Art. 494 G.R. No. L-20449 January 29, 1968 ESPERANZA FABIAN, ET AL. vs. SILBINA FABIAN, ET AL.

EN BANC [G.R. No. L-20449. January 29, 1968.] ESPERANZA FABIAN, BENITA FABIAN and DAMASO PAPA Y FABIAN, plaintiffsappellants, vs. SILBINA FABIAN, FELICIANO LANDRITO, TEODORA FABIAN and FRANCISCO DEL MONTE, defendants-appellees. Felix Law Office for plaintiffs-appellants. J.G. Mendoza for defendants-appellees. SYLLABUS 1. FRIAR LANDS ACTS; PURCHASE OF LOT ON INSTALLMENT; OWNERSHIP TRANSFERRED TO PURCHASER UPON PAYMENT OF THE FIRST INSTALLMENT. The purchaser of a piece of land, which was part of the Friar Lands Estate of Muntinlupa, Rizal, who prior to his death had paid five annual installments to the Government and had, in fact been issued a sale certificate therefor, was at the time of his death already the owner of said piece of land. While under section 15 of Act 1120, otherwise known as the Friar Lands Act, title to the land sold is reserved to the Government until the purchaser makes full payment of all the required installments and interest thereon, this legal reservation refers to the bare, naked title. The equitable and beneficial title really passed to the purchaser the moment he paid the first installment and was given a certificate of sale. The reservation of the title in favor of the Government is made merely to protect the interest of the Government so as to preclude or prevent the purchaser from encumbering or disposing of the lot purchased before the payment in full of the purchase price. Outside of this protection the Government retains no right as owner. 2. ID.; ID.; ID.; SALE OF LAND BY THE GOVERNMENT TO NON-HEIR OF HOLDER OF CERTIFICATE IS NULL AND VOID; PROPERTY ACQUIRED THROUGH FRAUD; PURCHASERS CONSIDERED TRUSTEES OF AN IMPLIED TRUST. Since the purchaser of the land in question left four daughters upon his death, pursuant to the provisions of Sec. 16, Act 1120, the interest of said purchaser over the land shall descend and the deed shall issue to his four daughters. The assignment and sale of the lot by the government to a niece and a daughter were therefore null and void as to that portion sold to the niece, and as well as to that portion which lawfully devolved in favor of the three other daughters. The principle thus applies that since the property was acquired through fraud, the persons obtaining the same are considered trustees of an implied trust for the benefit of the persons from whom the property comes. 3. ID.; ID.; ID.; ID.; ID.; ACTION FOR RECONVEYANCE; LACHES BAR TO AN ACTION TO ENFORCE A CONSTRUCTIVE TRUST. An action for reconveyance of real property based upon a constructive or implied trust, resulting from fraud, may be barred by the statute of limitations. The action therefor should be filed within four years from the discovery of the fraud. Since present action for conveyance was instituted only in 1960 while the constructive trust began in 1929, when the appellees bought the lot from the government and forthwith took physical possession of the same and since then up to the present have been in possession of the land publicly and continuously under claim of ownership then not only has appellants' action to enforce the constructive trust created in their favor prescribed, but also, a valid, full and complete title has vested in the appellees by acquisitive prescription. (Gerona, et al. vs. De Guzman, L-19060, May 29, 1964). DECISION CASTRO, J p:

Before us is the appeal taken by Esperanza Fabian, Benita I Fabian and Damaso Papa y Fabian from the decision of the Court of First Instance of Rizal which dismissed their complaint for reconveyance, in civil case 295-R, filed against the defendants spouses Silbina Fabian and Feliciano Landrito, and Teodora Fabian and Francisco del Monte, upon the ground that the latter had acquired a valid and complete title to the land in question by acquisitive prescription. This case traces its origin way back to January 1, 1909 when Pablo Fabian bought from the Philippine Government lot 164 of the Friar Lands Estate in Muntinlupa, Rizal, of an area 1 hectare, 42 ares and 80 centares, for the sum of P112 payable in installments. By virtue of this purchase, he was issued sale certificate 547. He died on August 2, 1928, survived by four children, namely Esperanza, Benita I, Benita II, 1 and Silbina. On October 5, 1928 Silbina Fabian and Teodora Fabian, niece of the deceased, executed an affidavit, reciting among other things, "Que el finado Pablo Fabian, no dejo ningun otro heredero sino los declarantes, con derecho a heredar el lote No. 164 de la hacienda Muntinlupa, relicto por dicho finado Pablo Fabian y para la aprobacion de traspaso a nosotros el referido lote No. 164, prestamos esta declaracion para todos los efectos que pueden covenir a la Oficina de Terenos a defender por nuestro mejor derecho de heredar dicho lote contra las reclamaciones juntas de quien las presentare." On the strength of this affidavit, sale certificate 547 was assigned to them. On November 14, 1928 the acting Director of Lands, on behalf of the Government, sold lot 164, under deed 17272, to Silbina Fabian, married to Feliciano Landrito, and to Teodora Fabian, married to Francisco del Monte, for the sum of P120. The vendees spouses forthwith in 1929 took physical possession thereof, cultivated it, and appropriated the produce therefrom (and concededly have up to the present been appropriating the fruits from the land exclusively for themselves). In that same year, they declared the lot in their names for taxation purposes under tax declaration 3374. This tax declaration was later cancelled, and in lieu thereof two tax declarations (2418 and 2419) were issued in favor of Teodora Fabian and Silbina Fabian, respectively. Since 1929 up to the present, they have been paying the real estate taxes thereon. In 1937 the Register of Deeds of Rizal issued TCT 33203 over lot 164 in their names. And on May 4, 1945, they subdivided the lot into two equal parts; TCT 33203 was then cancelled and TCT 38095 was issued over lot 164-A in the name of Silbina Fabian, married to Feliciano Landrito, and TCT 38096 was issued over lot 164-B in the name of Teodora Fabian, married to Francisco del Monte. On July 18, 1960 the plaintiffs filed the present action for reconveyance against the defendants spouses, averring that Silbina and Teodora, through fraud perpetrated in their affidavit aforesaid, made it appear that "el finado Pablo Fabian no dejo ningun otro heredero sino los declarantes con derecho a heredar el lote No. 164 de la hacienda de Muntinlupa," which is a false narration of facts because Silbina knew that she is not the only daughter and heir of the deceased Pablo Fabian, and Teodora likewise knew all along that, as a mere niece of the deceased, she was precluded from inheriting from him in the presence of his four surviving daughters; that by virtue of this affidavit, the said defendants succeeded in having sale certificate 547 assigned to them and thereafter in having lot 164 covered by said certificate transferred in their names; and that by virtue also of these assignment and transfer, the defendants succeeded fraudulently in having lot 164 registered in their names under TCT 33203. They further allege that the land has not been transferred to an innocent purchaser for value. A reconveyance thereof is prayed for, aside from P3,000 attorney's fees and costs. In their answer of August 31, 1960, 2 the defendants spouses claim that Pablo Fabian was not the owner of lot 164 at the time of his death on August 2, 1928 because he had not paid in full the amortizations on the lot; that they are the absolute owners thereof, having purchased it from the Government for the sum of P120, and from that year having exercised all the attributes of ownership thereof up to the present; and that the present action for reconveyance has already prescribed. The dismissal of the complaint is prayed for. On the basis of a partial stipulation of facts together with annexes, the lower court rendered judgment on June 28, 1962, declaring that the defendants spouses had acquired a valid and complete title to the property by acquisitive prescription, and accordingly dismissed the

complaint, with costs against the plaintiffs. The latter's motion for reconsideration was thereafter denied. Hence the present recourse. The three resulting issues of law tendered for resolution in this appeal, by the formulation of the parties, are: (1) Was Pablo Fabian the owner of lot 164 at the time of his death, in the face of the fact, admitted by the defendants-appellees, that he had not then paid the entire purchase price thereof? (2) May laches constitute a bar to an action to enforce a constructive trust? (3) Has title to the land vested in the appellees through the mode of acquisitive prescription? 1. Lot 164 was a part of the Friar Lands Estate of Muntinlupa, Rizal; its sale to Pablo Fabian was therefore governed by Act 1120, otherwise known as the Friar Lands Act. While under section 15 of the said Act, title to the land sold is reserved to the Government until the purchaser makes full payment of all the required installments and the interest thereon, this legal reservation refers "to the bare, naked title. The equitable and beneficial title really went to the purchaser the moment he paid the first installment and was given a certificate of sale. The reservation of the title in favor of the Government is made merely to protect the interest of the Government so as to preclude. or prevent the purchaser from encumbering or disposing of the lot purchased before the payment in full of the purchase price. Outside of this protection the Government retains no right as an owner. For instance, after issuance of the sales certificate and pending payment in full of the purchase price, the Government may not sell the lot to another. It may not even encumber it. It may not occupy the land to use or cultivate; neither may it lease it or even participate or share in its fruits. In other words, the Government does not and cannot exercise the rights and prerogatives of owner. And when said purchaser finally pays the final installment on the purchase price and is given a deed of conveyance and a certificate of title, the title, at least in equity, retroacts to the time he first occupied the land, paid the first installment and was issued the corresponding certificate of sale. In other words, pending the completion of the payment of the purchase price, the purchaser is entitled to all the benefits and advantages which may accrue to the land as well as suffer the losses that may befall it." 3 That Pablo Fabian had paid five annual installments to the Government, and in fact been issued sale certificate 547 in his name, are conceded. He was therefore the owner of lot 164 at the time of his death. He left four daughters, namely, Esperanza, Benita I, Benita II and Silbina, to whom all his rights and interest over lot 164 passed upon his demise. "In case a holder of a certificate dies before the giving of the deed and does not leave a widow, then the interest of the holder of the certificate shall descend and deed shall issue to the person who under the laws of the Philippine Islands would have taken had the title been perfected before the death of the holder of the certificate, upon proof of the holders thus entitled of compliance with all the requirements of the certificate." 4 The assignment and sale of the lot to the defendants Silbina and Teodora were therefore null and void as to that portion sold to Teodora, and as well as to that portion which lawfully devolved in favor of the appellants. To the extent of the participation of the appellants, application must be made of the principle that if property is acquired through fraud, the person obtaining it is considered a trustee of an implied trust for the benefit of the person from whom the property comes (Gayondato vs. Insular Treasurer, 49 Phil. 244). 2. In Diaz, et al. vs. Gorricho, et al., 103 Phil. 264-265 (1958), this Court, speaking through Mr. Justice J.B.L. Reyes, declared in no uncertain terms that laches may bar an action brought to enforce a constructive trust such as the one in the case at bar. Illuminating are the following excerpts from the decision penned by Mr. Justice Reyes: "Article 1456 of the new Civil Code, while not retroactive in character, merely expresses a rule already recognized by our courts prior to the Code's promulgation (see Gayondato vs. Insular Treasurer, 49 Phil. 244), Appellants are, however, in error in believing that like express trust, such constructive trusts may not be barred by lapse of time. The American law on trusts has always maintained a distinction between express trusts created by the intention of the parties, and the implied or constructive trusts that are exclusively created by law, the latter not being trusts in their technical sense (Gayondato vs. Insular Treasurer, supra). The express trusts disable the trustee from acquiring for his own benefit the property committed to his management or custody, at least while he does not openly repudiate the trust, and makes
Property | Art. 494 to 498 | 1

such repudiation known to the beneficiary or cestui que trust. For this reason, the old Code of Civil Procedure (Act 190) declared that the rules on adverse possession does not apply to 'continuing and subsisting' (i.e., unrepudiated) trusts. "But in constructive trusts, . . . the rule is that laches constitutes a bar to actions to enforce the trust, and repudiation is not required, unless there is a concealment of the facts giving rise to the trust (54 Am. Jur., secs. 580, 581; 65 C.J., secs. 956, 957, 958; Amer. Law Institute, Restatement on Trusts, section 219; on Restitution, section 179; Stianson vs. Stianson, 6 ALR 287; Claridad vs. Benares, 97 Phil. 973." The assignment of sale certificate 547 was effected on October 5, 1928, and the actual transfer of lot 164 was made on the following November 14. It was only on July 8, 1960, 32 big years later, that the appellants for the first time came forward with their claim to the land. The record does not reveal, and it is not seriously asserted, that the appellees concealed the facts giving rise to the trust. Upon the contrary, paragraph 13 of the stipulation of facts of the parties states with striking clarity "that defendants herein have been in possession of the land in question since 1928 up to the present publicly and continuously under claim of ownership; they have cultivated it, harvested and appropriated the fruits for themselves." (emphasis supplied) 3. Six years later, in Gerona, et al vs. De Guzman, et al., L- 19060, May 29, 1964, the factual setting attending which is substantially similar to that obtaining in the case at bar, this Court, in an excellently-phrased decision penned by Chief Justice, then Associate Justice, Roberto Concepcion, unequivocally reaffirmed the rule, overruling previous decisions to the contrary, that "an action for reconveyance of real property based upon a constructive or implied trust. resulting from fraud, may be barred by the statute of limitations," and further that "the action therefore may be filed within four years from the discovery of the fraud," the discovery in that case being deemed to have taken place when new certificates of title were issued exclusively in the names of the respondents therein. The following is what Justice Concepcion, speaking for the Court, said: "[A]lthough, as a general rule, an action for partition among co-heirs does not prescribe, this is true only as long as the defendants do not hold the property in question under an adverse title (Cordova vs. Cordova, L-9936, January 14, 1948). The statute of limitations operates, as in other cases, from the moment such adverse title is asserted by the possessor of the property (Ramos vs. Ramos, 45 Phil., 362; Bargayo vs. Camumot, 40 Phil., 857; Castro vs. Echarri, 20 Phil., 23). "When respondents executed the aforementioned deed of extra-judicial settlement stating therein that they are the sole heirs of the late Marcelo de Guzman, and secured new transfer certificates of title in their own name, they thereby excluded the petitioners from the estate of the deceased, and consequently, set up a title adverse to them. And this is why petitioners have brought this action for the annulment of said deed upon the ground that the same is tainted with fraud. "Although, there are some decisions to the contrary (Jacinto vs. Mendoza, L-12540, February 28, 1959; Guison vs. Fernandez, L-11764, January 31, 1959; Marabiles vs. Quito, L-10408, October 18, 1956 and Sevilla vs. De los Angeles, L-7745, November 18, 1955), it is already settled in this jurisdiction that an action for reconveyance of real property based upon a constructive or implied trust, resulting from fraud, may be barred by the statute of limitations (Candelaria vs. Romero, L-12149, September 30, 1960; Alzona vs. Capunita, L-10220, February 28, 1962). "Inasmuch as petitioners seek to annul the aforementioned deed of 'extrajudicial settlement' upon the ground of fraud in the execution thereof, the action therefor may be filed within four (4) years from the discovery of the fraud (Mauricio vs. Villanueva, L-11072, September 24, 1959). Such discovery is deemed to have taken place, in the case at bar, on June 25, 1948, when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of the respondents exclusively, for the registration of the deed of extrajudicial settlement constitutes constructive notice to the whole world (Diaz vs. Gorricho, L11229, March 29, 1958; Avecilla vs. Yatco, L-11578, May 14, 1958; J.M. Tuason & Co., Inc. vs. Magdangal, L-15539, January 30, 1962; Lopez vs. Gonzaga, L-18788, January 31, 1964)." (Emphasis supplied)

Upon the undisputed facts in the case at bar, not only had laches set in when the appellants instituted their action for reconveyance in 1960, but as well their right to enforce the constructive trust had already prescribed. 5 It logically follows from the above disquisition that acquisitive prescription has likewise operated to vest absolute title in the appellees, pursuant to the provisions of section 41 of Act 190 that. "Ten years actual adverse possession by any person claiming to be the owner for that time of any land or interest in land, uninterruptedly continued for fen years by occupancy, descent, grants, or otherwise, in whatever way such occupancy may have commenced or continued, 6 shall vest in every actual occupant or possessor of such land a full and complete title . . ." (emphasis ours) The stringent mandate of said section 41 that "the possession by the claimant or by the person under or through whom he claims must have been actual, open, public, continuous, under a claim of title exclusive of any other right and adverse to all other claimants," was adjudged by the lower court as having been fulfilled in the case at hand. And we agree. Although paragraph 13 of the stipulation of facts hereinbefore adverted to does not explicitly employ the word "adverse" to characterize the possession of the defendants from 1928 up to the filing of the complaint in 1960, the words, "defendants have been in possession of the land since 1928 up to the present [1960] publicly and continuously under claim of ownership; they have cultivated it, harvested and appropriated the fruits for themselves," clearly delineate, and can have no other logical meaning than, the adverse character of the possession exercised by the appellees over the land. If the import of the abovequoted portion of the stipulation of facts is at all doubted, such doubt is dispelled completely by additional cumulative facts in the record which are uncontroverted. Thus, the appellees declared the lot for taxation purposes in their names, and the resulting tax declaration was later cancelled and two tax declarations were issued in favor of Silbina Fabian and Teodora Fabian, respectively. They have been paying the real estate taxes thereon from 1929 to the present. And in 1945 they subdivided the lot into two equal parts, and two transfer certificates of title were issued separately in their names. Upon the foregoing disquisition, we hold not only that the appellants' action to enforce the constructive trust created in their favor has prescribed, but as well that a valid, full and complete title has vested in the appellees by acquisitive prescription. ACCORDINGLY, the judgment a quo, dismissing the complaint, is affirmed. No pronouncement as to costs. G.R. No. 46345 January 30, 1990 RESTITUTO CENIZA, ET AL. vs. COURT OF APPEALS, ET AL. FIRST DIVISION [G.R. No. 46345. January 30, 1990.] RESTITUTO CENIZA and JESUS CENIZA, petitioners, vs. THE HON. COURT OF APPEALS, MAGNO DABON, VICENTA DABON, TERESITA DABON, EUGENIA DABON, and TOMAS DABON, respondents. Vicente P. Valera and Pedro Rosito & Jesus F. Balicanta for petitioners. Victorino U. Montecillo for respondents. SYLLABUS 1. CIVIL LAW; CO-OWNERSHIP; AS A GENERAL RULE; PRESCRIPTION SHALL NOT RUN IN FAVOR OF A CO-OWNER; EXCEPTION. Since a trust relation and coownership were proven to exist between the predecessors-in-interest of both petitioners and private respondents, prescription did not run in favor of Dabon's heirs except from the time that they repudiated the co-ownership and made the repudiation known to the other coowners, Restituto and Jesus Ceniza (Cortes vs. Oliva, 33 Phil. 480). Paragraph 5 of Article 494 of the Civil Code provides "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 coownership." In Custodio v. Casiano, 9 SCRA 841, we ruled that: "Where title to land was

issued in the name of a co-heir merely with the understanding that he would act as a trustee of his sisters, and there is no evidence that this trust relation had ever been repudiated by said trustee, it is held that a relation of co-ownership existed between such trustee and his sisters and the right of the successors-in-interest of said sisters to bring the present action for recovery of their shares therein against the successors-in-interest of said trustee cannot be barred by prescription, despite the lapse of 25 years from the date of registration of the land in the trustee's name." (Emphasis supplied.) 2. ID.; IMPLIED TRUST; ESTABLISHED IN THE CASE AT BAR. The registration of Lot No. 627 in the name of Vicente Dabon created a trust in favor of his co-owner Jose Ceniza, and the latter's heirs. Article 1452 of the Civil Code states: "If two or more persons agree to purchase property and by common consent the legal title is taken in the name of one of them for the benefit of all, a trust is created by force of law in favor of the others in proportion to the interest of each." 3. ID.; ID.; AS A GENERAL RULE, TRUSTEE'S POSSESSION IS NOT ADVERSE AND CANNOT RIPEN INTO TITLE BY PRESCRIPTION; ELEMENTS FOR TRUSTEE'S ADVERSE POSSESSION. This Court has ruled in numerous cases involving fiduciary relations that, as a general rule, the trustee's possession is not adverse and therefore cannot ripen into a title by prescription. Adverse possession requires the concurrence of the following circumstances: a) that the trustee has performed unequivocal acts of repudiation amounting to the ouster of the cestui que trust; b) that such positive acts of repudiation have been made known to the cestui que trust; and c) that the evidence thereon should be clear and conclusive. DECISION GRIO-AQUINO, J p: This is a petition for review of the order dated October 29, 1976, of the Court of Appeals in CA-G.R. No. 48546 entitled, "Restituto Ceniza, et al. vs. Magno Dabon, et al.," dismissing the petitioners' complaint for reconveyance of their shares in co-ownership property and reversing the decision of the trial court in their favor. On June 14, 1967, the petitioners filed against private respondents, an action in the Court of First Instance of Cebu for recovery of their title to Lots Nos. 627-B and 627-C (being portions of Lot No. 627 with an area of approximately 5,306 square meters) situated in Casuntingan, Mandaue, Cebu (now Mandaue City), which originally formed part of "Hacienda de Mandaue" of the Seminario de San Carlos de Cebu. The property is covered by reconstituted Original Certificate of Title No. RO-10996 issued on February 8, 1939 (formerly Decree No. 694438 issued on February 27, 1934) in the name of "Vicente Dabon married to Marcela [or Marcelina] Ceniza." (pp. 7 and 19, Record on Appeal). Petitioners are the descendants of Manuel Ceniza while the private respondents are the descendants of his sister, Sofia Ceniza. Sofia Ceniza was childless but she had an adopted daughter named Flaviana Ceniza, who begot a daughter named Marced Ceniza and who in turn had a daughter named Marcelina (or Marcela) Ceniza who married Vicente Dabon. Private respondents are the children of this marriage and they are the great-greatgrandchildren of Sofia Ceniza. prcd On the other hand, Manuel Ceniza had an only son, Pablo, who had two sons, Santiago and Jose Ceniza. Petitioners Restituto and Jesus Ceniza and a certain Nemesia Ceniza-Albina are their children and the great-grandchildren of Manuel Ceniza. The records disclose that when Hacienda de Mandaue was subdivided for resale to the occupants in 1929, Jose Ceniza and Vicente Dabon, who were residing in the hacienda, jointly purchased Lot 627 on installment basis and they agreed, for convenience, to have the land registered in the name of Dabon. Since then, Jose Ceniza, Vicente Dabon, and their heirs have possessed their respective portions of the land, declared the same for taxation, paid real estate taxes on their respective shares, and made their respective installment payments to the Seminario de San Carlos de Cebu. After Dabon died in 1954, his seven (7) children, named Magno, Jacinta, Tomas, Flaviana, Soledad, Teresita and Eugenia, succeeded to his possession of a portion of the land.
Property | Art. 494 to 498 | 2

