s e s N o . 8 P a g e | 82
3. Benjamin Lorenzo, a long-time neighbor of the Casilangs testified
that Jose’s house stands on Lot No. 4618 and Ireneo did not live
with his family on the said lot but was a tenant in another farm some
distance away.45
4. For her part, Rosario merely asserted that her father Ireneo
succeeded to Lot No. 4618 from Liborio, as shown in TD No. 555
(Exhibit "1"); that she and her brothers extra-judicially settled
Ireneo’s estate, and that they each waived their shares in her favor;
and, that she has been paying taxes on Lot No. 4618. Rosario
admitted, however, that Jose has lived in the lot since he was a
child, and he has reconstructed his house thereon after its court-
ordered demolition.46 But Rosario on cross-examination backtracked
by claiming that it was her father Ireneo and grandfather Liborio
who built the old house in Lot No. 4618, where Ireneo resided until
his death; he even planted various fruit trees. Yet, there is no
mention whatsoever to this effect by any of the witnesses. Rosario
also contradicted herself when she denied that Jose lived there
because his job as insurance agent took him away often and yet
admitted that Jose’s house stands there, which he reconstructed
after it was ordered demolished by the MTC. Inexplicably, Rosario
disclaimed knowledge of Ireneo’s share in Lot No. 4676, although
she was a signatory, along with her brothers and all the petitioners,
in the deed of partition of the said lot, whereby she got 1,308 sq m.
Rosario also admitted that taxes were paid on the lot only beginning
in 1997, not before.47
5. Benjamin Dizon, husband of Rosario, testified that Rosario was
losing appetite and sleep because of the case filed by Jose; that
Ireneo died in another farm; that Ireneo had a house in Lot No.
4618 but Jose took over the house after he died in
1992.48 Respondent Angelo, brother of Rosario, claimed that when
he was 13 or 14 years old, he heard his grandfather tell his father
Ireneo that he would inherit Lot No. 4618. On cross-examination,
Angelo insisted that his father had always lived with his family in his
grandfather’s house in Lot No. 4618, that Jose did not live there but
was given another lot, although he could not say which lot it was; he
admitted that his grandmother lived with Jose when she died, and
Ireneo’s share was in Lot No. 4676.49
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 Manila for some time, and later resided in
Cagayan with his two married sons; and lastly on his return, worked

as a tenant of the Maningding family for about 10 years in Calasiao,
staying in a hut one kilometer away. Jose also claimed that Ireneo
had asked Liborio for a portion of Lot No. 4676, a lot which is bigger
than Lot No. 4618 by several hundreds of square meters.50
7. On sur-rebuttal, Rosario claimed that her grandparents, father and
mother lived in Lot No. 4618 when she was a child until she married
and left in 1976; that her uncle Jose asked permission from Liborio
to be allowed to stay there with his family. She admitted that Jose
built his house in 1985, three years after Liborio died, but as if to
correct herself, she also claimed that Jose built his house in Lot No.
4676, and not  in Lot No. 4618. (Contrarily, her aunt Leonora
testified that Jose built his house in Lot No. 4618 while their parents
were alive.)51 Moreover, if such was the case, Rosario did not explain
why she filed Civil Case No. 847, if she thought her uncle built his
house in Lot No. 4676, and not in Lot No. 4618. 52 Rosario also
claimed that Ireneo always came home in the evenings to his father
Liborio’s house from the Maningding farm, which he tenanted for 10
years, but obviously, by then Liborio’s house had long been gone.
Again, confusedly, Rosario denied that she knew of her father’s
share in Lot No. 4676.
From the testimonies of the parties, we are convinced that the conclusion of
the RTC is well-supported that there was indeed a verbal partition among the
heirs of Liborio, pursuant to which each of his eight children received his or
her share of his estate, and that Jose’s share was Lot No. 4618.
The parties’ verbal partition is valid, and has been ratified by their
taking possession of their respective shares.
The validity of an oral partition is well-settled in our jurisdiction. In Vda. de
Espina v. Abaya,53 this Court declared that an oral partition is valid:
Anent the issue of oral partition, We sustain the validity of said partition. "An
agreement of partition may be made orally or in writing. An oral agreement
for the partition of the property owned in common is valid and enforceable
upon the parties. The Statute of Frauds has no operation in this kind of
agreements, for partition is not a conveyance of property but simply a
segregation and designation of the part of the property which belong to the
co-owners."54
In Maestrado v. CA,55 the Supreme Court upheld the partition after it found
that it conformed to the alleged oral partition of the heirs, and that the oral
partition was confirmed by the notarized quitclaims executed by the heirs
subsequently.56 In Maglucot-Aw v. Maglucot,57 the Supreme Court elaborated
on the validity of parol partition:
P r o p e r t y C a s e s N o . 8 P a g e | 83
On general principle, independent and in spite of the statute of frauds,
courts of equity have enforce [sic] oral partition when it has been completely
or partly performed.
Regardless of whether a parol partition or agreement to partition is valid and
enforceable at law, equity will [in] proper cases, where the parol partition
has actually been consummated by the taking of possession in severalty and
the exercise of ownership by the parties of the respective portions set off to
each, recognize and enforce such parol partition and the rights of the parties
thereunder. Thus, it has been held or stated in a number of cases involving
an oral partition under which the parties went into possession, exercised acts
of ownership, or otherwise partly performed the partition agreement, that
equity will confirm such partition and in a proper case decree title in
accordance with the possession in severalty.
In numerous cases it has been held or stated that parol partition may be
sustained on the ground of estoppel of the parties to assert the rights of a
tenant in common as to parts of land divided by parol partition as to which
possession in severalty was taken and acts of individual ownership were
exercised. And a court of equity will recognize the agreement and decree it
to be valid and effectual for the purpose of concluding the right of the
parties as between each other to hold their respective parts in severalty.
A parol partition may also be sustained on the ground that the parties
thereto have acquiesced in and ratified the partition by taking possession in
severalty, exercising acts of ownership with respect thereto, or otherwise
recognizing the existence of the partition.
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
Jose’s 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
 P r o p e r t y C a s e s N o . 8 P a g e | 84

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 partition 60 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.
SO ORDERED.