Heirs of Caburnay v. Heirs of Sison20211013-12-Otwigh

FIRST DIVISION
[G.R. No. 230934. December 2, 2020.]
HEIRS OF THE LATE APOLINARIO CABURNAY, NAMELY,

LYDIA CABURNAY, LETECIA NAVARRO, EVANGELINE CRUZ,
JERRY CABURNAY, ZENAIDA C. ANCHETA, LIWAYWAY C.
WATAN, GLORIA GUSILAN, APOLINARIO CABURNAY, JR. ,
petitioners, vs. HEIRS OF TEODULO SISON, * NAMELY,
ROSARIO SISON, OFELIA SISON, TEODULO SISON, JR.,
BLESILDA ** SISON, ARMIDA SISON, CYNTHIA SISON, JESUS
SISON AND PERLA *** SISON, respondents.
DECISION
CAGUIOA, J : p
Before the Court is the Petition for Review on Certiorari 1 (Petition)

under Rule 45 of the Rules of Court filed by petitioners Heirs of the late
Apolinario Caburnay (petitioners) assailing the Decision 2 dated November
11, 2016 and Resolution 3 dated April 12, 2017 of the Court of Appeals 4 (CA)
in CA-G.R. CV No. 106010. The CA Decision denied the appeal of petitioners
and affirmed the Decision 5 dated November 16, 2015 of the Regional Trial
Court of Lingayen, Pangasinan, Branch 38 (RTC) in Civil Case No. 19135. The
CA Resolution denied petitioners' motion for reconsideration.
The Facts and Antecedent Proceedings
The CA Decision narrates the factual antecedents as follows:
The instant case stemmed from a complaint filed by
[petitioners] against [respondents Heirs of Teodulo Sison
(respondents)] for specific performance, declaration of nullity of
document and title and damages.
[Petitioners] alleged that on September 23, 1994,
[respondents'] predecessor-in-interest Teodulo Sison [(Teodulo)] sold
a parcel of land to [petitioners'] predecessor-in-interest Apolinario
Caburnay [(Apolinario)]. The [subject] property was covered by
Transfer Certificate of Title (TCT) No. 8791 with an approximate area
of 7,768 square meters. The parties agreed that Apolinario would pay
P40,000.00 as initial payment of the total purchase price of
P150,000.00, the rest of which was to be paid in installments. The
receipt of the initial payment was acknowledged by Teodulo in a
handwritten receipt, also dated September 23, 1994. Consequently,
Apolinario's family occupied the property.
[At the time of the sale in 1994, Teodulo's first wife, Perpetua
Sison (Perpetua), had died in 1989 and he had married in 1992 his
second wife, Perla (Perla) Sison, who did not give her consent to the
sale.] 6
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The second installment in the amount of P40,000.00 was paid
by Apolinario on August 14, 1996 and, another handwritten receipt
was executed by Teodulo. The third installment was made on October
20, 1999 in the amount of P40,000.00, as reflected in the handwritten
receipt which also stated that Teodulo would start processing the
transfer of the title upon payment of the remaining balance of
P30,000.00.
However, Teodulo passed away [on December 22, 2000] 7
before the balance of the purchase price could be paid. Consequently,
Apolinario informed Teodulo's heirs, herein [respondents], about the
sale and payment of his remaining balance. [Respondent] Jesus Sison
[(Jesus)] told Apolinario that they could not locate the certificate of
title and they agreed to settle the amount once the TCT was found.
Due to Apolinario's advanced age and failing memory, no
follow-up was made thus, the purchase price remained unpaid until
his death in April 2005.
Upon Apolinario's death, his heirs tried to pay the balance of the
purchase price but Jesus x x x rejected the payment. [Petitioners]
later discovered that [respondents] had executed an Extrajudicial
Settlement of [the] Estate[s] of Teodulo and his wife Perpetua and the
same included the subject property which was given to Jesus x x x.
As a result of the extrajudicial settlement, Jesus x x x effected
the cancellation of TCT No. 8791 and caused the issuance of TCT No.
22388 in his favor. Thus, [petitioners] prayed that the document
captioned Extrajudicial Settlement of Estate be declared null and void
and consequently, nullify TCT [N]o. 22388 in the name of Jesus x x x.
They also asked that Jesus x x x be compelled to execute a Deed of
Absolute Sale in their favor upon payment of the remaining balance of
P30,000.
xxx xxx xxx
[Respondents], on the other hand, denied the execution of the
sale between Teodulo and Apolinario, averring that there was no
deed of sale recorded at the Registry of Deeds thus, the subject
property was free from encumbrances when the same was included
in the partition of the estate of Teodulo and Perpetua x x x.
It was further claimed that Apolinario was a mere caretaker of
the property thus, Teodulo and his family consented to his occupation
thereof. Upon the transfer of the property to Jesus x x x, he
demanded that [petitioners] vacate the same but they refused.
[Respondents] also argue that the action was barred by
prescription and that the receipts only showed that there was a
contract to sell and not one of sale.
xxx xxx xxx
After weighing the arguments and evidence presented before it,
the trial court rendered the [Decision] dated November 16, 2015.
While it found the receipts issued by Teodulo x x x to Apolinario to be
genuine, the sale in favor of Apolinario was however, declared null
and void because the property is presumed to be conjugal and there
was no evidence of the consent to the sale by Teodulo's wife,
Perpetua. Thus:
WHEREFORE, premises considered, judgment is
hereby rendered dismissing the instant complaint for
lack of merit.
Costs against [petitioners].
SO ORDERED. 8
Petitioners appealed the RTC Decision to the CA.

Ruling of the CA
The CA, in its Decision 9 dated November 11, 2016, denied petitioners'
appeal. The CA agreed with respondents that the property regime governing
the marriage between Perla and Teodulo is absolute community, having
been contracted during the effectivity of the Family Code. 10 The CA pointed
out that under Article 91 of the Family Code, the community property
consists of all the property owned by the spouses at the time of the
celebration of the marriage or acquired thereafter and, under Article 92,
property acquired before the marriage by either spouse who has legitimate
descendants by a former marriage, and the fruits as well as income, if any,
of such property is excluded from the community property. The purpose of
the exclusion is to protect the rights and interests of the legitimate
descendants by the first marriage over the property and to ensure that the
children born of the prior marriage are not deprived of their share in the
properties of their parents. 11
The CA then pronounced that in the instant case, the exclusion does
not apply considering that "Perla x x x recognizes the co-ownership between
Teodulo and his children with Perpetua, as seen in the extrajudicial
settlement document[, and thus,] there is no risk of depriving them of their
rights over the conjugal property of Teodulo and Perpetua." 12
Citing Nobleza v. Nuega, 13 where the sale by the husband of
community property without the wife's consent was declared void, 14 the CA
ruled that:
In the instant case, there is no showing that [respondent] Perla
gave her consent to the sale of Teodulo's share of the subject
property. Accordingly, the sale is void in its entirety, contrary to the
claim of [petitioners]. 15
The dispositive portion of the CA Decision states:
WHEREFORE, in view of the foregoing, the Appeal is DENIED.
The Decision, dated November 16, 2015, rendered by the Regional
Trial Court of Lingayen, Pangasinan, Branch 38 in Civil Case No.
19135 is AFFIRMED.
SO ORDERED. 16
Petitioners filed a Motion for Reconsideration, 17 which the CA denied in

its Resolution 18 dated April 12, 2017.
Hence the present Petition. Respondents filed their Comment 19 dated
October 16, 2017. Petitioners filed a Reply 20 dated November 30, 2017.
The Issues
The Petition presents two issues:
1. Whether the CA misapplied Article 92 of the Family Code when it
ruled that the sale of the property acquired during the first
marriage by the surviving husband, who had surviving children in
the first marriage, without the consent of the second spouse who
recognized the existence of co-ownership between the husband
and his children in the first marriage, is void.
2. Whether the CA erred when it ignored the clear provisions of
Articles 92 and 103 in relation to Article 145 of the Family Code
authorizing the surviving spouse to dispose of his share in the
conjugal property in the first marriage even without the consent
of his second spouse. 21
The Court's Ruling
The Petition is partly meritorious.
Usually, precedents are not set when the lower courts correctly apply
the law. That a correct ruling by a lower court may no longer be elevated to
the Court and, without the Court's imprimatur, it may not be accorded its
due jurisprudential significance. In instances, however, where the lower
courts misapply or misread the law and the cases get elevated to the Court,
precedents are set and jurisprudence is thereby enriched.
Had petitioners accepted the ruling of the RTC and of the CA in this
case, jurisprudence would not have benefitted from their appeal to this
Court.
In a nutshell, the present case involves a husband (Teodulo), who has
married twice and has children (petitioners) from the first marriage. After the
death of his first wife (Perpetua) and while married to his second wife (Perla),
the husband entered into a contract wherein he sold property acquired in his
first marriage without the consent of his second wife. Needless to say, the
children from the first marriage did not also consent. 22 Is the sale valid or
void the Court is asked.
The lower courts ruled that the sale is void. Petitioners want the Court
to overturn such ruling. They argue that while the CA ruled that the property
regime governing Teodulo and Perla is absolute community, their marriage
having been contracted after the effectivity of the Family Code, the subject
property should be excluded from their community property having been
acquired before their marriage by Teodulo, who has legitimate children by
his former marriage with Perpetua by virtue of Article 92 (3) of the Family
Code. 23 This excluded property remains the separate property of the
spouse, who has remarried, and it is subject to his full right of disposition,
with the price from such alienation continuing to be his separate property. 24
Petitioners point out that at the time of the celebration of Teodulo's marriage
with Perla, he had legitimate descendants, namely, respondents Teodulo, Jr.,
Rosario, Ofelia, Blesilda, Armida, Jesus and Cynthia, all surnamed Sison. 25