On November 4, 1961, a private land surveyor, Espiritu Bunagan, on the request of Jacinta Dabon and Restituto Ceniza who jointly defrayed the cost, divided Lot 627 into three parts, namely: (1) Lot No. 627-A with 3,538 square meters for Marcela Ceniza; (2) Lot No. 627-B with 884 square meters for Restituto Ceniza; and (3) Lot No. 627-C with 834 square meters for Nemesia Ceniza-Albina, who later bequeathed her share to her brother, Jesus Ceniza. (p. 19, Record on Appeal). The present controversy arose because the private respondents refused to convey Lots Nos. 627-B and 627-C to the petitioners. They claimed that their predecessor-in-interest, Vicente Dabon, was the sole and exclusive owner of Lot 627, by purchase from the Seminario de San Carlos de Cebu. In their answer to the petitioners' complaint for reconveyance in June 1967, they alleged that the petitioners' right of action had already prescribed. Petitioners replied that Vicente Dabon held the land in trust for them, as co-owners, hence, their action for reconveyance was imprescriptible. On August 31, 1970, the trial court rendered judgment for the petitioners. Finding that there existed a co-ownership among the parties, it ordered the private respondents to execute deeds of conveyance of Lots Nos. 627-B and 627-C in favor of the plaintiffs, Restituto and Jesus Ceniza, respectively (p. 35, Record on Appeal). llcd On appeal by the defendants (now private respondents) the Court of Appeals on October 29, 1976, reversed that decision of the trial court. It ruled that the petitioners' right of action had prescribed after the lapse of 20 years from the date of registration of the land on February 8, 1939 in Vicente Dabon's name (p. 32, Rollo). The petitioners have appealed to this Court by a petition for review under Rule 45 of the Rules of Court. The legal issue presented by the petition is whether the registration of the title of the land in the name of one of the co-owners constituted a repudiation of the co-ownership for purposes of acquisitive prescription. We find merit in the petition for review. The trial court correctly ruled that since a trust relation and co-ownership were proven to exist between the predecessors-in-interest of both petitioners and private respondents, prescription did not run in favor of Dabon's heirs except from the time that they repudiated the coownership and made the repudiation known to the other co-owners, Restituto and Jesus Ceniza (Cortes vs. Oliva, 33 Phil. 480). Paragraph 5 of Article 494 of the Civil Code provides "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." The registration of Lot No. 627 in the name of Vicente Dabon created a trust in favor of his coowner Jose Ceniza, and the latter's heirs. Article 1452 of the Civil Code states: "If two or more persons agree to purchase property and by common consent the legal title is taken in the name of one of them for the benefit of all, a trust is created by force of law in favor of the others in proportion to the interest of each." This Court has ruled in numerous cases involving fiduciary relations that, as a general rule, the trustee's possession is not adverse and therefore cannot ripen into a title by prescription. Adverse possession requires the concurrence of the following circumstances: a) that the trustee has performed unequivocal acts of repudiation amounting to the ouster of the cestui que trust; b) that such positive acts of repudiation have been made known to the cestui que trust; and c) that the evidence thereon should be clear and conclusive. LexLib The above elements are not present here for the petitioners co-owners have not been ousted from the land. They continue to possess their respective shares of Lot 627 and they have been paying the realty taxes thereon. Restituto's house stands on his portion of the Land. Assuming that the private respondents' rejection of the subdivision plan for the partition of the land was an act of repudiation of the co-ownership, prescription had not yet set in when the petitioners instituted the present action for reconveyance. These circumstances were overlooked by the Court of Appeals. In Custodio v. Casiano, 9 SCRA 841, we ruled that:

"Where title to land was issued in the name of a co-heir merely with the understanding that he would act as a trustee of his sisters, and there is no evidence that this trust relation had ever been repudiated by said trustee, it is held that a relation of co-ownership existed between such trustee and his sisters and the right of the successors-in-interest of said sisters to bring the present action for recovery of their shares therein against the successors-in-interest of said trustee cannot be barred by prescription, despite the lapse of 25 years from the date of registration of the land in the trustee's name." (Emphasis supplied.) In Escobar v. Locsin, 74 Phil. 86, we affirmed the duty of the courts to shield fiduciary relations "against every manner of chicanery or detestable design cloaked by legal technicalities" and to guard against misuse of the Torrens system "to foment betrayal in the performance of a trust." In this case, since the statutory period of limitation within which to file an action for reconveyance, after the defendants had repudiated the co-ownership in 1961, had not yet run its course when the petitioners filed said action in 1967, the action was not barred by prescription. WHEREFORE, the decision of the Court of Appeals is hereby REVERSED AND SET ASIDE and the decision dated August 31, 1970 of the then Court of First Instance of Cebu, Branch VI, in Civil Case No. R-10030 is reinstated. Costs against the private respondents. cdrep SO ORDERED. G.R. No. 51914 June 6, 1990 MARIA BICARME, ET AL. vs. COURT OF APPEALS, ET AL. FIRST DIVISION [G.R. No. 51914. June 6, 1990.] MARIA BICARME assisted by her husband JOSE BALUBAR, petitioner, vs. COURT OF APPEALS and CRISTINA BICARME, respondents. Paterno Aquino for petitioner. Demetrio V. Pre for private respondent. DECISION MEDIALDEA, J p: This petition seeks to set aside the appealed decision of the lower court 1 as affirmed by the appellate court on August 28, 1979, directing the amicable partition of two parcels of land between Cristina Bicarme (private respondent) and her aunt Maria Bicarme (petitioner), as well as the Resolution, dated October 5, 1979, denying petitioner's motion for reconsideration, The affirmed decision of the lower court, rendered on December 22, 1975, disposes as follows: "(a) That Maria Bicarme and Cristina Bicarme are the only surviving co-heirs and coowners and entitled in equal shares over the parcel of land in litigation and described under paragraph 3 of the complaint; "(b) That the alleged deeds of Sale executed by Maria Bicarme covering and affecting the two parcels of land in suit are declared null and void in so far (sic) as they affect and/or cover the one-half undivided share and inheritance of plaintiff Cristina Bicarme; "(c) Maria Bicarme is ordered to account and/or pay the value corresponding to the one-half (1/2) undivided shares of Cristina Bicarme in the yearly fruits of the land and to commence from the filing of this complaint; that is seventy five bundles of palay valued at P375.00 with legal interest fully paid; "(d) That the parties are hereby ordered within (15) days from receipt of this decision to amicably agree upon a written partition and to submit the same for approval, parties shall appoint a Commissioner to effect and carry out effectively the partition of the 2 parcels of land in equal parts between the plaintiff and the defendant; "(e) Defendant and her hirelings and representatives are forever ordered to refrain from molesting the Commissioner in the discharge of his duty to partition said two (2) parcels of land in suit;

"(f) And, Defendant to pay Attorney's fee and cost of this suit. "SO ORDERED." (pp. 40-41, Record on Appeal) Petitioner-defendant Maria Bicarme appealed. The Court of Appeals affirmed the decision; hence, this petition. The main issue in this case dwells on ownership rights over the litigated parcels of land. As established by the trial court, Sps. Juan Bicarme and Florencia Bidaya were the original co-owners of two parcels of land described as follows: "1. Cornland in Palao, Bangued, Abra, bounded on the North Hill, on the East Brono Barbero, on the South Casimiro Palos, and on the West Clemente Baldozan, of about 8,721 sq. m., assessed at P400.00 under Tax Dec. No. 7764; "2. Riceland in Palao, Bangued, Abra, bounded on the North Macario Bolos, East Roberto Bicarme, South Juliana Baldozan, and West Telesporo, about 1,539 sq. m., assessed at P60.00, under Tax Dec. No. 7765; "xxx xxx xxx" (p. 10, Record on Appeal) The spouses died intestate and were survived by three children Victorina Bicarme, Sebastian Bicarme and Maria Bicarme. Sebastian Bicarme died when he was a little boy and without any issue. Later, Victorina Bicarme died intestate, survived by her only daughter, Cristina Bicarme. Cristina claims that upon the death of her grandparents, Sps. Juan and Florencia, her mother Victorina and her aunt, Maria, became co-owners or co-heirs of the litigated parcels of land. Upon the death of her mother, Victorina, Cristina became co-heirs with Maria, having inherited the share and interest of her mother corresponding to one-half of the two parcels of land. Cristina instituted this action for partition, because her aunt, Maria, refused to share with her the yearly fruits of the disputed parcels of land. Maria, however, maintains that "she acquired these two parcels of land in 1925 (cornland) and 1926 (riceland) from the deceased spouses Placido Bidaya and Margarita Bose and since then until the present, had been in open, public, peaceful, continuous, adverse possession and enjoyment and in the concept of absolute owner thereof. Maria further claims that Cristina, her niece, never shared or contributed to the payment of taxes of said two parcels of land; and, finally, that Cristina Bicarme was presumed already dead" (p. 35, Record on Appeal). In ruling Maria and Cristina to be co-heirs, the trial court relied on a provision separately stated in three deeds of sale executed by Maria as follows: "That I am the sole and absolute owner over the above described cornland having acquired the same by inheritance from my late father Juan Bicarme;" (See Exhibits '4', '5', '6', and '7' or Exhibits 'A-1,' 'B-1,' 'C-1', and 'D-1';'" (p. 37, Record on Appeal, emphasis ours) The trial court stated that the provision was in the nature of a trust provision in favor of Cristina as a co-owner/co-heir. We agree. By admitting that the cornland is inherited property, Maria, in effect, recognized Cristina's rights thereto as a co-heir/co-owner. As the trial court theorized: "xxx xxx xxx "(6) That Victorina Bicarme and Maria Bicarme never partitioned even orally the two parcels of lands which were then owned in common by them; "(7) That even after the death of Victorina Bicarme, the land in suit remained undivided and were therefore in the possession of Maria Bicarme because her niece Cristina Bicarme went to Manila and now married and presently residing at No. 22, 11th Avenue, Grace Park, Caloocan City. "(8) That without the knowledge and consent of Cristina Bicarme who was then of legal age, her aunt Maria Bicarme executed on April 27, 1973 a Deed of absolute Sale (Exhibit 'A') in favor of Marina Pizarro who acquired portion No. 3 of the cornland; on the same date she also executed another Deed of Sale (Exhibit 'B') in favor of Saturnino Pacopia, who acquired portion No. 2 of the cornland; and, in June 16, 1965 again Maria Bicarme executed a third Deed of Sale (Exhibit 'C') in favor of Casimira Pacopia, who acquired portion No. 1 of the cornland; "(9) That these three (3) separated (sic) Deeds of Sale all executed by Maria Bicarme over the cornland have a respective total area of 740 square meters, more or less, for portion No. 3; 1,836 square meters, more or less for portion No. 2; and 1,265 square meters, more or less for portion No. 1, or a total area of 3,481 square meters more or less;
Property | Art. 494 to 498 | 3

"(10) That in these three separate Deeds of Sale, Maria Bicarme expressly provided the aforesaid trust provision." (pp. 36-37, Record on Appeal, emphasis ours) Despite admission during the hearing on the identity of the land in question (see p. 21, Record on Appeal), Maria's counsel, on appeal, re-emphasized her original claim that the two parcels of land in her possession were acquired from the Sps. Placido Biduya and Margarita Bose. However, the private document relative to the purchase, was not produced at the trial, allegedly because "they were placed in a trunk in their house which were burned during the Japanese Occupation." In 1945, Maria sold the riceland. No written evidence was submitted. For all legal intents therefore, the riceland remained inherited property. The identity of the cornland as inherited property can no longer be disputed, in view of Maria's admission in the deeds of sale she had executed, containing the trust provisions. Having established Cristina's co-ownership rights, Maria nonetheless insists that Cristina's rights are barred by prescription under Secs. 40 and 41 of Act 190 (Code of Civil Procedure, Article 1116, Civil Code) then the applicable law, where the longest period of both acquisitive and extinctive prescription was only ten years (Diaz v. Garricho, 103 Phil. 261, 266). In the present case, Cristina, it is alleged, asserted her claims 34 years after her right of action accrued, as follows: ". . . After Cristina left barrio Palao at the age of eleven (11), she never returned until she was twenty two (22) years old and married (pp. 32-34, tsn., Nov. 4, 1974). Upon her return her grandmother Florencia Bidaya was already dead (p. 33, id). At that time, Cristina claimed her hereditary share in the lands in question but her demands were ignored and repudiated by her aunt Maria, Cristina admitted that ever since the Japanese occupation when she was already of age, her aunt Maria refused to recognize her rights to said lands (pp. 41-42, id.). From that moment when Maria ignored and repudiated Cristina's hereditary rights, Cristina's right of action already accrued and the period of prescription began to run. "The instant action was filed only in 1974 (p. 1, Record on Appeal), or some 34 years after it accrued. If she had any rights at all, Cristina slept on her rights. The present action is unquestionably barred by prescription." (pp. 27-28, Appellants' Brief) Against Maria's claims of acquisitive prescription, the lower court ruled that Maria was as trustee with respect to Cristina's share. As such, prescription, as a mode of acquiring title, could not apply: "A co-owner is a trustee for the other co-owner. No one of the co-owners may acquire exclusive ownership of the common property thru prescription for possession by one trustee alone is not deemed adverse to the rest (Castrillo vs. Court of Appeals, 10 SCRA 549; Custodio vs. Casiano, 9 SCRA 841 and, Pascual vs. Meneses, 20 SCRA 219)." (p. 6, Rollo) While We agree with the trial court that Maria and Cristina are co-heirs, and that with respect to them prescription, as a mode of acquisition, cannot apply, We hasten to elaborate on certain aspects, which need clarification. It is correct to say that possession by one co-owner (trustee) is not deemed adverse to the others. In this sense, an action to compel partition will lie at any time and does not prescribe. It is, however, not legally correct to say that by virtue of the imprescriptibility of an action for partition, prescription as a mode of acquiring title, can never be invoked, or in the present case, that Maria, as a co-owner can never acquire the property by prescription. An action for partition implies that the thing is still owned in common. If a co-owner or co-heir holds the property in exclusive adverse possession as owner, asserting sole and exclusive dominion for the required period, he can acquire sole title to it as against the co-heirs or coowners. The imprescriptibility of an action for partition cannot thus 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. 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. (A. Tolentino, Civil Code of the Phil., Ann., Vol. II, pp. 192-193; Bargayo v. Comumot, 40 Phil. 856, at p. 870). In this sense, the trial court erred in saying that there can be no prescription (as a mode of acquiring title) in favor of a co-owner/trustee. Having clarified this issue, the main question to be resolved is whether or not Maria has been in possession of the lands in question under the conditions required by Section 41 of the Code of Civil Procedure, as to uphold acquisitive prescription in her favor.

One of the conditions imposed by said section is that the possession must be adverse against the whole world. In order that a possession may be deemed adverse to the cestui que trust, or the other co-owner the following must concur: ". . . (1) that he has performed unequivocal acts of repudiation amounting to an ouster of the cestui que trust or other co-owner, (2) that such positive acts of repudiation have been made known to the cestui que trust or other co-owners, and (3) that the evidence thereon must be clear and convincing." (A. Tolentino, Civil Code of the Phils., Ann., Vol. II, p. 193) In the present case, Maria Bicarme disclaims the co-ownership by denying that subject properties are the inherited properties. Other than the tax declarations in her name, there is no written evidence that these were acquired/purchased from Sps. Placido Biduya and Margarita Bose. Payment of land taxes does not constitute sufficient repudiation of the co-ownership, as it is not an act adverse to Cristina's rights. Moreover, Cristina, being a minor, until she claimed her rights, was not even aware thereof. Neither did Maria make known her repudiation to Cristina, because all along, Maria presumed her to be dead. Her refusal to share with Cristina the yearly profits stemmed from Cristina's failure to share in the yearly taxes. Acquisitive prescription cannot therefore apply in this case: "Acts which are adverse to strangers may not be sufficiently adverse to the co-owners. 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, complete and conclusive evidence that he exercised acts of possession which unequivocally constituted an ouster or deprivation of the rights of the other co-owners." (Mangyan v. Ilan, 28 O.G. 62; Laguna v. Levantino, 40 O.G. (14th Suppl.) 136, cited in A. Tolentino, Civil Code of the Philippines, Ann., Vol. II, pp. 193-194) Additionally, it follows that neither can the doctrine on laches apply, for absent acquisitive prescription, (i.e., where it has not been shown that the possession of the claimant has been adverse and exclusive and opposed to the right of the others) the case is not one of ownership, in which case, the doctrine on imprescriptibility of an actions for partition will apply. Cristina's right to partition will therefore prosper. Finally, We eliminate the award on attorney's fees in the absence of any specific allegation thereon in her complaint, or that the same is covered by any of the eleven (11) exceptions enumerated in Art. 2208 of the New Civil Code. Even if We were to concede exercise of judicial discretion in the award of attorney's fees under Art. 2208, par. 11, this provision "demands a factual, legal or equitable justification. Without such justification, the award is a conclusion without a premise, its basis being improperly left to speculation and conjecture." (Mirasol v. De la Cruz, G.R. L-32552, July 31, 1978; 84 SCRA 337.) Likewise, "the matter of attorney's fees cannot be touched once and only in the dispositive portion of the decision. The text itself must expressly state the reason why attorney's fees are being awarded" (ibid). In the present case, the matter of such fees was touched but once and appears only in the dispositive portion of the decision. ACCORDINGLY, the petition for review is DENIED and the appealed decision as affirmed by the Court of Appeals is hereby AFFIRMED with the modification that the award on attorney's fees is eliminated. Costs against petitioner. This decision is immediately executory. SO ORDERED. G.R. No. 46296 September 24, 1991 EPITACIO DELIMA, ET AL. vs. COURT OF APPEALS, ET AL. FIRST DIVISION [G.R. No. 46296. September 24, 1991.] EPITACIO DELIMA, PACIANO DELIMA, FIDEL DELIMA, VIRGILIO DELIMA, GALILEO DELIMA, JR., BIBIANO BACUS, OLIMPIO BACUS and PURIFICACION BACUS, petitioners, vs. HON. COURT OF APPEALS, GELILEO 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. DECISION MEDIALDEA, J p: 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: cdphil "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 (one-fourth), 3) Heirs of Eulalio Delima, namely Epitacio, Paciano, 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 (onefourth). "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 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
Property | Art. 494 to 498 | 4

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. LLpr 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 coowners against the actual possessor. In other words, no prescription shall run in favor of a coowner 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 coownership, 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). LLphil

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 his 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, 1963, 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. FIRST DIVISION

case. Although the plaintiff had testified that he had been receiving [his] share from said land before and the same was stopped, there was no evidence introduced as to what year he stopped receiving his share and for how much. This court therefore cannot rule on that. In its four-page Decision, Respondent Court reversed the trial court on the ground that petitioner failed to adduce sufficient evidence to prove that his parents were legally married to each other and that acquisitive prescription against him had set in. The assailed Decision disposed:[9] WHEREFORE, the Court REVERSES the appealed decision. In lieu thereof, the Court hereby DISMISSES the [petitioners] complaint and the counterclaim thereto. Without costs. Respondent Court denied reconsideration in its impugned Resolution which reads:[10] The Court DENIES defendants-appellants motion for reconsideration, dated December 15, 1994, for lack of merit. There are no new or substantial matters raised in the motion that merit the modification of the decision.

