G.R. No.

75884 September 24, 1987

JULITA GO ONG, FOR HERSELF AND AS JUDICIAL GUARDIAN OF STEVEN GO

ONG, petitioners,
vs.
THE HON. COURT OF APPEALS, ALLIED BANKING CORPORATION and the CITY SHERIFF
OF QUEZON CITY, respondents.

PARAS, J.:

This is a petition for review on certiorari of the March 21, 1986 Decision * of the Court of Appeals in AC-G.R. CV
No. 02635, "Julita Ong etc. vs. Allied Banking Corp. et al." affirming, with modification, the January 5, 1984 Decision of the Regional Trial
Court of Quezon City in Civil Case No. Q-35230.

The uncontroverted facts of this case, as found by the Court of Appeals, are as follows:

...: Two (2) parcels of land in Quezon City Identified as Lot No. 12, Block 407, Psd
37326 with an area of 1960.6 sq. m. and Lot No. 1, Psd 15021, with an area of
3,660.8 sq. m. are covered by Transfer Certificate of Title No. 188705 in the name of
"Alfredo Ong Bio Hong married to Julita Go Ong "(Exh. D). Alfredo Ong Bio Hong
died on January 18, 1975 and Julita Go Ong was appointed administratrix of her
husband's estate in Civil Case No. 107089. The letters of administration was
registered on TCT No. 188705 on October 23, 1979. Thereafter, Julita Go Ong sold
Lot No. 12 to Lim Che Boon, and TCT No. 188705 was partially cancelled and TCT
No. 262852 was issued in favor of Lim Che Boon covering Lot No. 12 (Exh. D-4). On
June 8, 1981 Julita Go Ong through her attorney-in-fact Jovita K. Yeo (Exh. 1)
mortgaged Lot No. 1 to the Allied Banking Corporation to secure a loan of
P900,000.00 obtained by JK Exports, Inc. The mortgage was registered on TCT No.
188705 on the same date with the following notation: "... mortgagee's consent
necessary in case of subsequent alienation or encumbrance of the property other
conditions set forth in Doc. No. 340, Page No. 69, Book No. XIX, of the Not. Public of
Felixberto Abad". On the loan there was due the sum of P828,000.00 and Allied
Banking Corporation tried to collect it from Julita Go Ong, (Exh. E). Hence, the
complaint alleging nullity of the contract for lack of judicial approval which the bank
had allegedly promised to secure from the court. In response thereto, the bank
averred that it was plaintiff Julita Go Ong who promised to secure the court's
approval, adding that Julita Go Ong informed the defendant that she was processed
the sum of P300,000.00 by the JK Exports, Inc. which will also take charge of the
interest of the loan.

Concluding, the trial court ruled:

Absent (of) any evidence that the property in question is the capital of
the deceased husband brought into the marriage, said property
should be presumed as acquired during the marriage and, therefore,
conjugal property,

After the dissolution of the marriage with the death of plaintiff's

husband, the plaintiff acquired, by law, her conjugal share, together
with the hereditary rights thereon. (Margate vs. Rabacal, L-14302,
April 30, 1963). Consequently, the mortgage constituted on said
property, upon express authority of plaintiff, notwithstanding the lack
of judicial approval, is valid, with respect to her conjugal share
thereon, together with her hereditary rights.

On appeal by petitioner, respondent Court of Appeals affirmed, with modification, the appealed
decision (Record, pp. 19-22). The dispositive portion of the appellate court's decision reads:

WHEREFORE, with the modification that the extrajudicial foreclosure proceedings

instituted by defendant against plaintiff shall be held in abeyance to await the final
result of Civil Case No. 107089 of the Court of First Instance of Manila, 6th Judicial
District Branch XXXII, entitled "IN THE MATTER OF THE INTESTATE ESTATE OF
THE LATE ALFREDO ONG BIO: JULITA GO ONG, ADMINISTRATRIX". In
pursuance with which the restraining order of the lower court in this case restraining
the sale of the properties levied upon is hereby ordered to continue in full force and
effect coterminous with the final result of Civil Case No. 107089, the decision
appealed from is hereby affirmed. Costs against plaintiff-appellant.
 SO ORDERED.

On April 8, 1986, petitioner moved for the reconsideration of the said decision (Ibid., pp. 24-29), but
in a Resolution dated September 11, 1986, respondent court denied the motion for lack of merit
(Ibid., p. 23). Hence, the instant petition (Ibid., pp. 6-17).

The Second Division of this Court, in a Resolution dated November 19, 1986 (Rollo, p. 30), without
giving due course to the petition, resolved to require private respondent to comment thereon and it
did on February 19, 1987 (Ibid., pp. 37-42). Thereafter, in a Resolution dated April 6, 1987, the
petition was given due course and the parties were required to file their respective memoranda
(Ibid., p. 43).

Petitioner filed her Memorandum on May 13, 1987 (Ibid., pp. 45-56), while private respondent filed
its Memorandum on May 20, 1987 (Ibid., pp. 62-68).

The sole issue in this case is —

WHETHER OR NOT THE MORTGAGE CONSTITUTED OVER THE PARCEL OF LAND UNDER
PETITIONER'S ADMINISTRATION IS NULL AND VOID FOR WANT OF JUDICIAL APPROVAL.

The instant petition is devoid of merit.

The well-settled rule that the findings of fact of the trial court are entitled to great respect, carries
even more weight when affirmed by the Court of Appeals as in the case at bar.

In brief, the lower court found: (1) that the property under the administration of petitioner — the wife
of the deceased, is a community property and not the separate property of the latter; (2) that the
mortgage was constituted in the wife's personal capacity and not in her capacity as administratrix;
and (3) that the mortgage affects the wife's share in the community property and her inheritance in
the estate of her husband.

Petitioner, asserting that the mortgage is void for want of judicial approval, quoted Section 7 of Rule
89 of the Rules of Court and cited several cases wherein this Court ruled that the regulations
provided in the said section are mandatory.

While petitioner's assertion may have merit insofar as the rest of the estate of her husband is
concerned the same is not true as regards her conjugal share and her hereditary rights in the estate.
The records show that petitioner willingly and voluntarily mortgaged the property in question
because she was processed by JK Exports, Inc. the sum of P300,000.00 from the proceeds of the
loan; and that at the time she executed the real estate mortgage, there was no court order
authorizing the mortgage, so she took it upon herself, to secure an order.

Thus, in confirming the findings of the lower court, as supported by law and the evidence, the Court
of Appeals aptly ruled that Section 7 of Rule 89 of the Rules of Court is not applicable, since the
mortgage was constituted in her personal capacity and not in her capacity as administratrix of the
estate of her husband.

Nevertheless, petitioner, citing the cases of Picardal, et al. vs. Lladas (21 SCRA 1483)
and Fernandez, et al. vs. Maravilla (10 SCRA 589), further argues that in the settlement proceedings
of the estate of the deceased spouse, the entire conjugal partnership property of the marriage is
under administration. While such may be in a sense true, that fact alone is not sufficient to invalidate
the whole mortgage, willingly and voluntarily entered into by the petitioner. An opposite view would
result in an injustice. Under similar circumstances, this Court applied the provisions of Article 493 of
the Civil Code, where the heirs as co-owners shall each have the full ownership of his part and the
fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even
effect of the alienation or mortgage, with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the termination of the co-ownership (Philippine
National Bank vs. Court of Appeals, 98 SCRA 207 [1980]).

Consequently, in the case at bar, the trial court and the Court of Appeals cannot be faulted in ruling
that the questioned mortgage constituted on the property under administration, by authority of the
petitioner, is valid, notwithstanding the lack of judicial approval, with respect to her conjugal share
and to her hereditary rights. The fact that what had been mortgaged was in custodia legis is
immaterial, insofar as her conjugal share and hereditary share in the property is concerned for after
all, she was the ABSOLUTE OWNER thereof. This ownership by hers is not disputed, nor is there
any claim that the rights of the government (with reference to taxes) nor the rights of any heir or
anybody else have been prejudiced for impaired. As stated by Associate Justice (later Chief Justice)
Manuel Moran in Jakosalem vs. Rafols, et al., 73 Phil. 618 —
 The land in question, described in the appealed decision, originally belonged to Juan
Melgar. The latter died and the judicial administration of his estate was commenced
in 1915 and came to a close on December 2, 1924, only. During the pendency of the
said administration, that is, on July 5, 1917, Susana Melgar, daughter of the
deceased Juan Melgar, sold the land with the right of repurchase to Pedro Cui,
subject to the stipulation that during the period for the repurchase she would continue
in possession of the land as lessee of the purchase. On December 12, 1920, the
partition of the estate left by the deceased Juan Melgar was made, and the land in
question was adjudicated to Susana Melgar. In 1921, she conveyed, in payment of
professional fees, one-half of the land in favor of the defendant-appellee Nicolas
Rafols, who entered upon the portion thus conveyed and has been in possession
thereof up to the present. On July 23, 1921, Pedro Cui brought an action to recover
said half of the land from Nicolas Rafols and the other half from the other defendants,
and while that case was pending, or about August 4, 1925, Pedro Cui donated the
whole land in question to Generosa Teves, the herein plaintiff-appellant, after trial,
the lower court rendered a decision absolving Nicolas Rafols as to the one-half of the
land conveyed to him by Susana Melgar, and declaring the plaintiff owner of the
other half by express acknowledgment of the other defendants. The plaintiff
appealed from that part of the judgment which is favorable to Nicolas Rafols.

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

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

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

PREMISES CONSIDERED, the instant petition is hereby DENIED and the assailed decision of the
Court of Appeals is hereby AFFIRMED.

SO ORDERED.

G.R. No. 102380 January 18, 1993

HERODOTUS P. ACEBEDO and DEMOSTHENES P. ACEBEDO, petitioners,

vs.
HON. BERNARDO P. ABESAMIS, MIGUEL ACEBEDO, ALEXANDER ACEBEDO, NAPOLEON
ACEBEDO, RIZALINO ACEBEDO, REPUBLICA ACEBEDO, FILIPINAS ACEBEDO and YU HWA
PING, respondents.

Heminio L. Ruiz for petitioners.

Vicente D. Millora for private respondents.

Romero A. Yu for respondent Yu Hua Ping.

CAMPOS, JR., J.:

The lower court's jurisdiction in approving a Deed of Conditional Sale executed by respondents-heirs
and ordering herein administrator-petitioner Herodotus Acebedo to sell the remaining portions of
said properties, despite the absence of its prior approval as a probate court, is being challenged in
the case at bar.

The late Felix Acebedo left an estate consisting of several real estate properties located in Quezon
City and Caloocan City, with a conservative estimated value of about P30 million. Said estate
allegedly has only the following unsettled claims:

a. P87,937.00 representing unpaid real estate taxes due Quezon City;

b. P20,244.00 as unpaid real estate taxes due Caloocan City;

c. The unpaid salaries/allowances of former Administrator Miguel Acebedo, and the

incumbent Administrator Herodotus Acebedo; and

d. Inheritance taxes that may be due on the net estate.

The decedent was succeeded by eight heirs, two of whom are the petitioners herein, and the others
are the private respondents.

Due to the prolonged pendency of the case before the respondent Court for sixteen years,
respondents-heirs filed a "Motion for Approval of Sale", on October 4, 1989. The said sale involved
the properties covered by Transfer Certificate of Title Nos. 155569, 120145, 9145, and 18709, all of
which are registered in Quezon City, and form part of the estate. The consideration for said lots was
twelve (12) million pesos and by that time, they already had a buyer. It was further stated in said
Motion that respondents-heirs have already received their proportionate share of the six (6) million
pesos paid by the buyer, Yu Hwa Ping, as earnest money; that the balance of P6,000,000.00 is
more than enough to pay the unsettled claims against the estate. Thus, they prayed for the Court to
direct the administrator, Herodotus Acebedo (referred to as petitioner-administrator hereafter):

1. to sell the properties mentioned in the motion;

2. with the balance of P6 million, to pay all the claims against the Estate; and

3. to distribute the residue among the Heirs in final settlement of the Estate.

To the aforesaid Motion, herein petitioner-administrator interposed an "Opposition to Approval of

Sale", to wit:

1. That he has learned that some of the heirs herein have sold some real estate
property of the Estate located at Balintawak, Quezon City, without the knowledge of
the herein administrator, without the approval of this Honorable Court and of some
heirs, and at a shockingly low price;

2. That he is accordingly hereby registering his vehement objection to the approval of

the sale, perpetrated in a manner which can even render the proponents of the sale
liable for punishment for contempt of this Honorable Court;

3. The herein Administrator instead herein prays this Honorable Court to authorize
the sale of the above mentioned property of the Estate to generate funds to pay
certain liabilities of the Estate and with the approval of this Honorable Court if
warranted, to give the heirs some advances chargeable against theirs (sic)
respective shares, and, for the purpose to authorize the herein Administrator, and the
other heirs to help the Administrator personally or through a broker, to look for a
buyer for the highest obtainable price, subject always to the approval of this
Honorable Court.1

On October 30, 1989, herein petitioners moved to be given a period of forty-five (45) days within
which to look for a buyer who will be willing to buy the properties at a price higher than
P12,000,000.00.
The case was set for hearing on December 15, 1989. However, by said date, petitioners have not
found any buyer offering better terms. Thus, they asked the Court, on February 8, 1990, for an in
extendible period of thirty days to look for a buyer.

Petitioner-administrator then filed a criminal complaint for falsification of a public document against
Yu Hwa Ping and notary public Eugenio Obon on February 26, 1990. He initiated this complaint
upon learning that it was Yu Hwa Ping who caused the notarization of the Deed of Conditional Sale
wherein allegedly petitioner-administrator's signature was made to appear. He also learned that after
he confronted the notary public of the questioned document, the latter revoked his notarial act on the
same.

On April 2, 1990, petitioner-administrator filed the civil action to secure the declaration by the Court
of the nullity of the Deed of Conditional Sale and the Deed of Absolute Sale.

The period granted herein petitioners having lapsed without having found a buyer, petitioner
Demosthenes Acebedo sought to nullify the Orders granting them several periods within which to
look for a better buyer. Respondents filed a comment thereon.

Having miserably failed to find a better buyer, after seven long months, petitioner-administrator filed
another "Opposition to Approval of Sale", dated May 10, 1990, maintaining that the sale should wait
for the country to recover from the effects of the coup d'etat attempts, otherwise, the properties
should be divided among the heirs.

On June 21, 1990, petitioners filed a "Motion for Leave of Court to Mortgage and Lease some of the
Properties of the Estate". To this Motion, respondents filed an Opposition on the following grounds :
that the motion is not proper because of the pending motion to approve the sale of the same
properties; that said conditional sale was initiated by petitioner-administrator who had earlier signed
a receipt for P500,000.00 as earnest money; that the approval of the sale would mean Yu Hwa
Ping's assumption of payment of the realty taxes; that the estate has no further debts and thus, the
intestate administrator may be terminated.

On August 17, 1990, respondent Court issued an Order, the dispositive portion of which, stated,
among others, to wit:2

b. the motion filed by the heirs-movants, dated October 4, 1989, praying that the new
administrator be directed to sell the properties covered by TCT Nos. 155569,
120145, 9145 and 18709, in favor of Yu Hwa Ping is hereby denied; and

c. the new administrator is hereby granted leave to mortgage some properties of the
estate at a just and reasonable amount, subject to the approval of the Court.

On December 4, 1990, the respondent Judge issued an order resolving to call the parties to a
conference on December 17, 1990. The conference was held, but still the parties were unable to
arrive at an agreement. So, on January 4, 1991, it was continued, wherein the parties actually
agreed that the heirs be allowed to sell their shares of the properties to Yu Hwa Ping for the price
already agreed upon, while herein petitioners negotiate for a higher price with Yu Hwa Ping.

Petitioners, then, instead filed a "Supplemental Opposition" to the approval of the Deed of
Conditional Sale.

On March 29, 1991, the respondent Court issued the challenged Order, the dispositive portion of
which states, to wit:

WHEREFORE, the Order dated August 7, 1990, is hereby lifted, reconsidered and
set aside, and another one is hereby issued as follows:

1. Approving the conditional sale, dated September 10, 1989, executed by the heirs-
movants, in favor of Yu Hwa Ping, pertaining to their respective shares in the
properties covered by TCT Nos. 155569, 120145, 1945 and 18709 of the Register of
Deeds of Quezon City;

2. Ordering the administrator Herodotus Acebedo to sell the remaining portions of the
said properties also in favor of Yu Hwa Ping at the same price as the sale executed
by the herein heirs-movants;

3. Ordering Yu Hwa Ping to deposit with the Court the total remaining balance of the
purchase price for the said lots within TWENTY (20) DAYS from notice hereof;
 4. The motion to cite former administrator Miguel Acebedo in contempt of court,
resulting from his failure to submit the owner's copy of TCT Nos. 155569, and
120145 is hereby denied.3

Yu Hwa Ping, on April 4, 1991, deposited the remaining balance of the purchase price for the
properties subject of the Deed of Conditional Sale in the amount of P6,500,000.00.

Petitioners herein received the questioned Order on April 11, 1991. Twenty one (21) days thereafter,
they filed a Motion for Reconsideration, praying that the Court reinstate its Order of August 17, 1990.
To this, private respondents filed their Opposition. 4

Instead of making a reply, petitioners herein filed a Supplemental Motion for Reconsideration. The
motions for reconsideration of herein petitioners were denied by the respondent Court on August 23,
1991.

On September 23, 1991, herein petitioners filed a Motion for Partial Reconsideration, hoping for the
last time that they would be able to convince the Court that its Order dated March 29, 1991 in effect
approving the conditional sale is erroneous and beyond its jurisdiction.

On October 17, 1991, the respondent Court denied the Motion for Partial Reconsideration for "lack of
merit".

On November 7, 1991, private respondents filed a Motion for Execution of the Order dated March
29, 1991. This was pending resolution when the petitioners filed this Petition for Certiorari.

The controversy in the case at bar revolves around one question: Is it within the jurisdiction of the
lower court, acting as a probate court, to issue an Order approving the Deed of Conditional Sale
executed by respondents-heirs without prior court approval and to order herein Administrator to sell
the remaining portion of said properties?

We answer in the positive?

In the case of Dillena vs. Court of Appeals,5 this Court made a pronouncement that it is within the
jurisdiction of the probate court to approve the sale of properties of a deceased person by his
prospective heirs before final adjudication. Hence, it is error to say that this matter should be
threshed out in a separate action.

The Court further elaborated that although the Rules of Court do not specifically state that the sale of
an immovable property belonging to an estate of a decedent, in a special proceeding, should be
made with the approval of the court, this authority is necessarily included in its capacity as a probate
court. Therefore, it is clear that the probate court in the case at bar, acted within its jurisdiction in
issuing the Order approving the Deed of Conditional Sale.

We cannot countenance the position maintained by herein petitioners that said conditional sale is
null and void for lack of prior court approval. The sale precisely was made conditional, the condition
being that the same should first be approved by the probate court.

Petitioners herein anchor their claim on Section 7, Rule 89 of the Rules of Court. 6 It is settled that
court approval is necessary for the validity of any disposition of the decedent's estate. However,
reference to judicial approval cannot adversely affect the substantive rights of the heirs to dispose of
their ideal share in the co-heirship and/or co-ownership among the heirs.7

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

The right of an heir to dispose of the decedent's property, even if the same is under administration, is
based on the Civil Code provision9 stating that the possession of hereditary property is deemed
transmitted to the heir without interruption and from the moment of the death of the decedent, in
case the inheritance is accepted. Where there are however, two or more heirs, the whole estate of
the decedent is, before its partition, owned in common by such heirs. 10

The Civil Code, under the provisions on co-ownership, further qualifies this right. 11 Although it is
mandated that each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and thus may alienate, assign or mortgage it, and even substitute another person
in its enjoyment, the effect of the alienation or the mortgage, with respect to the
co-owners, shall be limited to the portion which may be allotted to him in the division upon the
termination of the co-ownership.12 In other words, the law does not prohibit a co-owner from selling,
alienating or mortgaging his ideal share in the property held in common. 13
As early as 1942, this Court has recognized said right of an heir to dispose of property under
administration. In the case of Teves de Jakosalem vs. Rafols, et al.,14 it was said that the sale made
by an heir of his share in an inheritance, subject to the result of the pending administration, in no
wise, stands in the way of such administration. The Court then relied on the provision of the Old Civil
Code, Article 440 and Article 339 which are still in force as Article 533 and Article 493, respectively,
in the new Civil Code. The Court also cited the words of a noted civilist, Manresa: "Upon the death of
a person, each of his heirs 'becomes the undivided owner of the whole estate left with respect to the
part or portion which might be adjudicated to him, a community of ownership being thus formed
among the co-owners of the estate which remains undivided'."

Private respondents having secured the approval of the probate court, a matter which is
unquestionably within its jurisdiction, and having established private respondents' right to alienate
the decedent's property subject of administration, this Petition should be dismissed for lack of merit.

PREMISES considered, Petition is hereby DISMISSED. With Costs.

SO ORDERED.

G.R. No. 61584 November 25, 1992

DONATO S. PAULMITAN, JULIANA P. FANESA and RODOLFO FANESA, petitioners,

vs.
COURT OF APPEALS, ALICIO PAULMITAN, ELENA PAULMITAN, ABELINO PAULMITAN,
ANITA PAULMITAN, BAKING PAULMITAN, ADELINA PAULMITAN and ANITO
PAULMITAN, respondents.

ROMERO, J.:

This is a petition for review on certiorari seeking the reversal of the decision 1 of the Court of
Appeals, dated July 14, 1982 in CA-G.R. No. 62255-R entitled "Alicio Paulmitan, et al. v. Donato
Sagario Paulmitan, et al." which affirmed the decision 2 of the then Court of First Instance (now RTC)
of Negros Occidental, 12th Judicial District, Branch IV, Bacolod City, in Civil Case No. 11770.

The antecedent facts are as follows:

Agatona Sagario Paulmitan, who died sometime in 1953, 3 left the two following parcels of land
located in the Province of Negros Occidental: (1) Lot No. 757 with an area of 1,946 square meters
covered by Original Certificate of Title (OCT) No. RO-8376; and (2) Lot No. 1091 with an area of
69,080 square meters and covered by OCT No. RO-11653. From her marriage with Ciriaco
Paulmitan, who is also now deceased, Agatona begot two legitimate children, namely: Pascual
Paulmitan, who also died in 1953, 4 apparently shortly after his mother passed away, and Donato
Paulmitan, who is one of the petitioners. Petitioner Juliana P. Fanesa is Donato's daughter while the
third petitioner, Rodolfo Fanes, is Juliana's husband. Pascual Paulmitan, the other son of Agatona
Sagario, is survived by the respondents, who are his children, name: Alicio, Elena, Abelino, Adelina,
Anita, Baking and Anito, all surnamed Paulmitan.

Until 1963, the estate of Agatona Sagario Paulmitan remained unsettled and the titles to the two lots
mentioned above remained in the name of Agatona. However, on August 11, 1963, petitioner
Donato Paulmitan executed an Affidavit of Declaration of Heirship, extrajudicially adjudicating unto
himself Lot No. 757 based on the claim that he is the only surviving heir of Agatona Sagario. The
affidavit was filed with the Register of Deeds of Negros Occidental on August 20, 1963, cancelled
OCT No. RO-8376 in the name of Agatona Sagario and issued Transfer Certificate of Title (TCT) No.
35979 in Donato's name.

As regards Lot No. 1091, Donato executed on May 28, 1974 a Deed of Sale over the same in favor
of petitioner Juliana P. Fanesa, his daughter. 5

In the meantime, sometime in 1952, for non-payment of taxes, Lot No. 1091 was forfeited and sold
at a public auction, with the Provincial Government of Negros Occidental being the buyer. A
Certificate of Sale over the land was executed by the Provincial Treasurer in favor of the Provincial
Board of Negros Occidental. 6
On May 29, 1974, Juliana P. Fanesa redeemed the property from the Provincial Government of
Negros Occidental for the amount of P2,959.09. 7

On learning of these transactions, respondents children of the late Pascual Paulmitan filed on
January 18, 1975 with the Court of First Instance of Negros Occidental a Complaint against
petitioners to partition the properties plus damages.

Petitioners set up the defense of prescription with respect to Lot No. 757 as an affirmative defense,
contending that the Complaint was filed more than eleven years after the issuance of a transfer
certificate of title to Donato Paulmitan over the land as consequence of the registration with the
Register of Deeds, of Donato's affidavit extrajudicially adjudicating unto himself Lot No. 757. As
regards Lot No. 1091, petitioner Juliana P. Fanesa claimed in her Answer to the Complaint that she
acquired exclusive ownership thereof not only by means of a deed of sale executed in her favor by
her father, petitioner Donato Paulmitan, but also by way of redemption from the Provincial
Government of Negros Occidental.

Acting on the petitioners' affirmative defense of prescription with respect to Lot No. 757, the trial
court issued an order dated April 22, 1976 dismissing the complaint as to the said property upon
finding merit in petitioners' affirmative defense. This order, which is not the object of the present
petition, has become final after respondents' failure to appeal therefrom.

Trial proceeded with respect to Lot No. 1091. In a decision dated May 20, 1977, the trial court
decided in favor of respondents as to Lot No. 1091. According to the trial court, the respondents, as
descendants of Agatona Sagario Paulmitan were entitled to one-half (1/2) of Lot No. 1091, pro
indiviso. The sale by petitioner Donato Paulmitan to his daughter, petitioner Juliana P. Fanesa, did
not prejudice their rights. And the repurchase by Juliana P. Fanesa of the land from the Provincial
Government of Negros Occidental did not vest in Juliana exclusive ownership over the entire land
but only gave her the right to be reimbursed for the amount paid to redeem the property. The trial
court ordered the partition of the land and directed petitioners Donato Paulmitan and Juliana P.
Fanesa to pay private respondents certain amounts representing the latter's share in the fruits of the
land. On the other hand, respondents were directed to pay P1,479.55 to Juliana P. Fanesa as their
share in the redemption price paid by Fanesa to the Provincial Government of Negros Occidental.
The dispositive portion of the trial court's decision reads:

WHEREFORE, judgment is hereby rendered on the second cause of action pleaded

in the complain as follows:

1. The deed of sale (Exh. "F") dated May 28, 1974 is valid insofar as the one-half
undivided portion of Lot 1091 is concerned as to vest ownership over said half
portion in favor of defendant Juliana Fanesa and her husband Rodolfo Fanesa, while
the remaining half shall belong to plaintiffs, pro-indiviso;

2. Lot 1091, Cadastral Survey of Pontevedra, Province of Negros Occidental, now

covered by TCT No. RO-11653 (N.A.), is ordered partitioned. The parties must
proceed to an actual partition by property instrument of partition, submitting the
corresponding subdivision within sixty (60) days from finality of this decision, and
should they fail to agree, commissioners of partition may be appointed by the Court;

3. Pending the physical partition, the Register of Deeds of Negros Occidental is

ordered to cancel Original Certificate of Title No. RO-11653 (N.A.) covering Lot 1091,
Pontevedra Cadastre, and to issue in lieu thereof a new certificate of title in the name
of plaintiffs and defendants, one-half portion each, pro-indiviso, as indicated in
paragraph 1 above;

4. Plaintiffs are ordered to pay, jointly and severally, defendant Juliana Fanesa the
amount of P1,479.55 with interest at the legal rate from May 28, 1974 until paid;

5 Defendants Donato Sagario Paulmitan and Juliana Paulmitan Fanesa are ordered
to account to plaintiffs and to pay them, jointly and severally, the value of the produce
from Lot 1091 representing plaintiffs' share in the amount of P5,000.00 per year from
1966 up to the time of actual partition of the property, and to pay them the sum of
P2,000.00 as attorney's fees as well as the costs of the suit.

xxx xxx xxx

On appeal, the Court of Appeals affirmed the trial court's decision. Hence this petition.

To determine the rights and obligations of the parties to the land in question, it is well to review,
initially, the relatives who survived the decedent Agatona Sagario Paulmitan. When Agatona died in
1953, she was survived by two (2) sons, Donato and Pascual. A few months later in the same year,
Pascual died, leaving seven children, the private respondents. On the other had, Donato's sole
offspring was petitioner Juliana P. Fanesa.

At the time of the relevant transactions over the properties of decedent Agatona Sagario Paulmitan,
her son Pascual had died, survived by respondents, his children. It is, thus, tempting to apply the
principles pertaining to the right of representation as regards respondents. It must, however, be
borne in mind that Pascual did no predecease his mother, 8 thus precluding the operation of the provisions in the Civil
Code on the right of representation 9 with respect to his children, the respondents. When Agatona Sagario Paulmitan died intestate in 1952,
her two (2) sons Donato and Pascual were still alive. Since it is well-settled by virtue of Article 777 of the Civil Code that "[t]he rights to the
succession are transmitted from the moment of the death of the decedent," 10 the right of ownership, not only of Donato but also of Pascual,
over their respective shares in the inheritance was automatically and by operation of law vested in them in 1953 when their mother died
intestate. At that stage, the children of Donato and Pascual did not yet have any right over the inheritance since "[i]n every inheritance, the
relative nearest in degree excludes the more distant
ones." 11 Donato and Pascual excluded their children as to the right to inherit from Agatona Sagario Paulmitan, their mother.

From the time of the death of Agatona Sagario Paulmitan to the subsequent passing away of her
son Pascual in 1953, the estate remained unpartitioned. Article 1078 of the Civil Code provides:
"Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned
in common by such heirs, subject to the payment of debts of the deceased." 12 Donato and Pascual
Paulmitan were, therefore, co-owners of the estate left by their mother as no partition was ever
made.

When Pascual Paulmitan died intestate in 1953, his children, the respondents, succeeded him in the
co-ownership of the disputed property. Pascual Paulmitan's right of ownership over an undivided
portion of the property passed on to his children, who, from the time of Pascual's death, became co-
owners with their uncle Donato over the disputed decedent estate.

Petitioner Juliana P. Fanesa claims ownership over Lot No. 1091 by virtue of two transactions,
namely: (a) the sale made in her favor by her father Donato Paulmitan; and (b) her redemption of the
land from the Provincial of Negros Occidental after it was forfeited for non-payment of taxes.