Petitioners invoke Article 103 of the Family Code, which provides that
should the surviving spouse contract a subsequent marriage without
liquidation of the prior marriage, then the mandatory regime of complete
separation of property will govern the property relations of the subsequent
marriage. 26 As such, petitioners assert that Teodulo could validly dispose of
his share in the property acquired during his first marriage without needing
to obtain the consent of his second spouse. They rely on Article 145 of the
Family Code which authorizes each spouse under the regime of separation of
property to dispose of his or her own separate estate, without need of the
consent of the other. 27
Since the consent of Perla is not required, petitioners conclude that the
sale of the subject property between Teodulo and Apolinario should be
recognized as valid insofar as the share of Teodulo in the subject property is
concerned, consisting of his 1/2 share of the entire property representing his
conjugal share and another 1/5 of the other half, representing his share in
the conjugal share of his first wife Perpetua. 28 Upon recognition of the
validity of the sale, respondent Jesus should be ordered to convey to
petitioners "the one[-]half (1/2) portion of the said property plus the one[-
]fifth (1/5) share of the late Teodulo x x x on the other half of the property in
question [now covered by TCT No. 22388 in the name of Jesus]." 29
On the other hand, respondents argue that the regime of complete
separation of property does not apply in the case because: (1) there was no
pre-nuptial agreement between Teodulo and Perla that they adopted such
regime to govern their property relations; and (2) it applies only where the
disposition is made after the death of a spouse, which is not the case here as
both Teodulo and Perla were alive when the alleged sale to Apolinario took
place. 30 Respondents also argue that Article 103 of the Family Code applies
when the property regime of a previous marriage was governed by absolute
community property, but the property regime of Teodulo and Perpetua was
conjugal partnership of gains since they were married under the Civil Code,
without any pre-nuptial agreement. 31 Besides, respondents posit that
inasmuch as in this case, there was an extrajudicial settlement of the estate
of the first wife and the property regime of the surviving spouse with the first
wife was conjugal partnership of gains, then Article 103, which presupposes
the absence of a settlement of the deceased first spouse's estate and the
existence of absolute community property regime, is inappropriate. 32 Lastly,
respondents argue that Article 145 of the Family Code does not apply for it
refers to separate property of the spouses in case their property regime is
governed by conjugal partnership of gains, but the property regime of
Teodulo and Perla is absolute community property because they were
married during the effectivity of the Family Code. 33
Both parties agree that, having been married during the effectivity of
the Civil Code and without any marriage settlements executed before their
marriage, the property regime of Teodulo and his first wife, Perpetua, was
conjugal partnership of gains pursuant to Article 105 of the Family Code,
which provides:
Art. 105. xxx
The provisions of this Chapter [Conjugal Partnership of Gains]
shall also apply to conjugal partnership of gains already established
between spouses before the effectivity of this Code, without prejudice
to vested rights already acquired in accordance with the Civil Code or
other laws, as provided in Article 256. (n)
Also, it is undisputed that the subject property was acquired during the
marriage of Teodulo and Perpetua. As such, the subject property was their
conjugal property.
Both the RTC and the CA held that conjugal partnership of gains did
govern the property relations of Teodulo and Perpetua and the subject
property is thus their conjugal property, having been acquired during their
marriage which was celebrated during the effectivity of the Civil Code.
The death of a married person triggers legal consequences, among
which are: termination or dissolution of the marriage; termination of the
absolute community or conjugal partnership; and succession with respect to
the estate of the deceased spouse.
When Perpetua died on July 19, 1989, 34 the conjugal partnership
between her and Teodulo was terminated pursuant to Article 126 (1) of the
Family Code. 35 The rule was the same under Article 175 (1) of the Civil
Code: "The conjugal partnership of gains terminates x x x upon the death of
either spouse x x x."
With Perpetua's death, the liquidation of the conjugal partnership
between her and Teodulo should have ensued. Pursuant to Article 129 of the
Family Code, after inventory, mutual restitution and payment of debts, the
net remainder of the conjugal properties, constituting the profits of the
conjugal partnership, shall be divided equally between the spouses and/or
their respective heirs, unless a different proportion has been agreed upon in
their marriage settlements, or unless the surviving spouse or the heirs of the
deceased renounce their shares, and the presumptive legitimes of the
common children shall be then delivered, to be taken from the total
properties (the share in the conjugal properties and the balance of separate
properties) pertaining to each spouse in proper cases in accordance with
Article 51 of the Family Code. 36 In the case, however, of the dissolution of
the marriage due to the death of a spouse, the common children are entitled
to their respective shares as legal heirs in the estate of the deceased
spouse.
In many instances, however, the surviving spouse and the heirs of the
deceased spouse do not liquidate the conjugal properties and they keep
them undivided. In such case, a co-ownership is deemed established for the
management, control and enjoyment of the common property. Since the
conjugal partnership no longer subsists, the fruits of the common property
are divided according to the law on co-ownership; that is, in proportion to the
share or interest of each party. 37 That share or part of the co-heir in the co-
ownership prior to partition is pro indiviso, undivided or abstract, not specific,
delineated or demarcated by metes and bounds.
As far as the conjugal partnership property of Teodulo and Perpetua,
subject matter of the conflict herein, 1/2 undivided interest therein pertained
to Teodulo as his conjugal share and the other half, which was Perpetua's
conjugal share, pertained to her legal heirs. Based on the facts, there is no
mention of conjugal debts at the time of Perpetua's death. There is likewise
no mention of any conjugal property other than the subject property. Thus,
the subject property became co-owned property of Teodulo and the heirs of
Perpetua upon Perpetua's death.
Pending liquidation of the conjugal partnership, the alienations and
encumbrances of the parties or co-owners must be considered limited to
their respective undivided interests, and cannot involve any particular or
specific property or physical part of it. This means that the alienation or
encumbrance may be valid as to the undivided interest of the vendor but not
as to the corpus or body or physical portion of the property; and the vendee
will get the property that may be adjudicated in the partition to the vendor,
but not any portion of what may be allotted to the other co-owners. 38
The foregoing is consistent with the ownership rights of each co-owner,
which are spelled out in Article 493 of the Civil Code, to wit:
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 the termination of the co-ownership. (399)
Aside from the dissolution of the marriage between Perpetua and
Teodulo and their conjugal partnership, Perpetua's death triggered the
transfer of her inheritance or hereditary estate to her legal heirs pursuant to
Article 777 of the Civil Code, which provides: "The rights to the succession
are transmitted from the moment of the death of the decedent." Since there
is no mention of any will that she left, Perpetua died intestate.
Perpetua was survived by her husband, Teodulo, and their seven
legitimate children, namely, respondents Teodulo, Jr., Rosario, Ofelia,
Blesilda, Armida, Jesus and Cynthia, all surnamed Sison. Article 996 of the
Civil Code states: "If a widow or widower and legitimate children or
descendants are left, the surviving spouse has in the succession the same
share as that of each of the children." Since 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, as provided in
Article 1078 of the Civil Code.
Upon Perpetua's death, her one-half pro indiviso conjugal share in the
subject property was inherited by her widower, Teodulo, and their seven
legitimate children equally, with each legal heir entitled to 1/8 pro indiviso
share therein, or 1/16 undivided interest in the subject property. In totality,
Teodulo became co-owner of the subject property to the extent of 9/16,
consisting of his 1/2 conjugal share and 1/16 of the conjugal share of
Perpetua. Thus, at the time of Perpetua's death, the subject property
became co-owned by Teodulo (to the extent of 9/16) and each of the seven
children (to the extent of 1/16 each).
Petitioners therefore erred in claiming that Teodulo was entitled to "the
one[-]half (1/2) portion of the said property plus the one fifth (1/5) share of
the late Teodulo x x x on the other half of the property in question [now
covered by TCT No. 22388 in the name of Jesus]." 39 Petitioners did not even
explain how they arrived at his purported 1/5 share in the estate of
Perpetua, which is the other half of the subject property. If the 1/5 fraction is
used as basis to divide Perpetua's estate, Teodulo and Perpetua should have
only four children. But they had seven children.
When the marriage is terminated by death, Article 130 of the Family
Code specifically provides for the liquidation of the conjugal partnership
within one year from the death of the deceased spouse:
ART. 130. Upon the termination of the marriage by death,
the conjugal partnership property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the conjugal partnership property either
judicially or extrajudicially within one year from the death of the
deceased spouse. If upon the lapse of said period no liquidation is
made, any disposition or encumbrance involving the conjugal