[G.R. No. 118904. April 20, 1998]

Hence, this petition.[11]

ARTURIO TRINIDAD, petitioner, vs. COURT OF APPEALS, FELIX TRINIDAD (deceased) and LOURDES TRINIDAD, respondents. DECISION PANGANIBAN, J.: In the absence of a marriage contract and a birth certificate, how may marriage and filiation be proven?

The Facts

The assailed Decision recites the factual background of this case, as follows:[12] On August 10, 1978, plaintiff [herein petitioner] filed with the Court of First Instance of Aklan, Kalibo, Aklan, an action for partition of four (4) parcels of land, described therein, claiming that he was the son of the late Inocentes Trinidad, one of three (3) children of Patricio Trinidad, who was the original owner of the parcels of land. Patricio Trinidad died in 1940, leaving the four (4) parcels of land to his three (3) children, Inocentes, Lourdes and Felix. In 1970, plaintiff demanded from the defendants to partition the land into three (3) equal shares and to give him the one-third (1/3) individual share of his late father, but the defendants refused. In their answer, filed on September 07, 1978, defendants denied that plaintiff was the son of the late Inocentes Trinidad. Defendants contended that Inocentes was single when he died in 1941, before plaintiffs birth. Defendants also denied that plaintiff had lived with them, and claimed that the parcels of land described in the complaint had been in their possession since the death of their father in 1940 and that they had not given plaintiff a share in the produce of the land. Patricio Trinidad and Anastacia Briones were the parents of three (3) children, namely, Inocentes, Lourdes and Felix. When Patricio died in 1940, survived by the above named children, he left four (4) parcels of land, all situated at Barrio Tigayon, Kalibo Aklan. Arturio Trinidad, born on July 21, 1943, claimed to be the legitimate son of the late Inocentes Trinidad. Arturio got married in 1966 to Candelaria Gaspar, at the age of twenty three (23). Sometime after the marriage, Arturio demanded from the defendants
Property | Art. 494 to 498 | 5

The Case

This is the main question raised in this petition for review on certiorari challenging the Court of Appeals[1] Decision promulgated on December 1, 1994[2] and Resolution promulgated on February 8, 1995[3] in CA-GR CV No. 23275, which reversed the decision of the trial court and dismissed petitioners action for partition and damages. On August 10, 1978, Petitioner Arturio Trinidad filed a complaint[4] for partition and damages against Private Respondents Felix and Lourdes, both surnamed Trinidad, before the Court of First Instance of Aklan, Branch I.[5] On October 28, 1982, Felix died without issue, so he was not substituted as a party.[6] On July 4, 1989, the trial court rendered a twenty-page decision[7] in favor of the petitioner, in which it ruled:[8] Considering therefore that this court is of the opinion that plaintiff is the legitimate son of Inocentes Trinidad, plaintiff is entitled to inherit the property left by his deceased father which is 1/3 of the 4 parcels of land subject matter of this

that the above-mentioned parcels of land be partitioned into three (3) equal shares and that he be given the one-third (1/3) individual shares of his late father, but defendants refused. In order to appreciate more clearly the evidence adduced by both parties, this Court hereby reproduces pertinent portions of the trial courts decision:[13] EVIDENCE FOR THE PLAINTIFF: Plaintiff presented as his first witness, Jovita Gerardo, 77 years old, (at the time she testified in 1981) who is the barangay captain of barrio Tigayon, Kalibo, Aklan, since 1972. She testified that before being elected as barrio captain she held the position of barrio council-woman for 4 years. Also she was [a member of the] board of director[s] of the Parent-Teachers Association of Tigayon, Kalibo, Aklan. That she knows the plaintiff because they are neighbors and she knows him from the time of his birth. She knows the father of the plaintiff as Inocentes Trinidad and his mother Felicidad Molato; both were already dead, Inocentes having died in 1944 and his wife died very much later. Witness recalls plaintiff was born in 1943 in Barrio Tigayon, Kalibo, Aklan, on July 21, 1943. At the time of the birth of the plaintiff, the house of the witness was about 30 meters away from plaintiffs parents[] house and she used to go there 2 or 3 times a week. That she knows both the defendants as they are also neighbors. That both Felix and Lourdes Trinidad are the uncle and aunt of Arturio because Inocentes Trinidad who is the father of the plaintiff is the brother of the defendants, Felix and Lourdes Trinidad. She testified she also knows that the father of Inocentes, Felix and Lourdes[,] all surnamed Trinidad[,] was Patricio Trinidad who is already dead but left several parcels of land which are the 4 parcels subject of this litigation. That she knows all these [parcels of] land because they are located in Barrio Tigayon. When asked about the adjoining owners or boundaries of the 4 parcels of land, witness answered and mentioned the respective adjoining owners. That she knew these 4 parcels belonged to Patricio Trinidad because said Patricio Trinidad was a native also of Barrio Tigayon. Said Patricio died before the [war] and after his death the land went to his 3 children, namely: Inocentes, Felix and Lourdes. Since then the land was never partitioned or divided among the 3 children of Patricio. A picture, Exhibit A, was shown to the witness for identification and she identified a woman in the picture as the defendant, Lourdes Trinidad. A man with a hat holding a baby was identified by her as Felix Trinidad, the defendant. The other woman in the picture was pointed by the witness as the wife of the plaintiff, Arturio Trinidad. When asked if Arturio Trinidad and Lourdes Trinidad and Felix Trinidad pointed to by her in the picture are the same Arturio, Felix and Lourdes, who are the plaintiff and the defendants in this case, witness answered yes. Another picture marked as Exhibit B was presented to the witness for identification. She testified the woman in this picture as Lourdes Trinidad. In said picture, Lourdes Trinidad was holding a child which witness identified as the child Arturio Trinidad. When asked by the court when xxx the picture [was]

taken, counsel for the plaintiff answered, in 1966. When asked if Arturio Trinidad was baptized, witness answered yes, as she had gone to the house of his parents. Witness then identified the certificate of baptism marked as Exhibit C. The name Arturio Trinidad was marked as Exhibit C-1 and the name of Inocentes Trinidad and Felicidad Molato as father and mother respectively, were marked as Exhibit C-2. The date of birth being July 21, 1943 was also marked. The signature of Monsignor Iturralde was also identified. On cross-examination, witness testified that she [knew] the land in question very well as she used to pass by it always. It was located just near her house but she cannot exactly tell the area as she merely passes by it. When asked if she [knew] the photographer who took the pictures presented as Exhibit A and B, witness answered she does not know as she was not present during the picture taking. However, she can identify everybody in the picture as she knows all of them. At this stage of the trial, Felix Trinidad [died] without issue and he was survived by his only sister, Lourdes Trinidad, who is his co-defendant in this case. Next witness for the plaintiff was ISABEL MEREN who was 72 years old and a widow. She testified having known Inocentes Trinidad as the father of Arturio Trinidad and that Inocentes, Felix and Lourdes are brothers and sister and that their father was Patricio Trinidad who left them 4 parcels of land. That she knew Inocentes Trinidad and Felicidad Molato who are the parents of Arturio, the plaintiff, were married in New Washington, Aklan, by a protestant pastor by the name of Lauriano Lajaylajay. That she knows Felicidad Molato and Lourdes Trinidad very well because as a farmer she also owns a parcel of land [and] she used to invite Felicidad and Lourdes to help her during planting and harvesting season. That she knows that during the lifetime of Inocentes the three of them, Inocentes, Felix and Lourdes possessed and usufructed the 4 parcels they inherited from their father, Patricio. That upon the death of Inocentes, Lourdes Trinidad was in possession of the property without giving the widow of Inocentes any share of the produce. As Lourdes outlived her two brothers, namely: Felix and Inocentes, she was the one possessing and usufructing the 4 parcels of land up to the present. The witness testified that upon the death of Inocentes, Lourdes took Arturio and cared for him when he was still small, about 3 years old, until Arturio grew up and got married. That while Arturio was growing up, he had also enjoyed the produce of the land while he was being taken care of by Lourdes Trinidad. That a misunderstanding later on arose when Arturio Trinidad wanted to get his fathers share but Lourdes Trinidad will not give it to him. Plaintiff, ARTURIO TRINIDAD, himself, was presented as witness. He testified that defendants, Lourdes and Felix Trinidad, are his aunt and uncle, they being the brother and sister of his father. That the parents of his father and the defendants were Patricio Trinidad and Anastacia Briones. That both his father, Inocentes Trinidad, and mother, Felicidad Molato, were already dead having died in Tigayon, his father

having died in 1944 and his mother about 25 years ago. As proof that he is the son of Inocentes Trinidad and Felicidad Molato, he showed a certificate of baptism which had been previously marked as Exhibit C. That his birth certificate was burned during World War 2 but he has a certificate of loss issued by the Civil Registrar of Kalibo, Aklan. When he was 14 years old, the defendants invited him to live with them being their nephew as his mother was already dead. Plaintiffs mother died when he was 13 years old. They treated him well and provided for all his needs. He lived with defendants for 5 years. At the age of 19, he left the house of the defendants and lived on his own. He got married at 23 to Candelaria Gaspar and then they were invited by the defendants to live with them. So he and his wife and children lived with the defendants. As proof that he and his family lived with the defendants when the latter invited him to live with them, he presented a picture previously marked as Exhibit B where there appears his aunt, Lourdes Trinidad, carrying plaintiffs daughter, his uncle and his wife. In short, it is a family picture according to him. Another family picture previously marked Exhibit A shows his uncle, defendant Felix Trinidad, carrying plaintiffs son. According to him, these 2 pictures were taken when he and his wife and children were living with the defendants. That a few years after having lived with them, the defendants made them vacate the house for he requested for partition of the land to get his share. He moved out and looked for [a] lawyer to handle his case. He testified there are 4 parcels of land in controversy of which parcel 1 is an upland. Parcel 1 is 1,000 square meters, [has] 10 coconut trees and fruit bearing. The harvest is 100 coconuts every 4 months and the cost of coconuts is P2.00 each. The boundaries are : East-Federico Inocencio; West-Teodulo Dionesio; NorthTeodulo Dionesio; and South-Bulalio Briones; located at Tigayon. Parcel 2 is an upland with an area of 500 square meters; it has only 1 coconut tree and 1 bamboo groove; also located in Tigayon, Kalibo, Aklan. Adjoining owners are : East-Ambrosio Trinidad; North-Federico Inocencio; West-Patricio Trinidad and South-Gregorio Briones. Parcel 3 is about 12,000 square meters and 1/4 of that belongs to Patricio Trinidad, the deceased father of the defendants and Inocentes, the father of the plaintiff. Parcel 4 is a riceland with an area of 5,000 square meters. The harvest is 40 cavans two times a years [sic]. Adjoining owners are: East-Gregorio Briones; West-Bulalio Briones; South-Federico Inocencio and North-Digna Carpio. Parcel 1 is Lot No. 903. Parcel 2 is Lot No. 864 of the cadastral survey of Kalibo and only Lot 864-A with an area of 540 square meters is the subject of litigation.
Property | Art. 494 to 498 | 6

Parcel 3 is Lot No. 979 of the cadastral survey of Kalibo covered by Tax Decl. No. 703310 with reference to one of the owners of the land, Patricio Trinidad married to Anastacia Briones, one-half share. Parcel 4 is covered by Original Certificate of Title No. 22502 RO-174 covering Lot No. 863 of the cadastral survey of Kalibo. The title is in the name of Patricio Trinidad married to Anastacia Briones. Parcel 1 is covered by Tax Decl. No. 11609 in the name of Patricio Trinidad while parcel 2 is covered by Tax Decl. No. 10626 in the name of Anastacia Briones and another Tax Declaration No. 11637 for Parcel 3 in the name of Ambrosio Trinidad while Parcel 4 is covered by Tax Decl. No. 16378 in the name of Patricio Trinidad. On cross-examination, plaintiff testified that during the lifetime of his mother they were getting the share in the produce of the land like coconuts, palay and corn. Plaintiff further testified that his father is Inocentes Trinidad and his mother was Felicidad Molato. They were married in New Washington, Aklan, by a certain Atty. Lajaylajay. When asked if this Atty. Lajaylajay is a municipal judge of New Washington, Aklan, plaintiff answered he does not know because he was not yet born at that time. That he does not have the death certificate of his father who died in 1944 because it was wartime. That after the death of his father, he lived with his mother and when his mother died[,] he lived with his aunt and uncle, the defendants in this case. That during the lifetime of his mother, it was his mother receiving the share of the produce of the land. That both defendants, namely Lourdes and Felix Trinidad, are single and they have no other nephews and nieces. That [petitioners] highest educational attainment is Grade 3. EVIDENCE FOR THE DEFENDANTS: First witness for the defendants was PEDRO BRIONES, 68 years old, unemployed and a resident of Nalook, Kalibo, Aklan. He testified having known the defendants, Felix and Lourdes Trinidad. They being his first cousins because the mother of Lourdes and Felix by the name of Anastacia Briones and his father are sister and brother. That he also knew Inocentes Trinidad being the brother of Felix and Lourdes and he is already dead. According to the witness, Inocentes Trinidad [died] in 1940 and at the time of his death Inocentes Trinidad was not married. That he knew this fact because at the time of the death of Inocentes Trinidad he was then residing with his aunt, Nanay Taya, referring to Anastacia Briones who is mother of the defendants, Felix and Lourdes Trinidad, as well as Inocentes Trinidad. That at the time of the death of Inocentes Trinidad, according to this witness he stayed with his aunt, Anastacia Trinidad, and with his children before 1940 for only 3 months. When asked if he knew Inocentes Trinidad cohabited with anybody before his death, he answered, That I do not know, neither does he kn[o]w a person by the name of Felicidad Molato. Furthermore, when asked if he can recall if during the lifetime of Inocentes Trinidad witness knew of anybody with whom said Inocentes Trinidad had lived as husband and wife, witness, Pedro Briones, answered that he could not recall because he was then in Manila working. That after the war, he had gone back to the house of his aunt, Anastacia, at Tigayon, Kalibo, as he always visit[s] her every Sunday, however, he does not know the plaintiff, Arturio Trinidad. When asked if after the death of Inocentes Trinidad, he knew anybody

who has stayed with the defendants who claimed to be a son of Inocentes Trinidad, witness, Pedro Briones, answered: I do not know about that.. On cross examination, witness testified that although he was born in Tigayon, Kalibo, Aklan, he started to reside in Nalook, Kalibo, as the hereditary property of their father was located there. When asked if he was aware of the 4 parcels of land which is the subject matter of this case before the court, witness answered that he does not know. What he knew is that among the 3 children of Patricio Trinidad, Inocentes is the eldest. And that at the time of the death of Inocentes in 1940, according to the witness when cross examined, Inocentes Trinidad was around 65 years old. That according to him, his aunt, Anastacia Briones, was already dead before the war. When asked on cross examination if he knew where Inocentes Trinidad was buried when he died in 1940, witness answered that he was buried in their own land because the Japanese forces were roaming around the place. When confronted with Exhibit A which is the alleged family picture of the plaintiff and the defendants, witness was able to identify the lady in the picture, which had been marked as Exhibit A-1, as Lourdes Trinidad, and the man wearing a hat on the said picture marked as Exhibit 2-A is Felix Trinidad. However, when asked if he knew the plaintiff, Arturio Trinidad, he said he does not know him. Next witness for the defendants was the defendant herself, LOURDES TRINIDAD. She stated that she is 75 years old, single and jobless. She testified that Inocentes Trinidad was her brother and he is already dead and he died in 1941 in Tigayon, Kalibo, Aklan. That before the death of her brother, Inocentes Trinidad, he had gone to Manila where he stayed for a long time and returned to Tigayon in 1941. According to her, upon arrival from Manila in 1941 his brother, Inocentes Trinidad, lived only for 15 days before he died. While his brother was in Manila, witness testified she was not aware that he had married anybody. Likewise, when he arrived in Tigayon in 1941, he also did [not] get married. When asked if she knew one by the name of Felicidad Molato, witness answered she knew her because Felicidad Molato was staying in Tigayon. However, according to her[,] she does not kn[o]w if her brother, Inocentes Trinidad, had lived with Felicidad Molato as husband and wife. When asked if she knew the plaintiff, Arturio Trinidad, she said, Yes, but she denied that Arturio Trinidad had lived with them. According to the witness, Arturio Trinidad did not live with the defendants but he stayed with his grandmother by the name of Maria Concepcion, his mother, Felicidad Molato, having died already. When asked by the court if there had been an instance when the plaintiff had lived with her even for days, witness answered, he did not. When further asked if Arturio Trinidad went to visit her in her house, witness also said, He did not. Upon cross examination by counsel for the plaintiff, Lourdes Trinidad testified that her parents, Anastacia Briones and Patricio Trinidad, had 3 children, namely: Inocentes Trinidad, Felix Trinidad and herself. But inasmuch as Felix and Inocentes are already dead, she is the only remaining daughter of the spouses Patricio Trinidad and Anastacia Briones. Defendant, Lourdes Trinidad, testified that her brother, Felix Trinidad, died without a wife and children, in the same manner that her brother, Inocentes Trinidad, died without a wife and children. She herself testified that she does not have any family of her own for she has [no] husband or children. According to her[,] when Inocentes Trinidad [died] in 1941, they buried him in their private lot in Tigayon because nobody will carry his coffin as it was wartime and the municipality of Kalibo was occupied by the Japanese forces. When further cross-examined that I[t] could not be true that Inocentes Trinidad died in March 1941 because the war broke out in December 1941 and March 1941 was still peace time, the witness could not answer the question. When she was presented with Exhibit A which is the alleged family picture wherein she was holding was [sic] the child of Arturio

Trinidad, she answered; Yes. and the child that she is holding is Clarita Trinidad, child of Arturio Trinidad. According to her, she was only requested to hold this child to be brought to the church because she will be baptized and that the baptism took place in the parish church of Kalibo. When asked if there was a party, she answered; Maybe there was. When confronted with Exhibit A -1 which is herself in the picture carrying the child, witness identified herself and explained that she was requested to bring the child to the church and that the picture taken together with her brother and Arturio Trinidad and the latters child was taken during the time when she and Arturio Trinidad did not have a case in court yet. She likewise identified the man with a hat holding a child marked as Exhibit A-2 as her brother, Felix. When asked if the child being carried by her brother, Felix Trinidad, is another child of the plaintiff, witness answered she does not know because her eyes are already blurred. Furthermore, when asked to identify the woman in the picture who was at the right of the child held by her brother, Felix, and who was previously identified by plaintiff, Arturio Trinidad, as his wife, witness answered that she cannot identify because she had a poor eyesight neither can she identify plaintiff, Arturio Trinidad, holding another child in the picture for the same reason. When asked by counsel for the plaintiff if she knows that the one who took this picture was the son of Ambrosio Trinidad by the name of Julito Trinidad who was also their cousin, witness testified that she does not know. Third witness for the defendants was BEATRIZ TRINIDAD SAYON who testified that she knew Arturio Trinidad because he was her neighbor in Tigayon. In the same manner that she also knew the defendants, Felix and Lourdes, and Inocentes all surnamed Trinidad because they were her cousins. She testified that a few months after the war broke out Inocentes Trinidad died in their lolas house whose names was Eugenia Rufo Trinidad. She further testified that Inocentes Trinidad had lived almost in his lifetime in Manila and he went home only when his father fetched him in Manila because he was already sick. That according to her, about 1 months after his arrival from Manila, Inocentes Trinidad died. She also testified that she knew Felicidad Molato and that Felicidad Molato had never been married to Inocentes Trinidad. According to her, it was in 1941 when Inocentes Trinidad died. According to her she was born in 1928, therefore, she was 13 or 14 years old when the war broke out. When asked if she can remember that it was only in the early months of the year 1943 when the Japanese occupied Kalibo, she said she [was] not sure. She further testified that Inocentes Trinidad was buried in their private lot because Kalibo was then occupied by the Japanese forces and nobody would carry his body to be buried in the Poblacion. For rebuttal evidence, [petitioner] presented ISABEL MEREN, who was 76 years old and a resident of Tigayon. Rebuttal witness testified that xxx she knew both the [petitioner] and the [private respondents] in this case very well as her house is only around 200 meters from them. When asked if it is true that according to Lourdes Trinidad, [Inocentes Trinidad] arrived from Manila in 1941 and he lived only for 15 days and died, witness testified that he did not die in that year because he died in the year 1944, and that Inocentes Trinidad lived with his sister, Lourdes Trinidad, in a house which is only across the street from her house. According to the said rebuttal witness, it is not true that Inocentes Trinidad died single because he had a wife by the name of Felicidad Molato whom he married on May 5, 1942 in New Washington, Aklan. That she knew this fact because she was personally present when couple was married by Lauriano Lajaylajay, a protestant pastor. On cross examination, rebuttal witness testified that when Inocentes Trinidad arrived from Manila he was in good physical condition. That she knew both Inocentes Trinidad and Felicidad Molato to be Catholics but that according
Property | Art. 494 to 498 | 7

to her, their marriage was solemnized by a Protestant minister and she was one of the sponsors. That during the marriage of Inocentes Trinidad and Felicidad Molato, Lourdes Trinidad and Felix Trinidad were also present. When plaintiff, ARTURIO TRINIDAD, was presented as rebuttal witness, he was not able to present a marriage contract of his parents but instead a certification dated September 5, 1978 issued by one Remedios Eleserio of the Local Civil Registrar of the Municipality of New Washington, Aklan, attesting to the fact that records of births, deaths, and marriages in the municipality of New Washington were destroyed during the Japanese time.