When Donato Paulmitan sold on May 28, 1974 Lot No. 1091 to his daughter Juliana P. Fanesa, he
was only a co-owner with respondents and as such, he could only sell that portion which may be
allotted to him upon termination of the co-ownership. 13 The sale did not prejudice the rights of
respondents to one half (1/2) undivided share of the land which they inherited from their father. It did
not vest ownership in the entire land with the buyer but transferred only the seller's pro-
indiviso share in the property 14 and consequently made the buyer a co-owner of the land until it is
partitioned. In Bailon-Casilao v. Court of Appeals, 15 the Court, through Justice Irene R. Cortes,
outlined the effects of a sale by one co-owner without the consent of all the co-owners, thus:

The rights of a co-owner of a certain property are clearly specified in Article 493 of
the Civil Code, Thus:

Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it and
even substitute another person 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. [Emphasis supplied.]

As early as 1923, this Court has ruled that even if a co-owner sells the whole
property as his, the sale will affect only his own share but not those of the other co-
owners who did not consent to the sale [Punsalan v. Boon Liat, 44 Phil. 320 (1923)].
This is because under the aforementioned codal provision, the sale or other
disposition affects only his undivided share and the transferee gets only what would
correspond to his grantor in the partition of the thing owned in common [Ramirez v.
Bautista, 14 Phil. 528 (1909)]. Consequently, by virtue of the sales made by Rosalia
and Gaudencio Bailon which are valid with respect to their proportionate shares, and
the subsequent transfers which culminated in the sale to private respondent
Celestino Afable, the said Afable thereby became a co-owner of the disputed parcel
of land as correctly held by the lower court since the sales produced the effect of
substituting the buyers in the enjoyment thereof [Mainit v. Bandoy, 14 Phil. 730
(1910)].

From the foregoing, it may be deduced that since a co-owner is entitled to sell his
undivided share, a sale of the entire property by one co-owner without the consent of
the other co-owners is not null and void. However, only the rights of the co-owner-
seller are transferred, thereby making the buyer a co-owner of the property.
Applying this principle to the case at bar, the sale by petitioner Donato Paulmitan of the land to his
daughter, petitioner Juliana P. Fanesa, did not give to the latter ownership over the entire land but
merely transferred to her the one half (1/2) undivided share of her father, thus making her the co-
owner of the land in question with the respondents, her first cousins.

Petitioner Juliana P. Fanesa also claims ownership of the entire property by virtue of the fact that
when the Provincial Government of Negros Occidental bought the land after it was forfeited for non-
payment of taxes, she redeemed it.

The contention is without merit.

The redemption of the land made by Fanesa did not terminate the co-ownership nor give her title to
the entire land subject of the co-ownership. Speaking on the same issue raised by petitioners, the
Court, in Adille v. Court of Appeals, 16 resolved the same with the following pronouncements:

The petition raises a purely legal issue: May a co-owner acquire exclusive ownership
over the property held in common?

Essentially, it is the petitioners' contention that the property subject of dispute

devolved upon him upon the failure of his co-heirs to join him in its redemption within
the period required by law. He relies on the provisions of Article 1515 of the old Civil
Code, Article 1613 of the present Code, giving the vendee a retro the right to
demand redemption of the entire property.

There is no merit in this petition.

The right of repurchase may be exercised by co-owner with respect to his share
alone (CIVIL CODE, art. 1612, CIVIL CODE (1889), art. (1514.). While the records
show that petitioner redeemed the property in its entirety, shouldering the expenses
therefor, that did not make him the owner of all of it. In other words, it did not put to
end the existing state of co-ownership (Supra, Art. 489). There is no doubt that
redemption of property entails a necessary expense. Under the Civil Code:

Art. 488. Each co-owner shall have a right to compel the other co-owners to
contribute to the expenses of preservation of the thing or right owned in common and
to the taxes. Any one of the latter may exempt himself from this obligation by
renouncing so much of his undivided interest as may be equivalent to his share of
the expenses and taxes. No such waiver shall be made if it is prejudicial to the co-
ownership.

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

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

Although petitioner Fanesa did not acquire ownership over the entire lot by virtue of the redemption
she made, nevertheless, she did acquire the right to reimbursed for half of the redemption price she
paid to the Provincial Government of Negros Occidental on behalf of her co-owners. Until
reimbursed, Fanesa hold a lien upon the subject property for the amount due her. 17

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

WHEREFORE, the petition is DENIED and the decision of the Court of Appeals AFFIRMED.

SO ORDERED.
G.R. No. 76351 October 29, 1993

VIRGILIO B. AGUILAR, petitioner,

vs.
COURT OF APPEALS and SENEN B. AGUILAR, respondents.

Jose F. Manacop for petitioner.

Siruello, Muyco & Associates Law Office for private respondent.

BELLOSILLO, J.:

This is a petition for review on certiorari seeking to reverse and set aside the Decision of the Court of
Appeals in CA-GR CV No. 03933 declaring null and void the orders of 23 and 26 April, 1979, the
judgment by default of 26 July 1979, and the order of 22 October 1979 of the then Court of First
Instance of Rizal, Pasay City, Branch 30, and directing the trial court to set the case for pre-trial
conference.

Petitioner Virgilio and respondent Senen are brothers; Virgilio is the youngest of seven (7) children
of the late Maximiano Aguilar, while Senen is the fifth. On 28 October 1969, the two brothers
purchased a house and lot in Parañaque where their father could spend and enjoy his remaining
years in a peaceful neighborhood. Initially, the brothers agreed that Virgilio's share in the co-
ownership was two-thirds while that of Senen was one-third. By virtue of a written memorandum
dated 23 February 1970, Virgilio and Senen agreed that henceforth their interests in the house and
lot should be equal, with Senen assuming the remaining mortgage obligation of the original owners
with the Social Security System (SSS) in exchange for his possession and enjoyment of the house
together with their father.

Since Virgilio was then disqualified from obtaining a loan from SSS, the brothers agreed that the
deed of sale would be executed and the title registered in the meantime in the name of Senen. It
was further agreed that Senen would take care of their father and his needs since Virgilio and his
family were staying in Cebu.

After Maximiano Aguilar died in 1974, petitioner demanded from private respondent that the latter
vacate the house and that the property be sold and proceeds thereof divided among them.

Because of the refusal of respondent to give in to petitioner's demands, the latter filed on 12 January
1979 an action to compel the sale of the house and lot so that the they could divide the proceeds
between them.

In his complaint, petitioner prayed that the proceeds of the sale, be divided on the basis of two-thirds
(2/3) in his favor and one-third (1/3) to respondent. Petitioner also prayed for monthly rentals for the
use of the house by respondent after their father died.

In his answer with counterclaim, respondent alleged that he had no objection to the sale as long as
the best selling price could be obtained; that if the sale would be effected, the proceeds thereof
should be divided equally; and, that being a co-owner, he was entitled to the use and enjoyment of
the property.

Upon issues being joined, the case was set for pre-trial on 26 April 1979 with the lawyers of both
parties notified of the pre-trial, and served with the pre-trial order, with private respondent executing
a special power of attorney to his lawyer to appear at the pre-trial and enter into any amicable
settlement in his behalf.1

On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel for respondent, filed a motion to cancel pre-
trial on the ground that he would be accompanying his wife to Dumaguete City where she would be
a principal sponsor in a wedding.

On 23 April 1979, finding the reasons of counsel to be without merit, the trial court denied the motion
and directed that the pre-trial should continue as scheduled.

When the case was called for pre-trial as scheduled on 26 April 1979, plaintiff and his counsel
appeared. Defendant did not appear; neither his counsel in whose favor he executed a special
power of attorney to represent him at the pre-trial. Consequently, the trial court, on motion of plaintiff,
declared defendant as in default and ordered reception of plaintiff's evidence ex parte.
On 7 May 1979, defendant through counsel filed an omnibus motion to reconsider the order of
default and to defer reception of evidence. The trial court denied the motion and plaintiff presented
his evidence.

On 26 July 1979, rendering judgment by default against defendant, the trial court found him and
plaintiff to be co-owners of the house and lot, in equal shares on the basis of their written agreement.
However, it ruled that plaintiff has been deprived of his participation in the property by defendant's
continued enjoyment of the house and lot, free of rent, despite demands for rentals and continued
maneuvers of defendants, to delay partition. The trial court also upheld the right of plaintiff as co-
owner to demand partition. Since plaintiff could not agree to the amount offered by defendant for the
former's share, the trial court held that this property should be sold to a third person and the
proceeds divided equally between the parties.

The trial court likewise ordered defendant to vacate the property and pay plaintiff P1,200.00 as
rentals2 from January 1975 up to the date of decision plus interest from the time the action was filed.

On 17 September 1979, defendant filed an omnibus motion for new trial but on 22 October 1979 the
trial court denied the motion.

Defendant sought relief from the Court of Appeals praying that the following orders and decision of
the trial court be set aside: (a) the order of 23 April 1970 denying defendants motion for
postponement of the pre-trial set on 26 April 1979; (b) the order of 26 April 1979 declaring him in
default and authorizing plaintiff to present his evidence ex-parte; (e) the default judgment of 26 July
1979; and, (d) the order dated 22 October 1979 denying his omnibus motion for new trial.

On 16 October 1986, the Court of Appeals set aside the order of the trial court of 26 April 1979 as
well as the assailed judgment rendered by default., The appellate court found the explanation of
counsel for defendant in his motion to cancel pre-trial as satisfactory and devoid of a manifest
intention to delay the disposition of the case. It also ruled that the trial court should have granted the
motion for postponement filed by counsel for defendant who should not have been declared as in
default for the absence of his counsel.

Petitioner now comes to us alleging that the Court of Appeals erred (1) in not holding that the motion
of defendant through counsel to cancel the pre-trial was dilatory in character and (2) in remanding
the case to the trial court for pre-trial and trial.

The issues to be resolved are whether the trial court correctly declared respondent as in default for
his failure to appear at the pre-trial and in allowing petitioner to present his evidence ex-parte, and
whether the trial court correctly rendered the default judgment against respondent.

We find merit in the petition.

As regards the first issue, the law is clear that the appearance of parties at the pre-trial is
mandatory.3 A party who fails to appear at a pre-trial conference may be non-suited or considered as
in default.4 In the case at bar, where private respondent and counsel failed to appear at the
scheduled pre-trial, the trial, court has authority to declare respondent in default.5

Although respondent's counsel filed a motion to postpone pre-trial hearing, the grant or denial
thereof is within the sound discretion of the trial court, which should take into account two factors in
the grant or denial of motions for postponement, namely: (a) the reason for the postponement and
(b) the merits of the case of movant.6

In the instant case, the trial court found the reason stated in the motion of counsel for respondent to
cancel the pre-trial to be without merit. Counsel's explanation that he had to go to by boat as early as
25 March 1979 to fetch his wife and accompany her to a wedding in Dumaguete City on 27 April
1979 where she was one of the principal sponsors, cannot be accepted. We find it insufficient to
justify postponement of the pre-trial, and the Court of Appeals did not act wisely in overruling the
denial. We sustain the trial court and rule that it did not abuse its discretion in denying the
postponement for lack of merit. Certainly, to warrant a postponement of a mandatory process as pre-
trial would require much more than mere attendance in a social function. It is time indeed we
emphasize that there should be much more than mere perfunctory treatment of the pre-trial
procedure. Its observance must be taken seriously if it is to attain its objective, i.e., the speedy and
inexpensive disposition of cases.

Moreover, the trial court denied the motion for postponement three (3) days before the scheduled
pre-trial. If indeed, counsel for respondent could not attend the pre-trial on the scheduled date,
respondent at least should have personally appeared in order not to be declared as in default. But,
since nobody appeared for him, the order of the trial court declaring him as in default and directing
the presentation of petitioner's evidence ex parte was proper.7
With regard to the merits of the judgment of the trial court by default, which respondent appellate
court did not touch upon in resolving the appeal, the Court holds that on the basis of the pleadings of
the parties and the evidence presented ex parte, petitioner and respondents are co-owners of
subject house and lot in equal shares; either one of them may demand the sale of the house and lot
at any time and the other cannot object to such demand; thereafter the proceeds of the sale shall be
divided equally according to their respective interests.

Private respondent and his family refuse to pay monthly rentals to petitioner from the time their
father died in 1975 and to vacate the house so that it can be sold to third persons. Petitioner alleges
that respondent's continued stay in the property hinders its disposal to the prejudice of petitioner. On
the part of petitioner, he claims that he should be paid two-thirds (2/3) of a monthly rental of
P2,400.00 or the sum of P1,600.00.

In resolving the dispute, the trial court ordered respondent to vacate the property so that it could be
sold to third persons and the proceeds divided between them equally, and for respondent to pay
petitioner one-half (1/2) of P2,400.00 or the sum of P1,200.00 as monthly rental, conformably with
their stipulated sharing reflected in their written agreement.

We uphold the trial court in ruling in favor of petitioner, except as to the effectivity of the payment of
monthly rentals by respondent as co-owner which we here declare to commence only after the trial
court ordered respondent to vacate in accordance with its order of 26 July 1979.

Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in the co-
ownership, and that each co-owner may demand at any time partition of the thing owned in common
insofar as his share is concerned. Corollary to this rule, Art. 498 of the Code states that whenever
the thing is essentially, indivisible and the co-owners cannot agree that it be, allotted to one of them
who shall indemnify the others, it shall be sold and its proceeds accordingly distributed. This is
resorted to (1) when the right to partition the property is invoked by any of the co-owners but
because of the nature of the property it cannot be subdivided or its subdivision would prejudice the
interests of the co-owners, and (b) the co-owners are not in agreement as to who among them shall
be allotted or assigned the entire property upon proper reimbursement of the co-owners. In one
case,8 this Court upheld the order of the trial court directing the holding of a public sale of the
properties owned in common pursuant to Art. 498 of the Civil Code.

However, being a co-owner respondent has the right to use the house and lot without paying any
compensation to petitioner, as he may use the property owned in common long as it is in
accordance with the purpose for which it is intended and in a manner not injurious to the interest of
the other co-owners.9 Each co-owner of property held pro indiviso exercises his rights over the whole
property and may use and enjoy the same with no other limitation than that he shall not injure the
interests of his co-owners, the reason being that until a division is made, the respective share of
each cannot be determined and every co-owner exercises, together with his co-participants joint
ownership over the pro indiviso property, in addition to his use and enjoyment of the
same. 10

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

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

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

The trial court is further directed to take immediate steps to implement this decision conformably with
Art. 498 of the Civil Code and the Rules of Court. This decision is final and executory.
SO ORDERED.

G.R. No. L-33187 March 31, 1980

CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and APOLONIA ONTE, petitioners,

vs.
VIVENCIO MORETO, VICTOR MORETO, ELIGIO MORETO, MARCELO MORETO, PAULINA
MORETO, ROSARIO MORETO, MARTA MORETO, SEVERINA MENDOZA, PABLO MENDOZA,
LAZARO MENDOZA, VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO MORETO and
LORENZO MENDOZA, respondents.

E.P. Caguioa for petitioners.

Benjamin C. Yatco for respondents.

GUERRERO, J.:

This is a petition for certiorari by way of appeal from the decision of the Court of Appeals 1 in CA-
G.R. No. 35962-R, entitled "Vivencio Moreto, et al., Plaintiff-Appellees vs. Cornelio Pamplona, et al.,
Defendants-Appellants," affirming the decision of the Court of First Instance of Laguna, Branch I at
Biñan.

The facts, as stated in the decision appealed from, show that:

Flaviano Moreto and Monica Maniega were husband and wife. During their marriage, they acquired
adjacent lots Nos. 1495, 4545, and 1496 of the Calamba Friar Land Estate, situated in Calamba,
Laguna, containing 781-544 and 1,021 square meters respectively and covered by certificates of title
issued in the name of "Flaviano Moreto, married to Monica Maniega."

The spouses Flaviano Moreto and Monica Maniega begot during their marriage six (6) children,
namely, Ursulo, Marta, La Paz, Alipio, Pablo, and Leandro, all surnamed Moreto.

Ursulo Moreto died intestate on May 24, 1959 leaving as his heirs herein plaintiffs Vivencio, Marcelo,
Rosario, Victor, Paulina, Marta and Eligio, all surnamed Moreto.

Marta Moreto died also intestate on April 30, 1938 leaving as her heir plaintiff Victoria Tuiza.

La Paz Moreto died intestate on July 17, 1954 leaving the following heirs, namely, herein plaintiffs
Pablo, Severina, Lazaro, and Lorenzo, all surnamed Mendoza.

Alipio Moreto died intestate on June 30, 1943 leaving as his heir herein plaintiff Josefina Moreto.

Pablo Moreto died intestate on April 25, 1942 leaving no issue and as his heirs his brother plaintiff
Leandro Moreto and the other plaintiffs herein.

On May 6, 1946, Monica Maniega died intestate in Calamba, Laguna.

On July 30, 1952, or more than six (6) years after the death of his wife Monica Maniega, Flaviano
Moreto, without the consent of the heirs of his said deceased wife Monica, and before any liquidation
of the conjugal partnership of Monica and Flaviano could be effected, executed in favor of
Geminiano Pamplona, married to defendant Apolonia Onte, the deed of absolute sale (Exh. "1")
covering lot No. 1495 for P900.00. The deed of sale (Exh. "1") contained a description of lot No.
1495 as having an area of 781 square meters and covered by transfer certificate of title No. 14570
issued in the name of Flaviano Moreto, married to Monica Maniega, although the lot was acquired
during their marriage. As a result of the sale, the said certificate of title was cancelled and a new
transfer certificate of title No. T-5671 was issued in the name of Geminiano Pamplona married to
Apolonia Onte (Exh. "A").

After the execution of the above-mentioned deed of sale (Exh. "1"), the spouses Geminiano
Pamplona and Apolonia Onte constructed their house on the eastern part of lot 1496 as Flaviano
Moreto, at the time of the sale, pointed to it as the land which he sold to Geminiano Pamplona.
Shortly thereafter, Rafael Pamplona, son of the spouses Geminiano Pamplona and Apolonia Onte,
also built his house within lot 1496 about one meter from its boundary with the adjoining lot. The
vendor Flaviano Moreto and the vendee Geminiano Pamplona thought all the time that the portion of
781 square meters which was the subject matter of their sale transaction was No. 1495 and so lot
No. 1495 appears to be the subject matter in the deed of sale (Exh. "1") although the fact is that the
said portion sold thought of by the parties to be lot No. 1495 is a part of lot No. 1496.

From 1956 to 1960, the spouses Geminiano Pamplona and Apolonio Onte enlarged their house and
they even constructed a piggery corral at the back of their said house about one and one-half meters
from the eastern boundary of lot 1496.

On August 12, 1956, Flaviano Moreto died intestate. In 1961, the plaintiffs demanded on the
defendants to vacate the premises where they had their house and piggery on the ground that
Flaviano Moreto had no right to sell the lot which he sold to Geminiano Pamplona as the same
belongs to the conjugal partnership of Flaviano and his deceased wife and the latter was already
dead when the sale was executed without the consent of the plaintiffs who are the heirs of Monica.
The spouses Geminiano Pamplona and Apolonia Onte refused to vacate the premises occupied by
them and hence, this suit was instituted by the heirs of Monica Maniega seeking for the declaration
of the nullity of the deed of sale of July 30, 1952 above-mentioned as regards one-half of the
property subject matter of said deed; to declare the plaintiffs as the rightful owners of the other half
of said lot; to allow the plaintiffs to redeem the one-half portion thereof sold to the defendants. "After
payment of the other half of the purchase price"; to order the defendants to vacate the portions
occupied by them; to order the defendants to pay actual and moral damages and attorney's fees to
the plaintiffs; to order the defendants to pay plaintiffs P120.00 a year from August 1958 until they
have vacated the premises occupied by them for the use and occupancy of the same.

The defendants claim that the sale made by Flaviano Moreto in their favor is valid as the lot sold is
registered in the name of Flaviano Moreto and they are purchasers believing in good faith that the
vendor was the sole owner of the lot sold.

After a relocation of lots 1495, 1496 and 4545 made by agreement of the parties, it was found out
that there was mutual error between Flaviano Moreto and the defendants in the execution of the
deed of sale because while the said deed recited that the lot sold is lot No. 1495, the real intention of
the parties is that it was a portion consisting of 781 square meters of lot No. 1496 which was the
subject matter of their sale transaction.

After trial, the lower court rendered judgment, the dispositive part thereof being as follows:

WHEREFORE, judgment is hereby rendered for the plaintiffs declaring the deed of
absolute sale dated July 30, 1952 pertaining to the eastern portion of Lot 1496
covering an area of 781 square meters null and void as regards the 390.5 square
meters of which plaintiffs are hereby declared the rightful owners and entitled to its
possession.

The sale is ordered valid with respect to the eastern one-half (1/2) of 1781 square
meters of Lot 1496 measuring 390.5 square meters of which defendants are
declared lawful owners and entitled to its possession.

After proper survey segregating the eastern one-half portion with an area of 390.5
square meters of Lot 1496, the defendants shall be entitled to a certificate of title
covering said portion and Transfer Certificate of Title No. 9843 of the office of the
Register of Deeds of Laguna shall be cancelled accordingly and new titles issued to
the plaintiffs and to the defendants covering their respective portions.

Transfer Certificate of Title No. 5671 of the office of the Register of Deeds of Laguna
covering Lot No. 1495 and registered in the name of Cornelio Pamplona, married to
Apolonia Onte, is by virtue of this decision ordered cancelled. The defendants are
ordered to surrender to the office of the Register of Deeds of Laguna the owner's
duplicate of Transfer Certificate of Title No. 5671 within thirty (30) days after this
decision shall have become final for cancellation in accordance with this decision.

Let copy of this decision be furnished the Register of Deeds for the province of
Laguna for his information and guidance.

With costs against the defendants. 2

The defendants-appellants, not being satisfied with said judgment, appealed to the Court of Appeals,
which affirmed the judgment, hence they now come to this Court.

The fundamental and crucial issue in the case at bar is whether under the facts and circumstances
duly established by the evidence, petitioners are entitled to the full ownership of the property in
litigation, or only one-half of the same.
There is no question that when the petitioners purchased the property on July 30, 1952 from
Flaviano Moreto for the price of P900.00, his wife Monica Maniega had already been dead six years
before, Monica having died on May 6, 1946. Hence, the conjugal partnership of the spouses
Flaviano Moreto and Monica Maniega had already been dissolved. (Article 175, (1) New Civil Code;
Article 1417, Old Civil Code). The records show that the conjugal estate had not been inventoried,
liquidated, settled and divided by the heirs thereto in accordance with law. The necessary
proceedings for the liquidation of the conjugal partnership were not instituted by the heirs either in
the testate or intestate proceedings of the deceased spouse pursuant to Act 3176 amending Section
685 of Act 190. Neither was there an extra-judicial partition between the surviving spouse and the
heirs of the deceased spouse nor was an ordinary action for partition brought for the purpose.
Accordingly, the estate became the property of a community between the surviving husband,
Flaviano Moreto, and his children with the deceased Monica Maniega in the concept of a co-
ownership.

The community property of the marriage, at the dissolution of this bond by the death
of one of the spouses, ceases to belong to the legal partnership and becomes the
property of a community, by operation of law, between the surviving spouse and the
heirs of the deceased spouse, or the exclusive property of the widower or the widow,
it he or she be the heir of the deceased spouse. Every co-owner shall have full
ownership of his part and in the fruits and benefits derived therefrom, and he
therefore may alienate, assign or mortgage it, and even substitute another person in
its enjoyment, unless personal rights are in question. (Marigsa vs. Macabuntoc, 17
Phil. 107)

In Borja vs. Addision, 44 Phil. 895, 906, the Supreme Court said that "(t)here is no reason in law why
the heirs of the deceased wife may not form a partnership with the surviving husband for the
management and control of the community property of the marriage and conceivably such a
partnership, or rather community of property, between the heirs and the surviving husband might be
formed without a written agreement." In Prades vs. Tecson, 49 Phil. 230, the Supreme Court held
that "(a)lthough, when the wife dies, the surviving husband, as administrator of the community
property, has authority to sell the property with•ut the concurrence of the children of the marriage,
nevertheless this power can be waived in favor of the children, with the result of bringing about a
conventional ownership in common between the father and children as to such property; and any
one purchasing with knowledge of the changed status of the property will acquire only the undivided
interest of those members of the family who join in the act of conveyance.

It is also not disputed that immediately after the execution of the sale in 1952, the vendees
constructed their house on the eastern part of Lot 1496 which the vendor pointed out to them as the
area sold, and two weeks thereafter, Rafael who is a son of the vendees, also built his house within
Lot 1496. Subsequently, a cemented piggery coral was constructed by the vendees at the back of
their house about one and one-half meters from the eastern boundary of Lot 1496. Both vendor and
vendees believed all the time that the area of 781 sq. meters subject of the sale was Lot No. 1495
which according to its title (T.C.T. No. 14570) contains an area of 781 sq. meters so that the deed of
sale between the parties Identified and described the land sold as Lot 1495. But actually, as verified
later by a surveyor upon agreement of the parties during the proceedings of the case below, the
area sold was within Lot 1496.

Again, there is no dispute that the houses of the spouses Cornelio Pamplona and Apolonia Onte as
well as that of their son Rafael Pamplona, including the concrete piggery coral adjacent thereto,
stood on the land from 1952 up to the filing of the complaint by the private respondents on July 25,
1961, or a period of over nine (9) years. And during said period, the private respondents who are the
heirs of Monica Maniega as well as of Flaviano Moreto who also died intestate on August 12, 1956,
lived as neighbors to the petitioner-vendees, yet lifted no finger to question the occupation,
possession and ownership of the land purchased by the Pamplonas, so that We are persuaded and
convinced to rule that private respondents are in estoppel by laches to claim half of the property, in
dispute as null and void. Estoppel by laches is a rule of equity which bars a claimant from presenting
his claim when, by reason of abandonment and negligence, he allowed a long time to elapse without
presenting the same. (International Banking Corporation vs. Yared, 59 Phil. 92)

We have ruled that at the time of the sale in 1952, the conjugal partnership was already dissolved
six years before and therefore, the estate became a co-ownership between Flaviano Moreto, the
surviving husband, and the heirs of his deceased wife, Monica Maniega. Article 493 of the New Civil
Code is applicable and it provides a follows:

Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and
even substitute another person in its enjoyment, except when personal rights are
involve. But the effect of the alienation or the mortgage, with respect to the co-
owners, shall be limited to the portion which may be allotted to him in the division
upon the termination of the co-ownership.
We agree with the petitioner that there was a partial partition of the co-ownership when at the time of
the sale Flaviano Moreto pointed out the area and location of the 781 sq. meters sold by him to the
petitioners-vendees on which the latter built their house and also that whereon Rafael, the son of
petitioners likewise erected his house and an adjacent coral for piggery.

Petitioners point to the fact that spouses Flaviano Moreto and Monica Maniega owned three parcels
of land denominated as Lot 1495 having an area of 781 sq. meters, Lot 1496 with an area of 1,021
sq. meters, and Lot 4545 with an area of 544 sq. meters. The three lots have a total area of 2,346
sq. meters. These three parcels of lots are contiguous with one another as each is bounded on one
side by the other, thus: Lot 4545 is bounded on the northeast by Lot 1495 and on the southeast by
Lot 1496. Lot 1495 is bounded on the west by Lot 4545. Lot 1496 is bounded on the west by Lot
4545. It is therefore, clear that the three lots constitute one big land. They are not separate
properties located in different places but they abut each other. This is not disputed by private
respondents. Hence, at the time of the sale, the co-ownership constituted or covered these three lots
adjacent to each other. And since Flaviano Moreto was entitled to one-half pro-indiviso of the entire
land area or 1,173 sq. meters as his share, he had a perfect legal and lawful right to dispose of 781
sq. meters of his share to the Pamplona spouses. Indeed, there was still a remainder of some 392
sq. meters belonging to him at the time of the sale.

We reject respondent Court's ruling that the sale was valid as to one-half and invalid as to the other
half for the very simple reason that Flaviano Moreto, the vendor, had the legal right to more than 781
sq. meters of the communal estate, a title which he could dispose, alienate in favor of the vendees-
petitioners. The title may be pro-indiviso or inchoate but the moment the co-owner as vendor pointed
out its location and even indicated the boundaries over which the fences were to be erectd without
objection, protest or complaint by the other co-owners, on the contrary they acquiesced and
tolerated such alienation, occupation and possession, We rule that a factual partition or termination
of the co-ownership, although partial, was created, and barred not only the vendor, Flaviano Moreto,
but also his heirs, the private respondents herein from asserting as against the vendees-petitioners
any right or title in derogation of the deed of sale executed by said vendor Flaiano Moreto.

Equity commands that the private respondents, the successors of both the deceased spouses,
Flaviano Moreto and Monica Maniega be not allowed to impugn the sale executed by Flaviano
Moreto who indisputably received the consideration of P900.00 and which he, including his children,
benefitted from the same. Moreover, as the heirs of both Monica Maniega and Flaviano Moreto,
private respondents are duty-bound to comply with the provisions of Articles 1458 and 1495, Civil
Code, which is the obligation of the vendor of the property of delivering and transfering the
ownership of the whole property sold, which is transmitted on his death to his heirs, the herein
private respondents. The articles cited provide, thus:

Art. 1458. By the contract of sale one of the contracting parties obligates himself to
transfer the ownership of and to deliver a determinate thing, and the other part to pay
therefore a price certain in money or its equivalent.

A contract of sale may be absolute or conditionial.

Art. 1495. The vendor is bound to transfer the ownership of and deliver, as well as
warrant the thing which is the object of the sale.

Under Article 776, New Civil Code, the inheritance which private respondents received from their
deceased parents and/or predecessors-in-interest included all the property rights and obligations
which were not extinguished by their parents' death. And under Art. 1311, paragraph 1, New Civil
Code, the contract of sale executed by the deceased Flaviano Moreto took effect between the
parties, their assigns and heirs, who are the private respondents herein. Accordingly, to the private
respondents is transmitted the obligation to deliver in full ownership the whole area of 781 sq.
meters to the petitioners (which was the original obligation of their predecessor Flaviano Moreto) and
not only one-half thereof. Private respondents must comply with said obligation.

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

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

Petitioners are hereby declared owners in full ownership of the 781 sq. meters at the eastern portion
of Lot 1496 now occupied by said petitioners and whereon their houses and piggery coral stand.
The Register of Deeds of Laguna is hereby ordered to segregate the area of 781 sq. meters from
Certificate of Title No. 9843 and to issue a new Transfer Certificate of Title to the petitioners covering
the segregated area of 781 sq. meters.