partnership property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a mandatory
regime of complete separation of property shall govern the property
relations of the subsequent marriage. (n)
Parenthetically, a similar provision (Article 103) governs with respect to
the absolute community property regime. Three methods of liquidation of
the conjugal property are mentioned in the above-quoted provision: (1)
judicial settlement in a testate or intestate proceeding; (2) judicial action, or
ordinary action for partition; and (3) extrajudicial settlement. Any of the
three should be resorted to within one year from the death of the deceased
spouse. 40
Likewise, Article 130 provides two consequences if no liquidation is
effected within the one-year period: (1) "any disposition or encumbrance
involving the conjugal partnership property of the terminated marriage shall
be void"; and (2) "[s]hould the surviving spouse contract a subsequent
marriage x x x, a mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage."
A noted civil law expert has expressed certain reservations with
respect to these effects, to wit:
If no liquidation is made within the one-year period, the law
says, "any disposition or encumbrance involving the [conjugal
partnership] property of the terminated marriage shall be void." The
validity of the alienation or encumbrance can be challenged by the
heirs of the deceased spouse. Such alienation or encumbrance,
however, shall be valid to the extent of what is allot[t]ed in the
property involved, in the final partition, to the vendor or mortgagor.
So if the property sold or mortgaged is finally allot[t]ed to the vendor
or mortgagor as his share, the alienation or encumbrance shall be
valid. It shall also be valid if the surviving spouse is the only heir of
the deceased spouse.
x x x If no liquidation of the first marriage property has taken
place and the surviving spouse re-marries, this article imposes a
mandatory regime of separation of properties for the subsequent
marriage. We see no logical reason for this. If after the celebration of
the subsequent marriage, the heirs of the deceased spouse succeed
to get a partition of the properties of the first marriage, why should
the regime of separation of property continue for the second
marriage? The spouses in the new marriage may want to establish a
system of community [property]; but it would be too late to have a
marriage settlement. 41
After Perpetua's death, there was no liquidation of the conjugal
property of Teodulo and Perpetua within the one-year period provided in
Article 130. It must be recalled that respondents executed an extrajudicial
settlement of the estates of Teodulo and Perpetua only after Teodulo's
demise wherein the subject property was given to Jesus. As it stands, the
subject property is now registered in the name of Jesus.
At this juncture, the Court notes that, on three prior occasions, it has
interpreted the proviso in Article 130 of the Family Code regarding the
disposition or encumbrance involving the conjugal partnership property of
the terminated marriage where no liquidation of the terminated marriage
property is made within one year from the death of the deceased spouse.
These cases, however, do not involve a subsequent marriage of the
surviving spouse and the disposition of the terminated marriage property
being made during the subsistence of the subsequent marriage, without the
consent of the surviving spouse's second spouse.
Firstly, in Heirs of Protacio Go, Sr. and Marta Barola v. Servacio 42
(Heirs of Go), the validity of the sale made by the surviving husband and his
son of a portion of the conjugal property the surviving husband had with the
deceased wife, without prior liquidation as mandated by Article 130, was
challenged.
Briefly, the pertinent factual setting of Heirs of Go was: after the death
in November 1987 of Marta Barola Go, wife of Protacio, Sr., the latter,
together with their son Rito Go, sold in December 1999 a portion of two
parcels of land with a total area of 17,140 square meters to Ester Servacio
for P5,686,768.00. The conjugal partnership property was not liquidated
prior to the sale and the said parcels were conjugal property of Marta and
Protacio, Sr., there being no dispute that they were married prior to the
effectivity of the Family Code on August 3, 1988.
The Court in Heirs of Go stated:
x x x Upon Marta's death in 1987, the conjugal partnership was
dissolved, pursuant to Article 175 (1) of the Civil Code, and an implied
ordinary co-ownership ensued among Protacio, Sr. and the other heirs
of Marta with respect to her share in the assets of the conjugal
partnership pending x x x its liquidation. The ensuing implied ordinary
co-ownership was governed by Article 493 of the Civil Code x x x.
xxx xxx xxx
Protacio, Sr., although becoming a co-owner with his children in
respect of Marta's share in the conjugal partnership, could not yet
assert or claim title to any specific portion of Marta's share without an
actual partition of the property being first done either by agreement
or by judicial decree. Until then, all that he had was an ideal or
abstract quota in Marta's share. Nonetheless, a co-owner could sell
his undivided share; hence, Protacio, Sr. had the right to freely sell
and dispose of his undivided interest, but not the interest of his co-
owners. Consequently, the sale by Protacio, Sr. and Rito as co-owners
without the consent of the other co-owners was not necessarily
void, for the rights of the selling co-owners were thereby effectively
transferred, making the buyer (Servacio) a co-owner of Marta's share.
This result conforms to the well-established principle that the binding
force of a contract must be recognized as far as it is legally possible
to do so (quando res non valet ut ago, valeat quantum valere potest).
Article 105 of the Family Code x x x expressly provides that the
applicability of the rules on dissolution of the conjugal partnership is
"without prejudice to vested rights already acquired in accordance
with the Civil Code or other laws." This provision gives another reason
not to declare the sale as entirely void . Indeed, such a declaration
prejudices the rights of Servacio who had already acquired the shares
of Protacio, Sr. and Rito in the property subject of the sale.
xxx xxx xxx
"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.
xxx xxx xxx
Thus, it is now settled that the appropriate recourse
of co-owners in cases where their consent [was] not
secured in a sale of the entire property as well as in a sale
merely of the undivided shares of some of the co-owners
is an action for PARTITION under Rule 69 of the Revised
Rules of Court. x x x"
In the meanwhile, Servacio would be a trustee for the benefit of
the co-heirs of her vendors in respect of any portion that might not be
validly sold to her. The following observations of Justice Paras are
explanatory of this result, viz.:
"x x x [I]f it turns out that the property alienated or
mortgaged really would pertain to the share of the
surviving spouse, then said transaction is valid. If it turns
out that there really would be, after liquidation, no more
conjugal assets then the whole transaction is null and
void. But if it turns out that half of the property thus
alienated or mortgaged belongs to the husband as his
share in the conjugal partnership, and half should go to
the estate of the wife, then that corresponding to the
husband is valid, and that corresponding to the other is
not. Since all these can be determined only at the time
the liquidation is over, it follows logically that a disposal
made by the surviving spouse is not void ab initio.
Thus, it has been held that the sale of conjugal properties
cannot be made by the surviving spouse without the legal
requirements. The sale is void as to the share of the
deceased spouse (except of course as to that portion of
the husband's share inherited by her as the surviving
spouse). The buyers of the property that could not be
validly sold become trustees of said portion for the
benefit of the husband's other heirs, the cestui que
[trustent]. x x x (See Cuison, et al. v. Fernandez, et al. , L-
11764, Jan. 31, 1959.)" 43 (Emphasis and underscoring
supplied; emphasis in the original omitted)
The second case, Domingo v. Molina 44 (Domingo), merely adopted the
formulation in Heirs of Go.
In summary, Domingo involved the sale by Anastacio Domingo
(Anastacio) on September 10, 1978, or ten years after the death of his wife
Flora, of his interest in the land subject of the case. The sale was annotated
on the Original Certificate of Title covering the land with the following
statement: "[o]nly the rights, interests and participation of Anastacio
Domingo, married to Flora Dela Cruz, [are] hereby sold, transferred, and
conveyed unto the said vendees for x x x P1,000.00 x x x which pertains to
an undivided one-half (1/2) portion and subject to all other conditions
specified in the document x x x." 45
The Court, following the discussion in Heirs of Go, stated that being
married prior to the effectivity of the Family Code, the property relation of
spouses Anastacio and Flora Domingo was conjugal partnership, which was
dissolved when Flora died in 1968 pursuant to Article 175 (1) of the Civil
Code (now Article 126 (1) of the Family Code). Then the Court cited Article
130 of the Family Code, which requires the liquidation of the conjugal
partnership upon the death of a spouse and prohibits any disposition or
encumbrance of the conjugal property prior to the liquidation. But the Court
did not apply Article 130, citing Article 105 thereof which states that the
provisions of the Family Code shall be "without prejudice to vested rights
already acquired in accordance with the Civil Code or other laws."
Thereafter, the Court indicated that an implied ordinary co-ownership among
Flora's heirs governed the conjugal properties pending liquidation and
partition, with Anastacio owning one-half of the original conjugal partnership
as his share plus his share as Flora's heir in the conjugal properties, but the
same was an undivided interest. Invoking Article 493 of the Civil Code, the
Court mentioned that Anastacio, as a co-owner, had the right to freely sell
and dispose of his undivided interest, but not the interest of his co-owners.
46
In fine, the Court held in Domingo:

x x x Consequently, Anastacio's sale to the spouses Molina
without the consent of the other co-owners was not totally void, for
Anastacio's rights or a portion thereof were thereby effectively
transferred, making the spouses Molina a co-owner of the subject
property to the extent of Anastacio's interest. This result conforms
with the well-established principle that the binding force of a contract
must be recognized as far as it is legally possible to do so (quando res
non valet ut ago, valeat quantum valere potest). 47 (Emphasis and
underscoring supplied)
Finally, in Uy v. Estate of Vipa Fernandez 48 (Uy) which also involved
the sale of the undivided interest of the surviving spouse in a conjugal
property, the Court merely adopted the ruling in Domingo, thus:
Levi and Vipa were married in March 24, 1961 and in the
absence of a marriage settlement, the system of conjugal partnership
of gains governs their property relations. It is presumed that the
subject property is part of the conjugal properties of Vipa and Levi
considering that the same was acquired during the subsistence of
their marriage and there being no proof to the contrary.
When Vipa died on March 5, 1994, the conjugal partnership was
automatically terminated. Under Article 130 of the Family Code, the
conjugal partnership property, upon its dissolution due to the death of
either spouse, should be liquidated either in the same proceeding for
the settlement of the estate of the deceased or, in the absence
thereof, by the surviving spouse within one year from the death of
the deceased spouse. That absent any liquidation, any disposition or
encumbrance of the conjugal partnership property is void. x x x
xxx xxx xxx
Article 130 of the Family Code is applicable to conjugal
partnership of gains already established between the spouses prior to
the effectivity of the Family Code pursuant to Article 105 thereof x x
x.
xxx xxx xxx
Rafael bought Levi's one-half share in the subject property in
consideration of P500,000.00 as evidenced by the Deed of Sale dated
December 29, 2005. At that time, the conjugal partnership properties
of Levi and Vipa were not yet liquidated. However, such
disposition, notwithstanding the absence of liquidation of the
conjugal partnership properties, is not necessarily void.
It bears stressing that under the regime of conjugal partnership
of gains, the husband and wife are co-owners of all the property of the
conjugal partnership. Thus, upon the termination of the conjugal
partnership of gains due to the death of either spouse, the surviving
spouse has an actual and vested one-half undivided share of the
properties, which does not consist of determinate and segregated
properties until liquidation and partition of the conjugal partnership.
With respect, however, to the deceased spouse's share in the
conjugal partnership properties, an implied ordinary co-ownership
ensues among the surviving spouse and the other heirs of the
deceased.