2. Whether or not petitioner (plaintiff-appellee) has adduced sufficient evidence to prove that he is the son of the late Inocentes Trinidad, brother of private respondents (defendants-appellants) Felix and Lourdes Trinidad. 3. Whether or not the Family Code is applicable to the case at bar[,] the decision of the Regional Trial Court having been promulgated on July 4, 1989, after the Family Code became effective on August 3, 1988. 4. Whether or not petitioners status as a legitimate child can be attacked collaterally by the private respondents. 5. Whether or not private respondent (defendants-appellants) have acquired ownership of the properties in question by acquisitive prescription. Simply stated, the main issues raised in this petition are:

evidence: the testimony of a witness to the matrimony, the couples public and open cohabitation as husband and wife after the alleged wedlock, the birth and the baptismal certificates of children born during such union, and the mention of such nuptial in subsequent documents.[19] In the case at bar, petitioner secured a certification[20] from the Office of the Civil Registrar of Aklan that all records of births, deaths and marriages were either lost, burned or destroyed during the Japanese occupation of said municipality. This fact, however, is not fatal to petitioners case. Although the marriage contract is considered the primary evidence of the marital union, petitioners failure to present it is not proof that no marriage took place, as other forms of relevant evidence may take its place.[21] In place of a marriage contract, two witnesses were presented by petitioner: Isabel Meren, who testified that she was present during the nuptial of Felicidad and Inocentes on May 5, 1942 in New Washington, Aklan; and Jovita Gerardo, who testified that the couple deported themselves as husband and wife after the marriage. Gerardo, the 77-year old barangay captain of Tigayon and former board member of the local parent-teachers association, used to visit Inocentes and Felicidads house twice or thrice a week, as she lived only thirty meters away.[22] On July 21, 1943, Gerardo dropped by Inocentes house when Felicidad gave birth to petitioner. She also attended petitioners baptismal party held at the same house.[23] Her testimony constitutes evidence of common reputation respecting marriage.[24] It further gives rise to the disputable presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage.[25] Petitioner also presented his baptismal certificate (Exhibit C) in which Inocentes and Felicidad were named as the childs father and mother.[26] On the other hand, filiation may be proven by the following:

Respondent Courts Ruling

In finding that petitioner was not a child, legitimate or otherwise, of the late Inocentes Trinidad, Respondent Court ruled:[14] We sustain the appeal on the ground that plaintiff has not adduced sufficient evidence to prove that he is the son of the late Inocentes Trinidad. But the action to claim legitimacy has not prescribed. Plaintiff has not established that he was recognized, as a legitimate son of the late Inocentes Trinidad, in the record of birth or a final judgment, in a public document or a private handwritten instrument, or that he was in continuous possession of the status of a legitimate child. Two witnesses, Pedro Briones and Beatriz Trinidad Sayon, testified for the defendants that Inocentes Trinidad never married. He died single in 1941. One witness, Isabel Maren, testified in rebuttal for the plaintiff, that Inocentes Trinidad married Felicidad Molato in New Washington, Aklan, on May 5, 1942, solemnized by a pastor of the protestant church and that she attended the wedding ceremony (t.s.n. Sept. 6, 1988, p. 4). Hence, there was no preponderant evidence of the marriage, nor of Inocentes acknowledgment of plaintiff as his son, who was born on July 21, 1943. The right to demand partition does not prescribe (de Castro vs. Echarri, 20 Phil. 23). Where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership (Cordova vs. Cordova, L9936, January 14, 1958) acquisitive prescription may set in (Florenz D. Regalado, Remedial Law Compendium, Vol. I, Fifth Revised Edition, 1988, p. 497). Admittedly, the defendants have been in possession of the parcels of land involved in the concept of owners since their father died in 1940. Even if possession be counted from 1964, when plaintiff attained the age of majority, still, defendants possessed the land for more than ten (10) years, thus acquiring ownership of the same by acquisitive prescription (Article 1134, Civil Code of the Philippines).

1. Did petitioner present sufficient evidence of his parents marriage and of his filiation? 2. Was petitioners status as a legitimate child subject to collateral attack in the action for partition? 3. prescription? Was his claim time-barred under the rules on acquisitive

The Courts Ruling

ART. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. ART. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child. ART. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws.[27] Petitioner submitted in evidence a certification[28] that records relative to his birth were either destroyed during the last world war or burned when the old town hall was razed to the ground on June 17, 1956. To prove his filiation, he presented in evidence two family pictures, his baptismal certificate and Gerardos testimony. The first family picture (Exhibit A) shows petitioner (Exhibit A-5) carrying his second daughter and his wife (Exhibit A-4) together with the late Felix Trinidad (Exhibit A-2) carrying petitioners first daughter, and Lourdes Trinidad (Exhibit A-1). Exhibit B is another picture showing Lourdes Trinidad (Exhibit B-1) carrying petitioners first child (Exhibit B-2). These pictures were taken before the case was instituted. Although they do not directly prove petitioners filiation to Inocentes, they show that petitioner was accepted by the private respondents as Inocentes legitimate son ante litem motam. Lourdes denials of these pictures are hollow and evasive. While she admitted that Exhibit B shows her holding Clarita Trinidad, the petitioners daughter, she demurred that she did so only because she was requested to carry the child before she was baptized.[29] When shown Exhibit A, she recognized her late brother -- but not petitioner, his wife and the couples children -- slyly explaining that she could not clearly see because of an alleged eye defect.[30] Although a baptismal certificate is indeed not a conclusive proof of filiation, it is one of
Property | Art. 494 to 498 | 8

The merits of this petition are patent. The partition of the late Patricios real properties requires preponderant proof that petitioner is a co-owner or co-heir of the decedents estate.[16] His right as a co-owner would, in turn, depend on whether he was born during the existence of a valid and subsisting marriage between his mother (Felicidad) and his putative father (Inocentes). This Court holds that such burden was successfully discharged by petitioner and, thus, the reversal of the assailed Decision and Resolution is inevitable.

First and Second Issues: Evidence of and Collateral Attack on Filiation

At the outset, we stress that an appellate courts assessment of the evidence presented by the parties will not, as a rule, be disturbed because the Supreme Court is not a trier of facts. But in the face of the contradictory conclusions of the appellate and the trial courts, such rule does not apply here. So, we had to meticulously pore over the records and the evidence adduced in this case.[17] Petitioners first burden is to prove that Inocentes and his mother (Felicidad) were validly married, and that he was born during the subsistence of their marriage. This, according to Respondent Court, he failed to accomplish. This Court disagrees. Pugeda vs. Trias[18] ruled that when the question of whether a marriage has been contracted arises in litigation, said marriage may be proven by relevant evidence. To prove the fact of marriage, the following would constitute competent

The Issues

Petitioner submits the following issues for resolution:[15] 1. Whether or not petitioner (plaintiff-appellee) has proven by preponderant evidence the marriage of his parents.

the other means allowed under the Rules of Court and special laws to show pedigree, as this Court ruled in Mendoza vs. Court of Appeals:[31] What both the trial court and the respondent court did not take into account is that an illegitimate child is allowed to establish his claimed filiation by any other means allowed by the Rules of Court and special laws, according to the Civil Code, or by evidence of proof in his favor that the defendant is her father, according to the Family Code. Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimony of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court. [Justice Alicia Sempio-Diy, Handbook on the Family Code of the Phil. 1988 ed., p. 246] Concededly, because Gerardo was not shown to be a member of the Trinidad family by either consanguinity or affinity,[32] her testimony does not constitute family reputation regarding pedigree. Hence, it cannot, by itself, be used to establish petitioners legitimacy. Be that as it may, the totality of petitioners positive evidence clearly preponderates over private respondents self-serving negations. In sum, private respondents thesis is that Inocentes died unwed and without issue in March 1941. Private respondents witness, Pedro Briones, testified that Inocentes died in 1940 and was buried in the estate of the Trinidads, because nobody was willing to carry the coffin to the cemetery in Kalibo, which was then occupied by the Japanese forces. His testimony, however, is far from credible because he stayed with the Trinidads for only three months, and his answers on direct examination were noncommittal and evasive:[33] Q: A: Q: A: Q: A: At the time of his death, can you tell the Court if this Inocentes Trinidad was married or not? Not married. In 1940 at the time of death of Inocentes Trinidad, where were you residing? I was staying with them. When you said them, to whom are you referring to [sic]? My aunt Nanay Taya, Anastacia. xxx Q: A: Q: A: Q: A: Q: A: Q: A: Q: xxx xxx

A:

Every Sunday. xxx xxx xxx

Q: A: Q: A:

You know the plaintiff Arturio Trinidad? I do not know him. After the death of Inocentes Trinidad, do you know if there was anybody who has stayed with the defendants who claimed to be a son of Inocentes Trinidad? I do not know about that.

been a PTA officer and the court sized her up as a civic minded person. She has nothing to gain in this case as compared to the witness for the defendants who are either cousin or nephew of Lourdes Trinidad who stands to gain in the case for defendant, Lourdes Trinidad, being already 75 years old, has no husband nor children.[41] Doctrinally, a collateral attack on filiation is not permitted.[42] Rather than rely on this axiom, petitioner chose to present evidence of his filiation and of his parents marriage. Hence, there is no more need to rule on the application of this doctrine to petitioners cause.

Beatriz Sayon, the other witness of private respondent, testified that, when the Japanese occupied Kalibo in 1941, her father brought Inocentes from Manila to Tigayon because he was sick. Inocentes stayed with their grandmother, Eugenia Roco Trinidad, and died single and without issue in March 1941, one and a half months after his return to Tigayon. She knew Felicidad Molato, who was also a resident of Tigayon, but denied that Felicidad was ever married to Inocentes.[34] Taking judicial notice that World War II did not start until December 7, 1941 with the bombing of Pearl Harbor in Hawaii, the trial court was not convinced that Inocentes died in March 1941.[35] The Japanese forces occupied Manila only on January 2, 1942;[36] thus, it stands to reason that Aklan was not occupied until then. It was only then that local residents were unwilling to bury their dead in the cemetery in Kalibo, because of the Japanese soldiers who were roaming around the area.[37] Furthermore, petitioner consistently used Inocentes surname (Trinidad) without objection from private respondents -- a presumptive proof of his status as Inocentes legitimate child.[38] Preponderant evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party.[39] Compared to the detailed (even if awkwardly written) ruling of the trial court, Respondent Courts holding that petitioner failed to prove his legitimate filiation to Inocentes is unconvincing. In determining where the preponderance of evidence lies, a trial court may consider all the facts and circumstances of the case, including the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts, the probability or improbability of their testimony, their interest or want thereof, and their personal credibility.[40] Applying this rule, the trial court significantly and convincingly held that the weight of evidence was in petitioners favor. It declared: xxx [O]ne thing sure is the fact that plaintiff had lived with defendants enjoying the status of being their nephew xxx before plaintiff [had] gotten married and had a family of his own where later on he started demanding for the partition of the share of his father, Inocentes. The fact that plaintiff had so lived with the defendants xxx is shown by the alleged family pictures, Exhibits A & B. These family pictures were taken at a time when plaintiff had not broached the idea of getting his fathers share. xxxx His demand for the partition of the share of his father provoked the ire of the defendants, thus, they disowned him as their nephew. xxxx In this case, the plaintiff enjoyed the continuous possession of a status of the child of the alleged father by the direct acts of the defendants themselves, which status was only broken when plaintiff demanded for the partition xxx as he was already having a family of his own. xxxx. However, the disowning by the defendant [private respondent herein], Lourdes Trinidad, of the plaintiff [petitioner herein] being her nephew is offset by the preponderance of evidence, among them the testimony of witness, Jovita Gerardo, who is the barrio captain. This witness was already 77 years old at the time she testified. Said witness had no reason to favor the plaintiff. She had

Third Issue: No Acquisitive Prescription

Respondent Court ruled that, because acquisitive prescription sets in when one of the interested parties openly and adversely occupies the property without recognizing the coownership, and because private respondents had been in possession -- in the concept of owners -- of the parcels of land in issue since Patricio died in 1940, they acquired ownership of these parcels. The Court disagrees. Private respondents have not acquired ownership of the property in question by acquisitive prescription. In a co-ownership, the act of one benefits all the other co-owners, unless the former repudiates the co-ownership.[43] Thus, no prescription runs in favor of a co-owner or co-heir against his or her co-owners or co-heirs, so long as he or she expressly or impliedly recognizes the co-ownership. In this particular case, it is undisputed that, prior to the action for partition, petitioner, in the concept of a co-owner, was receiving from private respondents his share of the produce of the land in dispute. Until such time, recognition of the co-ownership by private respondents was beyond question. There is no evidence, either, of their repudiation, if any, of the coownership of petitioners father Inocentes over the land. Further, the titles of these pieces of land were still in their fathers name. Although private respondents had possessed these parcels openly since 1940 and had not shared with petitioner the produce of the land during the pendency of this case, still, they manifested no repudiation of the co-ownership. In Mariategui vs. Court of Appeals, the Court held:[44] x x x Corollarily, prescription does not run again 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 the 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]). Considering the foregoing, Respondent Court committed reversible error in holding that petitioners claim over the land in dispute was time-barred.
Property | Art. 494 to 498 | 9

Will you please tell the Court for how long did you stay with your aunt Anastacia Trinidad and his children before 1940? For only three months. Now, you said at the time of his death, Inocentes Trinidad was single. Do you know if he had cohabited with anybody before his death? [T]hat I do not know. You know a person by the name of Felicidad Molato? No, sir. Can you recall if during the lifetime of Inocentes Trinidad if you have known of anybody with whom he has lived as husband and wife? I could not recall because I was then in Manila working. After the war, do you remember having gone back to the house of your aunt Anastacia at Tigayon, Kalibo, Aklan? Yes, sir, How often did you go to the house of your aunt?

WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are REVERSED and SET ASIDE. The trial courts decision dated July 4, 1989 is REINSTATED. No costs. SO ORDERED. SECOND DIVISION

Petitioner submits the following grounds to support the granting of the writ of certiorari in the present case: FIRST GROUND THE HON. COURT OF APPEALS AND THE REGIONAL TRIAL COURT (BR. 79) HAD NO JURISDICTION TO TRY SUBJECT CASE (SP. PROC. NO. 118-M). THE CAUSES OF ACTION HEREIN HAVE BEEN FINALLY DECIDED BY THE HON. COURT OF FIRST INSTANCE OF RIZAL (BR. 31) MAKATI, METRO MANILA, AND SUSTAINED IN A FINAL DECISION BY THE HON. SUPREME COURT. SECOND GROUND THE HON. COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AND AUTHORITY WHEN IT SUSTAINED THE ORDERS OF THE HON. REGIONAL TRIAL COURT (BR. 79) DATED OCTOBER 4, 1994, AND THE ORDER DATED JANUARY 5, 1995, WHEN SAID RTC (BR. 79) INSISTED IN TRYING THIS CASE AGAINST TCMC WHEN IT HAS RULED ALREADY IN A FINAL ORDER THAT PETITIONER IS NOT A REAL PARTY IN INTEREST BY THE HON. REGIONAL TRIAL COURT (BR. 79) IN CIVIL CASE NO. 170, ENTITLED ELPIDIA A. DE CASTRO, ET. AL. vs. TOMAS CLAUDIO MEMORIAL COLLEGE, ET. AL., WHICH CASE INVOLVED THE SAME RELIEF, SAME SUBJECT MATTER AND THE SAME PARTIES. THIRD GROUND THE HON. COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AND AUTHORITY WHEN IT CAPRICIOUSLY AND WHIMSICALLY DISREGARDED THE EXISTENCE OF RES JUDICATA IN THIS CASE. The pivotal issues to be resolved in this case are: whether or not the Regional Trial Court and/or the Court of Appeals had jurisdiction over the case, and if so, whether or not the Court of Appeals committed grave abuse of discretion in affirming the decision of the Regional Trial Court. In assailing the Orders of the appellate court, petitioner invokes Rule 65 of the Rules of Court as its mode in obtaining a reversal of the assailed Decision and Resolution. Before we dwell on the merits of this petition, it is worth noting, that for a petition for certiorari to be granted, it must be shown that the respondent court committed grave abuse of discretion equivalent to lack or excess of jurisdiction and not mere errors of judgment, for certiorari is not a remedy for errors of judgment, which are correctible by appeal.[1] By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, and mere abuse of discretion is not enough -- it must be grave.[2] In the case at hand, there is no showing of grave abuse of discretion committed by the public respondent. As correctly pointed out by the trial court, when it took cognizance of the action for partition filed by the private respondents, it acquired jurisdiction over the subject matter of the case.[3] Jurisdiction over the subject matter of a case is conferred by law and is determined by the allegations of the complaint irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein.[4] Acquiring jurisdiction over the subject matter of a case does not necessarily mean that the lower court meant to reverse the decision of the Supreme Court in the land registration case mentioned by the petitioner. Moreover, settled is the rule that the jurisdiction of the court over the subject matter is determined by the allegations of the complaint, hence the courts jurisdiction cannot be made to depend upon defenses set up in the answer or in a motion to dismiss.[5] This has to be so, for were the principle otherwise, the ends of justice would be frustrated by making the sufficiency of this kind of action dependent upon the defendant in all cases. Worth stressing, as long as a court acts within its jurisdiction any alleged errors committed in the exercise thereof will amount to nothing more than errors of judgment which

are revisable by timely appeal and not by a special civil action of certiorari.[6] Based on the foregoing, even assuming for the sake of argument that the appellate court erred in affirming the decision of the trial court, which earlier denied petitioners motion to dismiss, such actuation on the part of the appellate court cannot be considered as grave abuse of discretion, hence not correctible by certiorari, because certiorari is not available to correct errors of procedure or mistakes in the judges findings and conclusions. In addition, it is now too late for petitioner to question the jurisdiction of the Court of Appeals. It was petitioner who elevated the instant controversy to the Court of Appeals via a petition for certiorari. In effect, petitioner submitted itself to the jurisdiction of the Court of Appeals by seeking affirmative relief therefrom. If a party invokes the jurisdiction of a court, he cannot thereafter challenge that courts jurisdiction in the same case.[7] To do otherwise would amount to speculating on the fortune of litigation, which is against the policy of the Court. On the issue of prescription, we have 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.[8] Under Article 493 of the Civil Code, the sale or other disposition affects only the sellers share pro indiviso, and the transferee gets only what corresponds to his grantors share in the partition of the property owned in common. 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. The proper action in a case like this, is not for the nullification of the sale, or for the recovery of possession of the property owned in common from the third person, but for division or partition of the entire property if it continued to remain in the possession of the co-owners who possessed and administered it.[9] Such partition should result in segregating the portion belonging to the seller and its delivery to the buyer. In the light of the foregoing, petitioners defense of prescription against an action for partition is a vain proposition. Pursuant to Article 494 of the Civil Code, no co -owner shall be obliged to remain in the co-ownership. Such co-owner may demand at anytime the partition of the thing owned in common, insofar as his share is concerned. In Budlong vs. Bondoc,[10] this Court has interpreted said provision of law to mean that the action for partition is imprescriptible. It cannot be barred by prescription. For Article 494 of the Civil Code explicitly declares: No prescription shall lie in favor of a co-owner or co-heirs as long as he expressly or impliedly recognizes the co-ownership. WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals is hereby AFFIRMED. Costs against petitioners. SO ORDERED. THIRD DIVISION