No costs.

SO ORDERED.

G.R. No. L-25014 October 17, 1973

DOLORES LAHORA VDA. DE CASTRO, ARSENIO DE CASTRO, JR., WILFREDO DE CASTRO,

IRINEO DE CASTRO and VIRGINIA DE CASTRO ALEJANDRO, (in substitution for the
deceased defendant-appellant ARSENIO DE CASTRO, SR.)., petitioners,
vs.
GREGORIO ATIENZA, respondent.

Arsenio de Castro, Jr. and F.T. Papa for petitioners.

Dakila Castro and Z.D. de Mesa for respondent.

TEEHANKEE, J.:

The Court rejects petitioners' appeal as without merit and affirms the judgment of the appellate court.
Petitioners' predecessor-in-interest as co-owner of an undivided one-half interest in the fishpond
could validly lease his interest to a third party, respondent Atienza, independently of his co-owner
(although said co-owner had also leased his other undivided one-half interest to the same third
party) and could likewise by mutual agreement independently cancel his lease agreement with said
third party. Said predecessor-in-interest (and petitioners who have substituted him as his heirs)
therefore stands liable on his express undertaking to refund the advance rental paid to him by the
lessee on the cancelled lease and cannot invoke the non-cancellation of the co-owner's lease to
elude such liability.

The Court of Appeals, in its decision affirming in toto the judgment of the Manila court of first
instance ordering therein defendant-appellant Arsenio de Castro, Sr. (now deceased and substituted
by above-named petitioners as his heirs) "to return to the plaintiff (respondent) Gregorio Atienza the
sum P2,500.00 with legal interest from the date of the filing of complaint until fully paid plus the sum
of P250.00 as attorney's fees and the costs of the suit", found the following facts to undisputed:

On January 24, 1956 the brothers Tomas de Castro and Arsenio de Castro, Sr.
leased to plaintiff a fishpond containing an area of 26 hectares situated in Polo,
Bulacan and forming part of a bigger parcel of land covered by Transfer Certificate of
Title No. 196450 of the registry of the property of Bulacan. The lessors are co-
owners in equal shares of the leased property.

According to the contract of lease (Exh. 1) the term of the lease was for five years
from January 24, 1956 at a rental of P5,000 a year, the first year's rental to be paid
on February 1, 1956, the second on February 1, 1957 and the rental for the last three
years on February 1, 1958. The first year's rental was paid on time.

In the meantime, Tomas de Castro died.

In the month of November, 1956, plaintiff as lessee and defendant Arsenio de

Castro, Sr. as one of the lessors, agreed to set aside and annul the contract of lease
and for this purpose an agreement (Exh. A) was signed by them, Exhibit A as signed
by plaintiff and defendant shows that Felisa Cruz Vda. de Castro, widow of Tomas de
Castro, was intended to be made a party thereof in her capacity as representative of
the heirs of Tomas Castro.

Condition No. 2 of Exhibit A reads as follows:

"2. Na sa pamamagitan nito ay pinawawalang kabuluhan namin ang nasabing

kasulatan at nagkasundo kami na ang bawat isa sa amin ni Arsenio de Castro at
 Felisa Cruz Vda. de Castro ay isauli kay GREGORIO ATIENZA ang tig P2,500.00 o
kabuuang halagang P5,000.00 na paunang naibigay nito alinsunod sa nasabing
kasulatan; na ang nasabing tig P2,500.00 ay isasauli ng bawat isa sa amin sa o bago
dumating ang Dec. 30, 1956."

Felisa Cruz Vda. de Castro refused to sign Exhibit A. Defendant did not pay the
P2,500.00 which under the above-quoted paragraph of Exhibit A, he should have
paid on December 30, 1956. Demand for payment was made by plaintiff's counsel on
January 7, 1957 but to no avail, hence the present action.

On the conflicting contentions between the parties as to who between them would attend to securing
the signature of Mrs. Felisa Cruz Vda. de Castro (widow of Tomas de Castro) to the agreement of
cancellation of the lease with respondent Atienza, the appellate court found that "the testimony of the
defendant (Arsenio de Castro, Sr.) ... supports the contention of the plaintiff (Atienza) "that it was the
defendant Arsenio who was interested and undertook to do so, citing Arsenio's own declaration that
"I agreed to sign this document (referring to the cancellation) because of my desire to cancel our
original agreement" and that his purpose in obtaining the cancellation of said lease agreement with
plaintiff Atienza was "(B)ecause I had the intention of having said fishpond leased to other persons
and I cannot lease it to third parties unless I can secure the signature of Felisa Vda. de Castro."

The appellate court thus held in effect that as Arsenio "was the one interested in cancelling the lease
(Exh. 1), it stands to reason that he most probably undertook to obtain the signature of Mrs. Castro
[widow and successor-in-interest of his brother Tomas]" and that he could not invoke his own failure
to obtain such signature to elude his own undertaking and liability to refund respondent (plaintiff) his
share of the rental paid in advance by respondent on the cancelled lease in the sum of P2,500.00.

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

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

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

The appellate court's judgment is fully supported by the Civil Code provisions on the rights and
prerogatives of co-owners, and specifically by Article 493 which expressly provides that

Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it,
and even substitute another person in its enjoyment, except when personal rights are
involved. But the effect of the alienation or the mortgage, with respect to the co-
owners, shall be limited to the portion which may be alloted to him in the division
upon the termination of the co-ownership. *

ACCORDINGLY, the appealed judgment is hereby affirmed with costs against petitioners.
G.R. No. 137152 January 29, 2001

CITY OF MANDALUYONG, petitioner,

vs.
ANTONIO N., FRANCISCO N., THELMA N., EUSEBIO N., RODOLFO N., all surnamed
AGUILAR, respondents.

PUNO, J.:

This is a petition for review under Rule 45 of the Rules of Court of the Orders dated September 17,
1998 and December 29, 1998 of the Regional Trial Court, Branch 168, Pasig City1 dismissing the
petitioner's Amended Complaint in SCA No. 1427 for expropriation of two (2) parcels of land in
Mandaluyong City. 1âwphi1.nêt

The antecedent facts are as follows:

On August 4, 1997, petitioner filed with the Regional Trial Court, Branch 168, Pasig City a complaint
for expropriation entitled "City of Mandaluyong, plaintiff v. Antonio N., Francisco N, Thelma N,
Eusebio N, Rodolfo N., all surnamed Aguilar, defendants." Petitioner sought to expropriate three (3)
adjoining parcels of land with an aggregate area of 1,847 square meters registered under Transfer
Certificates of Title Nos. 59780, 63766 and 63767 in the names of the defendants, herein
respondents, located at 9 de Febrero Street, Barangay Mauwag, City of Mandaluyong; on a portion
of the 3 lots, respondents constructed residential houses several decades ago which they had since
leased out to tenants until the present; on the vacant portion of the lots, other families constructed
residential structures which they likewise occupied; in 1983, the lots were classified by Resolution
No. 125 of the Board of the Housing and Urban Development Coordinating Council as an Area for
Priority Development for urban land reform under Proclamation Nos. 1967 and 2284 of then
President Marcos; as a result of this classification, the tenants and occupants of the lots offered to
purchase the land from respondents, but the latter refused to sell; on November 7, 1996, the
Sangguniang Panlungsod of petitioner, upon petition of the Kapitbisig, an association of tenants and
occupants of the subject land, adopted Resolution No. 516, Series of 1996 authorizing Mayor
Benjamin Abalos of the City of Mandaluyong to initiate action for the expropriation of the subject lots
and construction of a medium-rise condominium for qualified occupants of the land; on January 10,
1996, Mayor Abalos sent a letter to respondents offering to purchase the said property at P3,000.00
per square meter; respondents did not answer the letter. Petitioner thus prayed for the expropriation
of the said lots and the fixing of just compensation at the fair market value of P3,000.00 per square
meter.2

In their answer, respondents, except Eusebio N. Aguilar who died in 1995, denied having received a
copy of Mayor Abalos' offer to purchase their lots. They alleged that the expropriation of their land is
arbitrary and capricious, and is not for a public purpose; the subject lots are their only real property
and are too small for expropriation, while petitioner has several properties inventoried for socialized
housing; the fair market value of P3,000.00 per square meter is arbitrary because the zonal
valuation set by the Bureau of Internal Revenue is P7,000.00 per square meter. As counterclaim,
respondents prayed for damages of P21 million.3

Respondents filed a "Motion for Preliminary Hearing" claiming that the defenses alleged in their
Answer are valid grounds for dismissal of the complaint for lack of jurisdiction over the person of the
defendants and lack of cause of action. Respondents prayed that the affirmative defenses be set for
preliminary hearing and that the complaint be dismissed.4 Petitioner replied.

On November 5, 1997, petitioner filed an Amended Complaint and named as an additional

defendant Virginia N. Aguilar and, at the same time, substituted Eusebio Aguilar with his heirs.
Petitioner also excluded from expropriation TCT No. 59870 and thereby reduced the area sought to
be expropriated from three (3) parcels of land to two (2) parcels totalling 1,636 square meters under
TCT Nos. 63766 and 63767.5

The Amended Complaint was admitted by the trial court on December 18, 1997. Respondents, who,
with the exception of Virginia Aguilar and the Heirs of Eusebio Aguilar had yet to be served with
summons and copies of the Amended Complaint, filed a "Manifestation and Motion" adopting their
"Answer with Counterclaim" and "Motion for Preliminary Hearing" as their answer to the Amended
Complaint.6

The motion was granted. At the hearing of February 25, 1998, respondents presented Antonio
Aguilar who testified and identified several documentary evidence. Petitioner did not present any
evidence. Thereafter, both parties filed their respective memoranda. 7

On September 17, 1998, the trial court issued an order dismissing the Amended Complaint after
declaring respondents as "small property owners" whose land is exempt from expropriation under
Republic Act No. 7279. The court also found that the expropriation was not for a public purpose for
petitioner's failure to present any evidence that the intended beneficiaries of the expropriation are
landless and homeless residents of Mandaluyong. The court thus disposed of as follows:

"WHEREFORE, the Amended Complaint is hereby ordered dismissed without

pronouncement as to cost.

SO ORDERED."8

Petitioner moved for reconsideration. On December 29, 1998, the court denied the motion. Hence
this petition.

Petitioner claims that the trial court erred

"IN UPHOLDING RESPONDENT'S CONTENTION THAT THEY QUALIFY AS SMALL

PROPERTY OWNERS AND ARE THUS EXEMPT FROM EXPROPRIATION."9

Petitioner mainly claims that the size of the lots in litigation does not exempt the same from
expropriation in view of the fact that the said lots have been declared to be within the Area for
Priority Development (APD) No. 5 of Mandaluyong by virtue of Proclamation No. 1967, as amended
by Proclamation No. 2284 in relation to Presidential Decree No. 1517.10 This declaration allegedly
authorizes petitioner to expropriate the property, ipso facto, regardless of the area of the land.

Presidential Decree (P.D.) No. 1517, the Urban Land Reform Act, was issued by then President
Marcos in 1978. The decree adopted as a State policy the liberation of human communities from
blight, congestion and hazard, and promotion of their development and modernization, the optimum
use of land as a national resource for public welfare. 11 Pursuant to this law, Proclamation No. 1893
was issued in 1979 declaring the entire Metro Manila as Urban Land Reform Zone for purposes of
urban land reform. This was amended in 1980 by Proclamation No. 1967 and in 1983 by
Proclamation No. 2284 which identified and specified 245 sites in Metro Manila as Areas for Priority
Development and Urban Land Reform Zones.

In 1992, the Congress of the Philippines passed Republic Act No. 7279, the "Urban Development
and Housing Act of 1992." The law lays down as a policy that the state, in cooperation with the
private sector, undertake a comprehensive and continuing Urban Development and Housing
Program; uplift the conditions of the underprivileged and homeless citizens in urban, areas and
resettlement areas by making available to them decent housing at affordable cost, basic services
and employment opportunities and provide for the rational use and development of urban land to
bring about, among others, equitable utilization of residential lands; encourage more effective
people's participation in the urban development process and improve the capability of local
government units in undertaking urban development and housing programs and projects. 12 Towards
this end, all city and municipal governments are mandated to conduct an inventory of all lands and
improvements within their respective localities, and in coordination with the National Housing
Authority, the Housing and Land Use Regulatory Board, the National Mapping Resource Information
Authority, and the Land Management Bureau, identify lands for socialized housing and resettlement
areas for the immediate and future needs of the underprivileged and homeless in the urban
areas, acquire the lands, and dispose of said lands to the beneficiaries of the program. 13

The acquisition of lands for socialized housing is governed by several provisions in the law. Section
9 of R.A. 7279 provides:

"Sec. 9. Priorities in the Acquisition of Land. — Lands for socialized housing shall be
acquired in the following order:

(a) Those owned by the Government or any of its subdivisions, instrumentalities, or

agencies, including government-owned or controlled corporations and their
subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

(d) Those within the declared Areas for Priority Development, Zonal Improvement
Program sites, and Slum Improvement and Resettlement Program sites which have
not yet been acquired;

(e) Bagong Lipunan Improvement of Sites and Services or BLISS Sites which have
not yet been acquired;
 (f) Privately-owned lands.

Where on-site development is found more practicable and advantageous to the beneficiaries,
the priorities mentioned in this section shall not apply. The local government units shall give
budgetary priority to on-site development of government lands."

Lands for socialized housing are to be acquired in the following order: (1) government lands; (2)
alienable lands of the public domain; (3) unregistered or abandoned or idle lands; (4) lands within
the declared Areas for Priority Development (APD), Zonal Improvement Program (ZIP) sites, Slum
Improvement and Resettlement (SIR) sites which have not yet been acquired; (5) BLISS sites which
have not yet been acquired; and (6) privately-owned lands.

There is no dispute that the two lots in litigation are privately-owned and therefore last in the order of
priority acquisition. However, the law also provides that lands within the declared APD's which have
not yet been acquired by the government are fourth in the order of priority. According to petitioner,
since the subject lots lie within the declared APD, this fact mandates that the lots be given priority in
acquisition.14

Section 9, however, is not a single provision that can be read separate from the other provisions of
the law. It must be read together with Section 10 of R.A. 7279 which also provides:

"Section 10. Modes of Land Acquisition. — The modes of acquiring lands for purposes of this
Act shall include, among others, community mortgage, land swapping, land assembly or
consolidation, land banking, donation to the Government, joint-venture agreement,
negotiated purchase, and expropriation: Provided, however, That expropriation shall be
resorted to only when other modes of acquisition have been exhausted: Provided,
further, That where expropriation is resorted to, parcels of land owned by small
property owners shall be exempted for purposes of this Act: Provided, finally, That
abandoned property, as herein defined, shall be reverted and escheated to the State in a
proceeding analogous to the procedure laid down in Rule 91 of the Rules of Court. 15

For the purposes of socialized housing, government-owned and foreclosed properties shall
be acquired by the local government units, or by the National Housing Authority primarily
through negotiated purchase: Provided, That qualified beneficiaries who are actual
occupants of the land shall be given the right of first refusal."

Lands for socialized housing under R.A. 7279 are to be acquired in several modes. Among these
modes are the following: (1) community mortgage; (2) land swapping, (3) land assembly or
consolidation; (4) land banking; (5) donation to the government; (6) joint venture agreement; (7)
negotiated purchase; and (8) expropriation. The mode of expropriation is subject to two conditions:
(a) it shall be resorted to only when the other modes of acquisition have been exhausted; (b) parcels
of land owned by small property owners are exempt from such acquisition.

Section 9 of R.A. 7279 speaks of priorities in the acquisition of lands. It enumerates the type of
lands to be acquired and the heirarchy in their acquisition. Section 10 deals with the modes of land
acquisition or the process of acquiring lands for socialized housing. These are two different
things. They mean that the type of lands that may be acquired in the order of priority in
Section 9 are to be acquired only in the modes authorized under Section 10. The acquisition of
the lands in the priority list must be made subject to the modes and conditions set forth in the next
provision. In other words, land that lies within the APD, such as in the instant case, may be acquired
only in the modes under, and subject to the conditions of, Section 10.

Petitioner claims that it had faithfully observed the different modes of land acquisition for socialized
housing under R.A. 7279 and adhered to the priorities in the acquisition for socialized housing under
said law.16 It, however, did not state with particularity whether it exhausted the other modes of
acquisition in Section 9 of the law before it decided to expropriate the subject lots. The law states
"expropriation shall be resorted to when other modes of acquisition have been exhausted." Petitioner
alleged only one mode of acquisition, i.e., by negotiated purchase. Petitioner, through the City
Mayor, tried to purchase the lots from respondents but the latter refused to sell. 17 As to the other
modes of acquisition, no mention has been made. Not even Resolution No. 516, Series of 1996 of
the Sangguniang Panlungsod authorizing the Mayor of Mandaluyong to effect the expropriation of
the subject property states whether the city government tried to acquire the same by community
mortgage, land swapping, land assembly or consolidation, land banking, donation to the
government, or joint venture agreement under Section 9 of the law.

Section 9 also exempts from expropriation parcels of land owned by small property
owners.18 Petitioner argues that the exercise of the power of eminent domain is not anymore
conditioned on the size of the land sought to be expropriated. 19 By the expanded notion of public
use, present jurisprudence has established the concept that expropriation is not anymore confined to
the vast tracts of land and landed estates, but also covers small parcels of land. 20 That only a few
could actually benefit from the expropriation of the property does not diminish its public use
character.21 It simply is not possible to provide, in one instance, land and shelter for all who need
them.22

While we adhere to the expanded notion of public use, the passage of R.A. No. 7279, the "Urban
Development and Housing Act of 1992" introduced a limitation on the size of the land sought to be
expropriated for socialized housing. The law expressly exempted "small property owners" from
expropriation of their land for urban land reform. R.A. No. 7279 originated as Senate Bill No. 234
authored by Senator Joey Lina23 and House Bill No. 34310. Senate Bill No. 234 then provided that
one of those lands not covered by the urban land reform and housing program was "land actually
used by small property owners within the just and equitable retention limit as provided under this
Act."24 "Small property owners" were defined in Senate Bill No. 234 as:

"4. Small Property Owners — are those whose rights are protected under Section 9, Article
XIII of the Constitution of the Philippines, who own small parcels of land within the fair and
just retention limit provided under this Act and which are adequate to meet the reasonable
needs of the small property owner's family and their means of livelihood. 25

The exemption from expropriation of lands of small-property owners was never questioned on the
Senate floor.26 This exemption, although with a modified definition, was actually retained in the
consolidation of Senate Bill No. 234 and House Bill No. 34310 which became R.A. No. 7279. 27

The question now is whether respondents qualify as "small property owners" as defined in Section 3
(q) of R.A. 7279. Section 3 (q) provides:

"Section 3 x x x (q). "Small property owners" refers to those whose only real property
consists of residential lands not exceeding three hundred square meters (300 sq.m.) in
highly urbanized cities and eight hundred square meters (800 sq.m.) in other urban areas."

"Small-property owners" are defined by two elements: (1) those owners of real property whose
property consists of residential lands with an area of not more than 300 square meters in highly
urbanized cities and 800 square meters in other urban areas; and (2) that they do not own real
property other than the same.

The case at bar involves two (2) residential lots in Mandaluyong City, a highly urbanized city. The lot
under TCT No. 63766 is 687 square meters in area and the second under TCT No. 63767 is 949
square meters, both totalling 1,636 square meters in area. TCT No. 63766 was issued in the names
of herein five (5) respondents, viz:

"FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR, single; EUSEBIO N.

AGUILAR, JR., widower; RODOLFO N. AGUILAR, single and ANTONIO N. AGUILAR,
married to Teresita Puig; all of legal age, Filipinos." 28

TCT No. 63767 was issued in the names of the five (5) respondents plus Virginia Aguilar, thus:

"FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR, single; EUSEBIO N.

AGUILAR, JR., widower; RODOLFO N. AGUILAR, single and ANTONIO N. AGUILAR,
married to Teresita Puig; and VIRGINIA N. AGUILAR, single, all of legal age, Filipinos." 29

Respondent Antonio Aguilar testified that he and the other registered owners are all siblings who
inherited the subject property by intestate succession from their parents. 30 Their father died in 1945
and their mother in 1976.31 Both TCT's were issued in the siblings' names on September 2,
1987.31 In 1986, however, the siblings agreed to extrajudicially partition the lots among themselves,
but no action was taken by them to this end. It was only eleven (11) years later, on November 28,
1997 that a survey of the two lots was made33 and on February 10, 1998, a consolidation subdivision
plan was approved by the Lands Management Service of the Department of Environment and
Natural Resources.34 The co-owners signed a Partition Agreement on February 24, 1998 35 and on
May 21, 1998, TCT Nos. 63766 and 63767 were cancelled and new titles issued in the names of the
individual owners pursuant to the Partition Agreement.

Petitioner argues that the consolidation of the subject lots and their partition was made more than six
(6) months after the complaint for expropriation was filed on August 4, 1997, hence, the partition was
made in bad faith, for the purpose of circumventing the provisions of R.A. 7279. 36

At the time of filing of the complaint for expropriation, the lots subject of this case were owned in
common by respondents; Under a co-ownership, the ownership of an undivided thing or right
belongs to different persons.37 During the existence of the co-ownership, no individual can claim title
to any definite portion of the community property until the partition thereof; and prior to the partition,
all that the co-owner has is an ideal or abstract quota or proportionate share in the entire land or
thing.38 Article 493 of the Civil Code however provides that:

"Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when personal rights are involved. But the
effect of the alienation or the mortgage, with respect to the co-owners shall be limited to the
portion which may be allotted to him in the division upon termination of the co-ownership.39

Before partition in a co-ownership, every co-owner has the absolute ownership of his undivided
interest in the common property. The co-owner is free to alienate, assign or mortgage his interest,
except as to purely personal rights.40 He may also validly lease his undivided interest to a third party
independently of the other co-owners.41 The effect of any such transfer is limited to the portion which
may be awarded to him upon the partition of the property. 42

Article 493 therefore gives the owner of an undivided interest in the property the right to freely sell
and dispose of his undivided interest.43 The co-owner, however, has no right to sell or alienate a
concrete specific or determinate part of the thing owned in common, because his right over the thing
is represented by a quota or ideal portion without any physical adjudication.44 If the co-owner sells a
concrete portion, this, nonetheless, does not render the sale void. Such a sale affects only his own
share, subject to the results of the partition but not those of the other co-owners who did not consent
to the sale.45

In the instant case, the titles to the subject lots were issued in respondents' names as co-owners in
1987—ten (10) years before the expropriation case was filed in 1997. As co-owners, all that the
respondents had was an ideal or abstract quota or proportionate share in the lots. This, however, did
not mean that they could not separately exercise any rights over the lots. Each respondent had the
full ownership of his undivided interest in the property. He could freely sell or dispose of his interest
independently of the other co-owners. And this interest could have even been attached by his
creditors.46 The partition in 1998, six (6) months after the filing of the expropriation case, terminated
the co-ownership by converting into certain and definite parts the respective undivided shares of the
co-owners.47 The subject property is not a thing essentially indivisible. The rights of the co-owners to
have the property partitioned and their share in the same delivered to them cannot be questioned for
"[n]o co-owner shall be obliged to remain in the co-ownership."48 The partition was merely a
necessary incident of the co-ownership;49 and absent any evidence to the contrary, this partition is
presumed to have been done in good faith.

Upon partition, four (4) co-owners, namely, Francisco, Thelma, Rodolfo and Antonio Aguilar each
had a share of 300 square meters under TCT Nos. 13849, 13852, 13850, 13851. 50 Eusebio Aguilar's
share was 347 square meters under TCT No. 13853 51 while Virginia Aguilar's was 89 square meters
under TCT No. 13854.52

It is noted that Virginia Aguilar, although granted 89 square meters only of the subject lots, is, at the
same time, the sole registered owner of TCT No. 59780, one of the three (3) titles initially sought to
be expropriated in the original complaint. TCT No. 59780, with a land area of 211 square meters,
was dropped in the amended complaint. Eusebio Aguilar was granted 347 square meters, which is
47 square meters more than the maximum of 300 square meters set by R.A. 7279 for small property
owners. In TCT No. 13853, Eusebio's title, however, appears the following annotation:

"... subject to x x x, and to the prov. of Sec. 4 Rule 74 of the Rules of Court with respect to
the inheritance left by the deceased Eusebio N. Aguilar."53

Eusebio died on March 23, 1995,54 and, according to Antonio's testimony, the former was survived
by five (5) children.55 Where there are several co-owners, and some of them die, the heirs of those
who die, with respect to that part belonging to the deceased, become also co-owners of the property
together with those who survive.56 After Eusebio died, his five heirs became co-owners of his 347
square-meter portion. Dividing the 347 square meters among the five entitled each heir to 69.4
square meters of the land subject of litigation.

Consequently, the share of each co-owner did not exceed the 300 square meter limit set in R.A.
7279. The second question, however, is whether the subject property is the only real property of
respondents for them to comply with the second requisite for small property owners.

Antonio Aguilar testified that he and most of the original co-owners do not reside on the subject
property but in their ancestral home in Paco, Manila. 57 Respondents therefore appear to own real
property other than the lots in litigation. Nonetheless, the records do not show that the ancestral
home in Paco, Manila and the land on which it stands are owned by respondents or anyone of them.
Petitioner did not present any title or proof of this fact despite Antonio Aguilar's testimony.
On the other hand, respondents claim that the subject lots are their only real property 58 and that they,
particularly two of the five heirs of Eusebio Aguilar, are merely renting their houses and therefore do
not own any other real property in Metro Manila.59 To prove this, they submitted certifications from
the offices of the City and Municipal Assessors in Metro Manila attesting to the fact that they have no
registered real property declared for taxation purposes in the respective cities. Respondents were
certified by the City Assessor of Manila;60 Quezon City;61 Makati City;62 Pasay
City;63 Paranaque;64 Caloocan City;65 Pasig City;66 Muntinlupa;67 Marikina;68 and the then municipality
of Las Piñas69 and the municipality of San Juan del Monte70 as having no real property registered for
taxation in their individual names. 1âwphi1.nêt

Finally, this court notes that the subject lots are now in the possession of respondents. Antonio
Aguilar testified that he and the other co-owners filed ejectment cases against the occupants of the
land before the Metropolitan Trial Court, Mandaluyong, Branches 59 and 60. Orders of eviction were
issued and executed on September 17, 1997 which resulted in the eviction of the tenants and other
occupants from the land in question.71

IN VIEW WHEREOF, the petition is DENIED and the orders dated September 17. 1998 and
December 29, 1998 of the Regional Trial Court, Branch 168, Pasig City in SCA No. 1427
are AFFIRMED.

SO ORDERED.

G.R. No. L-29727 December 14, 1988

PEDRO OLIVERAS, TEODORA GASPAR, MELECIO OLIVERAS and ANICETA MINOR, plaintiffs-
appellees,
vs.
CANDIDO LOPEZ, SEVERO LOPEZ, HIPOLITO LOPEZ, EUGENIA LOPEZ, PRIMITIVO
GASPAR, CORAZON LOPEZ, ALEJANDRO CACAYURIN, FAUSTINA BOTUYAN, MODESTO
SALAZAR, ADORACION BOTUYAN, CLAUDIO GANOTICE and ENONG BOTUYAN, defendants-
appellants.

Venancio B. Fernando for defendants-appellants.

FERNAN, C.J.:

This case exemplifies the Filipino custom of keeping inherited property in a prolonged juridical condition of co-owner ship.

Lorenzo Lopez owned Lot 4685 of the Cadastral survey of Villasis, Pangasinan with an area of
69,687 square meters as evidenced by Original Certificate of Title No. 15262. 1 In December, 1931,
Lorenzo Lopez died, 2 leaving said property to his wife, Tomasa Ramos and six (6) children. From
that time on, the heirs of Lorenzo Lopez did not initiate any moves to legally partition the property.

More than twenty-one years later, or on February 11, 1953, Tomasa Ramos and her eldest son,
Candido Lopez, executed a deed of absolute sale of the "eastern undivided four thousand two
hundred and fifty seven-square meters (4,257) more or less, of the undivided portion of (their)
interests, rights and participation" over Lot 4685, in favor of the spouses Melecio Oliveras and
Aniceta Minor, in consideration of the amount of one thousand pesos (P1,000). 3

On the same day, Tomasa and Candido executed another deed of absolute sale of the "undivided"
four thousand two hundred and fifty-seven (4,257) square meters of the "eastern part" of Lot 4685 in
favor of the spouses Pedro Oliveras and Teodora Gaspar, also in consideration of P1,000. 4 Each of
the said documents bear the thumbmark of Tomasa and the signature of Candido.

In his affidavit also executed on February 11, 1953, Candido stated that a month prior to the
execution of the deed of sale in favor of Melecio Oliveras, he offered his: "undivided portion" of Lot
4685 to his "adjacent owners" but none of them was "in a position to purchase" said property. 5

Since the execution of the two deeds of absolute sale, the vendees, brothers Melecio and Pedro,
had been paying the real property taxes for their respectively purchased properties. 6 They also had
been in possession of their purchased properties which, being planted to palay and peanuts, were
segregated from the rest of Lot 4685 by dikes. 7

More than thirteen years later or on November 21, 1966, the counsel of the Oliveras brothers wrote
the heirs of Lorenzo Lopez reminding them of the Oliverases' demands to partition the property so
that they could acquire their respective titles thereto without resorting to court action, and that,
should they fail to respond, he would be forced to file a case in court. 8 Apparently, the Lopezes did
not answer said letter since on December 15, 1966, the Oliveras brothers and their wives filed a
complaint for partition and damages 9 in the Court of First Instance of Pangasinan. 10

The Oliverases stated in their complaint that possession of the disputed properties was delivered to
them with the knowledge and consent of the defendants; that they had been paying the real estate
taxes thereon; that prior to the sale, said properties were offered to the other co-owners for sale but
they refused to buy them; that on February 18, 1953, the transactions were duly annotated and
entered in the Memorandum of encumbrances of OCT No. 15262 as adverse claims; and that their
desire to segregate the portions of Lot 4685 sold to them was frustrated by defendants' adamant
refusal to lend them the owner's duplicate of OCT No. 15262 and to execute a deed of partition of
the whole lot.