Thus, upon Vipa's death, one-half of the subject property was
automatically reserved in favor of the surviving spouse, Levi, as his
share in the conjugal partnership. The other half, which is Vipa's
share, was transmitted to Vipa's heirs — Grace Joy, Jill Frances, and
her husband Levi, who is entitled to the same share as that of a
legitimate child. The ensuing implied co-ownership is governed by
Article 493 of the Civil Code x x x.
xxx xxx xxx
Although Levi became a co-owner of the conjugal partnership
properties with Grace Joy and Jill Frances, he could not yet assert or
claim title to any specific portion thereof without an actual partition of
the property being first done either by agreement or by judicial
decree. Before the partition of a land or thing held in common, no
individual or co-owner can claim title to any definite portion thereof.
All that the co-owner has is an ideal or abstract quota or
proportionate share in the entire land or thing.
Nevertheless, a co-owner could sell his undivided share; hence,
Levi had the right to freely sell and dispose of his undivided interest.
Thus, the sale by Levi of his one-half undivided share in the subject
property was not necessarily void, for his right as a co-owner
thereof was effectively transferred, making the buyer, Rafael, a co-
owner of the subject property. It must be stressed that the binding
to do so (quando res non valet ut ago, valeat quantum valere potest).
49 (Emphasis and underscoring supplied)
The Court's ruling in Heirs of Go, Domingo, and Uy to the effect that the
undivided share of the disposing co-owner is effectively transferred to the
buyer based on the maxim quando res non valet ut ago, valeat quantum
valere potest can be traced to the 1944 en banc case of Lopez v. Vda. De
Cuaycong, et al. 50 (Lopez), to wit:
On the first question, we believe the consent of the three
daughters above named was not necessary to the validity of the sale
in question. Each co[-]owner may alienate his undivided or ideal
share in the community.
Articles 392 51 and 399 52 of the [old] Civil Code provide:
"Article 392. There is co-ownership whenever
the ownership of a thing or of a right belong undivided to
different persons.
xxx xxx xxx
"Article 399. Each one of the co-owners shall
have the absolute ownership of his part and that of the
fruits and profits pertaining thereto, and he may therefore
sell, assign or mortgage it, and even substitute another
person in its enjoyment, unless personal rights are
involved. But the effect of the alienation or mortgage with
respect to the co-owners shall be limited to the share
which may be allotted to him in the division upon the
termination of the co-ownership."
Manresa has the following to say on this subject:
xxx xxx xxx
"Each co-owner owns the whole, and over it he
exercises rights of dominion, but at the same time he is
the owner of a share which is really abstract, because
until the division is effected, such share is not concretely
determined. The rights of the co-owners are, therefore, as
absolute as dominion requires, because they may enjoy
and dispose of the common property, without any
limitation other than that they should not, in the exercise
of their right, prejudice the general interest of the
community, and possess, in addition, the full ownership of
their share, which they may alienate, convey or
mortgage; which share, we repeat, will not be certain
until the community ceases. The right of ownership,
therefore, as defined in Art. 348 of the present Civil Code,
with its absolute features and its individualized character,
in exercised in co-ownership, with no other differences
between sole and common ownership than that which is
rightly established by the Portuguese Code (Arts. 2175
and 2176), when it says 'that the sole owner exercises his
rights exclusively, and the co-owner exercises them
jointly with the other co-owners'; but we shall add, to
each co-owner pertains individually, over his undivided
share, all the rights of the owner, aside from the use and
enjoyment of the thing, which is common to all the co-
owners." x x x
Manresa further says that in the alienation of his undivided or
ideal share, a co-owner does not need the consent of the others. (Vol.
3, pp. 486-487, 3rd Ed.)
Sanchez Roman also says ("Estudios de Derecho Civil," vol. 3,
pp. 174-175):
xxx xxx xxx
"Article 399 shows the essential integrity of the
right of each co-owner in the mental portion which
belongs to him in the co-ownership or community.
xxx xxx xxx
"To be a co-owner of a property does not mean that
one is deprived of every recognition of the disposal of the
thing, of the free use of his right within the circumstantial
conditions of such juridical status, nor is it necessary, for
the use and enjoyment, or the right of free disposal, that
the previous consent of all the interested parties be
obtained. x x x"
According to Scaevola (Codigo Civil, vol. 7, pp. 154-155):
xxx xxx xxx
"2nd. Absolute right of each co-owner with
respect to his part or share. — With respect to the latter,
each co-owner is the same as an individual owner. He is a
singular owner, with all the rights inherent in such
condition. The share of the co-owner, that is, the part
which ideally belongs to him in the common thing or right
and is represented by a certain quantity, is his and he
may dispose of the same as he pleases, because it does
not affect the right of the others. Such quantity is
equivalent to a credit against the common thing or right,
and is the private property of each creditor (co-owner).
The various shares ideally signify as many units of thing
or right, pertaining individually to the different owners; in
other words, a unit for each owner."
It follows that the consent of the three daughters Maria Cristina,
Josefina and Anita Cuaycong to the sale in question was not
necessary.
xxx xxx xxx
The second question is: What rights did the intervenor acquire
in this sale? The answer is: the same rights as the grantors had as co-
owners in an ideal share equivalent in value to 10,832 square meters
of the hacienda. No specific portion, physically identified, of the
hacienda has been sold, but only an abstract and undivided share
equivalent in value to 10,832 square meters of the common property.
What portion of the hacienda has been sold will not be physically and
concretely ascertained until after the division. This sale is therefore
subject to the result of such partition, but this condition does not
render the contract void, for an alienation by the co-owner of his ideal
share is permitted by law, as already indicated. If in the partition this
lot 178-B should be adjudicated to the intervenor, the problem would
be simplified; otherwise, the sellers would have to deliver to the
intervenor another lot equivalent in value to Lot No. 178-B.
Incidentally, it should be stated that according to Rule 71, sec. 4, of
the new Rules of Court, regarding partition of real estate, the
commissioners on partition shall set apart the real property "to the
several parties in such lots or parcels as will be most advantageous
and equitable, having due regard to the improvements, situation and
quality of the different parts thereof." x x x Consequently, without
deciding that the commissioners on partition must assign Lot 178-B to
intervenor, we deem it proper to state that if in the partition
proceedings, the commissioners should set apart said lot to
intervenor, they would be acting within the letter and spirit of the
provision, just quoted, of Rule 71, sec. 4; and that they will probably
make such adjudication.
In the Sentence of December 29, 1905, the Supreme Tribunal of
Spain declared that the alienation, by a co-owner, of either an
abstract or a concrete part of the property owned in common does
not mean the cessation of the ownership. Said sentence held:
xxx xxx xxx
"The first assignment of error cannot be sustained,
because such legal status does not disappear, nor is it
impaired, with respect to the co-owners between
themselves simply because both or either of them
executed acts which may be considered as beyond the
powers inherent in administration, the only powers which
by mutual agreement had been conferred as to certain
properties, inasmuch as although every co-owner may
alienate, grant, or mortgage the ownership of his share,
the effect of such alienation is limited, with reference to
the co-owners, to the portion which may be adjudicated
to him later, according to Art[.] 399 of the Civil Code, and
does not imply the cessation of the community, whether
the sale refers to an abstract part of the property, or to a
concrete and definite part thereof, because though in the
latter case the form and conditions of the subsequent
partition may be effected, nevertheless, the juridical
situation of the collective owners is not in any way altered
so long as the partition of the common property is not
carried out, which is declared not to have taken place." x
xx
Applying the above doctrine to the instant case, it cannot be
said that the sale of Lot 178-B to the intervenor had the effect of
partitioning the hacienda and adjudicating that lot to the intervenor.
It merely transferred to the intervenor an abstract share equivalent in
value to 10,832 square meters of said hacienda, subject to the result
of a subsequent partition. The fact that the agreement in question
purported to sell a concrete portion of the hacienda does not render
the sale void, for it is a well-established principle that the binding
to do so. "Quando res non valet ut ago, valeat quantum valere
potest." ("When a thing is of no force as I do it, it shall have as much
force as it can have.") It is plain that Margarita G. Vda. de Cuaycong
and her children of age intended to sell to intervenor no more than
what they could legally and rightfully dispose of, and as they could
convey only their ideal share, equivalent in value to 10,832 square
meters of the hacienda, that ideal share alone must be deemed to
have been the subject-matter of the sale in question. They are
presumed to know the law that before partition, conventional or
judicial, no co[-]owner may dispose of any physically identified
portion of the common property; and that any conveyance by a co[-
]owner is subject to the result of a subsequent partition. This
interpretation of the contract does no harm to the minor daughters,
as the sale in question is subject to the result of the partition which
intervenor may demand.
As a successor in interest to an abstract or undivided share of
the sellers, equivalent in value to 10,832 square meters of the
property owned in common, the intervenor has the same right as its
predecessors in interest to demand partition at any time, according
to article 400 53 of the [old] Civil Code x x x[.] 54 (Italics in the
original)
With respect to Uy, the Court notes that it applied Article 130 of the
Family Code since the concerned spouse died during the effectivity of the
Family Code while Heirs of Go and Domingo did not apply the said Article
because the death of the spouse occurred during the effectivity of the Civil
Code, or prior to August 3, 1988, and Article 130's retroactive application
would purportedly impair vested rights under the Civil Code. According to
Heirs of Go: "such a declaration [of nullity] prejudices the rights of Servacio
[(the buyer)] who had already acquired the shares of Protacio, Sr. and Rito
[(the surviving spouse and a legitimate son of the deceased spouse)] in the
property subject of the sale." 55 But, in Heirs of Go, the disputed sale
happened in 1999 such that Servacio's right as co-owner was acquired
during the effectivity of the Family Code. In Domingo, the disputed
transaction happened in 1978. That being the situation, the buyer of the
surviving spouse's undivided interest became co-owner of the subject
property and the buyer's vested right would be prejudiced if Article 130
would be applied retroactively.
However, it must likewise be noted that what was vested in the buyer
regarding a disposition prior to the effectivity of the Family Code is merely
the ownership of the undivided interest of the surviving spouse in the
conjugal property, consisting of (1) the surviving spouse's half interest in the
conjugal property as his or her conjugal share (because death terminated
the marriage) and (2) the surviving spouse's share as legal heir in the
deceased spouse's conjugal share (the other half interest therein), that was