[G.R. No. 124262. October 12, 1999]

TOMAS CLAUDIO MEMORIAL COLLEGE, INC., petitioner vs. COURT OF APPEALS, HON. ALEJANDRO S. MARQUEZ, CRISANTA DE CASTRO, ELPIDIA DE CASTRO, EFRINA DE CASTRO, IRENEO DE CASTRO and ARTEMIO DE CASTRO ADRIANO, respondents. DECISION QUISUMBING, J.: This special civil action for certiorari seeks to set aside the Decision of the Court Appeals dated August 14, 1995, in CA-G.R. SP No. 36349, and its Resolution dated March 15, 1996, which denied petitioners motion for reconsideration. On December 13, 1993, private respondents filed an action for Partition before the Regional Trial Court of Morong, Rizal. They alleged that their predecessor-in-interest, Juan De Castro, died intestate in 1993 and they are his only surviving and legitimate heirs. They also alleged that their father owned a parcel of land designated as Lot No. 3010 located at Barrio San Juan, Morong, Rizal, with an area of two thousand two hundred sixty nine (2,269) square meters more or less. They further claim that in 1979, without their knowledge and consent, said lot was sold by their brother Mariano to petitioner. The sale was made possible when Mariano represented himself as the sole heir to the property. It is the contention of private respondents that the sale made by Mariano affected only his undivided share to the lot in question but not the shares of the other co-owners equivalent to four fifths (4/5) of the property. Petitioner filed a motion to dismiss contending, as its special defense, lack of jurisdiction and prescription and/or laches. The trial court, after hearing the motion, dismissed the complaint in an Order dated August 18, 1984. On motion for reconsideration, the trial court, in an Order dated October 4, 1994, reconsidered the dismissal of the complaint and set aside its previous order. Petitioner filed its own motion for reconsideration but it was denied in an Order dated January 5, 1995. Aggrieved, petitioner filed with the Court of Appeals a special civil action for certiorari anchored on the following grounds: a) the RTC has no jurisdiction to try and take cognizance of the case as the causes of actions have been decided with finality by the Supreme Court, and b) the RTC acted with grave abuse of discretion and authority in taking cognizance of the case. After the parties filed their respective pleadings, the Court of Appeals, finding no grave abuse of discretion committed by the lower court, dismissed the petition in a Decision dated August 14, 1995. Petitioner filed a timely motion for reconsideration but it was denied in a Resolution dated March 15, 1996. Hence this petition.

[G.R. No. 139524. October 12, 2000]

PHILIP C. SANTOS and HEIRS OF ELISEO M. SANTOS, petitioners, vs. LADISLAO M. SANTOS represented herein by his Attorney-In-Fact NOE M. SANTOS, respondents. DECISION
Property | Art. 494 to 498 | 10

GONZAGA-REYES, J.: Before us is a petition for review on certiorari assailing the January 8, 1999 Decision[1]of the Court of Appeals[2] in CA-G.R. CV No. 48576 which reversed the decision[3] of the Regional Trial Court[4] of San Mateo, Rizal (Branch 76) and which declared Ladislao M. Santos and Eliseo M. Santos as entitled to pro indiviso shares in the property of Isidra M. Santos. The dispositive portion of the assailed Decision reads: IN THE LIGHT OF ALL THE FOREGOING, the appeal is granted. The Decision appealed from is REVERSED. Judgment is hereby rendered in favor of the Appellant and against the Appellees as follows: 1. Tax Declaration Nos. 04-0566 and 04-0016, Exhibits 8 and 9, under the name of Appellee Philip Santos and the Deed of Sale of Unregistered Residential Land (Exhibit 15) are hereby declared inefficacious insofar as the undivided one-half portion of the Appellant in the Isidra property is concerned; The Appellant and the Appellee Eliseo Santos are hereby declared each entitled to pro indiviso shares in the Isidra property; The Court a quo is hereby ordered to effect the partition of the subject lot conformably with Rule 69 of the 1997 Rules of Civil procedure.

Petitioner prays for other relief which this Court may deem just and equitable in the premises. (at page 3, Records) In their Answer to the complaint, the Appellees admitted that, upon the demise of Isidra Santos, the Appellant and the Appellee Eliseo Santos inherited the said property and the latters share in Lot 1522 of the San Mateo Cadastre, which they and their sister, Isidra Santos, inherited from their father, Bonifacio Santos who died before the outbreak of the Second World War but insisted that the Appellant and the Appellee Eliseo Santos had agreed, in 1969, after the death of Isidra Santos, on April 1, 1967, to partition Lot 1522, under which a portion of Lot 1522, with an area of 3,387 square meters, was adjudicated to the Appellant, and a portion of the same lot, with an area of 3,000 square meters, was conveyed to the Appellee Eliseo Santos and the parcel of land left by Isidra Santos was conveyed by Appellee Eliseo Santos to Virgilio Santos, who, from infancy had been under the care of Isidra Santos, to approximately equalize the share of the Appellee Eliseo Santos in the estate of Bonifacio Santos. The Appellees further averred that Appellees had acquired the Isidra property by acquisitive prescription. Neither Appellant Ladislao Santos nor Appellee Eliseo Santos testified in the Court a quo. Although the Appellee Eliseo Santos was present during the proceeding, he did not testify anymore because of senility being then about 88 years old. Virginia Santos, the widow of Virgilio Santos, testified, in the Court a quo, and declared, that she and Virgilio Santos married, on February 12, 1967, and resided in the house of Isidra Santos until the sale, by Virgilio Santos, of the Isidra property to his brother, the Appellee Philip Santos and in exchange with the property of the latter located at Kambal Street, Gitnangbayan, San Mateo, Rizal, where the couple and, after Virgilio Santos death, on April 5, 1984, had been residing. Virginia Santos likewise declared that Appellant Ladislao Santos and the Appellee Eliseo Santos had an agreement, notarized by Atty. Sixto Natividad, that Virgilio Santos and Virginia Santos became the new owners of the Isidra property. The copy of the Agreement given Virgilio Santos was xeroxed and the xerox copy was given to Appellee Philip Santos while Virgilio Santos copy was filed with the Provincial Assessors Office on the basis of which, Tax Declaration No. 7892 was issued under his name. The Appellee Philip Santos, on the other hand, declared that the Appellant Ladislao Santos and the Appellee Eliseo Santos and their respective Spouses executed a Combined Deed of Partition, in 1969, covering the Lot 1522 and the Isidra Property, wherein it was covenanted that the Isidra Property was deeded to Appellee Eliseo Santos. The Appellee Philip Santos further declared that he was then about 20 years old, and saw the said Combined Deed of Partition in the possession of Appellee Eliseo Santos. After due proceedings, the Court a quo promulgated a Decision dismissing Appellants complaint on the ground that the Appellant failed to adduce proof of his entitlement to the relief prayed for by him and on the ground of acquisitive prescription. The present recourse stemmed from the following factual backdrop - when Bonifacio Santos died intestate, he was survived by his two (2) sons, namely Ladislao Santos, the Appellant in the present recourse, and Appellee Eliseo Santos, one of the Appellees in the present recourse and their sister, Isidra Santos. The latter was the owner of a parcel of land, hereinafter referred to, for brevitys sake, as the Isidra property, located in General Luna Street, Gitnangbayan, San Mateo, Rizal, with an area of 391 square meters, more or less, covered by Tax Declaration No. 655, located in front of but oblique to and about fifty (50) meters away from the property, with an area of 6,340 square meters, covered by Tax Declaration No. 383 of the Provincial Assessors Office, (Exhibit L-3). She had a house constructed on her lot where she had been residing ever since. In the meantime, on November 10, 1964, a cadastral survey of lands in San Mateo, Rizal, was undertaken. The property, with an area of 6,340 square meters was identified as Lot 1522, Cadastre No. 375-D. Tax Declaration No. 655, covering the Isidra Property was later cancelled by Tax Declaration 1115 under her name, effective 1966 (Exhibit 4). On May 29, 1967, the Appellant and his wife, Leonila Mateo executed a Deed of

Absolute Conveyance with Right of Way over the southwestern portion of Lot 1522, with an area of 3,000 square meters, in favor of his brother, the Appellee Eliseo Santos for the price of P500.00, with a provision for a right of way. On April 1, 1967, Isidra Santos died intestate and was survived by her two (2) brothers, the Appellant and the Appellee Eliseo Santos. On September 9, 1969, the Provincial Assessor issued Tax Declaration No. 7892, over the Isidra property, under the name of Virgilio Santos and Virginia Santos, thereby canceling Tax Declaration No. 1115 under the name of Isidra Santos (Exhibit 5). In 1972, Tax Declaration No. 7892 was cancelled by Tax Declaration No. 5043, still under the names of Virgilio Santos and Virginia Santos, effective 1974 (Exhibit 4) and by Tax Declaration No. 04-0015, effective 1980 (Exhibit 7). On December 16, 1980, Virgilio Santos executed a Deed of Absolute Sale of Unregistered Residential Land in favor of his brother, the Appellee Philip Santos, over the Isidra Property at the time covered by Tax Declaration No. 04-0015, for the price of P24,460.00 (Exhibit H). On the basis of said deed, Tax Declaration No. 04-0015 was cancelled by Tax Declaration No. 04-0566, under the name of Appellee Philip Santos, effective 1981 (Exhibit E). The Spouses Virgilio Santos vacated the said property and resided at Kambal Street, Gitnangbayan I, San Mateo, Rizal formerly owned by Philip Santos . The latter, in turn, had the house on the lot demolished and had his shop installed in the Isidra Property. Since then, Philip Santos had been paying the realty taxes therefor. On April 5, 1984, Virgilio Santos died intestate and was survived by his wife, Virginia Santos. In the meantime, the Appellant and Appellee Philip Santos left the Philippines and resided in the United States of America. Despite the Deed of Absolute Conveyance With Right of Way executed by the Appellant in favor of Appellee Eliseo Santos, the children of the Appellant and their uncle, the Appellee Eliseo Santos, signed an Application, on September 26, 1984 and filed the same with the Regional Trial Court of Rizal (at San Mateo) for the registration of their title over Lots 1522 and 2433 of Cadastre 375-D. The Applicants alleged, inter alia in said application, that Noe Santos, et al., (children of Ladislao Santos), were occupying a portion of Lot 1522, with an area of 3,430 square meters, while Appellee Eliseo Santos was occupying a portion of the same lot, with an area of 3,000 square meters, more or less, as a site of cockpit building (Exhibit 5). On July 16, 1986, the Regional Trial Court promulgated a Decision granting the application, the decretal portion of which reads as follows: WHEREFORE, this Court hereby declares herein applicants the absolute owners of that parcels of land identified as Lot 1522 and Lot 2433, both of Plan AP-04-001205 marked as Exhibit D and in consequence thereof, it is hereby Ordered that the said parcels of land be registered in the names of the applicants, to wit: 1. Noe Santos, married to Felicidad Santos; Asuncion S. Ramos, married to Virgilio Ramos; LADISLAO SANTOS, JR., married to Regina Linco; NELIA S. MACALALAD, married to Jacinto Macalalad; OFELIA SANTOS, single; RECTO SANTOS, single, all of legal ages, Filipino citizens and all are residents of Gen. Luna St., San Mateo, Rizal, an undivided portion of 3,387 square meters of that parcel of land identified as Lot 1522 of Plan AP-04-001205, marked as Exhibit D and undivided rights, interest and participation of that parcel of land identified as Lot 2433 of the above-mentioned Plan with an area of 43 square meters, all in equal shares (pro-indiviso); 2. ELISEO SANTOS, of legal age, Filipino citizen, married to Virginia Santos and resident of Gen. Luna St., San Mateo, Rizal, an undivided portion of 3,000 square meters of that parcel of land identified as Lot 1522 of Plan AP-04-001205.
Property | Art. 494 to 498 | 11

2. 3.

Without pronouncement as to costs. SO ORDERED. The following facts as narrated by the Court of Appeals are undisputed: On May 13, 1993, Ladislao Santos, a resident in the United States of America, the Appellant in the present recourse, through his Attorney-in-fact, Noe Santos, filed a complaint, with the Regional Trial Court of Rizal, against his brother, Eliseo Santos and the latters son, Philip Santos, the Appellees in the present recourse, for Judicial Partition. The Appellant averred, inter alia, in his complaint, that, when his and Eliseo Santos sister, Isidra Santos, died intestate on April 1, 1967, without any issue, they inherited her parcel of land covered by Tax Declaration 1115, issued by the Provincial Assessor of Rizal located along General Luna Street, Gitnangbayan, San Mateo, Rizal; that, sometime, in February 1, 1993, the Appellant discovered that Tax Declaration No. 1115 had been cancelled by Tax Declaration No. 7892, under the name of his nephew, Appellee Philip Santos, and that, on December 16, 1980, Virgilio Santos executed a Deed of Absolute Sale of Unregistered Residential Land on the basis of which Tax Declaration No. 04-0016 was issued to the Appellee Philip Santos. The Appellant prayed the Court that judgment be rendered in his favor as follows: WHEREFORE, it is most respectfully prayed of this Honorable Court that after due hearing judgment be rendered as follows: (1) Ordering the division of the intestate estate of the late Isidra Santos between petitioner and respondent Eliseo M. Santos; (2) Declaring Tax Declaration No. 04-0015 in the name of Virgilio Santos as null and void; (3) Declaring the Deed of Sale dated December 11, 1980, executed by Virgilio Santos in favor of Philip Santos as null and void; (4) Declaring Tax Declaration No. 04-00161 (sic) in the name of Philip Santos as null and void;

Once this Decision becomes final, let an Order of the issuance of a Decree of Registration issue (Exhibits 26-E and 26-F) On the basis of the Decision of the Court, Noe Santos, et al., and Appellee Eliseo Santos, were issued an Original Certificate of Title No. ON-1146, on November 18, 1986 over Lot 1522 (Exhibit M). Noe Santos, for and in behalf of his siblings and Appellee Eliseo Santos had a subdivision plan prepared, subdividing Lot 1522 into two (2) subdivision lots, namely, Lot 1522-A, with an area of 3,000 square meters (Exhibit 15 -A) and Lot 1522-B, with an area of 3,387 square meters (Exhibit 15-B). In June, 1987, Noe Santos and his siblings and their uncle, Appellee Eliseo Santos, executed a Partition Agreement adjudicating Lot 1522-A, with an area of 3,000 square meters unto Appellee Eliseo Santos, and Lot 1522-B, with an area of 3,387 square meters, unto Noe Santos, et al., (Exhibit 13). On the basis of said deed, Original Certificate of Title No. ON-1146 was cancelled and Transfer Certificate of Title No. 148892 was issued to Appellee Eliseo Santos over Lot 1522-A (Exhibit 11). On March 17, 1993, Appellant Ladislao Santos, through counsel, sent a letter to the Appellee Philip Santos alleging that the Appellant had discovered that the Isidra property inherited by Appellant and Appellee Eliseo, had been declared, for taxation purposes, under the name of Appellee Philip Santos, on the basis of a Deed of Sale executed by Virgilio Santos and suggesting a conference regarding the matter (Exhibit J). The Appellee Philip Santos wrote to the counsel of the Appellant, declaring, inter alia, that the Isidra property, with the portion and Lot 1522-A, with an area of 3,000 square meters, formed part of the share of Appellee Eliseo Santos in the estate of his father, Bonifacio Santos; that Appellee Eliseo Santos transferred the Isidra property to his son, Virgilio Santos, who, in turn, sold the said property to Appellee Philip Santos, for the amount of P24,600.00, as part of the consideration of the conveyance, by Appellee Philip Santos, of his property located in Kambal Street, Gitnangbayan, San Mateo, Rizal, where Virgilio Santos widow and family had been residing (Exhibit 24) and the redemption, by Appellee Philip Santos, of the Mortgage of the property by Virgilio Santos from the Rural Bank of San Mateo.[5] On May 13, 1993, herein respondent Ladislao Santos filed an action for the judicial partition of the Isidra property. After due proceedings, the trial court promulgated a decision dismissing Ladislaos complaint on the ground that the latter failed to adduce proof of his entitlement to the relief prayed for by him and on the ground of acquisitive prescription. Specifically, the trial court cited the following reasons: (1) the subject property was registered/declared for taxation purposes only in the name of Isidra Santos; (2) the fact of coownership thereof by reason of inheritance was not reflected in the tax declaration; (3) there was no proof presented that the cancellation of the tax declaration in Isidras name and the issuance of another in Virgilios name had been effected through fraud and misrepre sentation; (4) there is no proof that a fake document was presented to the provincial assessor for the cancellation of the tax declaration and the issuance of another in lieu thereof as all assessment records were destroyed by the fire which gutted the office of the provincial assessor; and (5) from the time of Isidras death in 1967 up to May 13, 1993 when this case was filed, acquisitive prescription may have already set in. In due course, the Court of Appeals, as earlier stated, rendered its assailed Decision granting the appeal, reversing the trial courts decision and declaring that Ladislao Santos and Eliseo Santos are each entitled to pro indiviso shares in the Isidra property. Hence, this appeal to this Court under Rule 45 of the Rules of Court raising the following issues: I. THE HONORABLE COURT OF APPEALS ERRED IN NOT UPHOLDING THE LEGALITY AND REGULARITY OF THE TRANSFER OF ISIDRA PROPERTY TO VIRGILIO SANTOS AND LATER TO PETITIONER

PHILIP C. SANTOS. II. THE HONORABLE COURT OF APPEALS ERRED IN AWARDING ONEHALF (1/2) PORTION PRO INDIVISO OF ISIDRA PROPERTY IN FAVOR OF RESPONDENT DESPITE AND INSPITE OF THE ABSENCE OF PROOF OF ALLEGED FRAUD AND MISREPRESENTATION IN THE CANCELLATION OF THE TAX DECLARATION IN ISIDRAS NAME ANT ITS SUBSEQUENT TRANSFER TO VIRGILIO SANTOS NAME.

assessor of San Mateo, Rizal testified on the existence of the document authorizing the cancellation of Tax Declaration No. 1115 in favor of the issuance of Tax Declaration No. 7892 in Virgilios name; (3) Virginia Santos (wife of Virgilio), Philip and a certain Dr. Linco testified on the existence of said document. In relation to the foregoing, petitioners argue that the Isidra property was acquired through a valid document inscribed in the tax declaration;[7] that the existence and nature of this document was proved by testimonial evidence; and that respondent was not able to show that the document registered with the provincial assessors office was not the combined partition or deed of transfer by brothers Ladislao and Eliseo. We agree with the Court of Appeals that only the original document is the best evidence of the fact as to whether the brothers Ladislao and Eliseo Santos executed a Combined Deed of Partition wherein the entire property of Isidra Santos was conveyed to Eliseo. In the absence of such document, petitioners arguments regarding said partition must fail. The testimonies of Virginia Santos and Philip Santos on the existence of and the contents of the aforesaid documents are, at most, secondary evidence, which are inadmissible considering that the petitioners as the offerors failed to prove any of the exceptions provided in Section 3, Rule 130 of the Rules of Court[8] and to establish the conditions for their admissibility.[9] We quote with favor the findings of the Court of Appeals, thus: Even if we assumed, for the nonce, that indeed, Lot 1522 was inherited by the Appellant and his brother, the Appellee Eliseo Santos, however, we are not convinced that the Appellant and his wife deeded to the Appellee Eliseo Santos and the latter to Virgilio Santos the Isidra Property under a Deed of Transfer as testified to by Virginia Santos or under a Combined Deed of Partition as testified to by Appellee Philip Santos. The Appellees never adduced in evidence any copy of the said deed executed by the Appellant and the Appellee Eliseo Santos and their respective spouses. Since the subject of inquiry was the subject of said deed, it was incumbent on the Appellees to adduce in evidence the original of the deed or a copy of the original of the deed conformably with Section 3, Rule 130 of the Rules of Evidence. The Appellees failed to do so. The Court a quo allowed the Appellees to adduce secondary evidence to prove the contents of the said deed, but it was inappropriate for the Court a quo to do so over the objections of the Appellant. This is so because, before the Appellees are allowed to adduce secondary evidence to prove the contents of the original of the deed, the Appellees had to prove, with the requisite quantum of evidence, the loss or destruction or unavailability of all the copies of the original of the deed. As former Supreme Court Chief Justice Manuel V. Moran declared: Where there are two or more originals, it must appear that all of them have been lost, destroyed or cannot be produced before secondary evidence can be given of any one. For example, a lease was executed in duplicate, one being retained by the lessor and the other by the lessee. Either copy was, therefore, an original, and could have been introduced as evidence of the contract without the production of the other. One of these originals could not be found. The non-production of the other was not accounted for it was held that under these circumstances, the rule is that no secondary evidence of the contents of either is admissible until it is shown that originals must be accounted for before secondary evidence can be given of any one. (Moran, Comments on the Rules of Court, Volume V, 1970 ed. at pages 90-91, supra, underscoring supplied) Indeed, before a party is allowed to adduce secondary evidence to prove the contents of the original of the deed, the offeror is mandated to prove the following: (a) the execution and existence of the original (b) the loss and destruction of the original or its non-production in court; and (c) unavailability of the original is not due to bad faith on the part of the offeror. (Francisco, Rules of Court, Part I, Volume VII, 1997 ed. at page 154). When she testified in the Court a quo, Virginia Santos declared that there were three (3) copies of the deed signed by the parties thereof. One copy of the deed was given to
Property | Art. 494 to 498 | 12

III. THE HONORABLE COURT OF APPEALS ERRED IN NOT UPHOLDING THAT ACQUISITIVE PRESCRIPTION HAS ALREADY SET IN AS TO BAR THE INSTANT ACTION FOR PARTITION. IV. THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT RESPONDENTS RIGHT TO FILE THIS INSTANT ACTION FOR PARTITION HAS ALREADY PRESCRIBED. V. THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT LACHES HAS ALREADY SET IN AS TO BAR RESPONDENT IN ASSERTING HIS CLAIM UNDER THE PETITION.