In claiming moral damages in the amount of P2,000.00 plaintiffs alleged that defendants also
refused to allow them to survey and segregate the portions bought by them. Plaintiffs prayed that the
court order the defendants to partition Lot 4685 and to allow them to survey and segregate the
portions they had purchased. They also demanded payment of P800.00 as attorney's fees and cost
of the suit.

In their answer, the defendants alleged that no sale ever transpired as the alleged vendors could not
have sold specific portions of the property; that plaintiffs' possession and occupation of specific
portions of the properties being illegal, they could not ripen into ownership; and that they were not
under any obligation to lend their copy of the certificate of title or to accede to plaintiffs' request for
the partition or settlement of the property. As special and affirmative defenses, the defendants
contended that the deeds of sale were null and void and hence, unenforceable against them; that
the complaint did not state a cause of action and that the cause or causes of action if any, had
prescribed.

Defendants averred in their counterclaim that despite repeated demands, plaintiffs refused and failed
to vacate the premises; that the properties occupied by the plaintiffs yielded an average net produce
in palay and peanuts in the amount of P1,600.00 annually, and that the complaint was filed to harass
them. They prayed for the dismissal of the complaint and the payment of P1,600.00 per year from
1953 until plaintiffs shall have vacated the premises and P1,000.00 for attorney's fees.

Plaintiffs filed an answer to defendants' counterclaim, denying all the allegations therein and stating
that defendants never demanded that plaintiffs vacate the portions of Lot 4685 they had bought.

The lower court explored the possibility of an amicable settlement between the parties without
success. Hence, it set the case for trial and thereafter, it rendered a
decision 11 declaring valid the deeds of absolute sale 12 and ordering the defendants to allow the
segregation of the sold portions of Lot 4685 by a licensed surveyor in order that the plaintiffs could
obtain their respective certificates of title over their portions of said lot.

In resolving the case, the lower court passed upon the issue of whether the two deeds of absolute
sale were what they purported to be or merely mortgage documents. It considered as indicia of
plaintiffs' absolute dominion over the portions sold to them their actual possession thereof without
any opposition from the defendants until the filing of the complaint, their payment of taxes thereon
and their having benefited from the produce of the land. The court ruled that the defendants'
testimonial evidence that the deeds in question were merely mortgage documents cannot overcome
the evidentiary value of the public instruments presented by the plaintiffs.

On the issue of whether the two deeds of absolute sale were null and void considering that the land
subject thereof had not yet been partitioned, the court observed that the total area of 8,514 square
meters sold to plaintiffs by Candido was less than his share should Lot 4685 with an area of 69,687
square meters be divided among the six children of Lorenzo Lopez and their mother. In this
connection, the lower court also found that during his lifetime, and before Candido got married,
Lorenzo Lopez had divided Lot 4685 among his children who then took possession of their
respective shares. *

The defendants appealed said decision to this Court contending that the lower court erred in declaring the two deeds of absolute sale as
valid, in ordering the segregation of the sold portions of Lot 4685 to enable the plaintiffs to obtain their respective certificates of title, and in
not considering their defense of prescription.
The extrinsic validity of the two deeds of absolute sale is not in issue in this case in view of the
finding of the trial court that the defendants admittedly do not question their due execution. 13 What
should pre-occupy the Court is the intrinsic validity of said deeds insofar as they pertain to sales of
designated portions of an undivided, co-owned property.

In a long line of decisions, this Court has held that before the partition of a land or thing held in
common, no individual co-owner can claim title to any definite portion thereof. All that the co-owner
has is an Ideal or abstract quota or proportionate share in the entire land or thing. 14

However, the duration of the juridical condition of co-ownership is not limitless. Under Article 494
and 1083 of the Civil Code, co-ownership of an estate should not exceed the period of twenty (20)
years. And, under the former article, any agreement to keep a thing or property undivided should be
for a ten-year period only. Where the parties stipulate a definite period of in division which exceeds
the maximum allowed by law, said stipulation shall be void only as to the period beyond such
maximum.15

Although the Civil Code is silent as to the effect of the in division of a property for more than twenty
years, it would be contrary to public policy to sanction co-ownership beyond the period set by the
law. Otherwise, the 20-year limitation expressly mandated by the Civil Code would be rendered
meaningless.

In the instant case, the heirs of Lorenzo Lopez maintained the co-ownership for more than twenty
years. We hold that when Candido and his mother (who died before the filing of the complaint for
partition) sold definite portions of Lot 4685, they validly exercised dominion over them because, by
operation of law, the co-ownership had ceased. The filing of the complaint for partition by the
Oliverases who, as vendees, are legally considered as subrogated to the rights of Candido over
portions of Lot 4685 in their possession, 16 merely served to put a stamp of formality on Candido's
otherwise accomplished act of terminating the co-ownership.

The action for partition has not prescribed. Although the complaint was filed thirteen years from the
execution of the deeds of sale and hence, as contended by the defendants-appellants, prescription
might have barred its filing under the general provision of Article 1144 (a) of the Civil Code, Article
494 specifically mandates that each
co-owner may demand at any time the partition of the thing owned in common insofar as his share is
concerned. Hence, considering the validity of the conveyances of portions of Lot 4685 in their favor
and as subrogees of Candido Lopez, the Oliverases' action for partition was timely and properly
filed. 17

We cannot write finis to this decision without commenting on the compliance with the resolution of
September 1, 1986 of counsel for defendants-appellants. In said resolution, the court required the
parties to move in the premises "considering the length of time that this case has remained pending
in this Court and to determine whether or not there might be supervening events which may render
the case moot and academic. 18 In his manifestation and motion dated August 12, 1987, said counsel
informed the Court that he had contacted the defendants-appellants whom he advised "to move in
the premises which is the land in question and to maintain the status quo with respect to their actual
possession thereon" and that he had left a copy of said resolution with the defendants-appellants"
for their guidance in the compliance of their obligations (sic) as specified in said
resolution." 19

Obviously, said counsel interpreted literally the Court's directive "to move in the premises." For the
enlightenment of said counsel and all others of similar perception, a "move in the premises"
resolution is not a license to occupy or enter the premises subject of litigation especially in cases
involving real property. A "move in the premises" resolution simply means what is stated therein: the
parties are obliged to inform the Court of developments pertinent to the case which may be of help to
the Court in its immediate disposition.

WHEREFORE, the decision of the lower court insofar as it declares the validity of the two deeds of
sale and directs the partition of Lot 4685, is AFFIRMED. The lower court is hereby ordered to
facilitate with dispatch the preparation of a project of partition which it should thereafter approve.
This decision is immediately executory. No costs.

SO ORDERED.
G.R. No. L-46296 September 24, 1991

EPITACIO DELIMA, PACLANO DELIMA, FIDEL DELIMA, VIRGILIO DELIMA, GALILEO DELIMA,
JR., BIBIANO BACUS, OLIMPIO BACUS and PURIFICACION BACUS, petitioners,
vs.
HON. COURT OF APPEALS, GALILEO DELIMA (deceased), substituted by his legal heirs,
namely: FLAVIANA VDA. DE DELIMA, LILY D. ARIAS, HELEN NIADAS, ANTONIO DELIMA,
DIONISIO DELIMA, IRENEA DELIMA, ESTER DELIMA AND FELY DELIMA, respondents.

Gabriel J. Canete for petitioners.

Emilio Lumontad, Jr. for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals reversing the trial
court's judgment which declared as null and void the certificate of title in the name of respondents'
predecessor and which ordered the partition of the disputed lot among the parties as co-owners.

The antecedent facts of the case as found both by the respondent appellate court and by the trial
court are as follows:

During his lifetime, Lino Delima acquired Lot No. 7758 of the Talisay-Minglanilla Friar Lands Estate
in Cebu by sale on installments from the government. Lino Delima later died in 1921 leaving as his
only heirs three brothers and a sister namely: Eulalio Delima, Juanita Delima, Galileo Delima and
Vicente Delima. After his death, TCT No. 2744 of the property in question was issued on August 3,
1953 in the name of the Legal Heirs of Lino Delima, deceased, represented by Galileo Delima.

On September 22, 1953, Galileo Delima, now substituted by respondents, executed an affidavit of
"Extra-judicial Declaration of Heirs." Based on this affidavit, TCT No. 2744 was cancelled and TCT
No. 3009 was issued on February 4,1954 in the name of Galileo Delima alone to the exclusion of the
other heirs.

Galileo Delima declared the lot in his name for taxation purposes and paid the taxes thereon from
1954 to 1965.

On February 29, 1968, petitioners, who are the surviving heirs of Eulalio and Juanita Delima, filed
with the Court of First Instance of Cebu (now Regional Trial Court) an action for reconveyance
and/or partition of property and for the annulment of TCT No. 3009 with damages against their
uncles Galileo Delima and Vicente Delima,. Vicente Delima was joined as party defendant by the
petitioners for his refusal to join the latter in their action.

On January 16, 1970, the trial court rendered a decision in favor of petitioners, the dispositive portion
of which states:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the following are the declared owners
of Lot No. 7758 of the Talisay-Minglanilla Friar Lands Estate presently covered by transfer
Certificate of Title No. 3009, each sharing a pro-indiviso share of one-fourth;

1) Vicente Delima (one-fourth)

2) Heirs of Juanita Delima, namely: Bibiano Bacus, Olimpio Bacus and Purificacion Bacus
(on-fourth);

3) Heirs of Eulalio Delima, namely Epitacio, Pagano, Fidel, Virgilio and Galileo Jr., all
surnamed Delima (one-fourth); and

4) The Heirs of Galileo Delima, namely Flaviana Vda. de Delima, Lily D. Arias, Helen Niadas
and Dionisio, Antonio, Eotu Irenea, and Fely, all surnamed Delima (one-fourth).

Transfer Certificate of Title No. 3009 is declared null and void and the Register of Deeds of
Cebu is ordered to cancel the same and issue in lieu thereof another title with the above
heirs as pro-indiviso owners.
 After the payment of taxes paid by Galileo Delima since 1958, the heirs of Galileo Delima are
ordered to turn a over to the other heirs their respective shares of the fruits of the lot in
question computed at P170.00 per year up to the present time with legal (interest).

Within sixty (60) days from receipt of this decision the parties are ordered to petition the lot in
question and the defendants are directed to immediately turn over possession of the shares
here awarded to the respective heirs.

Defendants are condemned to pay the costs of the suit.

The counterclaim is dismissed.

SO ORDERED. (pp. 54-55, Rollo)

Not satisfied with the decision, respondents appealed to the Court of Appeals. On May 19, 1977,
respondent appellate court reversed the trial court's decision and upheld the claim of Galileo Delima
that all the other brothers and sister of Lino Delima, namely Eulalio, Juanita and Vicente, had
already relinquished and waived their rights to the property in his favor, considering that he (Galileo
Delima) alone paid the remaining balance of the purchase price of the lot and the realty taxes
thereon (p. 26, Rollo).

Hence, this petition was filed with the petitioners alleging that the Court of Appeals erred:

1) In not holding that the right of a co-heir to demand partition of inheritance is

imprescriptible. If it does, the defenses of prescription and laches have already been waived.

2) In disregarding the evidence of the petitioners.(p.13, Rollo)

The issue to be resolved in the instant case is whether or not petitioners' action for partition is
already barred by the statutory period provided by law which shall enable Galileo Delima to perfect
his claim of ownership by acquisitive prescription to the exclusion of petitioners from their shares in
the disputed property. Article 494 of the Civil Code expressly provides:

Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may
demand at any time the partition of the thing owned in common, insofar as his share is
concerned.

Nevertheless, an agreement to keep the thing undivided for a certain period of time, not
exceeding ten years, shall be valid. This term may be extended by a new agreement.

A donor or testator may prohibit partition for a period which shall not exceed twenty years.

Neither shall there be any partition when it is prohibited by law.

No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs
so long as he expressly or impliedly recognizes the co-ownership.

As a rule, possession by a co-owner will not be presumed to be adverse to the others, but will be
held to benefit all. It is understood that the co-owner or co-heir who is in possession of an
inheritance pro-indiviso for himself and in representation of his co-owners or co-heirs, if, as such
owner, he administers or takes care of the rest thereof with the obligation of delivering it to his co-
owners or co-heirs, is under the same situation as a depository, a lessee or a trustee (Bargayo v.
Camumot, 40 Phil, 857; Segura v. Segura, No. L-29320, September 19, 1988, 165 SCRA 368).
Thus, an action to compel partition may be filed at any time by any of the co-owners against the
actual possessor. In other words, no prescription shall run in favor of a co-owner against his co-
owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership (Del Blanco v.
Intermediate Appellate Court, No. 72694, December 1, 1987, 156 SCRA 55).

However, from the moment one of the co-owners claims that he is the absolute and exclusive owner
of the properties and denies the others any share therein, the question involved is no longer one of
partition but of ownership (De Castro v. Echarri, 20 Phil. 23; Bargayo v. Camumot, supra; De los
Santos v. Santa Teresa, 44 Phil. 811). In such case, the imprescriptibility of the action for partition
can no longer be invoked or applied when one of the co-owners has adversely possessed the
property as exclusive owner for a period sufficient to vest ownership by prescription.

It is settled that possession by a co-owner or co-heir is that of a trustee. In order that such
possession is considered adverse to the cestui que trust amounting to a repudiation of the co-
ownership, the following elements must concur: 1) that the trustee has performed unequivocal acts
amounting to an ouster of the cestui que trust; 2) that such positive acts of repudiation had been
made known to the cestui que trust; and 3) that the evidence thereon should be clear and conclusive
(Valdez v. Olorga, No. L-22571, May 25, 1973, 51 SCRA 71; Pangan v. Court of Appeals, No. L-
39299, October 18, 1988, 166 SCRA 375).

We have held that when a co-owner of the property in question executed a deed of partition and on
the strength thereof obtained the cancellation of the title in the name of their predecessor and the
issuance of a new one wherein he appears as the new owner of the property, thereby in effect
denying or repudiating the ownership of the other co-owners over their shares, the statute of
limitations started to run for the purposes of the action instituted by the latter seeking a declaration of
the existence of the co-ownership and of their rights thereunder (Castillo v. Court of Appeals, No. L-
18046, March 31, 1964, 10 SCRA 549). Since an action for reconveyance of land based on implied
or constructive trust prescribes after ten (10) years, it is from the date of the issuance of such title
that the effective assertion of adverse title for purposes of the statute of limitations is counted
(Jaramil v. Court of Appeals, No. L-31858, August 31, 1977, 78 SCRA 420).

Evidence shows that TCT No. 2744 in the name of the legal heirs of Lino Delima, represented by
Galileo Delima, was cancelled by virtue of an affidavit executed by Galileo Delima and that on
February 4, 1954, Galileo Delima obtained the issuance of a new title in Ms name numbered TCT
No. 3009 to the exclusion of his co-heirs. The issuance of this new title constituted an open and
clear repudiation of the trust or co-ownership, and the lapse of ten (10) years of adverse possession
by Galileo Delima from February 4, 1954 was sufficient to vest title in him by prescription. As the
certificate of title was notice to the whole world of his exclusive title to the land, such rejection was
binding on the other heirs and started as against them the period of prescription. Hence, when
petitioners filed their action for reconveyance and/or to compel partition on February 29, 1968, such
action was already barred by prescription. Whatever claims the other co-heirs could have validly
asserted before can no longer be invoked by them at this time.

ACCORDINGLY, the petition is hereby DENIED and the assailed decision of the Court of Appeals
dated May 19, 1977 is AFFIRMED.

SO ORDERED.

G.R. No. L-57062 January 24, 1992

MARIA DEL ROSARIO MARIATEGUI, ET AL., petitioners,

vs.
HON. COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN MARIATEGUI and PAULINA
MARIATEGUI, respondents.

Montesa, Albon & Associates for petitioners.

Parmenio B. Patacsil, Patacsil Twins Law Office for the heirs of the late Maria del Rosario
Mariategui.

Tinga, Fuentes & Tagle Firm for private respondents.

BIDIN, J.:

This is a petition for review on certiorari of the decision * of the Court of Appeals dated December
24, 1980 in CA-G.R. No. 61841, entitled "Jacinto Mariategui, et al. v. Maria del Rosario Mariategui,
et al.," reversing the judgment of the then Court of First Instance of Rizal, Branch VIII ** at Pasig, Metro
Manila.

The undisputed facts are as follows:

Lupo Mariategui died without a will on June 26, 1953 (Brief for respondents, Rollo, pp. 116; 8).
During his lifetime, Lupo Mariategui contracted three (3) marriages. With his first wife, Eusebia
Montellano, who died on November 8, 1904, he begot four (4) children, namely: Baldomera, Maria
del Rosario, Urbana and Ireneo. Baldomera died and was survived by her children named Antero,
Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed Espina. Ireneo also died and
left a son named Ruperto. With his second wife, Flaviana Montellano, he begot a daughter named
Cresenciana who was born on May 8, 1910 (Rollo, Annex "A", p. 36).

Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married sometime in 1930. They had
three children, namely: Jacinto, born on July 3, 1929, Julian, born on February 16, 1931 and
Paulina, born on April 19, 1938. Felipa Velasco Mariategui died in 1941 (Rollo, Ibid).

At the time of his death, Lupo Mariategui left certain properties which he acquired when he was still
unmarried (Brief for respondents, Rollo, pp. 116; 4). These properties are described in the complaint
as Lots Nos. 163, 66, 1346 and 156 of the Muntinglupa Estate (Rollo, Annex "A", p. 39).

On December 2, 1967, Lupo's descendants by his first and second marriages, namely, Maria del
Rosario, Urbana, Ruperto, Cresencia, all surnamed Mariategui and Antero, Rufina, Catalino, Maria,
Gerardo, Virginia and Federico, all surnamed Espina, executed a deed of extrajudicial partition
whereby they adjudicated unto themselves Lot No. 163 of the Muntinglupa Estate. Thereafter, Lot
No. 163 was the subject of a voluntary registration proceedings filed by the adjudicatees under Act
No. 496, and the land registration court issued a decree ordering the registration of the lot. Thus, on
April 1, 1971, OCT No. 8828 was issued in the name of the above-mentioned heirs. Subsequently,
the registered owners caused the subdivision of the said lot into Lots Nos. 163-A to 163-H, for which
separate transfer certificates of title were issued to the respective parties (Rollo, ibid).

On April 23, 1973, Lupo's children by his third marriage with Felipa Velasco (Jacinto, Julian and
Paulina) filed with the lower court an amended complaint claiming that Lot No. 163 together with
Lots Nos. 669, 1346 and 154 were owned by their common father, Lupo Mariategui, and that, with
the adjudication of Lot No. 163 to their co-heirs, they (children of the third marriage) were deprived of
their respective shares in the lots. Plaintiffs pray for partition of the estate of their deceased father
and annulment of the deed of extrajudicial partition dated December 2, 1967 (Petition, Rollo, p. 10).
Cresencia Mariategui Abas, Flaviana Mariategui Cabrera and Isabel Santos were impleaded in the
complaint as unwilling defendants as they would not like to join the suit as plaintiffs although they
acknowledged the status and rights of the plaintiffs and agreed to the partition of the parcels of land
as well as the accounting of their fruits (Ibid., Rollo, p. 8; Record on Appeal, p. 4).

The defendants (now petitioners) filed an answer with counterclaim (Amended Record on Appeal, p.
13). Thereafter, they filed a motion to dismiss on the grounds of lack of cause of action and
prescription. They specifically contended that the complaint was one for recognition of natural
children. On August 14, 1974, the motion to dismiss was denied by the trial court, in an order the
dispositive portion of which reads:

It is therefore the opinion of the Court that Articles 278 and 285 of the Civil Code
cited by counsel for the defendants are of erroneous application to this case. The
motion to dismiss is therefore denied for lack of merit.

SO ORDERED. (Ibid, p. 37).

However, on February 16, 1977, the complaint as well as petitioners' counterclaim were dismissed
by the trial court, in its decision stating thus:

The plaintiffs' right to inherit depends upon the acknowledgment or recognition of

their continuous enjoyment and possession of status of children of their supposed
father. The evidence fails to sustain either premise, and it is clear that this action
cannot be sustained. (Ibid, Rollo, pp. 67-68)

The plaintiffs elevated the case to the Court of Appeals on the ground that the trial court committed
an error ". . . in not finding that the parents of the appellants, Lupo Mariategui and Felipa Velasco
(were) lawfully married, and in holding (that) they (appellants) are not legitimate children of their said
parents, thereby divesting them of their inheritance . . . " (Rollo, pp. 14-15).

On December 24, 1980, the Court of Appeals rendered a decision declaring all the children and
descendants of Lupo Mariategui, including appellants Jacinto, Julian and Paulina (children of the
third marriage) as entitled to equal shares in the estate of Lupo Mariategui; directing the
adjudicatees in the extrajudicial partition of real properties who eventually acquired transfer
certificates of title thereto, to execute deeds of reconveyance in favor, and for the shares, of Jacinto,
Julian and Paulina provided rights of innocent third persons are not prejudiced otherwise the said
adjudicatees shall reimburse the said heirs the fair market value of their shares; and directing all the
parties to submit to the lower court a project of partition in the net estate of Lupo Mariategui after
payment of taxes, other government charges and outstanding legal obligations.

The defendants-appellees filed a motion for reconsideration of said decision but it was denied for
lack of merit. Hence, this petition which was given due course by the court on December 7, 1981.
The petitioners submit to the Court the following issues: (a) whether or not prescription barred
private respondents' right to demand the partition of the estate of Lupo Mariategui, and (b) whether
or not the private respondents, who belatedly filed the action for recognition, were able to prove their
successional rights over said estate. The resolution of these issues hinges, however, on the
resolution of the preliminary matter, i.e., the nature of the complaint filed by the private respondents.

The complaint alleged, among other things, that "plaintiffs are the children of the deceased spouses
Lupo Mariategui . . . and Felipa Velasco"; that "during his lifetime, Lupo Mariategui had repeatedly
acknowledged and confirmed plaintiffs as his children and the latter, in turn, have continuously
enjoyed such status since their birth"; and "on the basis of their relationship to the deceased Lupo
Mariategui and in accordance with the law on intestate succession, plaintiffs are entitled to inherit
shares in the foregoing estate (Record on Appeal, pp. 5 & 6). It prayed, among others, that plaintiffs
be declared as children and heirs of Lupo Mariategui and adjudication in favor of plaintiffs their lawful
shares in the estate of the decedent (Ibid, p. 10).

A perusal of the entire allegations of the complaint, however, shows that the action is principally one
of partition. The allegation with respect to the status of the private respondents was raised only
collaterally to assert their rights in the estate of the deceased. Hence, the Court of Appeals correctly
adopted the settled rule that the nature of an action filed in court is determined by the facts alleged in
the complaint constituting the cause of action (Republic vs. Estenzo, 158 SCRA 282 [1988]).

It has been held that, if the relief demanded is not the proper one which may be granted under the
law, it does not characterize or determine the nature of plaintiffs' action, and the relief to which
plaintiff is entitled based on the facts alleged by him in his complaint, although it is not the relief
demanded, is what determines the nature of the action (1 Moran, p. 127, 1979 ed., citing Baguioro
vs. Barrios, et al., 77 Phil. 120).

With respect to the legal basis of private respondents' demand for partition of the estate of Lupo
Mariategui, the Court of Appeals aptly held that the private respondents are legitimate children of the
deceased.

Lupo Mariategui and Felipa Velasco were alleged to have been lawfully married in or about 1930.
This fact is based on the declaration communicated by Lupo Mariategui to Jacinto who testified that
"when (his) father was still living, he was able to mention to (him) that he and (his) mother were able
to get married before a Justice of the Peace of Taguig, Rizal." The spouses deported themselves as
husband and wife, and were known in the community to be such. Although no marriage certificate
was introduced to this effect, no evidence was likewise offered to controvert these facts. Moreover,
the mere fact that no record of the marriage exists does not invalidate the marriage, provided all
requisites for its validity are present (People vs. Borromeo, 133 SCRA 106 [1984]).

Under these circumstances, a marriage may be presumed to have taken place between Lupo and
Felipa. The laws presume that a man and a woman, deporting themselves as husband and wife,
have entered into a lawful contract of marriage; that a child born in lawful wedlock, there being no
divorce, absolute or from bed and board is legitimate; and that things have happened according to
the ordinary course of nature and the ordinary habits of life (Section 5 (z), (bb), (cc), Rule 131, Rules
of Court; Corpus v. Corpus, 85 SCRA 567 [1978]; Saurnaba v. Workmen's Compensation, 85 SCRA
502 [1978]; Alavado v. City Gov't. of Tacloban, 139 SCRA 230 [1985]; Reyes v. Court of Appeals,
135 SCRA 439 [1985]).

Courts look upon the presumption of marriage with great favor as it is founded on the following
rationale:

The basis of human society throughout the civilized world is that of marriage.
Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an
institution in the maintenance of which the public is deeply interested. Consequently,
every intendment of the law leans toward legalizing matrimony. Persons dwelling
together in apparent matrimony are presumed, in the absence of any
counterpresumption or evidence special to that case, to be in fact married. The
reason is that such is the common order of society and if the parties were not what
they thus hold themselves out as being, they would be living in the constant violation
of decency and of
law . . . (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56 [1922] quoted in Alavado vs.
City Government of Tacloban, 139 SCRA 230 [1985]).

So much so that once a man and a woman have lived as husband and wife and such relationship is
not denied nor contradicted, the presumption of their being married must be admitted as a fact
(Alavado v. City Gov't. of Tacloban, supra).
The Civil Code provides for the manner under which legitimate filiation may be proven. However,
considering the effectivity of the Family Code of the Philippines, the case at bar must be decided
under a new if not entirely dissimilar set of rules because the parties have been overtaken by events,
to use the popular phrase (Uyguangco vs. Court of Appeals, G.R. No. 76873, October 26, 1989).
Thus, under Title VI of the Family Code, there are only two classes of children — legitimate and
illegitimate. The fine distinctions among various types of illegitimate children have been eliminated
(Castro vs. Court of Appeals, 173 SCRA 656 [1989]).

Article 172 of the said Code provides that the filiation of legitimate children may be established by
the record of birth appearing in the civil register or a final judgment or by the open and continuous
possession of the status of a legitimate child.

Evidence on record proves the legitimate filiation of the private respondents. Jacinto's birth certificate
is a record of birth referred to in the said article. Again, no evidence which tends to disprove facts
contained therein was adduced before the lower court. In the case of the two other private
respondents, Julian and Paulina, they may not have presented in evidence any of the documents
required by Article 172 but they continuously enjoyed the status of children of Lupo Mariategui in the
same manner as their brother Jacinto.

While the trial court found Jacinto's testimonies to be inconsequential and lacking in substance as to
certain dates and names of relatives with whom their family resided, these are but minor details. The
nagging fact is that for a considerable length of time and despite the death of Felipa in 1941, the
private respondents and Lupo lived together until Lupo's death in 1953. It should be noted that even
the trial court mentioned in its decision the admission made in the affidavit of Cresenciana
Mariategui Abas, one of the petitioners herein, that " . . . Jacinto, Julian and Paulina Mariategui ay
pawang mga kapatid ko sa
ama . . ." (Exh. M, Record on Appeal, pp. 65-66).

In view of the foregoing, there can be no other conclusion than that private respondents are
legitimate children and heirs of Lupo Mariategui and therefore, the time limitation prescribed in
Article 285 for filing an action for recognition is inapplicable to this case. Corollarily, prescription does
not run against private respondents with respect to the filing of the action for partition so long as the
heirs for whose benefit prescription is invoked, have not expressly or impliedly repudiated the co-
ownership. In other words, prescription of an action for partition does not lie except when the co-
ownership is properly repudiated by the co-owner (Del Banco vs. Intermediate Appellate Court, 156
SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]).

Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-owners
absent a clear repudiation of co-ownership duly communicated to the other co-owners (Mariano vs.
De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand partition is imprescriptible and
cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 [1987]). On the other hand, an action
for partition may be seen to be at once an action for declaration of co-ownership and for segregation
and conveyance of a determinate portion of the property involved (Roque vs. IAC, 165 SCRA 118
[1988]).

Petitioners contend that they have repudiated the co-ownership when they executed the extrajudicial
partition excluding the private respondents and registered the properties in their own names
(Petition, p. 16; Rollo, p. 20). However, no valid repudiation was made by petitioners to the prejudice
of private respondents. Assuming petitioners' registration of the subject lot in 1971 was an act of
repudiation of the co-ownership, prescription had not yet set in when private respondents filed in
1973 the present action for partition (Ceniza vs. C.A., 181 SCRA 552 [1990]).

In their complaint, private respondents averred that in spite of their demands, petitioners, except the
unwilling defendants in the lower court, failed and refused to acknowledge and convey their lawful
shares in the estate of their father (Record on Appeal, p. 6). This allegation, though denied by the
petitioners in their answer (Ibid, p. 14), was never successfully refuted by them. Put differently, in
spite of petitioners' undisputed knowledge of their relationship to private respondents who are
therefore their co-heirs, petitioners fraudulently withheld private respondent's share in the estate of
Lupo Mariategui. According to respondent Jacinto, since 1962, he had been inquiring from petitioner
Maria del Rosario about their (respondents) share in the property left by their deceased father and
had been assured by the latter (Maria del Rosario) not to worry because they will get some shares.
As a matter of fact, sometime in 1969, Jacinto constructed a house where he now resides on Lot No.
163 without any complaint from petitioners.

Petitioners' registration of the properties in their names in 1971 did not operate as a valid repudiation
of the co-ownership. In Adille vs. Court of Appeals (157 SCRA 455, 461-462 [1988]), the Court held:

Prescription, as a mode of terminating a relation of co-ownership, must have been

preceded by repudiation (of the co-ownership). The act of repudiation, in turn, is
subject to certain conditions: (1) a co-owner repudiates the co-ownership; (2) such
 an act of repudiation is clearly made known to the other co-owners; (3) the evidence
thereon is clear and conclusive; and (4) he has been in possession through open,
continuous, exclusive, and notorious possession of the property for the period
required by law.

xxx xxx xxx

It is true that registration under the Torrens system is constructive notice of title, but it
has likewise been our holding that the Torrens title does not furnish shield for fraud. It
is therefore no argument to say that the act of registration is equivalent to notice of
repudiation, assuming there was one, notwithstanding the long-standing rule that
registration operates as a universal notice of title.

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

WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals dated
December 24, 1980 is Affirmed.

SO ORDERED.