vested in his favor by succession. It is that undivided interest that the
surviving spouse can freely dispose of without need of the other co-owners'
consent. As to the undivided shares of the other co-owners, the disposition
by the surviving spouse thereof is not valid. And the same holds true with
respect to a similar disposition made by the surviving spouse after the
effectivity of the Family Code.
If the right being prejudiced in the retroactive application of Article 130
is the right of the surviving spouse as a co-owner of the conjugal property,
which vested when the marriage was dissolved by the death of the other
spouse, the prejudice could result only when the right is exercised. Thus, the
date of the spouse's death is not the reckoning point. Rather, the relevant
date in the retroactive application of Article 130 is when the questioned
disposition involving the unliquidated conjugal property is made.
As demonstrated in Uy, the result is the same whether Article 130 is
retroactively applied or not. The disposition by the surviving spouse despite
non-observance of the requirement on the liquidation of the terminated
marriage property within one year from the death of his or her spouse is
recognized as one that is not totally or necessarily void. As stated earlier,
the disposition is recognized as valid to the extent of the undivided share of
the disposing surviving spouse in Domingo and Uy, or the undivided shares
of the disposing surviving spouse and legitimate child in Heirs of Go. The
proviso on nullity under Article 130 is therefore more appropriately applied
only insofar as the disposition affects the portion of the conjugal property
pertaining to the non-disposing co-heirs.
The Court further notes that in Domingo and Uy, the subject disposition
or alienation concerned the very share or interest of the surviving spouse
over which, according to Article 493 of the Civil Code, he or she has full
ownership. Thus, as Article 493 puts it, the disposition should be perfectly
valid "[b]ut the effect of the alienation x x x, 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."
The Court now discusses how Article 130 should be interpreted given
the factual milieu of this case.
Was the consent of Perla, Teodulo's second wife, necessary for the
validity of the sale of the subject property by Teodulo to Apolinario?
The third paragraph of Article 130 of the Family Code provides that a
mandatory regime of complete separation of property shall govern the
property relations of the subsequent marriage should the surviving spouse
contract a subsequent marriage without liquidating the conjugal partnership
property, thus:
xxx xxx xxx
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a mandatory
regime of complete separation of property shall govern the property
relations of the subsequent marriage. (n)
When a complete or total separation of property governs the property
relations, no portion of the properties of the marriage will be common, and
the fruits of the properties of either spouse, as well as his or her earnings
from any profession, work or industry, will belong to him or her as exclusive
property. 56 Each spouse owns the property which he or she brings to the
marriage or which he or she may acquire during the marriage by onerous or
gratuitous title. 57
The ownership rights of each spouse in a regime of separation of
property are provided in Article 145 of the Family Code, which states:
ART. 145. Each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate, without need of
the consent of the other. To each spouse shall belong all earnings
from his or her profession, business or industry and all fruits, natural,
industrial or civil, due or received during the marriage from his or her
separate property. (214a)
Given that complete separation of property governed the subsequent
marriage of Teodulo and Perla, the 9/16 undivided share or interest in the
subject property of Teodulo belonged to him and remained with him as his
separate property when he married Perla. Thus, he could have disposed of
this without need of consent from Perla.
Is this right of disposition by the surviving spouse under Article 145 of
the Family Code, which is consistent with Article 493 of the Civil Code insofar
as the right of alienation by a co-owner of his or her interest or share in the
co-ownership is concerned, abrogated by the provision of Article 130 of the
Family Code which provides that "any disposition or encumbrance involving
the conjugal partnership property of the terminated marriage shall be void"
if no liquidation of the terminated marriage property is made upon the lapse
of one year from the death of the deceased spouse?
While there appears to be a seeming conflict in the cited provisions of
the Family Code and the Civil Code, the provisions are not irreconcilable. As
discussed above, the disposition or encumbrance is valid only to the extent
of the share or interest of the surviving spouse in the terminated marriage
property, and cannot in no way bind the shares or interests therein of the
other heirs of the deceased spouse.
The above formulation, which recognizes as valid the disposition by the
surviving spouse of his separate property — equivalent to his undivided
share in the conjugal property with his deceased wife and his share as legal
heir in the latter's estate — pursuant to Article 145 of the Family Code
despite the proviso in Article 130 to the effect that such disposition is
considered void, is consistent with Lopez and supported by Heirs of Go,
Domingo and Uy.
While the phrases used in Heirs of Go, Domingo and Uy to describe the
effect of the disposition which is non-compliant with the requirements of
Article 130, namely, "not necessarily void," "[not] entirely void," "not null
and void," "not totally void," the Court still recognized therein that the
surviving spouse's rights in the subject property are effectively transferred to
the buyer, making the latter a co-owner of the property to the extent of the
surviving spouse's undivided interest therein, and a trustee of the remaining
portion of the property for the benefit of the deceased spouse's other heirs,
the cestui que trustent or cestui que trust. In this light, if the disposition is
made after the remarriage of the surviving spouse during the effectivity of
the Family Code, then with more reason that the disposition is not void
because the surviving spouse's undivided interest in the terminated
marriage property is already recognized as his separate property, which he
can freely dispose of under Article 145 of the Family Code.
The disposition or encumbrance of the entire property is valid only if
the other heirs or co-owners give their consent thereto pursuant to Article
491 of the Civil Code, which provides that none of the co-owners shall,
without the consent of the others, make alterations in the thing owned in
common, even though benefits for all would result therefrom. Alteration
includes any act of ownership or strict dominion such as alienation of the
thing by sale or donation. 58 However, if the widow or widower alone
survives the deceased spouse, he or she becomes the sole owner of the
latter's estate pursuant to Article 995 of the Civil Code, which states:
ART. 995. In the absence of legitimate descendants and
ascendants, and illegitimate children and their descendants, whether
legitimate or illegitimate, the surviving spouse shall inherit the entire
estate, without prejudice to the rights of brothers and sisters,
nephews and nieces, should there be any, under Article 1001. (946a)
In this scenario, the surviving spouse becomes the sole owner of the
conjugal property and the proviso of Article 130 of the Family Code
necessarily yields to Article 145.
Also, there is no doubt that the disposition by the surviving spouse of
his undivided interest in the co-ownership created by the death of the other
spouse is valid pursuant to Article 493 of the Civil Code, subject to the
outcome of the partition, and because that undivided interest is separate
property of the surviving spouse in case of remarriage, its disposition
without the consent of the subsequent spouse is valid pursuant to Article
145 of the Family Code.
Consequently, the determination of the effect of a questioned
disposition by the surviving spouse despite non-compliance with the
requirements under Article 130 of the Family Code depends not so much on
whether this provision can be retroactively applied, but on the correct
application of Article 493 of the Civil Code (prior to remarriage of the
surviving spouse), and Article 145 of the Family Code by itself or in
conjunction with Article 493 of the Civil Code (after the latter's remarriage
during the effectivity of the Family Code).
Taking into consideration the foregoing discussion, the CA erred when
it ruled that the property regime governing the marriage between Perla and
Teodulo is absolute community. 59 Accordingly, it also erred when it applied
the exclusion provided in Article 92 60 of the Family Code with respect to
property acquired before the marriage by either spouse who has legitimate
descendants by a former marriage, and the fruits as well as income thereof.
While the CA was correct in stating that the purpose of the exclusion is
to protect the rights and interests of the legitimate descendants by the first
marriage over the property and to ensure that the children born of the prior
marriage are not deprived of their share in the properties of their parents, 61
its pronouncement that in the instant case the exclusion does not apply
considering that "Perla x x x recognizes the co-ownership between Teodulo
and his children with Perpetua, as seen in the extrajudicial settlement
document[, and thus,] there is no risk of depriving them of their rights over
the conjugal property of Teodulo and Perpetua" 62 is misguided.
Perla's recognition of the co-ownership between Teodulo and his
children with Perpetua does not confer any additional right in their favor nor
is it necessary to confer upon them their right to succeed from Perpetua
because as far as they are concerned their right to inherit from the estate of
Perpetua was vested upon the latter's death. As to Teodulo's conjugal share
in the subject property, that is guaranteed as his separate property under
Article 145 in relation to Article 130 of the Family Code.
In the same vein, petitioners' invocation of Article 92 to justify that the
subject property is excluded from the community property of Teodulo and
Perla, and is partly Teodulo's separate property, which he could alienate
without need of Perla's consent, is incorrect. As to their invocation of Article
103, which applies to community property, it is likewise incorrect because
the property regime of Teodulo and Perpetua was the conjugal partnership of
gains. Thus, the applicable provision is Article 130 of the Family Code.
The Court need not waste its time to discuss the arguments of
respondents as they are clearly egregiously wrong.
The Court will now proceed to determine whether the sale of the
subject property by Teodulo to Apolinario, without the consent of Perla and
his other seven co-owners, is valid.
Before the question can be properly addressed, the nature of the
transaction over the subject property between Teodulo and Apolinario must
be examined.
It will be recalled that on September 23, 1994, Teodulo (respondents'
predecessor-in-interest) sold to Apolinario (petitioners' predecessor-in-
interest) a parcel of land with an approximate area of 7,768 square meters
for the total purchase price of P150,000.00. The parties agreed that
Apolinario would pay P40,000.00 as initial payment and the rest was to be
paid in installments. The receipt of the initial payment was acknowledged by
Teodulo in a handwritten receipt also dated September 23, 1994. Thereafter,
Apolinario's family occupied the property. The second installment in the
amount of P40,000.00 was paid by Apolinario on August 14, 1996, and
another installment was made on October 20, 1999 in the amount of
P40,000.00, as reflected in the handwritten receipt which also stated that "
[u]pon payment of the balance in the amount of Thirty Thousand Pesos
([P]30,000.00), I [(referring to Teodulo)] will cause the transfer of the title of
my land in his [(referring to Apolinario)] name." 63 Of the P150,000.00
purchase price, Apolinario was able to pay P120,000.00 or 80% thereof.
