Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14242           September 20, 1920

JULIAN REYES, ET AL., plaintiffs-appellant,

vs.
FRANCISCA CORDERO, MARIA CORDERO, and AMANDO GATMAITAN, defendants-appellees.

Gabriel N. Trinidad and Fernando Torrillo for appellants.

Ambrosio Santos for appellee Gatmaitan.
No appearance for the other appellees.

ARAULLO, J.:

The complaint presented in the Court of First Instance of Bulacan prayed that after trial judgment be
rendered ordering the partition, in accordance with law, of the land described in paragraph 2 thereof.
To this end the plaintiffs alleged that they and the defendants Francisca Cordero and Maria Cordero
were the descendants of the owner of said parcel of land, Leon Alfaro, who died long ago in the
municipality of Paombong, Province of Bulacan; that upon his death one of his daughter, Felipa
Alfaro, now deceased, mother of the defendants Francisca and Maria Cordero, succeeded him in the
possession thereof; and that said land was still undivided property of the heirs. It was also alleged in
paragraph 6 of the complaint that the other defendant, Amando Gatmaitan, was made a party
because he was in possession of said land, claiming a supposed interest adverse to that to the
plaintiffs.

To the complaint a demurrer was presented by the defendant Amando Gatmaitan on the grounds of
misjoinder of parties in that he was made a party defendant and that the facts alleged did not
constitute a cause of action as to him. After hearing, the court, by order of February 9, 1918,
sustained the demurrer, to which order the plaintiff excepted. The plaintiffs not having amended their
complaint within the time fixed by the rules of court, the court dismissed the case as to said
defendant, Amando Gatmaitan, to which action of the lower court the plaintiffs also excepted and
brought the case to this court on appeal by bill of exceptions.

The question presented in this proceeding is whether the defendant Amando Gatmaitan, who is
neither a descendant of the deceased Leon Alfaro, nor a coheir or coowner of the plaintiffs and the
other two defendant, as to the land described in the complaint, may be made a party to the suit for
partition instituted by the plaintiffs, or, in other words, whether his joinder as a party defendant was
proper.

An action for partition of real property, as the name itself clearly suggests, is a judicial controversy
between persons, who, being coowners or coparceners thereof, seek to secure a division or partition
among them of the common property, giving to each one the part corresponding to him.

The right to bring such action or to ask at any time for the division of the common property belongs
solely to a coowner or coparcener (art. 400, Civil Code, and section 181, Code of Civil Procedure).
The action for partition of real property cannot therefore be instituted except by the coowners or
coparceners of said property, and cannot be maintained against persons who are not such, because
in an action for partition of such property it is an indispensable requisite that there should be
common ownership of the thing and that the parties, plaintiffs and defendants, should be coowners
of coparceners.

NATURE AND OBJECTS OF PARTITION. — The object of partition proceedings is to

enable those who own property as joint tenants, or coparceners or tenants in common, to put
an end to the tenancy so as to vest in each a sole estate in specific property or an allotment
of the lands or tenements. . . . (Ruling Case Law, vol. 20, p. 716, paragraph 2.)

. . . It is generally held that it is a prerequisite to the maintenance of a proceeding for the

compulsory partition of lands that the petitioner have, at the commencement of such
proceeding, an actual or constructive possession, in common with the defendants, of the
land sought to be partitioned. . . . (Id., p. 730, paragraph 13.)

This court has laid down the doctrine in several cases, among them, that of Rodriguez vs.
Ravilan (17 Phil., 63), that:

In an action for the partition of property held in common, it is assumed that the parties by
whom it is prosecuted are all coowners or coproprietors of the property to be divided, as he
who claims or demands the partition of property of common ownership must necessarily
have the status of coproprietor of the undivided property.

In such an action for partition the question of common ownership is not to be argued, nor the
fact as to whether the interested parties are or are not the owners of the property in question,
but only as to how, and in what manner, and in what proportion the said property of common
ownership shall be distributed among the interested parties by order of the court.