G.R. No. 109910 April 5, 1995

REMEDIOS G. SALVADOR and GRACIA G. SALVADOR, petitioners,

vs.
COURT OF APPEALS, ALBERTO and ELPIA YABO, FRANCISCA YABO, et al., respondents.

DAVIDE, JR., J.:

Assailed in this petition is the legal determination made by the Court of Appeals on the issues of
which portion of Lot No. 6080 and Lot No. 6180 formed part of the conjugal assets of the spouses
Pastor Makibalo and Maria Yabo, and of whether or not the rights of Pastor's co-heirs in the estate of
Maria Yabo were extinguished through prescription or laches.

Alipio Yabo was the owner of Lot No. 6080 and Lot No. 6180 situated in Barrio Bulua, Cagayan de
Oro City, containing an area of 1,267 and 3,816 square meters, respectively. Title thereto devolved
upon his nine children, namely, Victoriano, Procopio, Lope, Jose, Pelagia, Baseliza, Francisca,
Maria, and Gaudencia, upon his death sometime before or during the second world war.

On 28 April 1976, Pastor Makibalo, who is the husband of Maria Yabo, one of Alipio's children, filed
with the then Court of First Instance of Misamis Oriental a complaint, docketed as Civil Case No.
5000, against the spouses Alberto and Elpia Yabo for "Quieting of Title, Annulment of Documents,
and Damages." In the complaint, he alleged that he owned a total of eight shares of the subject lots,
having purchased the shares of seven of Alipio's children and inherited the share of his wife, Maria,
and that except for the portion corresponding to Gaudencia's share which he did not buy, he
occupied, cultivated, and possessed continuously, openly, peacefully, and exclusively the two
parcels of land. He then prayed that he be declared the absolute owner of 8/9 of the lots in question.1

On 8 October 1976, the grandchildren and great-grandchildren of the late Alipio Yabo2 lodged with
the same court a complaint for partition and quieting of title with damages,3 docketed as Civil Case
No. 5174, against Pastor Makibalo, Enecia Cristal, and the spouses Eulogio and Remedies
Salvador. They alleged that Lot No. 6080 and Lot No. 6180 are the common property of the heirs of
Alipio Yabo, namely, the plaintiffs, defendant Enecia Cristal, Maria Yabo and Jose Yabo, whose
share had been sold to Alberto Yabo; that after Alipio's death, the spouses Pastor and Maria
Makibalo, Enecia Cristal and Jose Yabo became the de facto administrators of the said properties;
and that much to their surprise, they discovered that the Salvador spouses, who were strangers to
the family, have been harvesting coconuts from the lots, which act as a cloud on the plaintiffs' title
over the lots.
The plaintiffs then prayed that (a) they, as well as defendant Pastor Makibalo, in representation of
his wife, and Enecia Cristal, in representation of Gaudencia, be declared as the owners of the lots;
(b) the Salvador spouses be declared as having no rights thereto except as possible assignees of
their co-defendants, Pastor Makibalo and Enecia Cristal; (c) the lots be partitioned according to law
among the aforementioned co-owners; and (d) the defendants be made to pay for the value of the
fruits they harvested from the lots and for moral and exemplary damages, attorney's fees, expenses
of the litigation, and costs of the suit.

The two cases were consolidated and jointly heard by Branch 5 of the Court of First Instance of
Cagayan de Oro City.

By evidence, Pastor, Makibalo sought to prove the following allegations:

He was married to Maria Yabo who died on 17 March 1962.4 In August 1949, Jose and Victoriano,
both surnamed Yabo, sold their respective shares in the disputed lots to one Pedro Ebarat, and in
1952 the latter sold both shares to Pastor Makibalo.5 Ebarat formalized this conveyance by executing
an Affidavit of Waiver and Quitclaim dated 30 May 1969 in favor of Pastor. 6

On 16 January 1951, the heirs of the late Lope Yabo sold Lope's shares in the litigated properties to
one Dominador Canomon,7 who, in turn, sold the same to Pastor.8 Canomon afterwards executed an
Affidavit of Waiver and Quitclaim in favor of the latter.9

Pastor Makibalo likewise purchased the shares of Baseliza in the two lots in 1942, of Procopio in
1957, of Francisca in 1958, and of Pelagia in 1967. The only share he did not buy was that of
Gaudencia. After every purchase, he took possession of the portions bought and harvested the
products thereof.10

In 1966, Pastor sold back to Alberto a portion of Lot No. 6180 which was formerly the share of
Alberto's father, Procopio. 11

In December 1968, Pastor mortgaged the two lots to the spouses Eulogio and Remedios
Salvador. 12 On 26 September 1978, he executed a document denominated as a "Confirmation and
Quitclaim" whereby he waived all his rights, interests, and participation in the lots in favor of the
Salvador spouses. 13

On the other hand, by their evidence, l4 the spouses Alberto and Elpia Yabo tried to prove that they had repurchased from
Pastor Makibalo the share of Procopio, which was previously sold to Pastor, and had bought the shares of Jose and Maria. 15

Filoteo Yabo denied having sold the share of his father, Lope Yabo, in the contested lots and
disowned his signature and those of his mother, brothers, and sisters appearing at the back of
Exhibit "C". 16

Ignacio Yabo testified that his father, Victoriano Yabo, did not know how to write and sign his name.
He further declared that he had no knowledge that his father affixed his thumbmark in the document
marked as Exhibit "A" purporting to alienate his father's share in the disputed lots. l7

On 15 January 1983, the trial court rendered its decision 18 holding as follows:

Assuming that the thumbmark on the typewritten name "Jose Yabo" in Exh. 3 was
that of Jose Yabo, Alberto Yabo and Elpia R. Yabo purchased the share of Jose
Yabo in bad faith because they knew before and up to the execution of Exh. 3 on
October 24, 1972 that Jose Yabo was no longer the owner of that area because from
the documents she borrowed from Mrs. Salvador they came to know that Jose Yabo
had sold his shares to Pedro Ebarat, and they have seen that Pastor Makibalo has
been in possession of those shares together with the seven others exclusively as
owner, he having mortgaged them to Mrs. Salvador.

As Jose Yabo was no longer the owner of the one-ninth (1/9) shares which he sold to
Alberto Yabo and Elpia Yabo under Exh. 3, the sale is null and void, and Alberto and
Elpia acquired nothing because Jose Yabo had no more title, right or interest to
dispose of.

...

Pastor Makibalo had been in possession of Jose Yabo's share since 1949 after
purchasing it from Ebarat, and has been in possession thereof up to September 26,
1978 when he sold it to the spouses Eulogio Salvador and Remedios Salvador, who
are now in possession of the same.
Exh. A, evidencing the sale of Victoriano Yabo's share to Pedro Ebarat was identified
by the latter who testified that he sold it to Pastor Makibalo in 1951. Exh. A is an
ancient document — 1949 when the document came to existence up to now is more
than 30 years, and the document had been in the possession of Pastor Makibalo,
then Remedios Salvador who had interest in its preservation.

As regards the shares of Lope Yabo, the same had been sold by his surviving
spouse Juana Legaspi, and his children Filoteo, Andresa, Jovita, Bonifacio, and
Rundino for P105.00 on January 16, 1951 to Dominador Conomon (Exh. C and C-1),
who in turn sold it to Pastor Makibalo in 1952, executing a formal Deed of Waiver
and Quitclaim on May 30, 1969
(Exh. D).

Exh. C is an ancient document, being more than 30 years old and has been in the
possession of Pastor Makibalo and then the spouses Eulogio and Remedios
Salvador — who had an interest in its preservation. The claim of Filoteo Yabo that
the signatures appearing in Exh. C are not his and those of his brothers and sisters
are of no avail, for if they were not the ones who affixed those signatures and so they
did not sell the shares of their father Lope Yabo, why did they not then take
possession of said shares — they remained silent from 1951 to September 16, 1976
a period of 25 years. They are now [e]stopped by laches.

And as regards the shares of Baseliza, Francisca and Pelagia, there is no evidence
presented to effectively rebut the testimony of Pastor Makibalo that he acquired the
shares of Baseliza Yabo in 1942 by changing it with a buffalo; that he bought the
shares of Francisca Yabo in 1958 and that he bought the shares of Pelagia Yabo in
1967; Pastor Makibalo had been in possession of these shares from the time he
acquired them, continuously, adversely, openly, and peacefully, as owner up to the
time he sold his rights and interest therein to the spouses Eulogio and Remedies
Salvador. The heirs of Baseliza, Francisca and Pelagia have not taken any step to
protect their rights over those shares for over 40 years in the case of Baseliza's
share, for about 20 years in the case of Francisca's share, and for more than 10
years in the case of Pelagia's share. Laches, likewise has rendered their rights stale.

On March 10, 1966 Pastor Makibalo sold back to Alberto Yabo the share of Procopio
Yabo in Lot 6180 (Exh. 1 and 2), but there is nothing to show that. Pastor Makibalo
also sold back Procopio's share in Lot 6080.

So then, by purchase, Pastor Makibalo and Maria Yabo acquired the shares of
Baseliza, Victoriano, Jose, Lope, Procopio and Francisca, or six (6) shares from Lots
6080 and 6180. These belonged to the conjugal partnership of Pastor Makibalo and
Maria Yabo. Maria Yabo had also a share from Lots 6080 and 6180, and Pastor
Makibalo acquired the shares of Pelagia Yabo in both Lots 6080 and 6180. All in all;
Pastor Makibalo acquired eight shares in both Lot 6080 and 6180.

While Maria Yabo died on March 17, 1962, and so one-fourth (1/4) of the shares of
Baseliza, Victoriano, Jose, Lope, and Francisca, or one-fourth of five-ninth (5/9) of
both lots and one-fourth (1/4) of Lot 6080 should go to the children of the brothers
and sisters of Maria Yabo by virtue of the provisions of Article 1001 of the New Civil
Code, the latter have lost their rights thereto by laches for their inaction for a very
long period and their rights have become stale. On the other hand, Pastor Makibalo
who had been in possession of the whole of the eight shares in both Lots 6080 and
6180, enjoying the fruits thereof exclusively, uninterruptedly, publicly, peacefully, and
continuously from the death of Maria Yabo up to the filing of the complaint in Civil
Case No. 5174 on October 8, 1976, or a period of 14 years, had acquired title to the
whole of the eight shares in Lot 6080 and seven shares in Lot 6180 (the share of
Procopio in Lot 6180 had been sold back to Alberto Yabo).

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered finding Pastor

Makibalo, now Eulogio Salvador and Remedios Salvador the owner of eight (8)
shares, equivalent to eight-ninth (8/9) of Lot No. 6080, and of seven (7) shares,
equivalent to seven-ninth (7/9) of Lot No. 6180, and therefore, ordering the partition
of Lot 6080 so that the one-ninth (1/9) alloted to Gaudencia Yabo will go to her heirs
or their assigns, and the remaining eight-ninth (8/9) will go to the spouses Eulogio
Salvador and Remedios Salvador, as successor of Pastor Makibalo, and the partition
of Lot 6180 so that the seven-ninth (7/9) portion which formerly belonged to Baseliza,
Victoriano, Jose, Lope, Maria, Francisca, and Pelagia will go to the spouses Eulogio
and Remedios Salvador, the one-ninth (1/9) which formerly belonged to Procopio,
will go to Alberto Yabo, and the remaining one-ninth (1/9) which formerly belonged to
Gaudencia, will go to Gaudencia's heirs or their assigns.
 Doc. No. 720, recorded on page 28 of Notarial Register No. VII, and acknowledged
before Notary Public Isidro S. Baculio (Exh. E) [purportedly executed by Maria Yabo
and Pastor Makibalo] is hereby declared null and void, and so the Office of the City
Fiscal is directed to cause an investigation of this matter to find out the person or
persons responsible for the falsification of the said document, and if the evidence
warrants, to file the corresponding criminal action in court. The Office of the City
Assessor of Cagayan de Oro City is, likewise, directed to cause the cancellation of
Tax Declarations Nos. 33553, marked as Exh. H-3, 33557, marked as Exh. H-2, both
in the name of Alberto Yabo, for having been issued on the basis of a falsified
document. Let copies of this decision be furnished the Offices of the City Fiscal and
City Assessor, both of Cagayan de Oro City.

No pronouncement as to damages, attorney's fees and costs.

SO ORDERED. 19

The defendants in Civil Case No. 5000 and the plaintiffs in Civil Case No. 5174 appealed from the
decision to the Court of Appeals on 19 August 1983. 20

In its decision of 3 February 1993, 21 the Court of Appeals held that (a) Maria Yabo did not sell her
share to Alberto and Elpia Yabo; (b) prescription and laches have not run against the private
respondents with respect to the 1/9 share of Maria Yabo in the estate of her father and to her
conjugal share in the portions acquired from her brothers and sisters; and (c) Procopio never sold
his share in Lot No. 6080 to Pastor Makibalo. More specifically it stated:

Exh. E is the document found by the lower court to be a falsification. This finding
appellants do not dispute and have not raised an error.

...

While acknowledging. that upon the death of Maria Yabo on March 17, 1962, one-
half (1/2) of the share of Maria Yabo in Lots 6080 and 6180 and one-half (1/2) of
Maria Yabo's conjugal share in the portions bought from Basiliza, Victoriano, Jose,
Lope, Pelagia and Francisca should go to the children of the brothers and sisters of
Maria in accordance with Article 1001 of the Civil Code, the lower court rule that said
children have lost their rights by laches "for their inaction for a very long period and
their rights have become stale" (Decision, p. 16; Record, Vol. 2, p. 158).

Appellants in their second assignment of error aver that this is an error.

We agree that the lower court erred.

While between March 17, 1962 when Maria Yabo died and October 8, 1976, when
Civil Case No. 5174 for partition was filed, was a period of more than fourteen (14)
years, that alone to our mind would not suffice to establish laches or prescription.
Upon the death of Maria Yabo, appellee Pastor Makibalo and appellants and the
other children of the brothers and sisters of Maria, by operation of law become co-
owners of the one-ninth (1/9) share of Maria as heir of her father Alipio and the
conjugal share of Maria in the portions acquired from Basiliza, Victoriano, Jose,
Lope, Pelagia and Francisca. Time alone is not a decisive factor. Appellee Pastor
Makibalo, it must be remembered, is the husband of Maria and, therefore, an uncle
in-law of appellants. In our culture, a demand by an heir or heirs for partition
immediately upon the death of a relative is more often taken not as a legitimate
assertion of a right but of something else, like greed. It must also be noted that the
spouses, the appellee Pastor Makibalo and his deceased wife Maria, were childless
and, therefore, appellants and the other children of the brothers and sisters of Maria
must have felt that at any rate the property would go to them in the course of time.
This probably explains why appellants started asserting their right over the property
only after appellee Pastor Makibalo sold the same to the spouses Eulogio and
Remedios Salvador. Besides, Lots 6080 and 6180 have a combined area only of
5,083 square meters and before the development of Northern Mindanao, and even in
1962 when Maria Yabo died, were not that valuable. This is shown by the fact that
each heir sold his other share only for P110.00.

As we have said not time alone. In the early case of Cortes v. Oliva, 33 Phil. 480, it
was held that"(o)rdinarily, possession by one joint owner will not be presumed to be
adverse to the others, but will, as a rule, be held to be for the benefit of all. Much
stronger evidence is required to show an adverse holding by one of several joint
owners than by a stranger; and in such cases, to sustain a plea of prescription, it
 must always clearly appear that one who was originally a joint owner has repudiated
the claims of his co-owners, and that his co-owners were apprised or should have
been apprised of his claim of adverse and exclusive ownership before the alleged
prescription began to run (at page 484). This ruling on prescription should apply with
equal force to laches.

The third assignment of error challenges the finding of the lower court that "there is
nothing to show that Pastor Makibalo also sold back Procopio's share in Lot 6080"
(Decision, p. 16; Records, Vol. 2,p. 158).

Exhibits 1 and 2 cover only Procopio's share in Lot 6180. In other words, Exhibits 1
and. 2 conveyed back to Alberto Yabo only his father, Procopio's share in Lot 6180.

There is indeed no evidence that Pastor Makibalo also sold back to Alberto, his
father Procopio's share in Lot 6080.

But from the evidence it appears that Procopio Yabo never sold his share in Lot 6080
to Pastor Makibalo. So there was no need to convey back Procopio's share in Lot
6080.

This fact is evident from the Affidavit of Confirmation of Sale (Exh. M) dated April 22,
1970, executed by Alberto Yabo, which is the very document relied upon by the
lower court (Decision, p. 11; Record, Vol. 2, p. 153) in finding that "Alberto Yabo
admitted that the share of his father Procopio Yabo was previously bought by Pastor
Makibalo." A look at Exh. M, particularly par. 3 thereof, reveals that AlbertoYabo
merely acknowledged or confirmed the sale of his father's share to Pastor Makibalo
in Lot 6180. In effect, it at the same time proves that Lot 6080 was never sold by
Procopio to appellee Pastor Makibalo; otherwise, it would have been included in the
said Affidavit of Confirmation of Sale. The Deed of Absolute Sale (Exh. 2)
subsequently executed by Pastor Makibalo in favor of Alberto Yabo on April 23,
1970, further proves this point, since the latter merely bought back what was
previously sold, his father's share in Lot 6180.22

The respondent court then concluded and held as follows:

In summary, appellee Pastor Makibalo and his assigns, the spouses Eulogio and
Remedios Salvador, are entitled only to one-half (½) of the one-ninth (1/9) share of
Maria and three-fourths (3/4) of the six-ninth (6/9) shares acquired from Basiliza,
Victoriano, Jose, Lope, Pelagia and Francisca. Accordingly, the partition should be
done as follows:

(1) 1/9 of Lots 6080 end 6180 should be given to the heirs of
Gaudencia Yabo or their successors and assigns;

(2) 1/9 of Lot 6180 should go to Alberto Yabo and his wife Elpia
Yabo;

(3) 1/9 of Lot 6080 should be given to the heirs of Procopio Yabo and
their successors end assigns, including Alberto Yabo;

(4) The 1/9 share of Maria Yabo in Lots 6080 and 6180 should be
partitioned: One-half (1/2) for the surviving spouse Pastor Makibalo
(now the spouses Eulogio Salvador and Remedios Salvador) and the
other half for the children of the brothers and sisters of Maria Yabo in
equal shares.

(5) The remaining 6/9, one-half (1/2) of which is conjugal between

Maria Yabo and appellee Pastor Makibalo should be partitioned
three-fourths (3/4) for Pastor Makibalo (now the spouses Eulogio
Salvador and Remedios Salvador) and one-fourth (1/4) for the
children of the brothers and sisters of Maria Yabo in equal shares.

(6) Jose Yabo if he is still alive should participate in the partition as

heir of Maria otherwise he shall be represented by his children.

WHEREFORE, premises considered, subject to the modification in the partition, as

indicated above, the decision appealed from is AFFIRMED, without pronouncement
as to costs. The lower court is directed if necessary to fully effect the partition, to
 conduct further hearings and determine whether Jose Yabo is still alive and who are
the children of the brothers and sisters of Maria Yabo. 23

Unable to obtain a reconsideration of the said-decision, Remedios Salvador, together with her
daughter, Ma. Gracia Salvador, as one of the successors-in-interest of Eulogio M. Salvador who
died during the pendency of the appeal, 24 elevated the case to this Court contending that the
respondent court erred in ruling that: (1) the shares of Pelagia Yabo should be included in the
partition; (2) prescription and laches have not run against the private respondents in relation to the
1/9 share of Maria Yabo in the estate of her father and to her ½ conjugal share in those acquired by
purchase; (3) Procopio Yabo never sold to Pastor Makibalo his share in Lot No. 6080; and(4) Jose
Yabo should be allowed to participate as heir of Maria even as he had openly rejected this option by
refusing to participate in both civil cases. 25

Article 160 of the Civil Code provides that all property of the marriage is presumed to belong to the
conjugal partnership, unless it be proved that it pertains .exclusively to the husband or to the wife.
Since the shares of Jose, Victoriano, Lope, Baseliza, Procopio, and Francisca in Lot No. 6180 and
Lot No. 6080 had been purchased by Pastor during his marriage with Maria, and there is no proof
that these were acquired with his exclusive money, the same are deemed conjugal properties. Not
forming part of the conjugal partnership are: (1) the 1/9 share inherited by Maria which remained as
her exclusive property pursuant to Article 146 (2) of the Civil Code; (2) the 1/9 share of Gaudencia
which was not sold to Pastor; and (3) the 1/9 share of Pelagia which was acquired by Pastor in 1967
or five years after the death of his wife and which was therefore his exclusive property.

There is, thus; merit in the petitioners' first assigned error. The Court of .Appeals should have
excluded from the conjugal partnership the share of Pelagia which Pastor had acquired after his
wife's death.

Upon Maria's death in 1962, the conjugal partnership of gains was dissolved. 26 Half of the conjugal
properties, together with Maria's l/9 hereditary share in the disputed lots, constituted Maria's estate
and should thus go to her surviving heirs. 27 Under Article 1001 of the Civil Code, her heirs are her
spouse, Pastor Makibalo, who shall be entitled to-one-half (1/2) of her estate, her brother, Jose, and
the children of her other brothers and sisters, who shall inherit the other half. There having been no
actual partition of the estate yet, the said heirs became co-owners thereof by operation of law. 28

We now determine whether prescription and laches can be applied against the co-heirs of Pastor
Makibalo.

It has been said that Article 494 of the Civil Code which provides that each co-owner may demand at
any time the partition of the common property implies that an action to demand partition is
imprescriptible or cannot be barred by laches. 29 The imprescriptibility of the action cannot, however,
be invoked when one of the co-owners has possessed the property as exclusive owner and for a
period sufficient to acquire it by prescription. 30

What needs to be addressed first is whether or not Pastor Makibalo has acquired by prescription the
shares of his other co-heirs or co-owners. Prescription as a mode of acquiring ownership requires a
continuous, open, peaceful, public, and adverse possession for a period of time fixed by law.

This Court has held that the possession of a co-owner is like that of a trustee and shall not be
regarded as adverse to the other co-owners but in fact as beneficial to all of them. 31 Acts which may
be considered adverse to strangers may not be considered adverse insofar as co-owners are
concerned. A mere silent possession by a co-owner, his receipt of rents, fruits or profits from the
property, the erection of buildings and fences and the planting of trees thereon, and the payment of
land taxes, cannot serve as proof of exclusive ownership, if it is not borne out by clear and
convincing evidence that he exercised acts of possession which unequivocably constituted an ouster
or deprivation of the rights of the other co-owners. 32

Thus, in order that a co-owner's possession may be deemed adverse to the cestui que trust or the
other co-owners, the following elements must concur: (1) that he has performed unequivocal acts of
repudiation amounting to an ouster of the cestui que trust or the other co-owners; (2) that such
positive acts of repudiation have been made known to the cestui que trust or the other co-owners;
and (3) that the evidence thereon must be clear and convincing. 33

In Pangan vs. Court of Appeals, 34 this Court had occasion to lay down specific acts which are
considered as acts of repudiation:

Filing by a trustee of an action in court against the trustor to quiet title to property, or
for recovery of ownership thereof, held in possession by the former, may constitute
an act of repudiation of the trust reposed on him by the latter.
 The issuance of the certificate of title would constitute an open and clear repudiation
of any trust, and the lapse of more than 20 years, open and adverse possession as
owner would certainly suffice to vest title by prescription.

An action for the reconveyance of land based on implied or constructive trust

prescribes within 10 years. And it is from the date of the issuance of such title that
the effective assertion of adverse title for purposes of the statute of limitation is
counted.

The prescriptive period may only be counted from the time petitioners repudiated the
trust relation in 1955 upon the filing of the complaint for recovery of
possession against private respondents so that the counterclaim of the private
respondents contained in their amended answer wherein they asserted absolute
ownership of the disputed realty by reason of the continuous and adverse
possession of the same is well within the l0-year prescriptive period.

There is clear repudiation of a trust when one who is an apparent administrator of

property causes the cancellation of the title thereto in the name of the apparent
beneficiaries and gets a new certificate of title in his own name.

It is only when the defendants, alleged co-owners of the property in

question, executed a deed of partition and on the strength thereof obtained the
cancellation of the title in the name of their predecessor and the issuance of a new
one wherein they appear as the new owners of a definite area each, thereby in effect
denying or repudiating the ownership of one of the plaintiffs over his alleged share in
the entire lot, that the statute of limitations started to run for the purposes of the
action instituted by the latter seeking a declaration of the existence of the co-
ownership and of their rights thereunder.

The records do not show that Pastor Makibalo adjudicated to himself the whole estate of his wife by
means of an affidavit filed with the Office of the Register of Deeds as allowed under Section 1 Rule
74 of the Rules of Court, or that he caused the issuance of a certificate of title in his name or the
cancellation of the tax declaration in Alipio's name and the issuance of a new one in his own name.
The only act which may be deemed as a repudiation by Pastor of the co-ownership over the lots is
his filing on 28 April 1976 of an action to quiet title (Civil Case No. 5000). The period of prescription
started to run only from this repudiation. However, this was tolled when his co-heirs, the private
respondents herein, instituted on 8 October 1976 an action for partition (Civil Case No. 5174) of the
lots. Hence, the adverse possession by Pastor being for only about six months would not vest in him
exclusive ownership of his wife's estate, and absent acquisitive prescription of ownership, laches
and prescription of the action for partition will not lie in favor of Pastor. 35

The issue presented by the petitioners in their third assigned error involves a question of fact. This
Court is not ordinarily a trier of facts, its jurisdiction being limited to errors of law. Thus; the findings
of facts of the Court of Appeals are as a rule deemed conclusive. However, when the findings of
facts of the appellate court vary with those of the trial court, this Court has to review the evidence in
order to arrive at the correct findings. 36

In the instant case, a conflict in the findings of facts of the lower courts exists. The trial court found
that Pastor was the owner of Procopio's share in Lot No. 6080, as there was nothing to show that he
sold it back to Alberto Yabo. The respondent court on the other hand, held that Procopio Yabo never
sold his share in Lot No. 6080 to pastor, thus, there was no need to convey it back to Procopio's son,
Alberto.

At this juncture, it is worthy to quote pertinent portions of the testimony of Pastor Makibalo:

COURT: (To the witness.)

Q Where is AlbertoYabo living?

A It is there in their house at Bulua.

ATTY. JARAULA: (Continuing.)

Q In whose land?

A Alipio Yabo's land.

Q What relation has that land to the two (2) parcels of land under
litigation?
A I bought already.

Q So, will you please tell the Honorable Court, why Alberto Yabo is
staying on that land when you said you have bought that land
already.

A So, I sold back a portion to them because they requested me.

COURT: (To the witness.)

Q When was that when you said that Alberto Yabo requested a
portion?

A In 1967.

COURT:

Q Did you give that portion which they requested?

A Their share being inherited from their father Procopio was the
portion they requested.

COURT

Q Yes. Did you grant that?

A Yes.

Q That is the area you sold to Alberto Yabo, pursuant to his request?

A Because that was the land they inherited from their father that was
what they requested.

Q All right. So that, the area now being occupied by Alberto Yabo?

A Yes. That land in the Centro.

Q This is now identified as Lot No. 6180?

A Yes, Your Honor.

ATTY. JARAULA: (Continuing.)

Q Where did you sign a document ceding that portion requested by

Alberto Yabo?

A We did not make any receipt in favor of AlbertoYabo because they

got only the receipt of that of his father.

COURT: (To the witness.)

Q You mean to say, that the receipt which Procopio signed when he
sold his share for [sic] the document which Alberto got?

A Yes.

COURT:

All right.

ATTY. JARAULA (Continuing.)

Q Now, for how much did you buy. the shares of each of the brothers
and sisters of your wife?

A One Hundred Ten (P110.00) Pesos.

 Q When you sold back to Alberto Yabo, the portion corresponding to
the share of his father Procopio in the Poblacion, how much did he
pay you?

A The same.

Q By the same, you are referring by the same amount of One

Hundred Ten (P110.00) Pesos?

A Yes, Sir. The same amount. 37

The petitioners contend that the sales or conveyances made by Alipio's heirs were for their
consolidated shares in the two lots. If this was so, and the receipt which Procopio signed when he
sold his consolidated share to Pastor was turned over to Alberto, the inevitable conclusion is that
Alberto redeemed his father's share in both lots, not only in Lot: No. 6180. This conclusion is further
buttressed by the above-quoted testimony of Pastor that he bought the shares (consolidated) of
each of Alipio's heirs for P110.00 and that when he sold back to Alberto the former share of
Procopio, Alberto paid him the same amount of P110.00.

However, since the share of Procopio in the two litigated parcels of land was purchased by Pastor
during his marriage with Maria, the same became conjugal property, and half of it formed part of
Maria's estate upon her death in 1962. Accordingly, Pastor's resale in favor of Alberto could only be
valid with respect to Pastor's one-half (1/2) conjugal share and one-fourth (1/4) hereditary share as
heir of Maria. 38 The remaining one-fourth (1/4) should go to Pastor's co-heirs, the private
respondents herein.

Now on the fourth assigned error.

Section 1, Rule 69 of the Rules of Court requires that all persons interested in the land sought to be
partitioned must be joined as defendants in the complaints. All co-owners and persons having an
interest in the property are considered indispensable parties and an action for partition will not lie
without the joinder of said persons. 39 It has been held that the absence of an indispensable party in a
case renders ineffective all the proceedings subsequent to the filing of the complaint including the
judgment. 40

It must be recalled that in Civil Case No. 5174 the private respondents sought the partition of the two
lots based on the co-ownership which arose from the right of succession to Alipio's estate. Since
Jose Yabo confirmed, through his thumbmark in the verification of the complaint, that he had already
parted with his share in Alipio's estate, he in effect admitted that he had ceased to be a co-owner of
the two lots which comprised his father's estate. Thus, his non-joinder as a party-plaintiff in the
complaint would appear to be proper. He does not, as well, appear to be an indispensable party in
Civil Case No. 5000.

As it turned out, however, the evidence and the issues which cropped up rendered imperative the
determination of the conjugal assets of Pastor Makibalo and Maria Yabo and the partition of the
latter's estate among her heirs. Her estate consists of one-half(½) of the conjugal properties, which
should then be divided pursuant to Article 1001 of the Civil Code since the marriage produced no
child; thus: one-half (½) to Pastor, and the other half to her brother Jose, and to her nephews and
nieces.