However, on December 22, 2000, Teodulo died before the balance of the
purchase price could be paid.
Based on these facts, the transaction between Teodulo and Apolinario
is a contract of sale.
Article 1458 of the Civil Code defines a contract of sale as a contract
where one of the parties obligates himself to transfer the ownership of and to
deliver a determinate thing, and the other party to pay therefor a price
certain in money or its equivalent. From the perspective of the definition of
obligation under Article 1156 as "a juridical necessity to give, to do or not to
do," the prestations of the seller are: (1) to transfer the ownership of a
determinate thing and (2) to deliver that determinate thing while the
corresponding prestation of the buyer is to pay therefor a price certain in
money or its equivalent. Given that the seller is obligated to transfer not only
the ownership of the determinate thing sold but also to deliver the thing, the
seller may withhold ownership of the thing sold despite its delivery to the
buyer. This is expressly allowed under Article 1478 of the Civil Code, which
states: "The parties may stipulate that ownership in the thing shall not pass
to the purchaser until he has fully paid the price." Without such stipulation,
ownership of the thing sold is transferred to the buyer upon its delivery in
consonance with Article 1477, which provides: "The ownership of the thing
sold shall be transferred to the vendee upon the actual or constructive
delivery thereof."
I n San Lorenzo Development Corporation v. Court of Appeals, 64 the
Court discussed the nature, elements, perfection and consummation of a
contract of sale, viz.:
Sale, being a consensual contract, is perfected by mere consent
and from that moment, the parties may reciprocally demand
performance. The essential elements of a contract of sale [are]: (1)
consent or meeting of the minds, that is, to transfer ownership in
exchange for the price; (2) object certain which is the subject matter
of the contract; (3) cause of the obligation which is established.
The perfection of a contract of sale should not, however, be
confused with its consummation. In relation to the acquisition and
transfer of ownership, it should be noted that sale is not a mode, but
merely a title. A mode is the legal means by which dominion or
ownership is created, transferred or destroyed, but title is only the
legal basis by which to affect dominion or ownership. Under Article
712 of the Civil Code, "ownership and other real rights over property
are acquired and transmitted by law, by donation, by testate and
intestate succession, and in consequence of certain contracts, by
tradition." Contracts only constitute titles or rights to the transfer or
acquisition of ownership, while delivery or tradition is the mode of
accomplishing the same. Therefore, sale by itself does not transfer or
affect ownership; the most that sale does is to create the obligation to
transfer ownership. It is tradition or delivery, as a consequence of
sale, that actually transfers ownership.
Explicitly, the law provides that the ownership of the thing sold
is acquired by the vendee the moment it is delivered to him in any of
the ways specified in Article 1497 to 1501. The word "delivered"
should not be taken restrictively to mean transfer of actual physical
possession of the property. The law recognizes two principal modes of
delivery, to wit: (1) actual delivery; and (2) legal or constructive
delivery.
Actual delivery consists in placing the thing sold in the control
and possession of the vendee. Legal or constructive delivery, on the
other hand, may be had through any of the following ways: the
execution of a public instrument evidencing the sale; symbolical
tradition such as the delivery of the keys of the place where the
movable sold is being kept; traditio longa manu or by mere consent
or agreement if the movable cannot yet be transferred to the
possession of the buyer at the time of the sale; traditio brevi manu if
the buyer already had possession of the object even before the sale;
and traditio constitutum possessorium , where the seller remains in
possession of the property in a different capacity. 65
Based on the elements of sale, the transaction between Teodulo and
Apolinario is indeed a contract of sale. There was a meeting of the minds:
Teodulo agreed to transfer ownership of and to deliver the subject property
and Apolinario agreed to pay the purchase price of P150,000.00. The object
is the subject property, which is determinate and licit. For Teodulo, the cause
or consideration was the receipt of the payment of the purchase price while
for Apolinario, it was the transfer of ownership and delivery of the subject
property to him.
Not only was the sale between Teodulo and Apolinario perfected, it was
partially consummated. Teodulo had substantially complied with his
prestations as the seller when he placed the subject property in the control
and possession of Apolinario without reserving its ownership. What was left
was the transfer of the certificate of title covering the subject property from
Teodulo to Apolinario. Apolinario had paid a total of P120,000.00 or 80% of
the purchase price of P150,000.00 agreed upon. As to the remaining
P30,000.00, the handwritten receipt dated October 20, 1999 stated that "
[u]pon payment of the balance in the amount of Thirty Thousand Pesos
([P]30,000.00), I [(referring to Teodulo)] will cause the transfer of the title of
my land in his [(referring to Apolinario)] name." 66
As control and possession of the subject property had earlier been
ceded by Teodulo to Apolinario after the payment of the initial P40,000.00 on
September 23, 1994, without any stipulation that ownership in the subject
property would not pass to Apolinario until he had fully paid the price, the
quoted proviso in the October 20, 1999 receipt had no effect on the
ownership of the subject property having already been transferred to
Apolinario by actual delivery.
The proviso is simply a reservation of a portion of the purchase price to
ensure the transfer of the certificate of title from Teodulo to Apolinario. Sale
being a reciprocal obligation, both Teodulo and Apolinario stood to benefit
from the proviso. Teodulo would not need to spend his own funds to effect
the transfer of title and Apolinario could be assured of the transfer of title by
making sure that the remaining P30,000.00 would be spent for that purpose.
Despite the existence of a valid contract of sale over the subject
property between Teodulo and Apolinario, the sale is effective only to the
extent of the share or interest of Teodulo therein pursuant to Article 493 of
the Civil Code which, as discussed above, is 9/16 of the subject property.
The Court, in applying Article 493 of the Civil Code to a situation
wherein the entire co-owned property has been disposed by a co-owner
without the consent of the other co-owners, has this to say in Bailon-Casilao
v. Court of Appeals: 67
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)] x x x 68
This pronouncement of the Court was reiterated in Spouses Del Campo
v. Court of Appeals, 69 to wit:
x x x Since the co-owner/vendor's undivided interest could
properly be the object of the contract of sale between the parties,
what the vendee obtains by virtue of such a sale are the same rights
as the vendor had as co-owner, in an ideal share equivalent to the
consideration given under their transaction. In other words, the
vendee steps into the shoes of the vendor as co-owner and acquires a
proportionate abstract share in the property held in common.
x x x We have ruled many times 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.
Since a co-owner is entitled to sell his undivided share, a sale of the
entire property by one co-owner will only transfer the rights of said
co-owner to the buyer, thereby making the buyer a co-owner of the
property. 70
Furthermore, Lopez supports the validity of the disposition to the
extent of the undivided share of the disposing co-owner despite the lack of
consent from the other co-owners.
Therefore, while Teodulo sold the entire subject property which he
owned in common with his seven children, the sale only affected his
undivided share and Apolinario acquired only Teodulo's 9/16 abstract share
in the property held in common. While Teodulo could dispose of his 9/16
undivided interest therein by virtue of Article 145 of the Family Code
because that pertained to him as his separate property in his subsequent
marriage to Perla under Article 130 of the Family Code, his disposition of the
entire subject property cannot be entirely valid as his right to dispose as a
co-owner is limited by Article 493 of the Civil Code to the share or part
pertaining to him.
In view of the fact that 80% of the purchase price had been paid, Jesus,
to whom the subject property was adjudicated by virtue of the extrajudicial
settlement of the estates of Teodulo and Perpetua, is no longer entitled to
collect the remaining balance of P30,000.00. The P120,000.00 is deemed to
be sufficient consideration of 9/16 of the subject property because 9/16
thereof, given its total area of 7,768 square meters, is equivalent to
approximately 4,369.5 square meters or a little more than half of the subject
property's area.
Given that: Apolinario had already paid a total of P120,000.00 or 80%
of the purchase price of P150,000.00 agreed upon; such 80% payment would
be equivalent to about 6,214 square meters, given that the total area of the
subject property is 7,768 square meters; the sale can only be recognized to
the extent of 9/16 or 56.25% of its area or 4,369.5 square meters;
petitioners' prayer that the sale be recognized valid to the extent of the
conjugal share of Teodulo plus his "share 71 x x x [i]n the other half of the
property in question"; 72 and the length of time that has transpired from the
sale in 1994 to the present, the Court deems it just and equitable to
recognize the sale between Teodulo and Apolinario valid to the extent of
9/16 of the subject property and the purchase price thereof has been fully
discharged.
Upon the death of Apolinario, pursuant to Article 777 of the Civil Code,
ownership to the extent of 9/16 of the subject property devolved pro-indiviso
upon his heirs, petitioners herein, by virtue of succession. Consequently,
Jesus and the heirs of Apolinario are pronounced co-owners of the subject
property now covered by TCT No. 22388 in the following proportion: Jesus to
the extent of 7/16 and petitioners to the extent of 9/16.
In the words of the Court in Heirs of Go, Domingo, and Uy, the sale by
Teodulo of the subject property to Apolinario was not necessarily or
totally or entirely void, for his right as a co-owner to the extent of 9/16
thereof was effectively transferred, making the buyer, Apolinario, a co-owner
of the subject property to that extent and a trustee for the benefit of the co-
heirs of Teodulo, his seven children, in respect of their combined 7/16
interest therein that was not validly sold to Apolinario. Upon Apolinario's
death, petitioners stepped into his shoes and became co-owners together
with Jesus of the subject property.
WHEREFORE, the Petition is hereby PARTIALLY GRANTED .
Accordingly, the Decision dated November 11, 2016 and the Resolution
dated April 12, 2017 of the Court of Appeals in CA-G.R. CV No. 106010 are
REVERSED and SET ASIDE. Judgment is hereby rendered in favor of
petitioners as follows:
(1) The Heirs of Apolinario Caburnay, namely, Lydia Caburnay,
Letecia Navarro, Evangeline Cruz, Jerry Caburnay, Zenaida C.
Ancheta, Liwayway C. Watan, Gloria Gusilan, Apolinario
Caburnay, Jr. and Maelin Caburnay are declared and recognized
co-owners, share and share alike, of the property covered by
Transfer Certificate of Title No. 22388 to the extent of 9/16
thereof;
(2) Jesus Sison is declared and recognized co-owner of the said
property to the extent of 7/16 thereof; and
(3) Upon finality of this Decision, the proper Register of Deeds is
directed to enter and register this Decision in the primary entry
book, annotate the same in Transfer Certificate of Title No.
22388, and issue a new Transfer Certificate of Title in lieu of
Transfer Certificate of Title No. 22388 in the names of the parties
mentioned in (1) and (2) above as co-owners in the proportions
indicated therein.
SO ORDERED.
Peralta, C.J., Carandang, Zalameda and Gaerlan, JJ., concur.
Footnotes
* Also Teodulo Sison, Sr. in some parts of the rollo.