The appellants admit in their brief that it is not alleged in the complaint that the defendant Amando
Gatmaitan is made a party for the reason that he is owner or possessor of the property in that
capacity; and they state that, as it has been alleged therein that he is possession of the land and
claims a supposed interest opposed to that of the plaintiff, these facts are matters of proof, the
burden of which is upon the plaintiffs. This is just the error committed by the plaintiffs. Had it been
alleged that the possession of the defendant was in the capacity of coowner with the plaintiffs or that
his interest opposed to that of the latter consists in his having been subrogated by assignment, sale,
or other mode of transferring ownership, to the proprietary right which any of the other defendants
had in the property in question, then the joinder of the defendant Gatmaitan as such would have
been proper, inasmuch as every coowner has the absolute right to his part and consequently may
alienate, assign, or mortgage it and even substitute another in its enjoyment, the effect of the
alienation being of course limited to the part which may be adjudicated to him upon the division of
the thing in common (art. 399, Civ. Code). Said defendant, as coowner and coparcener, as to a part
of the property, would have the right to be a party to the partition proceeding, and, in such case, if he
is not joined as defendant, he could intervene. This is the reason why it is provided in section 183 of
the Code of Civil Procedure that the complaint in partition proceedings should, besides stating the
nature of the title of the plaintiff and describing the real property sought to be partitioned, also name
as defendant every tenant in common, coheir or other person interested in said property. But he
could by no means be joined in the complaint as defendant, with the right to prove his common
ownership with the plaintiffs and the other two defendants or his corresponding right to the property,
because this would amount to converting the partition proceeding into another proceeding for
ejectment or unlawful entry against said defendant; and it would serve as a means by which the
plaintiffs could investigate the right or interest which the defendant Gatmaitan claim to possess in the
property which is the subject-matter of the complaint for partition.
 One who holds property in common and pro indiviso with others has a perfect right to have a
division made of the same. No hindrance to the exercise and effectiveness of this right can
lie in any conveyances made of various portion of the property by some of the cotenants
thereof in favor of other persons, for the law, besides granting these latter the right to a voice
in the division of the thing owned in common and to object to any division made without their
concurrence, considers them, in an action for the partition of real estate, as subrogated to
the rights of the vendors in the portion of the property in their possession. (Arts. 399, 400,
403, and 1051, Civil Code; sec. 762, Code of Civil Procedure.) (Dancel vs. Dancel, 29 Phil.,
25.)

. . . It has been held that under a statute providing that during the pendency of any partition
suit any person claiming to be interested in the premises may appear and assert his right,
the right to intervene is given to all persons claiming an interest in the land, whether under
the common title sought to be partitioned or by title independent thereof. But even under
statutes allowing the adjudication of the rights and interests of the parties to a bona fide
partition suit, an action for partition cannot be used as a substitute for the action of ejectment
nor for the sole purpose of testing a legal title. (Ruling Case Law, vol. 20, p. 730, paragraph
12.)

Neither would the doctrine laid down by this court in Araullo vs. Araullo (3 Phil., 567), relied upon by
the plaintiff, justify the joinder of Amando Gatmaitan as defendant, in view of the allegations of the
complaint as to him. In that case, the property sought to be partitioned was in the actual possession
of a third persons who enjoyed possession as owners without being joined as parties to the
proceeding, that is they claimed to be owners of the property by virtue of a title opposed to that both
the plaintiff and the defendants, and the commissioners who were to effect the partition had already
been appointed by the court. This court declared that the proceedings could not be continued
because the commissioners appointed to effect the partition had no right, for the purpose of taking a
view as required by law, to enter lands possessed by third persons as owners, who were not made
parties in the partition proceeding; but the following is stated in the body of the decision: "Whether
the persons should be made parties to the partition suit and their claims there determined, or
whether an independent action must be brought against them, we do not decide." Therefore this
court did not hold in that case, as appellants seem to have understood that in a complaint for
partition of property in order that the proceedings might be continued those persons should be joined
as defendants who, being in possession of the property or part thereof, alleged themselves to be the
owners thereof by virtue of a title opposed to that of the parties to the proceeding, or claim an
interest adverse also to theirs; on the contrary the court abstained from deciding it, and did not
determine whether they should be included as parties in the same proceeding or whether a new and
independent action should be instituted against them.

Nevertheless it is indisputable that when the property which is yet undivided among various
coowners has been usurped or is in the possession of a third person who claims a title opposed to
that of the former, the common owners thereof may recover it in a proper proceeding, for, as the
supreme court of Spain has held in its decision of April 6, 1896 (79 Jur. Civ., 641), "Any coowner of
an undivided property may bring an action to recover it for the benefit of all." This once more shows
that a person cannot be joined as defendant, who does not a possess the property as coowner or
joint owner, but by virtue of a title the nature of which is unknown but opposed to those seeking
partition thereof as coowners, or who possesses the same under a claim of interest opposed to the
latter. A person who like the defendant, Amando Gatmaitan, is in this situation, may be sued in
another proceeding, but not in a proceeding for partition.
The demurrer filed by said defendant to the complaint was therefore correctly sustained and the
plaintiffs not having amended it within the time fixed by the rules of court, the dismissal thereof as to
said defendant was proper.

The order appealed from is therefore affirmed, with costs. So ordered.

Mapa, C.J., Johnson, Malcolm, Avanceña and Villamor, JJ., concur.