Insofar as the partition of Maria Yabo's estate is concerned, Jose is an indispensable party. Strictly,
the rule on indispensable parties may bar a partition of Maria's estate. Considering, however, that
such estate or its partition are but incidents in Civil Case No. 5000 and Civil Case No. 5174, and the
parties have not offered any objection to the propriety of the determination and partition of her
estate, then in the light of Section 11 of Rule 3 41 and Sections 1 and 5, Rule 10 42 of the Rules of
Court, and following the rulings of this Court in the 1910 case of Alonso vs. Villamor 43 and the 1947
case of Cuyugan vs. Dizon, 44 an amendment of the complaint in Civil Case No. 5174 to implead
Jose Yabo as party plaintiff would be in order.

In Alonso, it was held that under Section 110 of the Code of Civil Procedure — whose first
paragraph is substantially the same as the aforesaid Section 1 of Rule 10 — and Section 503
thereof, this Court "has full power, apart from that power and authority which is inherent, to amend
the process, pleadings, proceedings, and decision in this case by substituting, as party plaintiff, the
real party in interest." Our ruling in Cuyugan states:

We, however, do not believe that the case should be dismissed for plaintiff's failure to
join her husband. (Sec. 11, Rule 2, Rules of Court). Nor should the case be
remanded to the court below and a new trial ordered on this account. The complaint
may and should be amended here, to cure the defect of party plaintiffs, after final
 decision is rendered. Section 11, Rule 2, and Section 2, Rule 17, explicitly authorize
such procedure. As this Court had occasion to say in Quison vs. Salud, (12 Phil.,
109, 116), "a second action would be but a repetition of the first and would involve
both parties, plaintiffs and defendant, in much additional expense and would cause
much delay, in that way defeating the purpose of the section, which is expressly
stated to be "that the actual merits of the controversy may speedily be determined
without regard to technicalities and in the most expeditious and inexpensive manner."
(See also Diaz vs. De la Rama, 73 Phil., 104)

To avoid further delay in the disposition of this case, we declare Civil Case No. 5174 as thus duly
amended. Consequently, Jose Yabo may participate in the partition of the estate of Maria Yabo. The
fourth assigned error must then be rejected.

In view of the foregoing disquisitions, the appealed judgment should be modified as follows: (a) the
former 1/9 share of Pelagia Yabo in Lots No. 6180 and 6080 which she sold to Pastor should be
treated as the latter's exclusive property which should now pertain to the petitioners, his successors-
in-interest; and (b) the former 1/9 share of Procopio Yabo in both lots should be divided as follows:
3/4 (respondent Pastor's 1/2 conjugal share and 1/4 representing his share therein as Maria's heir)
for the spouses Alberto and Elpia Yabo, and 1/4 (representing the share therein of Maria's collateral
relatives as Maria's heirs) for the private respondents, including Alberto and Jose Yabo. The partition
of the two lots in controversy should therefore be made in this wise:

(1) 1/9 share of Gaudencia Yabo should be allotted to her heirs or successors-in-
interest;

(2) 1/9 share formerly belonging to Pelagia Yabo — to the petitioners as successors-
in-interest of Pastor Makibalo;

(3) 1/9 hereditary share of Maria Yabo to be divided as follows:

(a) 1/2 for the petitioners (as successors-in-interest of Pastor

Makibalo), and

(b) 1/2 for the private respondents, including Jose Yabo or his heirs;

(4) 1/9 share formerly belonging to Procopio Yabo to be divided thus:

(a) 3/4 for Spouses Alberto and Elpia Yabo, and

(b) 1/4 for the other private respondents, including Jose Yabo or his
heirs;

(5) 5/9 shares which became the conjugal properties of Pastor Makibalo and Maria
Yabo to be divided thus:

(a) 3/4 for the petitioners (as successors-in-interest of Pastor

Makibalo), and

(b) ¼ for the private respondents, including Jose Yabo or his heirs.

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

1/9 or 4/36 — to Guadencia Yabo's heirs or successors-in-interest;

3/4 of 1/9 or 3/36 — to the spouses Alberto and Elpina Yabo;

8/36 — to the private respondents, including Jose Yabu or his heirs;

21/36 — to the petitioners as successors-in-interest of Pastor Makibalo.

WHEREFORE, the challenged decision of the Court of Appeals of 8 February 1993 in CA-G.R. CV
No. 12839 is AFFIRMED, subject to the modifications indicated above. Upon the finality of this
decision, let this case be forthwith remanded to the court a quo for further proceedings on the
partition of Lots Nos. 6180 and 6080 in conformity with this decision.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 184109 February 1, 2012

CELERINO E. MERCADO, Petitioner,

vs.
BELEN* ESPINOCILLA** AND FERDINAND ESPINOCILLA, Respondents.

DECISION

VILLARAMA, JR., J.:

The Case

Petitioner Celerino E. Mercado appeals the Decision 1 dated April 28, 2008 and Resolution2 dated July
22, 2008 of the Court of Appeals (CA) in CA-G.R. CV No. 87480. The CA dismissed petitioner’s
complaint3 for recovery of possession, quieting of title, partial declaration of nullity of deeds and
documents, and damages, on the ground of prescription.

The Antecedent Facts

Doroteo Espinocilla owned a parcel of land, Lot No. 552, with an area of 570 sq. m., located at
Magsaysay Avenue, Zone 5, Bulan, Sorsogon. After he died, his five children, Salvacion, Aspren,
Isabel, Macario, and Dionisia divided Lot No. 552 equally among themselves. Later, Dionisia died
without issue ahead of her four siblings, and Macario took possession of Dionisia’s share. In an
affidavit of transfer of real property4 dated November 1, 1948, Macario claimed that Dionisia had
donated her share to him in May 1945.

Thereafter, on August 9, 1977, Macario and his daughters Betty Gullaba and Saida Gabelo sold 5 225
sq. m. to his son Roger Espinocilla, husband of respondent Belen Espinocilla and father of
respondent Ferdinand Espinocilla. On March 8, 1985, Roger Espinocilla sold 6 114 sq. m. to Caridad
Atienza. Per actual survey of Lot No. 552, respondent Belen Espinocilla occupies 109 sq. m.,
Caridad Atienza occupies 120 sq. m., Caroline Yu occupies 209 sq. m., and petitioner, Salvacion's
son, occupies 132 sq. m.7

The Case For Petitioner

Petitioner sued the respondents to recover two portions: an area of 28.5 8 sq. m. which he bought
from Aspren and another 28.5 sq. m. which allegedly belonged to him but was occupied by
Macario’s house.9 His claim has since been modified to an alleged encroachment of only 39 sq. m.
that he claims must be returned to him. He avers that he is entitled to own and possess 171 sq. m.
of Lot No. 552, having inherited 142.5 sq. m. from his mother Salvacion and bought 28.5 sq. m. from
his aunt Aspren. According to him, his mother’s inheritance is 142.5 sq. m., that is, 114 sq. m. from
Doroteo plus 28.5 sq. m. from Dionisia. Since the area he occupies is only 132 sq. m., 10 he claims
that respondents encroach on his share by 39 sq. m.11

The Case For Respondents

Respondents agree that Doroteo’s five children each inherited 114 sq. m. of Lot No. 552. However,
Macario’s share increased when he received Dionisia’s share. Macario’s increased share was then
sold to his son Roger, respondents’ husband and father. Respondents claim that they rightfully
possess the land they occupy by virtue of acquisitive prescription and that there is no basis for
petitioner’s claim of encroachment.12

The Trial Court’s Decision

On May 15, 2006, the Regional Trial Court (RTC) ruled in favor of petitioner and held that he is
entitled to 171 sq. m. The RTC found that petitioner inherited 142.5 sq. m. from his mother Salvacion
and bought 28.5 sq. m. from his aunt Aspren. The RTC computed that Salvacion, Aspren, Isabel and
Macario each inherited 142.5 sq. m. of Lot No. 552. Each inherited 114 sq. m. from Doroteo and
28.5 sq. m. from Dionisia. The RTC further ruled that Macario was not entitled to 228 sq. m. Thus,
respondents must return 39 sq. m. to petitioner who occupies only 132 sq. m. 13

There being no public document to prove Dionisia’s donation, the RTC also held that Macario’s 1948
affidavit is void and is an invalid repudiation of the shares of his sisters Salvacion, Aspren, and
Isabel in Dionisia’s share. Accordingly, Macario cannot acquire said shares by prescription. The RTC
further held that the oral partition of Lot No. 552 by Doroteo’s heirs did not include Dionisia’s share
and that partition should have been the main action. Thus, the RTC ordered partition and deferred
the transfer of possession of the 39 sq. m. pending partition.14 The dispositive portion of the RTC
decision reads:
WHEREFORE, in view of the foregoing premises, the court issues the following ORDER, thus -

a) Partially declaring the nullity of the Deed of Absolute Sale of Property dated August 9,
1977 x x x executed by Macario Espinocilla, Betty E. Gullaba and Saida E. Gabelo in favor of
Roger Espinocilla, insofar as it affects the portion or the share belonging to Salvacion
Espinocilla, mother of [petitioner,] relative to the property left by Dionisia Espinocilla,
including [Tax Declaration] No. 13667 and other documents of the same nature and
character which emanated from the said sale;

b) To leave as is the Deeds of Absolute Sale of May 11, 1983 and March 8, 1985, it having
been determined that they did not involve the portion belonging to [petitioner] x x x.

c) To effect an effective and real partition among the heirs for purposes of determining the
exact location of the share (114 sq. m.) of the late Dionisia Espinocilla together with the 28.5
sq. m. belonging to [petitioner’s] mother Salvacion, as well as, the exact location of the 39
sq. m. portion belonging to the [petitioner] being encroached by the [respondents], with the
assistance of the Commissioner (Engr. Fundano) appointed by this court.

d) To hold in abeyance the transfer of possession of the 39 sq. m. portion to the [petitioner]
pending the completion of the real partition above-mentioned.15

The CA Decision

On appeal, the CA reversed the RTC decision and dismissed petitioner’s complaint on the ground
that extraordinary acquisitive prescription has already set in in favor of respondents. The CA found
that Doroteo’s four remaining children made an oral partition of Lot No. 552 after Dionisia’s death in
1945 and occupied specific portions. The oral partition terminated the co-ownership of Lot No. 552 in
1945. Said partition also included Dionisia’s share because the lot was divided into four parts only.
And since petitioner’s complaint was filed only on July 13, 2000, the CA concluded that prescription
has set in.16 The CA disposed the appeal as follows:

WHEREFORE, the appeal is GRANTED. The assailed May 15, 2006 Decision of the Regional Trial
Court (RTC) of Bulan, Sorsogon is hereby REVERSED and SET ASIDE. The Complaint of the
[petitioner] is hereby DISMISSED. No costs.17

The Instant Petition

The core issue to be resolved is whether petitioner’s action to recover the subject portion is barred
by prescription.

Petitioner confirms oral partition of Lot No. 552 by Doroteo's heirs, but claims that his share
increased from 114 sq. m. to 171 sq. m. and that respondents encroached on his share by 39 sq. m.
Since an oral partition is valid, the corresponding survey ordered by the RTC to identify the 39 sq. m.
that must be returned to him could be made. 18 Petitioner also alleges that Macario committed fraud in
acquiring his share; hence, any evidence adduced by him to justify such acquisition is inadmissible.
Petitioner concludes that if a person obtains legal title to property by fraud or concealment, courts of
equity will impress upon the title a so-called constructive trust in favor of the defrauded party. 19

The Court’s Ruling

We affirm the CA ruling dismissing petitioner’s complaint on the ground of prescription. 1âwphi1

Prescription, as a mode of acquiring ownership and other real rights over immovable property, is
concerned with lapse of time in the manner and under conditions laid down by law, namely, that the
possession should be in the concept of an owner, public, peaceful, uninterrupted, and adverse.
Acquisitive prescription of real rights may be ordinary or extraordinary. Ordinary acquisitive
prescription requires possession in good faith and with just title for 10 years. In extraordinary
prescription, ownership and other real rights over immovable property are acquired through
uninterrupted adverse possession for 30 years without need of title or of good faith. 20

Here, petitioner himself admits the adverse nature of respondents’ possession with his assertion that
Macario’s fraudulent acquisition of Dionisia’s share created a constructive trust. In a constructive
trust, there is neither a promise nor any fiduciary relation to speak of and the so-called trustee
(Macario) neither accepts any trust nor intends holding the property for the beneficiary (Salvacion,
Aspren, Isabel). The relation of trustee and cestui que trust does not in fact exist, and the holding of
a constructive trust is for the trustee himself, and therefore, at all times adverse.21 Prescription may
supervene even if the trustee does not repudiate the relationship. 22
Then, too, respondents’ uninterrupted adverse possession for 55 years of 109 sq. m. of Lot No. 552
was established. Macario occupied Dionisia’s share in 1945 although his claim that Dionisia donated
it to him in 1945 was only made in a 1948 affidavit. We also agree with the CA that Macario’s
possession of Dionisia’s share was public and adverse since his other co-owners, his three other
sisters, also occupied portions of Lot No. 552. Indeed, the 1977 sale made by Macario and his two
daughters in favor of his son Roger confirms the adverse nature of Macario’s possession because
said sale of 225 sq. m.23 was an act of ownership over Macario’s original share and Dionisia’s share.
In 1985, Roger also exercised an act of ownership when he sold 114 sq. m. to Caridad Atienza. It
was only in the year 2000, upon receipt of the summons to answer petitioner’s complaint, that
respondents’ peaceful possession of the remaining portion (109 sq. m.) was interrupted. By then,
however, extraordinary acquisitive prescription has already set in in favor of respondents. That the
RTC found Macario’s 1948 affidavit void is of no moment. Extraordinary prescription is unconcerned
with Macario’s title or good faith. Accordingly, the RTC erred in ruling that Macario cannot acquire by
prescription the shares of Salvacion, Aspren, and Isabel, in Dionisia’s 114-sq. m. share from Lot No.
552.

Moreover, the CA correctly dismissed petitioner’s complaint as an action for reconveyance based on
an implied or constructive trust prescribes in 10 years from the time the right of action accrues. 24 This
is the other kind of prescription under the Civil Code, called extinctive prescription, where rights and
actions are lost by the lapse of time.25 Petitioner’s action for recovery of possession having been filed
55 years after Macario occupied Dionisia’s share, it is also barred by extinctive prescription. The CA
while condemning Macario’s fraudulent act of depriving his three sisters of their shares in Dionisia’s
share, equally emphasized the fact that Macario’s sisters wasted their opportunity to question his
acts.

WHEREFORE, we DENY the petition for review on certiorari for lack of merit and AFFIRM the
assailed Decision dated April 28, 2008 and Resolution dated July 22, 2008 of the Court of Appeals in
CA-G.R. CV No. 87480.

No pronouncement as to costs.

SO ORDERED.

G.R. No. L-27952 February 15, 1982

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,

Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

ABAD SANTOS, J.:

The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio
Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his
two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the
companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for
substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow
as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch
X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate. In due time she
submitted an inventory of the estate as follows:

INVENTARIO

Una sexta parte (1/6) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

 la Escolta, Manila............................................................. P500,000.00

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

por accion ................................................................................8,347.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust

Co.............................................................................................. 2,350.73

TOTAL.............................................................. P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan-

tizada con prenda de las acciones de La Carlota ......... P 5,000,00

VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad,

residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su sobrino D.
Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes,
y, en su defecto, con sustitucion vulgar reciprocal entre ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la finca

Santa Cruz Building, lo ordena el testador a favor de los legatarios nombrados, en
atencion a que dicha propiedad fue creacion del querido padre del otorgante y por
ser aquellos continuadores del apellido Ramirez,

B.—Y en usufructo a saber: —

a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle
Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33, Seine Francia,
con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma
de Mallorca, Son Rapina Avenida de los Reyes 13,

b.—Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da.
Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:—

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo

Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a
favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St. Ermita,
Manila, I.F.

A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las

usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en
cualquier memento vender a tercero los bienes objeto delegado, sin intervencion
alguna de los titulares fideicomisaarios.

On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the
deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio" in
satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en
nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's
usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar
substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the
first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not related to the second heirs or substitutes
within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct
over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5,
Article III of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in
the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates the
testator's express win to give this property to them Nonetheless, the lower court approved the project
of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to
this Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership.
They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of
the Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of
the hereditary estate." And since Marcelle alone survived the deceased, she is entitled to one-half of
his estate over which he could impose no burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and justifiably so. It
appears that the court a quo approved the usufruct in favor of Marcelle because the testament
provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who
is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than what
she is given under the will is not entitled to have any additional share in the estate. To give Marcelle
more than her legitime will run counter to the testator's intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may
enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that
there are several kinds of substitutions, namely: simple or common, brief or compendious,
reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the Code
enumerates four classes, there are really only two principal classes of substitutions: the simple and
the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute the heir or
heirs instituted in case such heir or heirs should die before him, or should not wish,
or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall

comprise the three mentioned in the preceding paragraph, unless the testator has
otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and to transmit to a second heir
the whole or part of inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally instituted, and
provided further that the fiduciary or first heir and the second heir are living at time of
the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of
Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos
descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.

The appellants do not question the legality of the substitution so provided. The appellants question
the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the
one-third usufruct over the estate given to the widow Marcelle However, this question has become
moot because as We have ruled above, the widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's
usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.

They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or
stated differently because she did not predecease the testator. But dying before the testator is not
the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance
as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that
it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the
heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided
such substitution does not go beyond one degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or

transmission. The Supreme Court of Spain has decidedly adopted this construction.
From this point of view, there can be only one tranmission or substitution, and the
substitute need not be related to the first heir. Manresa, Morell and Sanchez Roman,
however, construe the word "degree" as generation, and the present Code has
obviously followed this interpretation. by providing that the substitution shall not go
beyond one degree "from the heir originally instituted." The Code thus clearly
indicates that the second heir must be related to and be one generation from the first
heir.

From this, it follows that the fideicommissary can only be either a child or a parent of
the first heir. These are the only relatives who are one generation or degree from the
fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as
required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator
contradicts the establishment of a fideicommissary substitution when he permits the properties
subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked
owners." (Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void
because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be

transferred or assigned except to individuals, corporations, or associations qualified
to acquire or hold lands of the public domain in the Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary succession. We
are of the opinion that the Constitutional provision which enables aliens to acquire private lands does
not extend to testamentary succession for otherwise the prohibition will be for naught and
meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine
landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a
real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor
of aliens which is proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed
as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership
and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski
and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to
costs.

SO ORDERED

G.R. No. L-45142 April 26, 1991

SIMPROSA VDA. DE ESPINA, RECAREDO ESPINA, TIMOTEO ESPINA, CELIA ESPINA,

GAUDIOSA ESPINA and NECIFORA ESPINA, petitioners,
vs.
THE HON. OTILIO ABAYA and SOFIA ESPINA and JOSE ESPINA, respondents.

Cipriano C. Alvizo, Sr. for private respondents.

MEDIALDEA, J.:

This is a petition for certiorari with prayer for the issuance of a writ of preliminary injunction seeking
the nullification of the orders issued by the respondent Judge Otilio Abaya, in his capacity as the
presiding judge of the Court of First Instance of Surigao del Sur, Branch II, Lianga, Surigao del Sur
in Civil Case No. L-108, entitled "Simprosa Vda. de Espina, et. al. v. Sofia Espina, et. al." dated May
9, 1975 dismissing the complaint for partition; July 25, 1975 denying the motion for reconsideration;
August 13, 1975 denying the second motion for reconsideration and March 15, 1976 denying
plaintiffs' notice of appeal.

The antecedent facts are as follows:

Marcos Espina died on February 14, 1953 and was survived by his spouses, Simprosa Vda. de
Espina and their children namely, Recaredo, Timoteo, Celia, Gaudiosa, Necifora, Sora and Jose, all
surnamed Espina. Decedent's estate comprises of four (4) parcels of land located at the Municipality
of Barobo Province of Surigao del Sur.

On August 23, 1973 an action for partition of the aforementioned parcels of land was filed by
petitioners Simprosa and her children Recaredo, Timoteo, Celia, Gaudencia and Necifora.

The complaint alleges that parcel No. 1 is the exclusive property of the deceased, hence the same is
owned in common by petitioners and private respondents in eight (8) equal parts, while the other
three (3) parcels of land being conjugal properties, are also owned in common, one-half (1/2)
belongs to the widow Simprosa and the other half is owned by her and her children in eight (8) equal
parts.

It also alleges that parcel No. 1 has been subdivided into two lots. Lot No. 994 PL8-44 is covered by
Original Certificate of Title No. 5570 in the name of one of the heirs, Sofia Espina, who acquired the
title as a trustee for the beneficiaries or heirs of Marcos Espina, while lot No. 1329 PCS-44 is
covered by Original Certificate of Title No. 3732 issued in the name of one of the heirs, Jose Espina
as trustee for the heirs of Marcos Espina. Said parcel of land is in the possession of petitioners and
private respondents who have their respective houses thereon.

Simprosa presently occupies parcel No. 2 while parcel No. 3 is occupied by Timoteo, although the
same is actually titled in the name of Sofia. Parcel No. 4 is occupied by Recaredo.

Petitioners have several times demanded the partition of the aforementioned properties, but
notwithstanding such demands private respondents refused to accede.

Private respondents alleged in their answer that in or about April, 1951, the late Marcos Espina and
his widow, Simprosa, together with their children made a temporary verbal division and assignment
of shares among their children. After the death of Marcos, the temporary division was finalized by
the heirs. Thereafter the heirs took immediate possession of their respective shares on April 20,
1952. Private respondents took actual physical possession of their respective shares including the
portions ceded to them by Simprosa upon their payment of P50.00 each per quarter starting April,
1952 until the latter's death pursuant to their contract of procession The assignment of shares was
as follows:
 (a) To the surviving spouses, (sic) Simprosa Vda. de Espina, herein plaintiffs, one-half (1/2)
of the parcel of land adjudicated to each of said plaintiffs-heirs and defendants;

(b) To each of the following compulsory heirs, to wit:

1. To Recaredo (sic) Espina, one-half (1/2) portion which contains an area of one and three-
fourths (1 3/4) hectares and which forms part of Parcel 4 whose description is given in
paragraph III of the complaint, the said Parcel IV has been in the possession of both
Recaredo Espina and plaintiff Simprosa Vda. de Espina from April 20, 1952 until the present
time;

2. To Timoteo Espina, one half (1/2) portion which contains an area of not less than one-half
(1/2) hectare and which forms part of Parcel 3 whose description is given in paragraph III of
the complaint, the said Parcel III was originally assigned by Marcos Espina who thereupon
obtained an Original Certificate of Title in her (sic) name but was finally adjudicated to said
Timoteo Espina in April, 1952, the other half (1/2) portion of which parcel III was the share of
the surviving spouses (sic), Simprosa Vda. de Espina, and said Parcel III has been in the
possession of said Timoteo Espina and Simprosa Vda. de Espina from April, 1952 until the
present time as their share;

3. To Cecilia (sic) Espina, Gaudiosa Espina and Necifora Espina, one-half (1/2) portion,
share and share alike which contains two (2) hectares and which forms part of Parcel II
whose description is given in paragraph III of the complaint, the other half (1/2) of said Parcel
III (sic) is the share of the surviving spouses (sic) Simprosa Vda. de Espina, and said Parcel
III (sic) has been in the possession of said Cecilia. (sic) Espina, Gaudiosa Espina and
Necifora Espina and Simprosa Vda. de Espina from April, 1952 until the present time;

4. To Sofia Espina, one-half (1/2) portion of the parcel of land included in the deception of
Parcel 1 in paragraph III of the complaint, the other half (1/2) of said parcel being the share
of the surviving spouses (sic) Simprosa Vda. de Espina and having been ceded by said
Simprosa Vda. de Espina to said Sofia Espina for a valuable consideration payable quarterly
at the rate of P50.00 beginning April, 1952 until her death, and said Sofia Espina has been
regularly paying to said Simprosa Vda. de Espina quarterly from April, 1952 the said amount
of P50.00 until the present time, and by virtue of said agreement, Sofia Espina obtained
Original Certificate of Title in her name of said parcel of land which is included in the
description of said parcel 1, as her exclusive property;

5. To Jose Espina, one-half (1/2) portion of the other parcel of land included in the
description of Parcel 1 in paragraph 1 of the complaint, the other half (1/2) of said parcel
being the share of the surviving spouses (sic) Simprosa Vda. de Espina and having been
coded (sic) by said Simprosa Vda. de Espina to said Jose Espina for a valuable
consideration payable quarterly at the rate of P50.00 beginning April, 1952 until her death,
and said Jose Espina has been regularly quarterly paying to said Simprosa Vda. de Espina
from April, 1952 until the present time, the said amount of P50.00, and by virtue of said
agreement, Jose Espina obtained Original Certificate of Title in his name of said parcel of
land which is included in the description of said Parcel 1 as his exclusive property. (Rollo, pp.
27-28)

On February 13, 1974 private respondents filed a motion to dismiss the complaint alleging the
following grounds, to wit:

THAT THE FACTS ALLEGED IN THE COMPLAINT FAIL TO CONFER UPON THE COURT
COMPLETE AND LAWFUL JURISDICTION OVER THE CASE FOR NON-COMPLIANCE
WITH THE CONDITION SINE QUA NON CONCERNING SUIT BETWEEN MEMBERS OF
THE SAME FAMILY.

xxx xxx xxx

II

THAT THE CAUSE OF ACTION IS BARRED BY . . . . STATUTE OF LIMITATIONS.

xxx xxx xxx

III
 THAT THE PLAINTIFFS HAS NO LEGAL CAPACITY TO SUE, (Motion to Dismiss
Complaint, pp. 1-5; Rollo, pp. 34-38)

xxx xxx xxx

On May 9, 1975 the trial court granted the motion and thereafter dismissed the complaint. On May
23, 1975 petitioners filed a motion for reconsideration on the following grounds, to wit:

1. THAT THE ORDER OF DISMISSAL HAS NO LEGAL BASIS IN FACT AND IN LAW.

2. THAT THE STATUTE OF LIMITATIONS IS NOT APPLICABLE IN THE CASE AT BAR.

(Rollo, p. 50)

However, petitioners' motion was denied in an order dated July 23, 1975. On August 11, 1975
petitioners filed another motion for reconsideration stressing that they were denied due process
when their motion was not heard. Again said motion was denied on August 13, 1975.

Thereafter, petitioners filed their notice of appeal on September 11, 1975 and a motion for extension
of time to file their Record on Appeal on September 18, 1975.

On March 15, 1976, the respondent judge disapproved petitioners' Record on Appeal and appeal
bond on the ground that the notice of appeal was filed out of time. Hence, this petition. The
petitioners raised four (,41) assignment of errors:

1. Whether or not an action for partition among co-heirs prescribes.

2. Whether or not an oral partition among co-heirs is valid.

3. Whether or not a hearing on a motion for reconsideration is indispensable the lack of

which is a deal of due process.

4. Whether or not the second motion for reconsideration is pro forma Rollo, p. 10)

Petitioners maintain that the present action is not for reconveyance but one for partition. Hence, the
rule insisted by the private respondents on prescriptibility of an action for reconcile conveyance of
real property based on an implied trust is not applicable in the case at bar. In addition, petitioners,
argue that private respondents cannot set up the defense of prescription or laches because their
possession of the property no matter how long cannot ripen into ownership. (Memorandum for
Petitioners, p. 7)

However, the private respondents stress that 'any supposed right of the petitioners to demand a new
division or partition of said estate of Marcos Espina has long been barred by the Statute of
Limitations and has long prescribed." (Memorandum for Private Respondents, p. 5)

The petitioners claim that the alleged oral partition is invalid and strictly under the coverage of the
statute of Frauds on two grounds, to wit:

Firstly, parcel No. 1 being an exclusive property of the deceased should have been divided into eight
(8) equal parts. Therefore, Simprosa . could only cede her share of the land which is 1/8 portion
thereof and cannot validly cede the shares of her then minor children without being duly appointed
as guardian.

Secondly, under Article 1358 of the New Civil Code, Simprosa could not have ceded her right and
that of her other children except by a public document. (Memorandum of Petitioners, pp. 8-9)

On the other hand, private respondents insist that the oral partition is valid and binding and does not
fall under the coverage of the Statute of Frauds.

Petitioners claim that they were denied due process when the motion for reconsideration was denied
without any hearing.

However, private respondents maintain that the hearing of a motion for reconsideration in oral
argument is a matter which rest upon the sound discretion of the Court.

Finally, petitioners stress that the second motion for reconsideration is not pro forma, thus, it
suspends the running of the period of appeal. Hence, the notice of appeal was timely filed.
On this point, private respondent maintain that the order of respondent judge dated March 1 5, 1976
disapproving petitioners' Record on Appeal and appeal bond may not properly be a subject of a
petition for certiorari. (Memorandum of Private Respondents, p. 13)

We find the petition devoid of merit.

We already ruled in Lebrilla, et al. v. Intermediate Appellate Court (G.R. No. 72623, December 18,
1989, 180 SCRA 188; 192) that an action for partition is imprescriptible. However, an action for
partition among co-heirs ceases to be such, and becomes one for title where the defendants allege
exclusive ownership.

In the case at bar, the imprescriptibility of the action for partition cannot be invoked because two of
the co-heirs, namely private respondents Sora and Jose Espina possessed the property as exclusive
owners and their possession for a period of twenty one (21) years is sufficient to acquire it by
prescription. Hence, from the moment these co-heirs claim that they are the absolute and exclusive
owners of the properties and deny the others any share therein, the question involved is no longer
one of partition but of ownership.

Anent the issue of oral partition, We sustain the validity of said partition. "An agreement of partition
1âwphi1

may be made orally or in writing. An oral agreement for the partition of the property owned in
common is valid and enforceable upon the parties. The Statute of Frauds has no operation in this
kind of agreements, for partition is not a conveyance of property but simply a segregation and
designation of the part of the property which belong to the co-owners." (Tolentino, Commentaries
and Jurisprudence on the Civil Code of the Philippines, Vol. II, 1983 Edition, 182-
183 citing Hernandez v. Andal, et. al., G.R. No. L275, March 29, 1957)

Time and again, the Court stresses that the hearing of a motion for reconsideration in oral argument
is a matter which rests upon the sound discretion of the Court. Its refusal does not constitute a denial
of due process in the absence of a showing of abuse of discretion. (see Philippine Manufacturing
Co. v. Ang Bisig ng PMC et. al., 118 Phil. 431, 434)

The absence of a formal hearing on the petitioners' motion for reconsideration is thoroughly
explained in the order of the respondent judge dated August 13, 1975, which is hereunder quoted as
follows:

When the court issued its order of June 5, 1975 requiring counsel for defendants to answer
plaintiffs' motion for reconsideration, the court opted to resolve plaintiffs' motion based on the
pleadings of the parties, without further oral arguments. The court considered the arguments
of the parties stated in their pleadings as already sufficient to apprise the court of the issues
involved in said motion.