VI. THE HONORABLE COURT OF APPEALS ERRED IN NOT UPHOLDING THE RIGHT OF PETITIONER PHILIP SANTOS AS BUYER IN GOOD FAITH AND FOR VALUE.[6] The material aspects of the issues are closely intertwined; hence, they are consolidated into two main issues specifically dealing with the following subjects: (1) the validity of the transfers of the property originally belonging to Isidra M. Santos (the Isidra property) from Eliseo Santos to Virgilio Santos and then to Philip Santos; and (2) whether the action for partition is already barred by ordinary acquisitive prescription of ten years and estoppel by laches. The petition is not meritorious. The controversy involves a 391 square meter parcel of land situated in San Mateo, Rizal, owned by Isidra Santos, a spinster who died intestate and without issue in 1967. She was survived by her two brothers, Ladislao and Eliseo. Sometime in 1993, Ladislao through his attorney-in-fact Noe M. Santos filed an action for judicial partition of the Isidra property against his brother Eliseo and the latters son Philip. While admitting that Ladislao and Eliseo inherited the subject Isidra property, Eliseo and Philip submitted that Eliseo Santos and wife and Ladsilao and wife signed a document wherein Eliseo acquired the subject lot from the combined partition of the estate of their father Bonifacio Santos and their sister Isidra Santos. Bonifacios estate was composed of 6,387 square meters while that of Isidra Santos is the subject property with an area of 391 square meters. Out of this combined parcels of land, respondent got 3,387 square meters while Eliseo got 3,000 square meters and the subject Isidra property with an area of 391 square meters. Eliseo, in turn, donated the subject Isidra property to his son, Virgilio Santos. Considering that petitioners Eliseo and Philip disputed the status of Ladislao as coowner on the ground that the brothers entered into a Combined Deed of Partition wherein the entire Isidra property was conveyed to Eliseo, It was then incumbent upon them to present the best evidence obtainable to prove the same. We agree with the Court of Appeals that the claim of a subsisting co-ownership by Ladislao over the Isidra property has not been effectively refuted by Eliseo and Philip, and that Eliseo and his successors-in-interest (Virgilio and Philip) did not acquire exclusive title over the entire Isidra property. Petitioners insist that they have effectively refuted the co-ownership between Ladislao and Eliseo based on a lawful document proven as follows in the court a quo: (1) the annotation at the back of Tax Declaration No. 1115 which states: cancelled by Tax No. 7892, dated September 9, 1969, Virgilio and Virginia Cruz-Santos; (2) Rodolfo Bautista, municipal

Virgilio Santos, one copy was retained by the Appellee Eliseo Santos, and one copy was retained by Atty. Sixto Natividad, the Notary Public. Virgilio Santos had his copy xeroxed and gave the xerox copy to Appellee Philip Santos. Virgilio Sanots copy was later filed with the Provincial Assessors Office. x x x. xxx xx x x. When he testified in the Court a quo, the Appellee Philip Santos admitted that he saw a copy of the deed in the possession of his father, the Appellee Eliseo Santos: xxx xx x x x x

Bautista himself unabashedly admitted, when he testified in the Court a quo that he had no knowledge of the nature of the deed that was used for the cancellation of Tax Declaration No. 1115 under the name of Isidra Santos or the previous document burned or gutted by the fire. Atty. Ferry: Q: When you testified last March 14, 1994, Mr. Bautista, you declared that you assumed your position in the Office of the Municipal Assessor only on January 6, 1982. Before that, you were not connected with the Municipal Assessor? I am not yet connected, sir. So for the first time you learned, in your official capacity, the alleged lost of all records in the Office of the Provincial Assessor bearing dates 1977 down was only recently? No, sir. When? When I took over in 1982, sir. But the fact is, you will agree with me in so far as the present controversy is concerned, you have no way of determining the particular document presented to the Office of the Provincial Assessor which was made the basis in effecting the transfer of tax declaration in the name of Isidra Santos in favor of Virgilio Santos marked in evidence as Exh. 4. You have no way of determining or identifying the particular document used or presented to the Office of the Provincial Assessor which was made the basis for the cancellation of tax declaration in the name of Isidra Santos and that paved the issuance of the tax declaration in the name of Virgilio Santos marked in evidence by the defendants as Exh. 5. You will not be able to know that simply on the basis of this document? You are in no position to tell or determine what particular document was presented in the Office of the Provincial Assessor which paved the way to the cancellation of Exh. 4 which is tax declaration no. 1115 in the name of Isidra Santos and the issuance of another one in the name of Virgilio Santos marked in evidence as Exh. 5? I do not know, sir (t.s.n. Bautista, at pages 9-10, April 18, 1994, underscoring supplied)

property. But then, such a deed did not prejudice the share of the Appellant in the Isidra Property. It is not legally possible for one to adjudicate unto himself a property he was not the owner of. Hence, We find and so declare that the Isidra Property remained the property of the Appellant and the Appellee Eliseo Santos as their inheritance from Isidra Santos. As our Supreme Court declared in an avuncular case: Despite admission during the hearing on the identify of the land in question (see p. 21, Record on Appeal), Marias counsel, on appeal, reemphasized her original claim that the two parcels of land in her possession were acquired from the Sps. Placido Biduya and Margarita Bose. However, the private document relative to the purchase, was not produced at the trial, allegedly because they were placed in a trunk in their house which were burned during the Japanese Occupation. In 1945, Maria sold the riceland. No written evidence was submitted for all intents therefore, the riceland remained inherited property (Maria Bicarme, et al., versus Court of Appeals, et al., 186 SCRA 294, at pages 298-299). In the light of our findings and disquisitions, Virgilio Santos did not acquire title over the Isidra Property. Hence, Virgilio Santos could not have lawfully sold the said property to his brother, the Appellee Philip Santos. As the Latin aphorism goes: NEMO DAT QUOD NON HABET.[13] All told, the testimonies of the prosecution witnesses, Virginia Santos, Philip Santos and Rodolfo Bautista, on the existence of said document, specifically, the Combined Deed of Partition, cannot be considered in favor of the petitioners, the same being, at most, secondary evidence. Anent the second issue, petitioners insist that acquisitive prescription has already set in; and that estoppel lies to bar the instant action for partition. According to petitioners, Virgilio Santos was already in possession of the subject property since after the death of Isidra Santos on April 1, 1967. Thereafter, Philip Santos took possession of the subject property on December 16, 1980 upon its sale on said date. They reason out that more than 13 years had lapsed from April 1, 1967 to December 16, 1980; and that more than 12 years had lapsed from the time Philip Santos took possession of the property on December 16, 1980 up to the time Ladislao Santos filed the action for partition on May 13, 1993. Petitioners conclude that the instant action is already barred by ordinary acquisitive prescription of ten years. Further, it is argued that the possession of Virgilio Santos could be tacked with the possession of Philip Santos bringing to a total of 26 years the time that elapsed before the filing of the case in 1993. They add that these 26 years of inaction call for the application of the principle of estoppel by laches. Considering that there was no proof that Ladislao Santos executed any Combined Deed of Partition in tandem with the Eliseo Santos, we rule that a co -ownership still subsists between the brothers over the Isidra property. This being the case, we apply Article 494 of the Civil Code which states that, prescription does not run in favor of a co-owner or co-heir against his co-owners or his co-heirs so long as he expressly or impliedly recognizes the coownership. In Adile vs. Court of Appeals,[14] it was held: x x x. 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. There is no showing that Eliseo Santos had complied with these requisites. We are not convinced that Eliseo had repudiated the co-ownership, and even if he did, there is no showing that the same had been clearly made known to Ladislao. As aptly observed by the Court of Appeals:
Property | Art. 494 to 498 | 13

A: Q:

x x.

While the Appellees adduced evidence that the copy filed with the Provincial Assessors Office was burned when the Office of the Provincial Assessor was burned on April 7, 1977, however, the Appellees failed to adduce proof that the copy in the possession of Atty. Sixto Natividad was lost or destroyed. It bears stressing that a Notary Public is mandated, under the Notarial Law, to retain two (2) copies of every deed involving real estate as part of his notarial record, a copy of which he is to submit to the Notarial Section of the Regional Trial Court. The Appellees could very well have procured, by subpoenae ad testificandum and duces tecum, the attendance of Atty. Sixto Natividad before the Court a quo and bring with him his copy of the deed. After all, there is no evidence on record that he was already dead or was unavailable at the time of the trial in the Court a quo. The Appellees did not. Moreover, the Appellees failed to prove the loss or destruction of the copy on file with the Notarial Section of the Regional Trial Court or of the copy in the possession of the Appellee Eliseo Santos. Assuming, for the nonce, that the Appellees mustered the requisite quantum of evidence to prove the loss or destruction of all the copies of the original of the deed, however, Section 5 of Rule 130 of the Rules of Evidence provides that, before testimonial evidence may be adduced to prove the contents of the original of the deed, the offeror is mandated to prove the loss or non-availability of any copy of the original or of some authentic document reciting the contents thereof: x x x. xxx xxx x x x.

A: Q: A: Q:

A:

In the present recourse, Virginia Santos admitted that a xerox copy of the deed was given to the Appellee Philip Santos. However, when she testified in the Court a quo, she admitted not having inquired from the Appellee Philip Santos if he still had the xerox copy of all deeds that Virgilio gave him. x x x.[10] We also agree with the Court of Appeals that petitioners evidence consisting of the tax declarations in Virgilios name and then in Philips name are not conclusive and indisputable evidence to show that the lot in question was conveyed to Virgilio Santos, Philips predecessor-in-interest. A mere tax declaration does not vest ownership of the property upon the declarant. Neither do tax receipts nor declarations of ownership for taxation purposes constitute adequate evidence of ownership or of the right to possess realty.[11] As for the much-vaunted testimony of the municipal assessor of San Mateo, Rizal, the Court of Appeals had this to say: The Appellees presented Rodolfo Bautista, the representative of the Rizal Provincial Assessor, to prove that Tax Declaration No. 7892, under the name of Virgilio Santos and Virginia Santos, cancelled Tax Declaration No. 1115, under the name of Isidra Santos, on the basis of the Combined Deed of Partition purportedly executed by the Appellant and his wife, in tandem with the Appellee Eliseo Santos and his wife, which was, however, burned when the Provincial Assessors Office was gutted by fire on April 7, 1977. However, Rodolfo

The Appellees can find no solstice[12] on the face of Tax Declaration No. 1115, Exhibit 4, which contains the following entry: Cancelled by: Tax Declaration No. 7892 Dated: Sept. 9, 1969 Virgilio & Virginia Cruz Santos (Exhibit 4-B) This is so because the entry does not contain any clue of the nature of the deed, if it was a deed at all, used for the cancellation of Tax Declaration No. 1155, the parties who executed the said deed or the beneficiary of said deed. Indeed, the Court admitted, in its Decision, that there was no way of identifying the document used as basis for the issuance of a new tax declaration under the name of Virgilio Santos (t.s.n. Bautista, supra). Virgilio Santos could very well have executed a Deed of Extra-judicial Settlement of Estate and of Self-Adjudication of Real Property covering the Isidra Property and filed the same with the Provincial Assessor on the basis of which he was issued Tax Declaration No. 7892 over the

Under Article 1119 of the New Civil Code, acts of possessory character executed in virtue of license or tolerance of the owners shall not be available for the purposes of possession. Indeed, Filipino family ties being close and well-knit as they are, and considering that Virgilio Santos was the ward of Isidra Santos ever since when Virgilio Santos was still an infant, it was but natural that the Appellant did not interpose any objection to the continued stay of Virgilio Santos and his family on the property and even acquiesce thereto. Appellant must have assumed too, that his brother, the Appellee Eliseo Santos, allowed his son to occupy the property and use the same for the time being. Hence, such possession by Virgilio Santos and Philip Santos of the property does not constitute a repudiation of the co-ownership by the Appellee Eliseo Santos and of his privies for that matter. As our Supreme Court succinctly observed: x x x [A]nd it is probable that said conduct was simply tolerated by the plaintiffs on account of his being their uncle, and they never thought that by said conduct the defendant was attempting to oust them forever from the inheritance, nor that the defendant would have so intended in any way, dealing as we do here with the acquisition of a thing by prescription, the evidence must be so clear and conclusive as to establish said prescription without any shadow of doubt. This does not happen in the instant case, for the defendant did not even try to prove that he has expressly or impliedly refused plaintiffs right over an aliquot part of the inheritance. (at page 875, supra)[15] Penultimately, the action for partition is not barred by laches. An action to demand partition is imprescriptible or cannot be barred by laches. Each co-owner may demand at any time the partition of the common property.[16] As a final note, it must be stated that since Ladislao has successfully hurdled the issue of co-ownership of the property sought to be partitioned, there is the secondary issue of how the property is to be divided between the two brothers.[17] This Court cannot proceed forthwith with the actual partitioning of the property involved, hence, we reiterate the order of the Court of Appeals for the trial court to effect the partition of the subject property in conformity with Rule 69 of the 1997 Rules of Civil Procedure. WHEREFORE, the decision of the Court of Appeals is AFFIRMED in toto. SO ORDERED.

JOSE ALBERTO L. QUINTOS, RICARDO M. QUINTOS, JR., AILEEN M. QUINTOS and TYRONE M. QUINTOS, Respondents.

Promulgated: April 4, 2007

Within the period for filing an answer, the defendantappellant Austria filed an Omnibus Motion to Dismiss. In its order dated November 10, 1997, the lower court denied the omnibus motion to dismiss of the defendant-appellant Austria, and directed the defendants to file their answer within the remaining period provided by the Rules. Within the prescriptive period, the defendant-appellant Austria filed a Motion for Reconsideration of the November 10, 1997 order, which the lower court denied in an order dated February 2, 1998. Not satisfied, the defendant-appellant Austria filed before the Court of Appeals a Petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court which was docketed as CAGR SP No. 46907, seeking to annul the orders of November 10, 1997 and February 2, 1998. In a Resolution dated July 9, 1998, the Court of Appeals required the plaintiffs-appellees to comment, and temporarily restrained the respondent judge, his agents, representatives, and other persons acting in his behalf from proceeding with Civil Case No. 97-1485 in order that the petition may not become moot and academic. On November 9, 1998, the defendant-appellant Austria received a copy of the Decision dated October 30, 1998 dismissing her petition for certiorari and prohibition. The defendant-appellant Austria moved for the reconsideration thereof. Subsequently, on July 19, 2001, defendant-appellant Austria received a copy of the Resolution of the Court of Appeals dated July 9, 2001, denying her motion for reconsideration of the decision denying her petition for certiorari and prohibition. Undaunted, the defendant-appellant Austria then filed a petition for review under Rule 45 of the Revised Rules of Court with the Supreme Court. In a resolution dated October 15, 2001, the Supreme Court denied the said petition for review for non-compliance with the 1997 Rules of Civil Procedure for failure to pay on time docket and other fees and deposit costs in violation of Sec. 3, Rule 45 in relation to Sec. 5(c), Rule 56. Still not satisfied, on November 9, 2001, the defendantappellant Austria filed a motion for reconsideration of the resolution dated October 15, 2001 denying her petition for review. In its resolution dated January 24, 2002, the Supreme Court denied with finality the petitioners motion for reconsideration. During the pendency of the defendant-appellants petition for certiorari and prohibition before the Court, the plaintiffsappellees filed with the Regional Trial Court of Makati City, Branch 142 where the main case is pending, a motion dated April 6, 1998
Property | Art. 494 to 498 | 14

x----------------------------------------------------------------------------x DECISION TINGA, J.: Petitioner Consolacion Q. Austria assails the Decision[1] of the Court of Appeals in C.A. G.R. CV No. 68591 dated June 21, 2005 and its Resolution [2] dated October 7, 2005, which respectively affirmed the decision[3] of the Regional Trial Court of Makati City, Branch 142, dated February 14, 2000 and its order[4] dated August 7, 2000, and denied petitioners motion for reconsideration. The facts as narrated by the Court of Appeals are as follows: Plaintiffs-appellees Constancia Lichauco, Consuelo Jalandoni, defendants Benedicto Quintos and Antonio Quintos, and defendant-appellant Consolacion Austria are siblings of full blood. Jose Alberto, Ricardo, Jr., Aileen and Tyrone, all surnamed Quintos, are the nephews and niece of the defendant-appellant. The above-named persons are co-owners of two (2) parcels of land with an aggregate area of six hundred sixty one (661) square meters located in Palanan, Makati City. The aforesaid parcels of land have permanent improvements thereon which straddle both lots, namely, a residential bungalow and two (2) units, two-storey apartments, the titles of which are registered jointly in the names of the parties as co-owners thereof. The plaintiffs-appellees allege that sometime in the early part of 1996, they informed defendant-appellant of their desire to have the subject properties partitioned based on the percentage of each co-owners respective share.

SECOND DIVISION CONSOLACION Q. AUSTRIA, Petitioner, Present: QUISUMBING, J., - versus CARPIO, CARPIO MORALES, CONSTANCIA Q. LICHAUCO, CONSUELO Q. JALANDONI, and VELASCO, JR., JJ. TINGA, G.R. No. 170080

A realtor was even engaged to prepare the schemes by which the subject properties could be physically partitioned among the co-owners. However, the defendant-appellant Austria refused to accede to any of the schemes presented by the realtor for the physical apportionment of the subject properties between the coowners thereof. Because of the refusal of the defendant-appellant Austria to partition the property, and the inability of the co-owners to mutually agree on an arrangement acceptable to all of them, on July 1, 1997, the plaintiffs-appellees filed a complaint with the Regional Trial Court of Makati City, Branch 142, which was docketed as Civil Case No. 97-1485, against the defendant-appellant Austria and two other defendants namely Benedicto Quintos and Antonio Quintos (as unwilling co-plaintiffs) for partition of the subject property.