** Also Blesislda in some parts of the rollo.
*** Also Perlas in some parts of the rollo.
1. Rollo , pp. 20-40, excluding Annexes.

2. Id. at 42-47. Penned by Associate Justice Agnes Reyes-Carpio, with Associate
Justices Romeo F. Barza and Danton Q. Bueser concurring.
3. Id. at 57-59. Penned by Associate Justice Romeo F. Barza, with Associate Justices
Danton Q. Bueser and Socorro B. Inting concurring.
4. Special First Division and Special Former Special First Division.
5. Rollo , pp. 77-86. Penned by Presiding Judge Teodoro C. Fernandez.

6. Id. at 30, 45.
7. Id. at 83.
8. Id. at 43-45.
9. Supra note 2.
10. Id. at 46.
11. Id.
12. Id.
13. G.R. No. 193038, March 11, 2015, 752 SCRA 602.
14. Rollo , p. 46.
15. Id. at 47.

16. Id.
17. Id. at 48-55.
18. Supra note 3.

19. Id. at 92-99.
20. Id. at 101-105.
21. Id. at 28.

22. In denying the execution of the sale between Apolinario and Teodulo and in
asserting there was no deed of sale registered with the Register of Deeds,
respondents, which include the children of Teodulo from the first marriage,
could not be deemed to have given their consent to the sale. Rollo , p. 44.
23. Rollo , pp. 28-30.
24. Id. at 31.
25. Id. at 30. Note that petitioners did not include respondent Jesus Sison in their
enumeration of the legitimate children of the late spouses Teodulo and
Perpetua.
26. Id. at 31-32.

27. Id. at 32.
28. Id. at 35-36.
29. Id. at 36.

30. Id. at 93.
31. Id.
32. Id. at 94.

33. Id.
34. See records, pp. 66 and 236.
35. FAMILY CODE, Article 126 provides:

ART. 126. The conjugal partnership terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;

(3) When the marriage is annulled or declared void; or,
(4) In case of judicial separation of property during the marriage under
Articles 134 to 138. (175a)
36. See Arturo M. Tolentino, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL
CODE OF THE PHILIPPINES (Volume One with The Family Code of the
Philippines, 1990 ed.), pp. 472-474.
37. See id. at 394.

38. Id. at 394-395.
39. Rollo , p. 36.
40. Arturo M. Tolentino, supra note 36, at 403.
41. Id. at 403-404.

42. G.R. No. 157537, September 7, 2011, 657 SCRA 10. Rendered by the First
Division; penned by Associate Justice Lucas P. Bersamin and concurred in by
Chief Justice Renato C. Corona and Associate Justices Teresita J. Leonardo-de
Castro, Mariano C. Del Castillo and Martin S. Villarama, Jr.
43. Id. at 15-19. Citations omitted.
44. G.R. No. 200274, April 20, 2016, 791 SCRA 47. Rendered by the Second
Division; penned by Associate Justice Arturo D. Brion and concurred in by
Associate Justices Antonio T. Carpio, Mariano C. Del Castillo, Jose C. Mendoza
and Marvic M.V.F. Leonen.
45. Id. at 59. Emphasis in the original.

46. Id. at 56-59
47. Id. at 59.
48. G.R. No. 200612, April 5, 2017, 822 SCRA 382. Rendered by the Third Division;
penned by Associate Justice Bienvenido L. Reyes and concurred in by
Associate Justices Presbitero J. Velasco, Jr., Lucas P. Bersamin, Francis H.
Jardeleza, and Noel G. Tijam.

50. 74 Phil. 601 (1944).
51. CIVIL CODE, Art. 484.

52. Id., Art. 493.
53. CIVIL CODE, Art. 494.
54. Lopez v. Vda. de Cuaycong, et al., supra note 50, at 603-609. The Court notes
that in the 1968 en banc case of Estoque v. Pajimula, No. L-24419, July 15,
1968, 24 SCRA 59, where a co-owner sold a specific one-third portion of the
co-owned property without the consent of the other two co-owners and
afterwards the selling co-owner became the sole owner thereof, the Court
pronounced that while on the date of the sale, "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 x x x the vendor x x x acquired the entire
interest of her remaining co-owners x x x and thereby became the sole
owner [thereof]." The Court cited Article 1434 of the Civil Code, which
provides that "[w]hen a person who is not the owner of a thing sells or
alienates and delivers it, and later the seller or grantor acquires title thereto,
such title passes by operation of law to the buyer or grantee," as justification.
As to the effect of the sale of specific one-third portion prior to the seller's
acquisition of the shares of the other co-owners, the Court observed that
granting the seller could not have sold that particular portion of the lot
owned by her and her two brothers, by no means did it follow that the seller
intended to sell her 1/3 undivided interest in the property as there was
nothing in the deed of sale to justify the inference and pursuant to the
maxim, ab posse ad actu non valet illatio. The ruling of the Court in Estoque
v. Pajimula is not necessarily inconsistent with the Court's statement in
Lopez that the sale of a concrete portion of the co-owned property does not
render the sale void based on the principle that the binding force of a
contract must be recognized as far as it is legally possible to do so, following
the maxim: Quando res non valet ut ago, valeat quantum valere potest. The
peculiar circumstance in Estoque v. Pajimula that the selling co-owner
subsequently acquired the sole ownership of the property apparently
impelled the Court to treat the previous sale of the specific portion ineffective
so that it could be validated upon the acquisition by the seller of the interests
of the other co-owners. Whereas, if the co-ownership subsists after the sale
by a co-owner of a specific portion of the co-owned property without the
consent of the others, the sale will be recognized as valid only up to the
extent of the undivided share of the disposing co-owner, and in addition to
the maxim: Quando res non valet ut ago, valeat quantum valere potest,
estoppel will bar the seller from disavowing the sale to the prejudice of the
buyer who relied upon the former's action.
55. Heirs of Protacio Go, Sr. and Marta Barola v. Servacio, supra note 42, at 17.
56. Arturo M. Tolentino, supra note 36, at 489.

57. Id. at 490.
58. See Hector S. De Leon and Hector M. De Leon, Jr., COMMENTS AND CASES ON
PROPERTY (Fourth Edition 2003), p. 234.
59. Rollo , p. 46.
60. ART. 92. The following shall be excluded from the community property:
(1) Property acquired during the marriage by gratuitous title by either

spouse, and the fruits as well as the income thereof, if any, unless it is
expressly provided by the donor, testator or grantor that they shall form part
of the community property;
(2) Property for personal and exclusive use of either spouse. However,
jewelry shall form part of the community property;
(3) Property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as well as the
income, if any, of such property. (201a)
61. Rollo , p. 46.
62. Id.
63. Id. at 78, 81.
64. G.R. No. 124242, January 21, 2005, 449 SCRA 99.
66. See note 63.

67. No. L-78178, April 15, 1988, 160 SCRA 738.
68. Id. at 744-745.
69. G.R. No. 108228, February 1, 2001, 351 SCRA 1.

70. Id. at 7-8, citing Tomas Claudia Memorial College, Inc. v. Court of Appeals, G.R.
No. 124262, October 12, 1999, 316 SCRA 502, 509.
71. Petitioners claim that 1/5 of the other half of the subject property is Teodulo's
share in the estate of Perpetua, which is her conjugal half. However, they
have not explained how they arrived at the said fraction. 1/5 presupposes
that Teodulo and Perpetua had 4 children. They had 7 children. There are 8
respondents and one of them is Perla, Teodulo's second wife. Thus, the
correct fraction, as computed, is 9/16 [1/2 or 8/16 plus 1/8 (1/2) or 1/16].
72. Rollo , p. 36.

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FIRST DIVISION

[G.R. No. 230934. December 2, 2020.]

HEIRS OF THE LATE APOLINARIO CABURNAY, NAMELY,

Before the Court is the Petition for Review on Certiorari 1 (Petition)

Petitioners appealed the RTC Decision to the CA.

Petitioners ﬁled a Motion for Reconsideration, 17 which the CA denied in

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In fine, the Court held in Domingo:

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* Also Teodulo Sison, Sr. in some parts of the rollo.

1. Rollo , pp. 20-40, excluding Annexes.

5. Rollo , pp. 77-86. Penned by Presiding Judge Teodoro C. Fernandez.

15. Id. at 47.

18. Supra note 3.

21. Id. at 28.

26. Id. at 31-32.

29. Id. at 36.

32. Id. at 94.

35. FAMILY CODE, Article 126 provides:

(2) When there is a decree of legal separation;

37. See id. at 394.

41. Id. at 403-404.

45. Id. at 59. Emphasis in the original.

49. Id. at 395-398. Citations omitted.

51. CIVIL CODE, Art. 484.

56. Arturo M. Tolentino, supra note 36, at 489.

(1) Property acquired during the marriage by gratuitous title by either

66. See note 63.

69. G.R. No. 108228, February 1, 2001, 351 SCRA 1.

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