Plaintiffs' allegation that the Clerk of Court failed to calendar their motion for reconsideration
for oral argument has not deprived the plaintiffs of any substantial right or his right to due
process.

SO ORDERED. (Memorandum of Private Respondents, pp. 1213)

A cursory reading of the aforequoted order will show that there was indeed no formal hearing on the
motion for reconsideration. There is no question however, that the motion is grounded on the lack of
basis in fact and in law of the order of dismissal and the existence or lack of it is determined by a
reference to the facts alleged in the challenged pleading. The issue raised in the motion was fully
discussed therein and in the opposition thereto. Under such circumstances, oral argument on the
motion is reduced to an unnecessary ceremony and should be overlooked (see Ethel Case, et al. v.
Jugo, 77 Phil. 517, 522).

We adhere to the findings of the trial court that the second motion for reconsideration dated August
11, 1975 is pro forma, to it

The grounds stated in said motion being in reiteration of the same grounds alleged in his first
motion, the same is pro-forma. (Order dated March 15, 1976, p. 2, Rollo, p. 74)

xxx xxx xxx

Furthermore, the second motion for reconsideration has not stated new grounds considering
that the alleged failure of the Clerk of Court to set plaintiffs' motion for reconsideration,
although seemingly a different ground than those alleged in their first motion for
reconsideration, is only incidental to the issues raised in their first motion for reconsideration,
as it only refers to the right of plaintiffs' counsel to argue his motion in court just to amplify
the same grounds already deed by the court. (Ibid, p. 3, Rollo, p. 75)
Therefore, it is very evident that the second motion for reconsideration being pro-forma did not
suspend the running of the period of appeal. Thus, the lower court committed no error when it held
that the notice of appeal was filed after the lapse of thirty five (35) days, which is clearly beyond the
period of thirty (30) days allowed by the rules.

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

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

Therefore, the delay of five (5) days in filing a notice of appeal and a motion for extension to file a
record on appeal cannot be excused on the basis of equity.

All premises considered, the Court is convinced that the acts of respondent judge, in dismissing the
action for partition and in subsequently denying the motions for reconsideration of the petitioners,
does not amount to grave abuse of discretion.

ACCORDINGLY, the petition is DISMISSED.

SO ORDERED.

G.R. No. 180269 February 20, 2013

JOSE Z. CASILANG, SR., substituted by his heirs, namely: FELICIDAD CUD lAMA T VDA. DE
CASILANG, JOSE C. CASILANG, JR., RICARDO C. CASILANG, MARIA LOURDES C.
CASILANG, CHRISTOPHER C. CASILANG, BEN C. CASILANG, DANTE C. CASILANG,
GREGORIO C. CASILANG, HERALD C. CASILANG; and FELICIDAD Z. CASILANG,
MARCELINA Z. CASILANG, JACINTA Z. CASILANG, BONIFACIO Z. CASILANG, LEONORA Z.
CASILANG, and FLORA Z. CASILANG, Petitioners,
vs.
ROSARIO Z. CASILANG-DIZON, MARIO A. CASILANG, ANGELO A. CASILANG, RODOLFO A.
CASILANG, and ATTY. ALICIA B. FABIA, in her capacity as Clerk of Court and Ex-Officio
Sheriff of Pangasinan and/or her duly authorized representative, Respondents.

DECISION

REYES, J.:

Before us is a petition for review of the Decision 1 dated July 19, 2007 of the Court of Appeals (CA) in
CA-G.R. CV No. 79619, which reversed and set aside the Decision 2 dated April 21, 2003 of the
Regional Trial Court (RTC) of Dagupan City, Branch 41, in Civil Case No. 98-02371-D.

Antecedent Facts

The late spouses Liborio Casilang (Liborio) and Francisca Zacarias (Francisca) had eight (8)
children, namely: Felicidad Casilang (Felicidad), Ireneo Casilang (Ireneo), Marcelina Casilang
(Marcelina), Jacinta Casilang (Jacinta), Bonifacio Casilang (Bonifacio), Leonora Casilang (Leonora),
Jose Casilang (Jose) and Flora Casilang (Flora). Liborio died intestate on October 11, 1982 at the
age of 83, followed not long after by his wife Francisca on December 25, 1982. Their son Bonifacio
also died in 1986, survived by his child Bernabe Casilang (Bernabe), while son Ireneo died on June
11, 1992, survived by his four (4) children, namely: Mario Casilang (Mario), Angelo Casilang
(Angelo), Rosario Casilang-Dizon (Rosario) and Rodolfo Casilang (Rodolfo), herein respondents.

The estate of Liborio, which left no debts, consisted of three (3) parcels of land located
in Barangay Talibaew, Calasiao, Pangasinan, namely: (1) Lot No. 4676, with an area of 4,164
square meters; (2) Lot No. 4704, containing 1,164 sq m; and (3) Lot No. 4618, with 897 sq m.
On May 26, 1997, respondent Rosario filed with the Municipal Trial Court (MTC) of Calasiao,
Pangasinan a complaint for unlawful detainer, docketed as Civil Case No. 847, to evict her uncle,
petitioner Jose from Lot No. 4618. Rosario claimed that Lot No. 4618 was owned by her father
Ireneo, as evidenced by Tax Declaration (TD) No. 555 issued in 1994 under her father’s name. On
April 3, 1997, the respondents executed a Deed of Extrajudicial Partition with Quitclaim3 whereby
they adjudicated Lot No. 4618 to themselves. In the same instrument, respondents Mario, Angelo
and Rodolfo renounced their respective shares in Lot No. 4618 in favor of Rosario.

In his Answer, Jose raised the defense that he was the "lawful, absolute, exclusive owner and in
actual possession" of the said lot, and that he acquired the same "through intestate succession from
his late father."4 For some reason, however, he and his lawyer, who was from the Public Attorney’s
Office, failed to appear at the scheduled pre-trial conference, and Jose was declared in default; thus,
the adverse judgment against him.5

On February 18, 1998, the MTC rendered judgment finding Rosario to be the owner of Lot No. 4618,
and ordering Jose to remove his house, vacate Lot No. 4618, and pay Rosario ₱500.00 in monthly
rentals from the filing of the complaint until she was placed in possession, plus attorney’s fees of
₱5,000.00, litigation expenses and costs. On March 23, 1998, the MTC issued a writ of execution;
and on August 28, 1998, a Writ of Demolition 6 was issued.

On June 2, 1998, the petitioners, counting 7 of the 8 children of Liborio and Francisca,7 filed with the
RTC of Dagupan City a Complaint,8 docketed as Civil Case No. 98-02371-D for "Annulment of
Documents, Ownership and Peaceful Possession with Damages" against the respondents. On June
10, 1998, the petitioners moved for the issuance of a writ of preliminary injunction or temporary
restraining order, which the RTC however denied on June 23, 1998.

Among the documents sought to be annulled was the 1997 Deed of Extrajudicial Partition executed
by Ireneo’s children over Lot No. 4618, as well as TD No. 555, and by necessary implication its
derivatives, TD No. 15177 (for the lot) and TD No. 15176 (for the house), both of which were issued
in 1998 in the name of Rosario Casilang-Dizon.9

The petitioners alleged in their complaint that all eight (8) children of Liborio entered into a verbal
partition of his estate, pursuant to which Jose was allotted Lot No. 4618 as his share; that Ireneo
never claimed ownership of Lot No. 4618, nor took possession of it, because his share was the
southwestern 1/5 portion of Lot No. 4676, containing an area of 1,308 sq m, 10 of which he took
exclusive possession during his lifetime; that Jose has always resided in Lot No. 4618 since
childhood, where he built his family’s semi-concrete house just a few steps away from his parents’
old bamboo hut; that he took in and cared for his aged parents in his house until their deaths in
1982; that one of his children has also built a house on the lot. 11 Jose, said to be the most educated
of the Casilang siblings, worked as an insurance agent. 12 The complete disposition of the intestate
estate of Liborio per the parties’ verbal partition appears as follows:

1. Lot No. 4676, with 4,164 sq m, declared under TD No. 534 in Liborio’s name, 13 was
verbally partitioned among Marcelina (236 sq m), Leonora (1,965 sq m), Flora (655 sq m),
and Ireneo, represented by his children, the herein respondents-defendants (1,308 sq m), as
shown in a Deed of Extrajudicial Partition with Quitclaim dated January 8, 1998,
subsequently executed by all the Casilang siblings and their representatives.

2. Lot No. 4704, with 1,164 sq m, declared under TD No. 276 in Liborio’s name,14 was
divided among Jacinta and Bonifacio, who died in 1986 and is now represented by his son
Bernabe; and

3. Lot No. 4618, containing 897 sq m, declared since 1994 under TD No. 555 in Ireneo’s
name,15 is now the subject of the controversy below. Jose insists that he succeeded to it per
verbal partition, and that he and his family have always occupied the same peacefully,
adversely and exclusively even while their parents were alive. 16

For her part, Rosario alleged in her answer with counterclaim,17 which she filed on September 15,
1998, that:

a) She is the actual and lawful owner of Lot No. 4618 with an area of 897 square meters,
having acquired the same by way of a Deed of Extra judicial Partition with Quitclaim dated 3
April 1997 which was duly executed among herein Appellant ROSARIO and her brothers,
namely, MARIO, ANGELO and RODOLFO, all surnamed CASILANG;

b) Her ownership over subject property could be traced back to her late father IR[E]NEO
which the latter inherited by way of intestate succession from his deceased father LIBORIO
sometime in 1992; that the residential house described in herein Appellee JOSE’s complaint
is an illegal structure built by him in 1997 without her (ROSARIO’s) knowledge and consent;
 that in fact, an ejectment suit was filed against Appellee JOSE with the Municipal Trial Court
in Calasiao, Pangasinan in Civil Case No. 847;

c) The subject lot is never a portion of Appellee JOSE’s share from the intestate of his
deceased father, LIBORIO; that on the contrary, the lot is his deceased brother IR[E]NEO’s
share from the late LIBORIO’s intestate estate; that in fact, the property has long been
declared in the name of the late IRENEO as shown by Tax Declaration No. 555 long before
his children ROSARIO DIZON, MARIO, ANGELO and RODOLFO, all surnamed CASILANG,
executed the Deed of Partition dated 18 February 1998; that Appellee JOSE had actually
consumed his shares which he inherited from his late father, and after a series of sales and
dispositions of the same made by him, he now wants to take Appellants’ property;

d) Appellee JOSE is never the rightful owner of the lot in question and has not shown any
convincing proof of his supposed ownership; that the improvements introduced by him,
specifically the structures he cited are the subject of a Writ of Demolition dated 28 August
1998 pursuant to the Order dated 17 August 1998 of the MTC of Calasiao, Pangasinan;

e) No protestation or objection was ever made by Appellee JOSE in Civil Case No. 847
(Unlawful Detainer case) where he was the defendant; that the truth was that his possession
of the subject property was upon the tolerance and benevolence of his late brother IRENEO
during the latter’s lifetime and that Appellant ROSARIO;

f) The RTC Clerk of Court and Ex-officio Provincial Sheriff would just be doing her job if she
and her deputies would implement the writ of execution/demolition issued by the MTC of
Calasiao, Pangasinan since it is its ministerial duty to do so;

g) The Appellees have no cause of action; not having shown in their complaint the basis, the
reason and the very core of their claim as to why the questioned document should be
nullified.18 (Citation omitted)

In their reply19 to Rosario’s aforesaid answer, the petitioners asserted that the MTC committed a
grave error in failing to consider a material fact-that Jose had long been in prior possession under a
claim of title which he obtained by partition.

At the pre-trial conference in Civil Case No. 98-02371-D, the parties entered into the following
stipulations:

1. That the late LIBORIO is the father of FELICIDAD, MARCELINA, JUANITA, LEONORA,
FLORA and IRENEO, all surnamed CASILANG;

2. That the late LIBORIO died in 1982; That the late LIBORIO and his family resided on Lot
[No.] 4618 up to his death in 1982; That the house of the late LIBORIO is located on Lot
[No.] 4618;

3. That Plaintiff JOSE used to reside on the lot in question because there was a case for
ejectment filed against him;

4. That the house which was demolished is the family house of the late LIBORIO and
FRANCISCA ZACARIAS with the qualification that it was given to the defendants;

5. That the action involves members of the same family; and

6. That no earnest efforts were made prior to the institution of the case in court.20

Ruling of the RTC

After a full trial on the merits, the RTC in its Decision 21 dated April 21, 2003 decreed as follows:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs and
against the defendants as follows:

1. Declaring the Deed of Extrajudicial Partition with Quitclaim dated April 3, 1997 null and
void;

2. Declaring plaintiff Jose Z. Casilang Sr. as the lawful owner and possessor of the subject
Lot No. 4618 and as such, entitled to the peaceful possession of the same;
 3. Ordering the defendants to pay to plaintiff Jose Z. Casilang Sr. attorney’s fees in the
amount of ₱20,000.00 and litigation expenses in the amount of ₱5,000.00, and to pay the
costs of suit.

SO ORDERED.22

The RTC affirmed Jose’s ownership and possession of Lot No. 4618 by virtue of the oral partition of
the estate of Liborio by all the siblings. In the Deed of Extrajudicial Partition with Quitclaim23 dated
January 8, 1998, subsequently executed by all the eight (8) Casilang siblings and their legal
representatives―with Ireneo represented by his four (4) children, and Bonifacio by his son
Bernabe―petitioners Jose, Felicidad, Jacinta and Bernabe, acknowledged that they had “already
received their respective shares of inheritance in advance,"24 and therefore, renounced their claims
over Lot No. 4676 in favor of co-heirs Marcelina, Leonora, Flora and Ireneo, as follows:

We hereby RENOUNCED, WAIVED AND QUITCLAIM, all our rights, interests and participations
over the WHOLE parcel of land [Lot No. 4676], left by the late, LIBORIO CASILANG, in favor of our
coheirs, namely: MARCELINA Z. CASILANG-PARAYNO, LEONORA Z. CASILANG-SARMIENTO,
FLORA Z. CASILANG, MARIO A. CASILANG, ANGELO A. CASILANG, ROSARIO A.
CASILANGDIZON AND RODOLFO A. CASILANG.25

Thus, Jose expressly renounced his share in Lot No. 4676, which has an area of 4,164 sq m,
because he had already received in advance his share in his father’s estate, Lot No. 4618 with 897
sq m:

To the mind of the court, Jose Casilang could have not [sic] renounced and waived his rights and
interests over Lot [No.] 4676 if he believes that Lot [No.] 4618 is not his, while the other lot, Lot [No.]
470[4], was divided between sister Jacinta Casilang and brother Bonifacio Casilang[,] Sr., who was
represented by his son. In the same [way] as testified to by plaintiffs Felicidad Casilang and Jacinta
Casilang, they signed the Deed of Extrajudicial Partition with Quitclaim wherein they waived and
renounced their rights and interests over Lot [No.] 4676 because they have already received their
share, which is Lot [No.] 470[4].26

The RTC found baseless the claim of Rosario that Lot No. 4618 was an inheritance of her father
Ireneo considering that a tax declaration is not conclusive proof of ownership. The RTC even noted
that the tax declaration of Ireneo started only in 1994, although he had been dead since 1992. "Such
being the case, the heirs of Ir[e]neo Casilang has [sic] no basis in adjudicating unto themselves Lot
No. 4618 and partitioning the same by executing the Deed of Extrajudicial Partition with Quitclaim."27

Appeal to the CA

Undeterred, Rosario appealed to the CA averring that: (1) the lower court erred in declaring the
Deed of Extrajudicial Partition with Quitclaim dated April 3, 1997 as null and void; and (2) the lower
court erred in declaring Jose as the lawful owner and possessor of the subject Lot No. 4618. 28

In the now assailed decision, the CA reversed the RTC by relying mainly on the factual findings and
conclusions of the MTC in Civil Case No. 847, viz:

Per the records, the above described property was subject of Civil Case No. 847 decided by the
MTC of Calasiao, First Judicial Region, Province of Pangasinan which rendered a judgment, supra,
in favor of Appellant ROSARIO ordering herein Appellee JOSE and all persons claiming rights under
him to vacate the land of Appellant ROSARIO. It was found by the MTC that the latter is
the owner of the subject parcel of land located at Talibaew, Calasiao, Pangasinan; that the former
owner of the land is the late IRENEO (who died on 11 June 1992), father of Appellant ROSARIO;
that Extra Judicial Partition with Quitclaim was executed by and among the heirs of the late IRENEO;
that MAURO [sic], ANGELO and RODOLFO, all surnamed CASILANG waived and quitclaimed their
respective shares over the subject property in favor of Appellant ROSARIO; that Appellee JOSE was
allowed by the late IRENEO during his lifetime to occupy a portion of the land without a contract of
lease and no rentals being paid by the former; that Appellant ROSARIO allowed Appellee JOSE to
continue occupying the land after the Extra Judicial Partition with Quitclaim was executed.29

Moreover, noting that the decision in Civil Case No. 847 in favor of Rosario was issued on February
18, 1998 while the petitioners’ complaint in Civil Case No. 98-02371-D was filed on June 2, 1998,
the CA concluded that the latter case was a mere afterthought:

If the latter has really a strong and valid reason to question the validity of the Deed of Extra Judicial
Partition with Quitclaim, supra, he could have done it soon after the said Deed was executed on 3
April 1997. However, curiously enough, it was only when the MTC ordered his eviction from the
subject property that he decided to file the instant case against the Appellants.30
 Petition for Review in the Supreme Court

Now in this petition for review on certiorari, petitioners maintain that:

IN UPHOLDING THE LEGALITY [OF] THE DEED OF EXTRAJUDICIAL PARTITION AND

QUITCLAIM DATED APRIL 3, 1997, THE HONORABLE COURT OF APPEALS GROSSLY
VIOLATED THE SUBSTANTIVE RIGHT OF JOSE Z. CASILANG, SR. AS DIRECT COMPULSORY
HEIR.31

Our Ruling and Discussions

There is merit in the petition.

Inferior courts are empowered to rule on the question of ownership raised by the defendant
in an ejectment suit, but only to resolve the issue of possession; its determination is not
conclusive on the issue of ownership.

It is well to be reminded of the settled distinction between a summary action of ejectment and a
plenary action for recovery of possession and/or ownership of the land. What really distinguishes an
action for unlawful detainer from a possessory action (accion publiciana) and from a reinvindicatory
action (accion reinvindicatoria) is that the first is limited to the question of possession de facto.
Unlawful detainer suits (accion interdictal) together with forcible entry are the two forms of ejectment
suit that may be filed to recover possession of real property. Aside from the summary action of
ejectment, accion publiciana or the plenary action to recover the right of possession and accion
reinvindicatoria or the action to recover ownership which also includes recovery of possession, make
up the three kinds of actions to judicially recover possession. 32

Under Section 3 of Rule 70 of the Rules of Court, the Summary Procedure governs the two forms of
ejectment suit, the purpose being to provide an expeditious means of protecting actual possession
or right to possession of the property. They are not processes to determine the actual title to an
estate. If at all, inferior courts are empowered to rule on the question of ownership raised by the
defendant in such suits, only to resolve the issue of possession and its determination on the
ownership issue is not conclusive.33 As thus provided in Section 16 of Rule 70:

Sec. 16. Resolving defense of ownership.―When the defendant raises the defense of ownership in
his pleadings and the question of possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to determine the issue of possession.

It is apropos, then, to note that in contrast to Civil Case No. 847, which is an ejectment case, Civil
Case No. 98-02371-D is for "Annulment of Documents, Ownership and Peaceful Possession;" it is
an accion reinvindicatoria, or action to recover ownership, which necessarily includes recovery of
possession34 as an incident thereof. Jose asserts his ownership over Lot No. 4618 under a partition
agreement with his co-heirs, and seeks to invalidate Ireneo’s "claim" over Lot No. 4618 and to
declare TD No. 555 void, and consequently, to annul the Deed of Extrajudicial Partition and
Quitclaim executed by Ireneo’s heirs.

It is imperative to review the CA’s factual conclusions since they are entirely contrary to
those of the RTC, they have no citation of specific supporting evidence, and are premised on
the supposed absence of evidence, particularly on the parties’ verbal partition, but are
directly contradicted by the evidence on record.

It must be noted that the factual findings of the MTC, which the CA adopted without question, were
obtained through Summary Procedure and were based solely on the complaint and affidavits of
Rosario, after Jose had been declared in default. But since a full trial was had in Civil Case No. 98-
02371-D, the CA should have pointed out the specific errors and weaknesses in the RTC’s factual
conclusions before it could rule that Jose was unable to present "any evidentiary support" to
establish his title, and that his continued possession of Lot No. 4618 was by mere tolerance of
Rosario. At most, however, the CA only opined that it was conjectural for the RTC to conclude, that
Jose had already received his inheritance when he renounced his share in Lot No. 4676. It then
ruled that the RTC erred in not considering the findings of the MTC in Civil Case No. 847-that Jose’s
possession over subject property was by mere tolerance. Said the appellate court:

Given the claim of the Appellee that Lot [No.] 4618 was orally given/assigned to him by his
deceased father LIBORIO, or that his claim was corroborated by his sisters (his co-plaintiffs-
Appellees), or that their claim is indubitably tied up with the Deed of Extrajudicial Partition with
Quitclaim over Lot No. 4676, still We cannot fully agree with the pronouncement of the court a
quo that Appellee JOSE could not have renounced and waived his rights and interest over Lot [No.]
4676 if he believes that Lot [No.] 4618 is not his. Wanting any evidentiary support, We find this
stance as conjectural being unsubstantiated by law or convincing evidence. At the most and taking
the factual or legal circumstances as shown by the records, We hold that the court a quo erred in not
considering the findings of the MTC in Civil Case No. 847 ruling that herein Appellee JOSE’s
possession over subject property was by mere tolerance. Based as it is on mere tolerance, Appellee
JOSE’s possession therefore could not, in any way, ripen into ownership. 35 (Citations omitted)

By relying solely on the MTC’s findings, the CA completely ignored the testimonial, documentary and
circumstantial evidence of the petitioners, obtained by the RTC after a full trial on the merits. More
importantly, the CA did not point to any evidence of Rosario that Ireneo had inherited Lot No. 4618
from Liborio. All it did was adopt the findings of the MTC.

The Supreme Court is not a trier of facts, and unless the case falls under any of the well-defined
exceptions, the Supreme Court will not delve once more into the findings of facts. In Sps. Sta. Maria
v. CA,36 this Court stated:

Settled is the rule that the jurisdiction of this Court in cases brought before it from the Court of
Appeals via Rule 45 of the Rules of Court is limited to reviewing errors of law. Findings of fact of the
latter are conclusive, except in the following instances: (1) when the findings are grounded entirely
on speculation, surmises, or conjectures; (2) when the inference made is manifestly mistaken,
absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based
on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its
findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the
trial court; (8) when the findings are conclusions without citation of specific evidence on which they
are based; (9) when the facts set forth in the petition as well as in the petitioner’s main and reply
briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on record. 37 (Citation omitted)

In the instant case, the factual findings of the CA and the RTC are starkly contrasting. Moreover, we
find that the CA decision falls under exceptions (7), (8) and (10) above, which warrants another
review of its factual findings.

The evidence supporting Rosario’s claim of sole ownership of Lot No. 4618 is the Deed of
Extrajudicial Partition with Quitclaim, which she executed with her brothers Mario, Angelo and
Rodolfo. There is no question that by itself, the said document would have fully conveyed to Rosario
whatever rights her brothers might have in Lot No. 4618. But what needs to be established first is
whether or not Ireneo did in fact own Lot No. 4618 through succession, as Rosario claims. And here
now lies the very crux of the controversy.

A review of the parties’ evidence shows that they entered into an oral partition, giving Lot No.
4618 to Jose as his share, whereas Rosario presented no proof whatsoever that her father
inherited Lot No. 4618 from his father Liborio.

Rosario’s only proof of Ireneo’s ownership is TD No. 555, issued in his name, but she did not bother
to explain why it was dated 1994, although Ireneo died on June 11, 1992. Liborio’s ownership of Lot
No. 4618 is admitted by all the parties, but it must be asked whether in his lifetime Liborio did in fact
transmit it to Ireneo, and if not, whether it was conveyed to him by Liborio’s heirs. It is imperative for
Rosario to have presented proof of this transfer to Ireneo, in such a form as would have vested
ownership in him. We find, instead, a preponderance of contrary evidence.

1. In his testimony, Jose claimed that his parents’ bamboo house in Lot No. 4618
disintegrated from wear and tear; so he took them in to his semi-concrete house in the same
lot, which was just a few steps away, and he cared for them until they died; shortly before
Liborio’s death, and in the presence of all his siblings, his father Liborio assigned Lot No.
4618 to him as his inheritance; his house was demolished in 1998 as a result of the
ejectment case filed against him; but his family continued to live thereat after reconstructing
the house; Ireneo and his family did not live in Lot No. 4618; although Jose’s job as an
insurance agent took him around Pangasinan, he always came home to his family in his
house in Lot No. 4618, which he used as his permanent address; only Lot No. 4676 was
included in the Deed of Extrajudicial Partition dated January 8, 1998 because Lot No. 4618
had already been distributed to Jose, and Lot No. 4704 had already been assigned to
Jacinta and Bonifacio as their share in their father’s estate. 38

2. Jose’s testimony was corroborated by petitioners Felicidad, 39 Jacinta,40 Leonora,41 and

Flora,42 who all confirmed that their brother Jose has always resided in Lot No. 4618 from his
childhood up to the present, that he took their aged parents into his house after their bamboo
house was destroyed, and he attended to their needs until they died in 1982. The sisters
were also one in saying that their father Liborio verbally willed Lot No. 4618 to Jose as his
share in his estate, and that their actual partition affirmed their father’s dispositions. Jacinta
claimed that she and Bonifacio have since taken possession of Lot No. 4704 pursuant to
their partition, and have also declared their respective portions for tax purposes. 43 Flora
 corroborated Jacinta on their taking possession of Lot No. 4704, as well as that Jose built his
house on Lot No. 4618 next to his parents and they came to live with him in their old age.
Flora affirmed that Exhibit "F" correctly reflects their verbal partition of Lot No. 4676, and that
she was fully in accord with it. She added that Felicidad and Marcelina had since constructed
their own houses on the portions of Lot No. 4676 assigned to them.44 Felicidad mentioned
that in their partition, Ireneo was given a portion of Lot No. 4676, while Lot No. 4704 was
divided between Jacinta and Bonifacio, and Jose alone got Lot No. 4618. Leonora confirmed
that they were all present when their father made his above dispositions of his estate.

3. Benjamin Lorenzo, a long-time neighbor of the Casilangs testified that Jose’s house
stands on Lot No. 4618 and Ireneo did not live with his family on the said lot but was a tenant
in another farm some distance away.45

4. For her part, Rosario merely asserted that her father Ireneo succeeded to Lot No. 4618
from Liborio, as shown in TD No. 555 (Exhibit "1"); that she and her brothers extra-judicially
settled Ireneo’s estate, and that they each waived their shares in her favor; and, that she has
been paying taxes on Lot No. 4618. Rosario admitted, however, that Jose has lived in the lot
since he was a child, and he has reconstructed his house thereon after its court-ordered
demolition.46 But Rosario on cross-examination backtracked by claiming that it was her father
Ireneo and grandfather Liborio who built the old house in Lot No. 4618, where Ireneo resided
until his death; he even planted various fruit trees. Yet, there is no mention whatsoever to
this effect by any of the witnesses. Rosario also contradicted herself when she denied that
Jose lived there because his job as insurance agent took him away often and yet admitted
that Jose’s house stands there, which he reconstructed after it was ordered demolished by
the MTC. Inexplicably, Rosario disclaimed knowledge of Ireneo’s share in Lot No. 4676,
although she was a signatory, along with her brothers and all the petitioners, in the deed of
partition of the said lot, whereby she got 1,308 sq m. Rosario also admitted that taxes were
paid on the lot only beginning in 1997, not before. 47

5. Benjamin Dizon, husband of Rosario, testified that Rosario was losing appetite and sleep
because of the case filed by Jose; that Ireneo died in another farm; that Ireneo had a house
in Lot No. 4618 but Jose took over the house after he died in 1992. 48 Respondent Angelo,
brother of Rosario, claimed that when he was 13 or 14 years old, he heard his grandfather
tell his father Ireneo that he would inherit Lot No. 4618. On cross-examination, Angelo
insisted that his father had always lived with his family in his grandfather’s house in Lot No.
4618, that Jose did not live there but was given another lot, although he could not say which
lot it was; he admitted that his grandmother lived with Jose when she died, and Ireneo’s
share was in Lot No. 4676.49

6. On rebuttal, Jose recounted that after his four children were married, Ireneo lived as a
tenant in another farm; that during a period of illness he lived in Manila for some time, and
later resided in Cagayan with his two married sons; and lastly on his return, worked as a
tenant of the Maningding family for about 10 years in Calasiao, staying in a hut one kilometer
away. Jose also claimed that Ireneo had asked Liborio for a portion of Lot No. 4676, a lot
which is bigger than Lot No. 4618 by several hundreds of square meters. 50

7. On sur-rebuttal, Rosario claimed that her grandparents, father and mother lived in Lot No.
4618 when she was a child until she married and left in 1976; that her uncle Jose asked
permission from Liborio to be allowed to stay there with his family. She admitted that Jose
built his house in 1985, three years after Liborio died, but as if to correct herself, she also
claimed that Jose built his house in Lot No. 4676, and not in Lot No. 4618. (Contrarily, her
aunt Leonora testified that Jose built his house in Lot No. 4618 while their parents were
alive.)51 Moreover, if such was the case, Rosario did not explain why she filed Civil Case No.
847, if she thought her uncle built his house in Lot No. 4676, and not in Lot No.
4618.52 Rosario also claimed that Ireneo always came home in the evenings to his father
Liborio’s house from the Maningding farm, which he tenanted for 10 years, but obviously, by
then Liborio’s house had long been gone. Again, confusedly, Rosario denied that she knew
of her father’s share in Lot No. 4676.