Chairperson,

praying that a declaration of default be issued against all defendants and for plaintiffs to be allowed to present evidence ex-parte. In an order dated July 13, 1998, the Presiding Judge of the Regional Trial Court of Makati City held in abeyance the proceedings before it while awaiting the resolution of the motion for reconsideration pending before the Court of Appeals. Notwithstanding the order holding in abeyance the proceedings in the lower court, plaintiffs-appellees filed a Manifestation and Motion dated September 14, 1998 praying for the resolution of their Motion dated April 6, 1998. In its order dated September 25, 1998, the lower court deemed the incident submitted for resolution. While the motion for reconsideration filed by the appellant is still pending before the Court of Appeals, the lower court in its order dated July 6, 1999 declared the defendants in default, set the reception of ex-parte evidence, and commissioned the Branch Clerk of Court to receive the ex-parte evidence and to submit her corresponding report thereon as soon as the same is concluded. On On August 4, 1999, the defendant-appellant Austria filed a Motion for Reconsideration of the Order dated July 6, 1999 with an urgent prayer to cancel plaintiffs ex parte presentation of evidence on August 9, 1999, which was however denied by the lower court, for lack of merit, in an order dated January 14, 2000. The plaintiffs-appellees then presented their evidence ex-parte on January 28, 2000. The assailed decision was subsequently rendered by the lower court on February 14, 2000, finding in favor of the plaintiffsappellees. A motion for new trial was thereafter filed by the defendant-appellant Austria, which was, in an order dated August 7, 2000, denied for lack of merit.[5] Petitioner elevated the case to the Court of Appeals which dismissed her petition and affirmed the trial courts decision but deleted the order that petitioner pay reasonable rental for her use of a portion of the disputed properties. The appellate court denied reconsideration. In assailing the Decision of the Court of Appeals, petitioner avers that her motion for new trial and appeal of the judgment by default are valid remedies under the Rules of Court. She insists that the appellate court erred in not reversing the declaration of default despite the fact that she questioned the default order in the petition for review which she seasonably filed with the Court of Appeals. Petitioner also contends that it was error for the trial court to allow the sale of the entire property in dispute. Respondents filed a Comment[6] dated March 30, 2006, arguing that petitioner was correctly declared in default because of her obstinate refusal to file an answer to the complaint despite being ordered to do so by the trial court. They also allege that they cannot be compelled to remain in co-ownership only because of petitioners unjustified refusal to consent to a partition.

A Reply to Comment[7] dated July 25, 2006 was filed by petitioner who insisted that she was denied the right to fully ventilate her case. Only two issues are raised in this petition. The first issue pertains to petitioners insistence that the judgment by default rendered by the trial court, which was subsequently affirmed by the Court of Appeals, is a denial of her day in court. The second issue concerns the validity of the trial courts decision alternatively ordering the partition of the subject property or authorizing its sale. A defendant declared in default has the following remedies: (a) a motion to set aside the order of default under Sec. 3(b), Rule 9 of the Rules of Court; (b) a motion for new trial under Sec. 1(a), Rule 37 if the default was discovered after judgment but while appeal is still available; (c) a petition for relief under Rule 38 if judgment has become final and executory; and (d) an appeal from the judgment under Sec. 1, Rule 41 even if no petition to set aside the order of default has been resorted to.[8] In this case, petitioner did not move to set aside the order of default rendered by the trial court but filed a motion for new trial after a decision had already been rendered in the case. The motion for new trial, however, was denied by the trial court for lack of merit. She then appealed to the Court of Appeals, assailing both the denial of her motion for new trial and the adverse decision of the trial court. Evidently, petitioner utilized the appropriate remedies available to her. The fact, however, that she availed of the proper remedies does not by itself result in a judgment in her favor or the reversal of the assailed order and decision of the trial court. As correctly ruled by the Court of Appeals, petitioner was declared in default because of her adamant refusal to file an answer despite being required to do so. The factual circumstances in the cases of Heirs of Akut v. Court of Appeals[9] and Ampeloquio v. Court of Appeals,[10] cited by petitioner in pleading liberality, are markedly different from this case. In Heirs of Akut, petitioners were not able to file an answer within the reglementary period because they failed to obtain the services of counsel on time and two of the petitioners were then sick. In Ampeloquio, the trial courts order denying defendants motion to dismiss was mistakenly served upon one of its counsels on record and not upon the lawyer in charge of the case. Consequently, the answer was not filed on time. In both cases, there was no indication that the failure to answer was intended to delay the case. In contrast, the facts of this case suggest an intention on the part of petitioner to delay the proceedings. The complaint was first filed in 1997 but is only now being finally laid to rest because of several procedural stumbling blocks, including the elevation of the case to this Court on the issue of the propriety of the trial courts denial of petitioners motion to dismiss, hurled by petitioner one after the other. Parenthetically, the appellate court initially issued a temporary restraining order as an incident to the petition for certiorari filed by petitioner questioning the trial courts order denying her motion to dismiss but the restraining order was lifted after its 60-day validity.[11] The expiration of the temporary restraining order resulted in the running of the prescribed period to file an answer and the continuation of the proceedings before the trial court. Petitioners obstinate refusal to file an answer to the complaint despite these circumstances clearly justifies the declaration of default by the trial court and its affirmation by the Court of Appeals. This case has crept, ever so slowly, up the ladder of judicial process. While we are not dissuading parties from availing of the judicial remedies outlined in the Rules of Court, they should be cautioned to be judicious in availing of these remedies. After all, rules of procedure are intended to be, not tools of delay, but of prompt and just disposition of every

partys cause. Having fully availed of, even exploited, these remedies, petitioner cannot feign denial of her day in court. She has been given every opportunity to fully ventilate her side. Now, we turn to the second issue raised by petitioner, i.e., the validity of the trial courts decision alternatively directing the partition of the subject properties or authorizing their sale to a third party. There are two stages in every action for partition. The first phase is the determination of whether a co-ownership in fact exists and a partition is proper, i.e., not otherwise legally proscribed, and may be made by voluntary agreement of all the parties interested in the property. This phase may end either: (a) with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exist, or partition is legally prohibited; or (b) with a determination that a co-ownership does in truth exist, partition is proper in the premises, and an accounting of rents and profits received by the defendant from the real estate in question is in order. In the latter case, the parties may, if they are able to agree, make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon.[12] The second phase commences when it appears that the parties are unable to agree upon the partition directed by the court. In that event, partition shall be done for the parties by the court with the assistance of not more than three (3) commissioners. This second stage may well also deal with the rendition of the accounting itself and its approval by the court after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share in the rents and profits of the real estate in question.[13] The proceedings in this case have only reached the first phase. It must be mentioned as an aside that even if the order decreeing partition leaves something more to be done by the trial court for the complete disposition of the case, i.e., the appointment of commissioners, the proceedings for the determination of just compensation by the appointed commissioners, the submission of their reports and hearing thereon, and the approval of the partition, it is considered a final order and may be appealed by the party aggrieved thereby.[14] There is no question that a co-ownership exists between petitioner and respondents. To this extent, the trial court was correct in decreeing partition in line with the Civil Code provision that no co-owner shall be obliged to remain in the co-ownership.[15] However, the trial court went astray when it also authorized the sale of the subject properties to a third party and the division of the proceeds thereof. What makes this portion of the decision all the more objectionable is the fact that the trial court conditioned the sale upon the price and terms acceptable to plaintiffs (respondents herein) only, and adjudicated the proceeds of the sale again only to plaintiffs. The pertinent portion of the trial courts disposition states: WHEREFORE, on the basis of the foregoing considerations, judgment is hereby rendered in favor of plaintiff:

1) Directing the partition (physical division) of the subject properties and all improvements thereon among the coowners in accordance with their respective shares; or 2) Authorizing the sale, conveyance or transfer of the above-described properties to a third-party at such price and under such terms acceptable to plaintiffs and thereafter, dividing the
Property | Art. 494 to 498 | 15

proceeds of said sale among them in accordance with their proportionate interests.[16] [Emphasis supplied.] It is true that petitioner did not assign this error on appeal resulting in the appellate courts failure to rule on the matter. Nonetheless, we cannot simply brush this issue aside considering that its resolution is necessary in arriving at a just disposition of the case.[17] The rectification of the trial courts decision is accordingly in order. WHEREFORE, the petition is GRANTED IN PART. The Decision of the Court of Appeals dated June 21, 2005 is REVERSED in so far as it affirms the portion of the decision dated February 14, 2000 of the Regional Trial Court of Makati City, Branch 142, which authorizes the sale, conveyance or transfer of the properties subject of this case and the division of the proceeds of said sale to respondents herein. The Decision dated June 21, 2005 and Resolution dated October 7, 2005 are AFFIRMED in all other respects. No pronouncement as to costs. SO ORDERED. <Herrera case>

SOFIA PENDEJITO VDA. DE 113199 MONTEROSO, SOLEDAD MONTEROSO-CAGAMPANG, PERFECTO L. CAGAMPANG, SR., REYGULA MONTEROSO-BAYAN, FLORENDA MONTEROSO, ALBERTO MONTEROSO, RUBY MONTEROSO, MARLENE MONTEROSO-POSPOS, HENRIETO MONTEROSO, ADELITA MONTEROSO-BERENGUEL, and REYNATO MONTEROSO, Petitioners, - versus COURT OF APPEALS and TIRSO ed: D. MONTEROSO, Respondents. The Case April 30, 2008

G.R. No.

estate of Soledad D. Monteroso comprised the whole of Parcel F-4 and one-half of Parcel F-5. The intestate estate of Soledad D. Monteroso was partitioned and distributed to her four children in equal shares. Subsequently, a Mocion[5] (Motion) was filed for the delivery to Soledad D. Monterosos four children, her legal heirs, their respective shares in her intestate estate, as adjudicated among them under the duly CFI-approved Project of Partition. In the meantime, the children of Don Fabian from his first marriage married accordingly: The eldest, Soledad to Atty. Perfecto Cagampang, Sr.; Reygula to Jose Bayan; Benjamin to Mauricia Nakila; and Tirso to Melecia Taa. Benjamin died on February 1, 1947 leaving behind four children with wife Nakila, namely: Ruby, Marlene, Adelita, and Henrieto. A year and a half later, or on October 26, 1948, Don Fabian also passed away. Before and shortly after Don Fabians demise, conveyances involving certain of parcels thus mentioned were purportedly made.

Promulgat

The following is an illustration of the lineal relation of the parties or the family tree of the direct descendants of Don Fabian from his two marriages: Soledad Doldol (+ 04/08/27) Fabian Monteroso, Sr. (+ 10/26/48) Sofia Pendejito Soledad M. Reygula M. Tirso M. Benjamin M. (+ 02/01/47) Mauricia Nakila Perfecto Cagampang, Sr. Jose Bayan Melecia Taa Florenda M. Reynato M. Alberto M. Fabian M., Jr. (+ 1970) Caridad C.
Property | Art. 494 to 498 | 16

Republic of the Philippines SUPREME COURT Baguio City SECOND DIVISION TIRSO D. MONTEROSO, 105608 Petitioner, - versus BING, J., Chairperson, MORALES, COURT OF APPEALS, SOLEDAD MONTEROSO-CAGAMPANG, O, JR., and REYGULA MONTEROSO-BAYAN, BRION, JJ. PERFECTO L. CAGAMPANG, SR., SOFIA PENDEJITO VDA. DE MONTEROSO, FLORENDA MONTEROSO, ALBERTO MONTEROSO, HEIRS OF FABIAN MONTEROSO, JR., REYNATO MONTEROSO, RUBY MONTEROSO, MARLENE MONTEROSO-POSPOS, ADELITA MONTEROSO-BERENGUEL, and HENRIETO MONTEROSO, Respondents. x-----------------------------------------------x G.R. No. Present: QUISUM CARPIO TINGA, VELASC

Before us are two petitions for review under Rule 45, the first docketed as G.R. No. 105608, and the second docketed as G.R. No. 113199, both assailing the Decision[1] dated March 31, 1992 of the Court of Appeals (CA) in CA-G.R. CV No. 15805 which modified the June 9, 1987 Decision[2] of the Regional Trial Court (RTC), Branch 4 in Butuan City in Civil Case Nos. 1292 and 1332. The Facts It is not unusual. Acrimonious litigation between and among siblings and immediate relatives over inheritance does occur. It is unfortunate when the decedent had, while still alive, taken steps to precisely avoid a bruising squabble over inheritance. In a sense, Don Fabian B. Monteroso, Sr., a former justice of the peace and municipal mayor of Cabadbaran, Agusan del Norte, started it all. During his lifetime, Don Fabian married twice and sired eight children, four from each union. In 1906, Don Fabian married Soledad Doldol. Out of this marriage were born Soledad, Reygula, Benjamin, and Tirso. On April 8, 1927, Soledad Doldol Monteroso passed away. A little over a year later, Don Fabian contracted a second marriage with Sofia Pendejito. From this union were born Florenda, Reynato, Alberto, and Fabian, Jr. After the death of his first wife, but during the early part of his second marriage, Don Fabian filed before the Court of First Instance (CFI) of Agusan an intestate proceeding for the estate of his deceased first wife, Soledad D. Monteroso, docketed as Special Proceeding (SP) No. 309, apparently to obviate any dispute over the inheritance of his children from his first marriage. Subsequently, the CFI receivedand later approved per an Orden[3] (Order) dated March 11, 1936a Proyecto de Particion[4] (Project of Partition) dated February 21, 1935. The partition in SP No. 309 covered Parcels F-1 to F-5, and adjudicated to Don Fabian the whole of Parcels F-1, F-2, and F-3, and one-half of Parcel F-5, while the intestate

Ruby M. Marlene M. Adelita M. Henrieto M. Lucien M. Mario M. Reynante M. Elvira M. Cristina M. Mansueto Pospos Francis Berenguel This brings us to the objects of the squabble: the conjugal patrimonies of Don Fabian from his two successive marriages. During the lifetime of Don Fabian, the following properties were acquired, viz: PARCEL F-ONE A parcel of coconut plantation on sitio Pandanon, Cabadbaran, Agusan described as follows: North by the property of Telesforo Ago and Gregorio Cupay; East by Miguel Y Climaco Cabonce, Isidro Maamo and Buenaventura Sandigan and Pandanon River, and West by Gregorio Axamin, Alex Fores and Ventura Sandigan with a superficial extension of 10 has. 62 ares and 42 centares. PARCEL F-TWO A parcel of coconut land situated on sitio Pandanon, Cabadbaran, Agusan, with a superficial extension of 6 hectares, 50 ares bearing Tax No. 14801 of the Municipality of Cabadbaran, Agusan, x x x. PARCEL F-THREE A parcel of coconut land under Tax No. 17167 situated on sitio Calibunan, Cabadbaran, Agusan with superficial extension of 8 hectares and 34 centares x x x. PARCEL F-FOUR A parcel of coconut land under Tax No. 14600 situated on sitio Pandanon, Cabadbaran, Agusan, with a superficial extension of 27 hectares, 96 ares and 28 centares x x x.

PARCEL F-FIVE A parcel of residential lot under Tax No. 18477 situated within the Poblacion of the Municipality of Cabadbaran, Agusan, with a house of strong materials found on the same lot with a superficial extension of 660 square meters x x x. PARCEL F-SIX A parcel of residential lot under Tax No. 5374 situated within the Poblacion of the Municipality of Cabadbaran, Agusan, with a superficial extension of 3,890 square meters x x x. PARCEL F-SEVEN A parcel of coconut and corn land under Tax No. 1769 situated at Ambahan, Tubay, Agusan, with a superficial extension of 8 hectares x x x. PARCEL F-EIGHT A parcel of coconut land situated at Ambahan, Tubay, Agusan, under Tax No. 2944, with a superficial extension of 7 hectares, 59 ares and 96 centares x x x.[6] PARCEL S-ONE A parcel of land situated at Tagbongabong, Cabadbaran, Agusan under Tax Dec. No. 5396 with an area of 24 hectares more or less x x x. PARCEL S-TWO A parcel of coconut land situated at Dal-as, Bay-ang, Cabadbaran, Agusan under Tax No. 69 with an area of 24 hectares more or less x x x. PARCEL S-THREE A parcel of coconut land situated at Pandanon, Mabini, Cabadbaran, Agusan, under Tax No. 21639 with an area of 1.4080 hectares more or less x x x. PARCEL S-FOUR A parcel of land situated at Mabini, Cabadbaran, Agusan under Tax No. 3367 with an area of 1,000 sq. m. bounded x x x.[7] The F designation signified that the covered properties were acquired during the first marriage, to distinguish them from those acquired during the second marriage which are designated as S properties. On July 28, 1969, the children of the late Benjamin D. Monteroso, namely: Ruby Monteroso, Marlene M. Pospos, Henrieto Monteroso, and Adelita Monteroso-Berenguel, filed with the RTC a Complaint for Recovery of Property with Damages against their uncle, Tirso D.

Monteroso. Docketed as Civil Case No. 1292, and later raffled to Branch 4 of the court, the complaint involved a portion of Parcel F-4, described in the Project of Partition, as follows: (1) One parcel of coconut land with the improvements thereon existing, Tax No. 14600 with a superficial extension of 6 hectares, 99 ares and 32 centares, bounded as follows: on the North, Regula Monteroso; on the East by the Provincial Road Butuan-Cabadbaran; on the Sourth Tirso Monteroso and on the West Diego Calo.[8] As the heirs of Benjamin alleged in their complaint, their uncle, Tirso, was entrusted with the above-described one-fourth portion of Parcel F-4 as part of the share from the estate of Soledad D. Monteroso allotted to their father per SP No. 309. However, their uncle refused to surrender and deliver the same when they demanded such delivery upon their reaching the majority age. Tirso countered that the portion pertaining to Benjamin was never entrusted to him; it was in the possession of their sister, Soledad Monteroso-Cagampang, who was not entitled to any share in Parcel F-4, having previously opted to exchange her share in said property for another parcel of land, i.e., Parcel F-7, then being occupied by her. On April 14, 1970, Tirso, in turn, filed a Complaint for Partition and Damages with Receivership docketed as Civil Case No. 1332, involving 12 parcels of land (i.e., Parcels F-1 to F-8 and Parcels S-1 to S-4, mentioned above) against his stepmother, Pendejito, and all his full and half-siblings and/or their representatives. The complaint in Civil Case No. 1332 was subsequently amended to include Perfecto, as co-defendant, and Pendejito, as guardian ad litem for the minor children of Fabian P. Monteroso, Jr., who died in 1970 after the filing of the complaint. In Civil Case No. 1332, Tirso, inter alia, alleged the following: (1) the aforementioned 12 parcels of land belong to the conjugal partnerships of the first and second marriages contracted by Don Fabian; (2) SP No. 309, which purportedly judicially settled the intestate estate of his mother, is null and void for the reason that the project of partition failed to comprehend the entire estate of the decedent as Parcels F-6, F-7, and F-8 were excluded, thereby depriving Tirso of his one-fourth share or legitime over the said three parcels of land; and (3) Parcels S-1 to S-4, having been acquired during the second marriage of Don Fabian, are not paraphernal properties of Sofia Pendejito Vda. de Monteroso. Answering, the defendants in Civil Case No. 1332 contended that Don Fabian acquired Parcel F-6 during the second marriage, while Parcels F-7 and F-8 were Don Fabians exclusive properties having been acquired through a donation from the heirs of one Benito Tinosa. They further maintained the validity of the judicial partition under SP No. 309 which operates as res judicata insofar as Parcels F-1 to F-5 are concerned. In particular, they asserted that Parcels F-1, F-2, F-3, and one-half of F-5 were adjudicated to Don Fabian as his share in the conjugal partnership of the first marriage, while Parcel F-4 and the other half of Parcel F-5 were equally divided among the four children of the first marriage; that during his lifetime, Don Fabian sold Parcels F-1, F-2, F-3, F-7, and F-8 to Soledad MonterosoCagampang; that Soledad Monteroso-Cagampang, Tirso D. Monteroso, and Mauricia Nakila Vda. de Benjamin Monteroso donated Parcel F-6 to Reygula Monteroso-Bayan; and that Parcels S-1 to S-4 are truly paraphernal properties of Sofia Pendejito Vda. de Monteroso as Parcel S-1 was acquired by her through a homestead patent, Parcel S-2 through adverse possession, and Parcels S-3 and S-4 by purchase. The Initial Ruling of the RTC