From the testimonies of the parties, we are convinced that the conclusion of the RTC is well-
supported that there was indeed a verbal partition among the heirs of Liborio, pursuant to which
each of his eight children received his or her share of his estate, and that Jose’s share was Lot No.
4618.

The parties’ verbal partition is valid, and has been ratified by their taking possession of their
respective shares.

The validity of an oral partition is well-settled in our jurisdiction. In Vda. de Espina v. Abaya,53 this
Court declared that an oral partition is valid:
Anent the issue of oral partition, We sustain the validity of said partition. "An agreement of partition
may be made orally or in writing. An oral agreement for the partition of the property owned in
common is valid and enforceable upon the parties. The Statute of Frauds has no operation in this
kind of agreements, for partition is not a conveyance of property but simply a segregation and
designation of the part of the property which belong to the co-owners."54

In Maestrado v. CA,55 the Supreme Court upheld the partition after it found that it conformed to the
alleged oral partition of the heirs, and that the oral partition was confirmed by the notarized
quitclaims executed by the heirs subsequently.56 In Maglucot-Aw v. Maglucot,57 the Supreme Court
elaborated on the validity of parol partition:

On general principle, independent and in spite of the statute of frauds, courts of equity have enforce
[sic] oral partition when it has been completely or partly performed.

Regardless of whether a parol partition or agreement to partition is valid and enforceable at law,
equity will [in] proper cases, where the parol partition has actually been consummated by the taking
of possession in severalty and the exercise of ownership by the parties of the respective portions set
off to each, recognize and enforce such parol partition and the rights of the parties thereunder. Thus,
it has been held or stated in a number of cases involving an oral partition under which the parties
went into possession, exercised acts of ownership, or otherwise partly performed the partition
agreement, that equity will confirm such partition and in a proper case decree title in accordance with
the possession in severalty.

In numerous cases it has been held or stated that parol partition may be sustained on the ground of
estoppel of the parties to assert the rights of a tenant in common as to parts of land divided by parol
partition as to which possession in severalty was taken and acts of individual ownership were
exercised. And a court of equity will recognize the agreement and decree it to be valid and effectual
for the purpose of concluding the right of the parties as between each other to hold their respective
parts in severalty.

A parol partition may also be sustained on the ground that the parties thereto have acquiesced in
and ratified the partition by taking possession in severalty, exercising acts of ownership with respect
thereto, or otherwise recognizing the existence of the partition.

A number of cases have specifically applied the doctrine of part performance, or have stated that a
part performance is necessary, to take a parol partition out of the operation of the statute of frauds. It
has been held that where there was a partition in fact between tenants in common, and a part
performance, a court of equity would have regard to and enforce such partition agreed to by the
parties.58

Jose’s possession of Lot No. 4618 under a claim of ownership is well borne out by the records. It is
also consistent with the claimed verbal partition with his siblings, and fully corroborated by his sisters
Felicidad, Jacinta, Leonora, and Flora, who further testified that they each had taken possession of
their own shares and built their houses thereon.

A possessor of real estate property is presumed to have title thereto unless the adverse claimant
establishes a better right.59 Moreover, under Article 541 of the Civil Code, one who possesses in the
concept of owner has in his favor the legal presumption that he possesses with a just title, and he
cannot be obliged to show or prove it. Similarly, Article 433 of the Civil Code provides that actual
possession under a claim of ownership raises a disputable presumption of ownership. Thus, actual
possession and exercise of dominion over definite portions of the property in accordance with an
alleged partition are considered strong proof of an oral partition 60 which the Court will not hesitate to
uphold.

Tax declarations and tax receipts are not conclusive evidence of ownership.

It is settled that tax declarations and tax receipts alone are not conclusive evidence of ownership.
They are merely indicia of a claim of ownership,61 but when coupled with proof of actual possession
of the property, they can be the basis of claim of ownership through prescription. 62 In the absence of
actual, public and adverse possession, the declaration of the land for tax purposes does not prove
ownership.63 We have seen that there is no proof that Liborio, or the Casilang siblings conveyed Lot
No. 4618 to Ireneo. There is also no proof that Ireneo himself declared Lot No. 4618 for tax
purposes, and even if he or his heirs did, this is not enough basis to claim ownership over the
subject property. The Court notes that TO No. 555 was issued only in 1994, two years after Ireneo's
death. Rosario even admitted that she began paying taxes only in 1997. 64 More impmiantly, Ireneo
never claimed Lot No. 4618 nor took possession of it in the concept of owner.

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

SO ORDERED.

G.R. No. L-52361 April 27, 1981

SUNSET VIEW CONDOMINIUM CORPORATION, petitioner,

vs.
THE HON. JOSE C. CAMPOS, JR. OF THE COURT OF FIRST INSTANCE, BRANCH XXX,
PASAY CITY and AGUILAR-BERNARES REALTY, respondents.

G.R. No. L-52524 April 27, 1981

SUNSET VIEW CONDOMINIUM CORPORATION, petitioner,

vs.
THE HON. JOSE C. CAMPOS, JR., PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE,
BRANCH XXX, PASAY CITY, and LIM SIU LENG, respondents.

FERNANDEZ, J.:

These two cases which involve similar facts and raise Identical questions of law were ordered
consolidated by resolution of this Court dated March 17, 1980. 1

The petitioner, Sunset View Condominium Corporation, in both cases, is a condominium corporation
within the meaning of Republic Act No. 4726 in relation to a duly registered Amended Master Deed
with Declaration of Restrictions of the Sunset View Condominium Project located at 2230 Roxas
Boulevard, Pasay City of which said petitioner is the Management Body holding title to all the
common and limited common areas. 2

G.R. NO. 52361

The private respondent, Aguilar-Bernares Realty, a sole proprietorship with business name
registered with the Bureau of Commerce, owned and operated by the spouses Emmanuel G. Aguilar
and Zenaida B. Aguilar, is the assignee of a unit, "Solana", in the Sunset View Condominium Project
with La Perla Commercial, Incorporated, as assignor. 3 The La Perla Commercial, Incorporated
bought the "Solana" unit on installment from the Tower Builders, Inc. 4 The petitioner, Sunset View
Condominium Corporation, filed for the collection of assessments levied on the unit against Aguilar-
Bernares Realty, private respondent herein, a complaint dated June 22, 1979 docketed as Civil
Case No. 7303-P of the Court of First Instance of Pasay City, Branch XXX. The private respondent
filed a Motion to Dismiss the complaint on the grounds (1) that the complaint does not state a cause
of action: (2) that the court has no jurisdiction over the subject or nature other action; and (3) that
there is another action pending between the same parties for the same cause. The petitioner filed its
opposition thereto. The motion to dismiss was granted on December 11, 1979 by the respondent
Judge who opined that the private respondent is, pursuant to Section 2 of Republic Act No. 4726, a
"holder of a separate interest" and consequently, a shareholder of the plaintiff condominium
corporation; and that "the case should be properly filed with the Securities & Exchange Commission
which has exclusive original jurisdiction on controversies arising between shareholders of the
corporation." the motion for reconsideration thereof having been denied, the petitioner, alleging
grave abuse of discretion on the part of respondent Judge, filed the instant petition for certiorari
praying that the said orders be set aside.

G.R. NO. 52524

The petitioner filed its amended complaint dated July 16, 1979 docketed as Civil Case No. 14127 of
Branch I of the City Court of Pasay City for the collection of overdue accounts on assessments and
insurance premiums and the interest thereon amounting to P6,168 06 as of March 31, 1979 against
the private respondent Lim Siu Leng 5 to whom was assigned on July 11, 1977 a unit called "Alegria"
of the Sunset. View Condominium Project by Alfonso Uy 6 who had entered into a "Contract to Buy
and Sell" with Tower Builders, Inc. over the said unit on installment basis. 7

The private respondent filed a motion to dismiss on the ground of lack of jurisdiction, alleging that
the amount sought to be collected is an assessment. The correctness and validity of which is certain
to involve a dispute between her and the petitioner corporation; that she has automatically become,
as a purchaser of the condominium unit, a stockholder of the petitioner pursuant to Section 2 of the
Condominium Act, Republic Act No. 4726; that the dispute is intra-corporate and is consequently
under the exclusive jurisdiction of the Securities & Exchange Commission as provided in Section 5
of P.D. No. 902-A. 8

The petitioner filed its opposition thereto, alleging that the private respondent who had not fully paid
for the unit was not the owner thereof, consequently was not the holder of a separate interest which
would make her a stockholder, and that hence the case was not an intra-corporate dispute. 9

After the private respondent had filed her answer to the opposition to the motion to dismiss 10 of the
petitioner, the trial court issued an order dated August 13, 1979 denying the motion to dismiss. 11 The
private respondent's motion for reconsideration thereof was denied by the trial court in its Order
dated September 19, 1979. 12

The private respondent then appealed pursuant to Section 10 of Rule 40 of the Rules of Court to the
Court of First Instance, where the appeal was docketed as Civil Case No. 7530P. The petitioner filed
its "Motion to Dismiss Appeal" on the ground that the order of the trial court appealed from is
interlocutory. 13

The motion to dismiss the appeal was denied and the parties were ordered to submit their respective
memorandum on the issue raised before the trial court and on the disputed order of the trial
judge. 14 After the parties had submitted their respective memoranda on the matter, the respondent
Judge issued an order dated December 14, 1979 in which he directed that "the appeal is hereby
dismissed and d the judgment of the lower court is reversed. The case is dismissed and the parties
are directed to ventilate their controversy with the Securities & Exchange Commission. 15 The
petitioner's motion for reconsideration thereof was denied in an order dated January 14,
1980. 16 Hence this petition for certiorari, alleging grave abuse of discretion on the part of the
respondent Judge.

Issues Common to Both Cases

It is admitted that the private respondents in both cases have not yet fully paid the purchase price of
their units. The Identical issues raised in both petitions are the following:

1. Is a purchaser of a condominium unit in the condominium project managed by the petitioner, who
has not yet fully paid the purchase price thereof, automaticaly a ,stockholder of the petitioner
Condominium Corporation

2. Is it the regular court or the Securities & Exchange Commission that has jurisdiction over cases
for collection of assessments assessed by the Condominium Corporation on condominium units the
full purchase price of which has not been paid?

The private respondents in both cases argue that every purchaser of a condominium unit, regardless
of whether or not he has fully paid the purchase price, is a "holder of a separate interest" mentioned
in Section 2 of Republic Act No. 4726, otherwise known as "The Condominium Act" and is
automatically a shareholder of the condominium corporation.

The contention has no merit. Section 5 of the Condominium Act expressly provides that the
shareholding in the Condominium Corporation will be conveyed only in a proper case. Said Section
5 provides:

Any transfer or conveyance of a unit or an apartment, office or other space therein,

shall include the transfer or conveyance of the undivided interests in the common
areas or, in a proper case, the membership or shareholding in the condominium
corporation ...

It is clear then that not every purchaser of a condominium unit is a shareholder of the condominium
corporation. The Condominium Act leaves to the Master Deed the determination of when the
shareholding will be transferred to the purchaser of a unit. Thus, Section 4 of said Act provides:

The provisions of this Act shall apply to property divided or to be divided into
condominium only if there shall be recorded in the Register of Deeds of the province
or city in which the property lies and duly annotated in the corresponding certificate
of title of the land ... an enabling or master deed which shall contain, among others,
the following:

xxx xxx xxx

 (d) Astatement of the exact nature of the interest acquired or to be acquired by the
purchaser in the separate units and in the common areas of the condominium project
...

The Amended Master Deeds in these cases, which were duly registered in the Register of Deeds,
and which contain, by mandate of Section 4, a statement of the exact nature of the interest acquired
by a purchaser of a unit, provide in Section 6 of Part 1:

(d) Each Unit owner shall, as an essential condition to such ownership, acquire
stockholding in the Condominium Corporation herein below provided ... 17

The Amended Master Deeds likewise provide in Section 7 (b), thus.

(b) All unit owners shall of necessity become stockholders of the Condominium
Corporation. TOWER shall acquire all the shares of stock of SUNSET VIEW and
shall allocate the said shares to the units in proportion to the appurtenant interest in
the COMMON AREAS and LIMITED COMMON AREAS as provided in Section 6 (b)
above. Said shares allocated are mere appurtenances of each unit, and therefore,
the same cannot be transferred, conveyed, encumbered or otherwise disposed of
separately from the Unit ... 18

It is clear from the above-quoted provisions of the Master Deeds that the shareholding in the
Condominium Corporation is inseparable from the unit to which it is only an appurtenant and that
only the owner of a unit is a shareholder in the Condominium Corporation.

Subparagraph (a) of Part 1, Section 6, of the Master Deeds determines when and under what
conditions ownership of a unit is acquired by a purchaser thus:

(a) The purchaser of a unit shall acquire title or ownership of such Unit, subject to the
terms and conditions of the instrument conveying the unit to such purchaser and to
the terms and conditions of any subsequent conveyance under which the purchaser
takes title to the Unit, and subject further to this MASTER DEED ... 19

The instrument conveying the unit "Solana" in G.R. NO. 52361 is the "Contract to Buy and Sell"
dated September 13, 1977, Annex "D", while that conveying the unit "Alegria" in G.R. NO. 52524 is
the "Contract to Buy and Sell" dated May 12, 1976, Annex "C". In both deeds of conveyance, it is
provided:

4. Upon full payment by the BUYER of the total purchase price and full compliance
by the BUYER of an its obligations herein, the SELLER will convey unto the BUYER,
as soon as practicable after completion of the construction, full and absolute title in
and to the subject unit, to the shares of stock pertaining thereto and to an rights and
interests in connection therewith ... 20

The share of stock appurtenant to the unit win be transferred accordingly to the purchaser of the unit
only upon full payment of the purchase price at which time he will also become the owner of the unit.
Consequently, even under the contract, it is only the owner of a unit who is a shareholder of the
Condominium Corporation. Inasmuch as owners is conveyed only upon full payment of the purchase
price, it necessarily follows that a purchaser of a unit who has not paid the full purchase price thereof
is not The owner of the unit and consequently is not a shareholder of the Condominium Corporation.

That only the owner of a unit is a stockholder of the Condominium Corporation is inferred from
Section 10 of the Condominium Act which reads:

SEC. 10. ... Membership in a condominium corporation, regardless of whether it is a

stock or non-stock corporation, shall not be transferable separately from the
condominium unit of which it is an appurtenance When a member or stockholder
ceases is to own a unit in the project in which the condominium corporation owns or
holds the common areas, he shall automatically cease to be a member or
stockholder of the condominium corporation.

Pursuant to the above statutory provision, ownership of a unit is a condition sine qua non to being a
shareholder in the condominium corporation. It follows that a purchaser of a unit who is not yet the
owner thereof for not having fully paid the full purchase price, is not a shareholder By necessary
implication, the "separate interest" in a condominium, which entitles the holder to become
automatically a share holder in the condominium corporation, as provided in Section 2 of the
Condominium Act, can be no other than ownership of a unit. This is so because nobody can be a
shareholder unless he is the owner of a unit and when he ceases to be the owner, he also ceases
automatically to be a shareholder.
The private respondents, therefore, who have not fully paid the purchase price of their units and are
consequently not owners of their units are not members or shareholders of the petitioner
condominium corporation,

Inasmuch as the private respondents are not shareholders of the petitioner condominium
corporation, the instant case for collection cannot be a "controversy arising out of intracorporate or
partnership relations between and among stockholders, members or associates; between any or all
of them and the corporation, partnership or association of which they are stockholders, members or
associates, respectively" which controversies are under the original and exclusive jurisdiction of the
Securities & Exchange Commission, pursuant to Section 5 (b) of P.D. No. 902- A. The subject
matters of the instant cases according to the allegations of the complaints are under the jurisdiction
of the regular courts: that of G.R. NO. 52361, which is for the collection of P8,335.38 with interest
plus attorney's fees equivalent to the principal or a total of more than P10,000.00 is under the
jurisdiction of the Court of First Instance; and that of G.R. NO. 52524, which is for the collection of
P6,168-06 is within the jurisdiction of the City Court.

In view of the foregoing, it is no longer necessary to resolve the issue raised in G.R. NO. 52524 of
whether an order of the City Court denying a motion to dismiss on the ground of lack of jurisdiction
can be appealed to the Court of First Instance.

WHEREFORE, the questioned orders of the respondent Judge dated December 11, 1979 and
January 4, 1980 in Civil Case No. 7303-P, subject matter of the Petition in G.R. No. 52361, are set
aside and said Judge is ordered to try the case on the merits. The orders dated December 14, 1979
and January 14, 1980 in Civil Case No. 7530-P, subject matter of the petition in G.R. No. 52524 are
set aside and the case is ordered remanded to the court a quo, City Court of Pasay City, for trial on
the merits, with costs against the private respondents.

SO ORDERED.

[G.R. No. 188802, February 14 : 2011]

REVELINA LIMSON, PETITIONER, VS. WACK WACK CONDOMINIUM

CORPORATION, RESPONDENT.

DECISION

CARPIO MORALES, J.:

On January 22, 1996, Revelina Limson[1] (Revelina) purchased from Conchita

Benitez an apartment unit (Unit 703) at Wack Wack Apartments, Wack Wack Road,
Mandaluyong City.

Upon moving in, Revelina noticed defects in the electrical main panel located inside
the unit, drawing her to report them, by letter of February 22, 1996, to the Wack
Wack Condominium Corporation (respondent), a non-stock corporation organized
for the purpose of holding title to and managing the common areas of Wack Wack
Apartments

Racquel Gonzalez, who sits as Member of respondent's Board of Directors, replied

by letter of February 23, 1996 that under Section 3 of the House Rules and
Regulations, it is the duty of the unit owner to maintain the electrical and plumbing
systems at his/her expense.

By still another letter dated February 28, 1996, Revelina informed respondent that
the "switch board is such that No. 12 wire is protected by 30 ampere fuse" and that
five appliances - refrigerator, freezer, iron, dryer and washing machine - are
connected to only one fuse.

Revelina later sought professional assistance from a private electrical consultant,

Romago, Incorporated. It was concluded that the wirings in Unit 703 are unsafe,
hazardous and did not comply with the Philippine Electrical Code.
On Revelina's request, the City Building Office conducted an inspection of Unit 703
following which a Report dated January 21, 1997 was accomplished with the
following findings and recommendations:

Findings:

1. The load center consists of 100 A 2 pst main switch and fusible cut out
Blocks with 16 circuits. The fusible cut out block enclosure is not
provided with cover, exposing electrical live part that makes it
hazardous, unsafe and will be difficult to maintain because a portion
was blocked by a shelf.
2. The jumper cable from main safety switch to fusible cut-out blocks
used 2 #10 wire (Capt. 60 amp) per phase. This is undersized and
would overheat.
3. The fusible current protective devise where all 30 Amp., sp., 240 v
FOR 2 #12 TW (20 AMP. Capacity wire) this does not comply with the
provision of the Philippine Electrical Code that stipulates rating of the
protective devise shall be the same as the conductor ampacity
especially on a multi outlet circuit.
4. Power supply for water heaters was tapped to small appliance for
convenience outlet circuit.

Recommendation:

1. Replacement of fusible load center with panel board and circuit

breaker components to correct the problem as enumerated on items 2,
3, 4 of our findings.
2. Replace the embedded circular loom with conduit on moulding.
3. Check all grounded circuit for water heater lad.
4. Provide separate circuit for water heater lad.
5. Submit As Built Electrical Plan signed and sealed by a Professional
Electrical Engineer together with the previous approved Electrical
Plan. (emphasis and underscoring supplied)

The Report was sent by then Mayor Benjamin Abalos, Sr. to respondent by letter
dated January 31, 1997. On February 3, 1997, respondent, through Architect
Eugenio Gonzalez, wrote Revelina to demand that repairs in line with the above-
stated recommendation of the City Building Office be undertaken within ten (10)
days.

Before the deadline, respondent's Board of Directors convened on February 7, 1997

and resolved to impose a daily fine of P1,000.00 on Revelina and her husband
Benjamin, to commence on February 14, 1997, should the latter fail to comply.

Revelina and her husband refused to undertake the repairs and to pay the
fine. They claimed that the electrical main panel forms part of the common areas,
citing Section 6 of Republic Act No. 4726[2], "An Act to Define Condominium,
Establish Requirements for its Creation and Government of its Incidents," the
pertinent provision of which reads:

Sec. 6. Unless otherwise expressly provided in the enabling or master deed or the
declaration of restrictions, the incidents of a condominium grant are as follows:

a.) x x x The following are not part of the unit: bearing walls, columns, floors,
roofs, foundations, and other common structural elements of the buildings; lobbies,
stairways, hallways and other areas of common use, elevator equipment and
shafts, central heating, central refrigeration and central air conditioning equipment,
reservoir, tanks, pumps and other central services and facilities, pipes, ducts, flues,
chutes, conduits wires and other utility installations, wherever
located, except the outlets thereof when located within the unit. (emphasis
and underscoring supplied)
They argued that an electrical main panel is in the nature of a utility installation.

Meanwhile, Revelina and her husband purchased an oversized whirlpool. In the

process of installation, the 7th floor utility room which is adjacent to Unit 703 was
damaged.

Revelina claimed that an agreement had been reached under which respondent
would take charge of the repair of the utility room and would bill her for the cost
incurred therefor but respondent failed to do so. Yet the Board of Directors
assessed her and her husband a fine of P1,000.00 per day until the utility room is
repaired.

Respondent thereupon filed a complaint for specific performance and damages

against Revelina and Benjamin before the Securities and Exchange Commission
(SEC) upon the following causes of action:

1. To compel the defendants (Spouses Limson) to undertake the

necessary repairs of the defective and hazardous condition of the
electrical wiring of their Unit 703 in accordance with the report and
recommendation of the Office of the Building Official of Mandaluyong
City;

2. To seek payment of liquidated damages from the defendants in

accordance with the Resolution of the Board of Directors of plaintiff
(respondent herein), starting February 15, 1997 until the defendants
shall have complied with the aforestated report and recommendation
of the building officials; and

3. To seek payment of [sic] from the defendants for the damages they
have caused to the common area of Wack Wack Apartments due to
their insistence to install in their unit an over-sized whirlpool.[3]

Pursuant to A.M. No. 00-11-03,[4] the complaint was transferred to the Regional
Trial Court (RTC) of Mandaluyong City for disposition.

As of June 30, 1997, the assessments and penalties charged against the spouses
had reached P569,736.94. On July 17, 1997, respondent filed a Notice of
Assessment with the Register of Deeds, Mandaluyong City with application for
foreclosure and public auction of Unit 703.

At the public auction held on August 28, 1997, respondent emerged as highest
bidder and thereupon purchased Unit 703 in the amount of P569,736.94, on
account of which it was issued a Certificate of Sale on September 15, 1997.

By Decision of December 22, 2003, Branch 214 of the Mandaluyong RTC dismissed
respondent's complaint for lack of merit in this wise:

Guided by the findings and recommendation of the building official of Mandaluyong

City, it would appear that the questioned electrical installations are to be considered
as part of the common area and not of Unit 703, though the same are necessarily
found inside the said unit. As contained in Section 6, par. 1 of the Condominium
Act: "a) The boundary of the Unit granted are the interior surfaces of the perimeter
walls, floors, ceilings, windows and doors thereof. The following are not part of
the unit: bearing walls, columns, floors, roofs, foundations, and other common
structural elements of the buildings; lobbies, stairways, hallways and other areas of
common use, elevator equipment and shafts, central heating, central refrigeration
and central air conditioning equipment, reservoir, tanks, pumps and other central
services and facilities, pipes, ducts, flues, chutes, conduits wires and other utility
installations, wherever located, except the outlets thereof when located
within the unit. (underscoring supplied; emphasis in the original) [5]

On appeal, the Court of Appeals, by Decision of December 19,

2008,[6] reversed the decision of the trial court, holding in the main that for the
electrical main panel to be considered as part of the common areas, it should have
been intended for communal use and benefit. The subject electrical main panel
being located inside the unit and its principal function being to control the flow of
electricity into the unit, the appellate court concluded that charges for its repair
cannot be for respondent's account.

On the imposition of fine on the spouses Limson for failure to correct the faulty
electrical wiring despite notice, the appellate court upheld respondent's authority to
enforce the same. Finding, however, that the amount of P1,000 fine per day was
excessive, it reduced the same to P200.

Respecting respondent's imposition of a fine of P1,000 per day on the spouses'

alleged failure to repair the 7th floor utility room, the appellate court disallowed the
same, however, it holding that respondent did not first seek reimbursement from
them before assessment.

Finally, the appellate court denied respondent's prayer for actual damages in the
amount of P5,000 representing repair expenses on the utility room, it having failed
to present receipts therefor.

Her Motion for Reconsideration having been denied, Revelina filed the present
petition for review.

The Court finds for Revelina.

The pertinent provisions of the Wack Wack Apartments Master Deed follow:

Section 5. The Common Areas. - The common elements or areas of the Project
(herein referred to as the "Common Areas") shall comprise all parts of the Project
other than the Units, including without limitation the following:

xxxx

(e) All central and appurtenant equipment and installations for common facilities
and utilities such as power, light, sewerage, drainage, garbage chute, and water
connections (including all outlets, pipes, ducts, wires, cables and conduits used in
connection therewith, whether located in Common Areas or in Units); all elevators,
elevator shafts, tanks, pumps, motors, fans, compressors, and control equipment;
all common utility spaces and areas;

(f) All other parts of the Project and all apparatus, equipment
and installations therein which are for common use or necessary or convenient for
the existence, maintenance of safety of the Project. (emphasis and underscoring
supplied)

Section 3. Maintenance, Repairs and Alterations. - (a) All maintenance of and

repairs of any Unit (other than the maintenance of and repairs to any of the
Common Areas contained therein not necessitated by the act or negligence of the
owner, tenant or occupant of such Unit) shall be made [by], and at the expense
of, the owner of such unit. Each Unit owner shall be responsible for all damages to
any other Unit and to the Common Areas resulting from his failure to effect such
maintenance and repairs. Each Unit owner shall also be responsible for promptly
reporting to the Condominium Corporation any defect or need for repairs in any of
the Common Areas in his Unit. (emphasis and underscoring supplied)

xxxx

Section 3 (e) of R.A. 4726 defines "common areas" as "the entire project except all
units separately granted or held or reserved." Section 6 (a) of the same law
provides:

a.) x x x The following are not part of the unit: bearing walls, columns, floors,
roofs, foundations, and other common structural elements of the buildings; lobbies,
stairways, hallways and other areas of common use, elevator equipment and
shafts, central heating, central refrigeration and central air conditioning equipment,
reservoir, tanks, pumps and other central services and facilities, pipes, ducts, flues,
chutes, conduits wires and other utility installations, wherever located, except
the outlets thereof when located within the unit. (emphasis and underscoring
supplied)

The electrical panel's location inside the unit notwithstanding, it is not automatically
considered as part of it. The above-quoted pertinent provisions of the law and the
master deed contemplate that "common areas," e.g. utility installations, may be
situated within the unit.

Where a statute is clear, plain and free from ambiguity, it must be given its literal
meaning and applied without attempt to interpret.[7] Verba legis non est
recedendum, index animi sermo est. There should be no departure from the words
of the statute, for speech is the index of intention.

An explanation of the Apartment's electrical supply system was presented by

respondent, viz:

a.) x x x [T]he electrical system of the Apartments commences with a common

main electrical line (main line) provided by the Apartments, connected to a Meralco
line outside the building. This common main line runs to the ground floor of the
building, where the common meter station is located; from where individual
secondary lines, are tapped to the common main line. There are as many individual
secondary lines tapped to the common main line, as there are units. EVERY
SECONDARY LINE TRAVELS VERTICALLY TO ITS DESIGNATED FLOOR AND LEADS
TO AN INDIVIDUAL UNIT.

b.) The construction is such, that every secondary line is embedded within the wall
of a unit, until it surfaces from the wall, ready to supply electricity to that unit; the
UNIT, in this case, has two (2) metal boxes, inside the UNIT; both attached to the
wall of the UNIT. The first of the two (2) metal boxes is the main switch box.
(Annex "B" and "B-1" The main switch box has a hole, through which the secondary
line enters and is attached to the upper end of two (2) big fuses, located in the
main switch box (Annex "B-1-a"). The upper end of the two (2) big fuses, where
the secondary line (tapped to the main line) ends are indicated and marked as
(Annex "B-1-b" and "B-1-c")

c.) At the lower end of these two (2) big fuses, there are separate electrical wires
(technically called "jumper cables"). The jumper cables originate in the UNIT's
second metal box which is the fusible cutout box (fuse box), and the jumper cables
are connected to the lower end of the two (2) big fuses in the main switch box to
draw electricity to feed the fuse box. x x x [8] (capitalization and underscoring in the
original)

In a multi-occupancy dwelling such as Apartments, limitations are imposed under

R.A. 4726[9] in accordance with the common interest and safety of the occupants
therein which at times may curtail the exercise of ownership. To maintain safe,
harmonious and secured living conditions, certain stipulations are embodied in the
duly registered deed of restrictions, in this case the Master Deed, and in house
rules which the condominium corporation, like respondent, is mandated to
implement. Upon acquisition of a unit, the owner not only affixes his conformity to
the sale; he also binds himself to a contract with other unit owners. [10]

Unquestionably, the fuse box controls the supply of electricity into the unit. Power
is sourced through jumper cables attached to the main switch which connects the
unit's electrical line to the Apartment's common electrical line. It is an integral
component of a power utility installation. Respondent cannot disclaim responsibility
for the maintenance of the Apartments' electrical supply system solely because a
component thereof is placed inside a unit.

As earlier stated, both the law and the Master Deed refer to utility installations as
forming part of the common areas, which reference is justified by practical
considerations. Repairs to correct any defects in the electrical wiring should be
under the control and supervision of respondent to ensure safety and compliance
with the Philippine Electrical Code,[11] not to mention security and peace of mind of
the unit owners

WHEREFORE, the petition is GRANTED. The Court of Appeals Decision of

December 19, 2008 is REVERSED and SET ASIDE. The Decision of Branch 214 of
the Mandaluyong Regional Trial Court dismissing the complaint of Wack Wack
Condominium Corporation against Revelina and Benjamin Limson is, in light of the
foregoing discussions, REINSTATED.

SO ORDERED.