Property | Art. 494 to 498 | 17

Involving practically the same properties and parties, Civil Case Nos. 1292 and 1332 were consolidated and jointly heard. After a long drawn-out trial spanning almost 15 years, with six different judges successively hearing the case, the RTC, presided by Judge Miguel Rallos, rendered on July 22, 1985 a Decision,[9] dismissing Civil Case No. 1292 on the ground of failure to state a cause of action, but finding, in Civil Case No. 1332, for Tirso. What appears to be a victory for Tirso was, however, short-lived. Acting on four separate motions for reconsideration duly filed by the various defendants in Civil Case No. 1332, a new judge, who took over the case from Judge Rallos who inhibited himself from the case, rendered a new decision. The Subsequent Ruling of the RTC Dated June 9, 1987, the new Decision set aside the July 22, 1985 RTC Decision of Judge Rallos and gave due course to both Civil Case Nos. 1292 and 1332. In full, the fallo of the new decision reads: WHEREFORE, premises considered, both complaints in Civil Cases No. 1292 and 1332 are hereby given due course and judgment is hereby rendered as follows: 1. Declaring, confirming and ordering that Lot 380, Pls-736 located at Pandanon, Cabadbaran, belongs to the children of first marriage and partitioned as per subdivision survey map made by Geodetic Engineer Antonio Libarios, Exh. 7, page 72 of the records as follows: (a.) Lot 380-A, Share of Soledad Monteroso Cagampang with an area of 5.3376 hectares, with technical description therein; Lot 380-B, Share of Reygula Monteroso Bayan with an area of 5.3376 hectares, with technical description therein; Lot 380-C, Share of the Heirs of Benjamin D. Monteroso with an area of 5.3376 hectares with technical description therein; Lot 380-D, Share of Monteroso with an 5.3376 hectares and Pls-736 with an area sq. meters, with both description therein; Tirso D. area of Lot 351, of 6,099 technical

1983, the total sum of Two Hundred Sixty Thousand Eight Hundred Forty Four and 70/100 (P260,844.70) Pesos with interest of 12% per annum compounded annually from January 1, 1984 up to the present and until fully paid; 3. It is hereby ordered that Reygula Monteroso Bayan must deliver, return, relinquish, cede, waive and/or quit claim immediately the area of 1.6128 hectares which is part of Lot 380-C, Pls-736, indicated in the subdivision survey plan by Engr. Libarios, page 72, Records (Civil Case No. 1292, Folio 2), Exh. V, to the Heirs of Benjamin D. Monteroso who are the absolute owners of Lot 380-C, Pls-736 and to pay, return and deliver immediately to the said Heirs of Benjamin D. Monteroso the net income in arrears from 1948 to 1983 the total sum of One Hundred Six Thousand Nine Hundred Sixty and 40/100 (P106,960.40) Pesos with interest of 12% per annum compounded annually from January 1, 1984 up to the present and until fully paid; 4. It is hereby ordered that Soledad Monteroso Cagampang must deliver, return, relinquish, cede, waive and/or quit claim immediately the area of 1.0929 hectares being portion of Lot 380-C, Pls-736, indicated in the subdivision survey plan by Engr. Libarios, page 72, Records (Civil Case No. 1292, Folio 2), Exh. V, to her sister Reygula Monteroso Bayan who is the absolute owner of Lot 380-C, Pls-736 and to pay, return and deliver immediately to the said Reygula Monteroso Bayan the net income in arrears from 1948 to 1983, the total sum of Seventy Seven Thousand Six Hundred Twenty Five and 96/100 (P77,625.96) Pesos with interest of 12% per annum compounded annually from January 1, 1984 up to the present and until fully paid, subject to deduction of whatever cash advances, if any, was ever received by Reygula M. Bayan. 5. The three alleged Absolute Sale, Exh. C, D and E with all its submarkings are declared fictitious, simulated and no consideration. It can never be considered a donation because aside from being inofficious and impairing the legitime of other heirs, the vendee had not signed therein which could be considered acceptance and above all, these documents were prepared and acknowledged by Notary Public squarely disqualified and highly prohibited. Therefore, all are declared null and void and of no legal effect. So, parcels F-1, F-2, F-3, F-6, F-7 and F-8 [remain] as part of the intestate estate of Don Fabian B. Monteroso, Sr. 6. The Register of Deeds and the Provincial Assessor, both in the Province of Agusan del Norte are hereby ordered to cancel as the same are cancelled and nullified, all transfer of certificates and tax declarations now in the name of Soledad Monteroso de Cagampang and Atty. Perfecto L. Cagampang, Sr. which parcels of land originally were registered and declared in the name of Don Fabian B. Monteroso, Sr., and to register and declare again in the name of Heirs of Don Fabian B. Monteroso, Sr., more particularly the following: (a.) [TCT No. RT-203] (420) for Lot 432, Cad. 121, with an area of (b.)

10.0242 hectares under Tax Dec. No. 02-018-0224, Series of 1980, PIN-02-019-05-050 known as Parcel F-1; TCT No. RT-205 (424) for Lot 100, Cad. 121, with an area of 1.9083 hectares under Tax Dec. No. 02-019-0488, Series of 1980, PIN-02-019-08-002 known as F-2; TCT No. RT-204 (423) for Lot 103, Cad. 121, with an area of 2.8438 hectares under Tax Declaration No. 02-019-0335, Series of 1980, PIN-02-019-08017 known as F-2; Parcel of coconut land located at Poblacion, Cabadbaran, known as F-3 with area of 6.3100 hectares under Tax Dec. No. 02-001-1810, Series of 1980 and PIN-02-001-30027; Residential Lot, known as F-5 located at Poblacion, Cabadbaran under Tax Dec. No. 18447 then under Tax Dec. No. 1922, containing an area of 660 sq. meters bounded on the North by Washington Street; on the East by Progresso Street; on the South by Rizal Street; and on the West by Ramon Cabrera. Residential Lot known as F-6 located at Poblacion under Tax Dec. No. 5374, Series of 1949 and Tax Dec. No. 499, Series of 1954, consisting of 3,890 sq. meters bounded as follows: Atega North Andres

(c.)

(d.)

(e.)

(b.)

(c.)

(f.)

(d.)

2. It is hereby ordered that Tirso D. Monteroso must deliver, return, relinquish, cede, waive and/or quit claim immediately the area of 3.7815 hectares being portion of Lot 380-C, Pls-736 indicated in the subdivision survey plan by Engr. Libarios, page 72, Records, Civil Case No. 1292, Folio 2, Exh. V, to the Heirs of Benjamin D. Monteroso who are absolute owners of Lot 380-C, Pls-736 and to pay, return and deliver immediately to the said Heirs of Benjamin D. Monteroso the net income in arrears from 1948 to

South Rill East Luis Jamboy now Celestino Udarbe, Sixto Ferrer and New Road
Property | Art. 494 to 498 | 18

Street; (g.)

West

Atega

(l.)

Coconut land known as F-7, located at Ambajan, Tubay, Agusan del Norte under Tax Dec. No. 1769, Series of 1955 and Tax Dec. No. 10-03-0273, Series of 1980 with an area of [8.000] hectares; Parcel of coconut land known as F-8, located at Ambajan, Tubay, Agusan del Norte with an area of 7.5996 hectares under Tax Dec. No. 2944 and Tax Dec. No. 10-03-0273, Series of 1980; Parcel of S-1, located at Tagbongabong, Cabadbaran under Tax Dec. No. 11506, Series of 1963 with an area of 24 hectares in the name of Sofia Vda. de Monteroso; Parcel of S-2, located at Dal-as, Bay-ang, Cabadbaran, under Tax Dec. No. 1888, Series of 1948, Tax Dec. No. 669, Series of 1952, and subsequently transferred in fraud of other heirs, in the name of Florenda P. Monteroso under Tax Dec. No. 11507, Series of 1964, Tax Dec. No. 3381, Series of 1972, Tax Dec. No. 5036, Series of 1974, Tax Dec. No. 02-0060047, Series of 1980; Parcel of S-3, located at Pandanon, Mabini, Cabadbaran, under Tax Dec. No. 5373, Series of 1949 with an area of 1.4080 hectares and bounded as follows: North Pandanon River Dolleroso River South Crisanto East Pandanon

Parcel S-4, located at Mabini, Cabadbaran, under Tax Dec. No. 3367 with an area of 1.6500 hectares and bounded as follows: Corvera Alburo Delleroso North Hrs. of G. South C. Vda. de East Ellodoro

The above-mentioned [amounts] shall be subject to deduction for whatever cash advance any heir may have received. Then the net balance of said [amounts] shall be subject to interest at the rate of twelve percent (12%) per annum compounded annually from January 1, 1984 to the present until fully paid. 9. It is hereby ordered that Lot 100 under [TCT No. RT-205] (424) with an area of 1.9083 hectares under Tax Dec. No. 02-019-0488, Series of 1980 and Lot No. 103 under [TCT No. RT-204] (423) with an area of 2.8438 hectares and under Tax Dec. No. 02-019-0335, Series of 1980, [both known as Parcel F-2,] shall be divided into nine (9) equal shares for the eight (8) children of Fabian B. Monteroso, Sr. and one-ninth (1/9) share shall be held in usufruct by the widow, Sofia P. Monteroso, during her lifetime. Soledad Monteroso Cagampang and Atty. Perfecto L. Cagampang, Sr. are ordered to deliver to [their] co-heirs their shares in these parcels of land, F-2, free from any lien and encumbrances whatsoever, and to pay each of them the net income in arrears from 1948 to 1983, namely: (a.) (b.) (c.) (d.) (e.) (f.) (g.) (h.) To Reygula Monteroso Bayan P34,976.85 To Hrs. of Benjamin D. Monteroso P34,976.85 To Tirso D. Monteroso P34,976.85 To Florenda P. Monteroso P34,976.85 To Reynato P. Monteroso P34,976.85 To Alberto P. Monteroso P34,976.85 To Hrs. of Fabian P. Monteroso, Jr. P34,976.85 To Sofia P. Monteroso (usufruct) P34,976.85

(h.)

West A. Ventura 7. It is hereby declared that upon the death of Don Fabian B. Monteroso, Sr. on March 26, 1948, the following are the properties belonging to his intestate estate: (a.) (b.) (c.) (d.) (e.) (f.) (g.) (h.) (i.) (j.) (k.) Whole parcel Lot 432, F-1; Whole parcels Lot 100 and 103, F-2; Whole parcel cocoland, Calibunan, F-3; One-half (1/2) parcel F-5; One-half (1/2) parcel F-6; One-half (1/2) parcel F-7; One-half (1/2) parcel F-8; One-half (1/2) parcel S-1; One-half (1/2) parcel S-2; One-half (1/2) parcel S-3; One-half (1/2) parcel S-4.

(i.)

(j.)

8. It is hereby ordered that Lot 432 under TCT [No.] RT-203 (420) with an area of 10.0242 hectares under Tax Dec. No. 02-018-0224 (1980) is hereby divided into nine (9) equal shares for the eight (8) children of Don Fabian B. Monteroso and the oneninth (1/9) share be held in usufruct by the widow Sofia Pendejito Monteroso during her lifetime. Sofia Pendejito Monteroso being in possession and enjoying the fruits or income of F-1 is hereby ordered to pay and deliver immediately to the following heirs the corresponding amount of net income of F-1, Lot 432, from 1948 to 1983: (a.) (b.) (c.) (d.) (e.) (f.) (g.) (h.) To Soledad Monteroso Cagampang P78,521.32 To Reygula Monteroso Bayan P78,521.32 To Hrs. of Benjamin D. Monteroso P78,521.32 To Tirso D. Monteroso P78,521.32 To Florenda P. Monteroso P78,521.32 To Reynato P. Monteroso P78,521.32 To Alberto P. Monteroso P78,521.32 To Hrs. of Fabian P. Monteroso, Jr. P78,521.32

The above-mentioned [amounts] shall be subjected to deduction of whatever amount any heir may have received by way of cash advances. The net amount shall be subjected to an interest at the rate of twelve percent (12%) per annum compounded annually from January 1, 1984 to the present or until fully paid. 10. Soledad Monteroso Cagampang and Atty. Perfecto L. Cagampang, Sr. being in possession and enjoying the fruits and income of Parcel F-3, are hereby ordered to pay to the following heirs, the net income in arrears from 1948 to 1983: (a.) To Reygula Monteroso Bayan P49,727.35 (b.) To Hrs. of Benjamin D. Monteroso P49,727.35 (c.) To Tirso D. Monteroso P49,727.35 (d.) To Florenda P. Monteroso P49,727.35 (e.) To Reynato P. Monteroso P49,727.35 (f.) To Alberto P. Monteroso P49,727.35 (g.) To Hrs. of Fabian P. Monteroso, Jr. P49,727.35 (h.) To Sofia P. Monteroso (usufruct) P49,727.35
Property | Art. 494 to 498 | 19

(k.)

West Pandanon River and Peregrino Aznar;

The above-mentioned [amounts] shall be subject to deduction for whatever cash advance, if any, such heir may have received. Then the net [amounts] shall be subject to interest at the rate of twelve percent (12%) per annum compounded annually from January 1, 1984 to the present until fully paid. Soledad Monteroso Cagampang and Atty. Perfecto L. Cagampang, Sr. are both ordered to deliver to the above-mentioned co-heirs their respective shares free from any lien and encumbrances whatsoever. 11. Parcels F-5, F-6, F-7 and F-8 are declared real properties belonging to the first marriage. Hence one-half (1/2) of each of these four parcels shall equally be divided by the four (4) children of the first marriage and the other half must be divided into nine (9) equal shares for the eight (8) children of Fabian B. Monteroso, Sr., and one-ninth (1/9) shall be held in usufruct by the widow, Sofia Pendejito Vda. de Monteroso. follows: Therefore, it is hereby ordered that F-6 is divided as (a.) (b.) (c.) 702 sq. m. sq. m. 216 sq. m. 216 sq. m. 216 sq. m. 216 sq. m. 216 sq. m. 12. It is hereby ordered, that Soledad Monteroso Cagampang and Atty. Perfecto L. Cagampang, Sr. must deliver to all heirs their respective shares on F-7 and F-8 including usufruct of Sofia P. Monteroso as declared in paragraph five (5) and in addition, must pay and deliver the net income in arrears from 1948 to 1983, summarized as follows: (a.) (b.) P189,665.88 (c.) P189,665.88 (d.) 58,358.73 To Reygula Monteroso Bayan - - - - P189,665.88 To Hrs. of Benjamin D. Monteroso - To Tirso D. Monteroso - - - - - - - - - To Florenda P. Monteroso - - - - - - - - P (d.) (e.) (f.) (g.) (h.) (i.) To Soledad Monteroso Cagampang - - - - 702 sq. m. To Reygula Monteroso Bayan - - - - - - 702 sq. m. To Hrs. of Benjamin D. Monteroso - - - To Tirso D. Monteroso - - - - - - - - - - - - 702 To Florenda P. Monteroso - - - - - - - - - To Reynato P. Monteroso - - - - - - - - - - To Alberto P. Monteroso - - - - - - - - - - To Hrs. of Fabian Monteroso, Jr. - - - - - To Sofia P. Monteroso - - - - - - - - - - - - -

58,358.73 58,358.73 58,358.73 58,358.73

(e.) (f.) (g.) (h.)

To Reynato P. Monteroso - - - - - - - - - P To Alberto P. Monteroso - - - - - - - - - P To Hrs. of Fabian Monteroso, Jr. - - - - P To Sofia P. Monteroso (usufruct) - - - - P

The above-mentioned [amounts are] subject to an interest at the rate of twelve percent (12%) compounded annually from January 1, 1948 to the present until fully paid. 16. The alleged Deed of Absolute Sale executed by Sofia P. Monteroso in favor of Florenda P. Monteroso over a coconut land located at Dal-as, Bay-ang, Cabadbaran, consisting of 24 hectares is hereby declared null and void being in fraud of other heirs. It is clearly inofficious and impairs the legitime of her brothers, sisters and nephews and nieces. Therefore, the tax declaration in the name of Florenda P. Monteroso under Tax Dec. No. 11507, Series of 1964, Tax Dec. No. 3381, Series of 1972, Tax Dec. No. 5036, Series of 1974 and Tax Dec. No. 02-006-0047, PIN02-006-02-002 are hereby ordered cancelled and the said land shall be declared again in the name of Heirs of Fabian B. Monteroso. Sofia Pendejito Monteroso is not required to render accounting as to the income of S-2 because the coconut trees therein were planted by her while being already a widow. One-half (1/2) of the land where the coconut trees are planted shall be her share and the other one-half (1/2) shall be divided into nine (9) shares for the eight (8) children of Fabian B. Monteroso including her 1/9 usufruct thereon. 17. Sofia Pendejito Monteroso is hereby ordered to pay and deliver immediately the net income in arrears of parcel S-3 located at Pandanon to the following heirs with the corresponding amount: (a.) (b.) (c.) P49,349.02 P49,349.02 P49,349.02 P49,349.02 P49,349.02 P49,349.02 However, [the] above-mentioned [amounts] shall be subject to deductions, if any cash advance was ever made or received by any heir. Then the net amount receivable shall be subject to an interest at the rate of twelve percent (12%) compounded annually from January 1, 1984 to the present until fully paid. 18. For the net income in arrears of parcel S-4, located at Mabini, Cabadbaran, from 1948 to 1983, Sofia P.
Property | Art. 494 to 498 | 20

all with interest at the rate of twelve percent (12%) per annum compounded annually from January 1, 1984 to the present until fully paid. However, it is subject to deduction of whatever cash advances, if ever any heir, may have received. 13. The Deed of Donation in 1948, Exh. F, over parcel known as F-5, is declared null and void because the same was prepared and acknowledged before a Notary Public disqualified and prohibited to do so under Notarial Law (Barretto vs. Cabreza, 33 Phil. Reports 112). Hence, the transfer of tax declaration is hereby ordered cancelled and the same must be declared again in the name of the Heirs of Fabian B. Monteroso, Sr. and ordered partitioned in the proportion stated in paragraph eleven (11) hereof. 14. Parcels of land known as S-1, S-2, S-3 and S-4 are declared conjugal properties of the second marriage. Hence, one-half (1/2) thereof belongs to Sofia Pendejito Monteroso and onehalf (1/2) shall be equally divided into nine (9) shares for the eight (8) children of Don Fabian B. Monteroso, Sr. where the one-ninth (1/9) shall be held in usufruct by Sofia P. Monteroso during her lifetime. 15. For the net income in arrears of S-1 located at Tagbongabong, Cabadbaran, from 1948 to 1983, Sofia Pendejito Monteroso is hereby ordered to pay and deliver to the following heirs the corresponding share: (a.) (b.) P93,998.12 P93,998.12 P93,998.12 P93,998.12 P93,998.12 P93,998.12 (c.) (d.) (e.) (f.) (g.) (h.) To Soledad Monteroso Cagampang - - P93,998.12 To Reygula Monteroso Bayan - - - - P93,998.12 To Hrs. of Benjamin D. Monteroso - To Tirso D. Monteroso - - - - - - - - - To Florenda P. Monteroso - - - - - - - To Reynato P. Monteroso - - - - - - - To Alberto P. Monteroso - - - - - - - - To Hrs. of Fabian P. Monteroso, Jr. - -

To Soledad Monteroso Cagampang - - P49,349.02 To Reygula Monteroso Bayan - - - - P49,349.02 To Hrs. of Benjamin D. Monteroso - To Tirso D. Monteroso - - - - - - - - - To Florenda P. Monteroso - - - - - - - To Reynato P. Monteroso - - - - - - - To Alberto P. Monteroso - - - - - - - - To Hrs. of Fabian P. Monteroso, Jr. - -

(d.) (e.) (f.) (g.) (h.)

However, all these amounts shall be subject to deduction, if any cash advance was ever made or received by any heir.

Monteroso is hereby ordered to pay and deliver to the following heirs their corresponding shares: (a.) (b.) (c.) P6,477.54 P6,477.54 P6,477.54 P6,477.54 P6,477.54 P6,477.54 However, all these amounts shall be subject to deductions, if any cash advance was ever made or received by any heir. The above-mentioned amount is subject to an interest at the rate of twelve percent (12%) compounded annually from January 1, 1984 to the present until fully paid. Sofia Pendejito Monteroso is ordered to deliver to the above-mentioned heirs their respective shares free from any lien and encumbrances whatsoever. 19. These cases involved inheritance, hence the Bureau of Internal Revenue (BIR) of Agusan del Norte at Butuan City is hereby notified for prompt, proper and appropriate action. Likewise, the Provincial Treasurer of Agusan del Norte and the Municipal Treasurers of Cabadbaran and Tubay are hereby informed and reminded for their prompt, proper and appropriate action in the assessment and collection of real estate taxes including transfers tax. 20. That all the heirs are hereby directed, and ordered to pay all taxes due in favor of the Government of the Republic of the Philippines within thirty (30) days from the finality of judgment hereof, otherwise, upon proper application or manifestation by appropriate or concerned government agency, a portion of the intestate estate of Don Fabian B. Monteroso, Sr., shall be sold at public auction for such purpose. 21. Under Civil Case No. 1292, Tirso D. Monteroso or his heirs, assigns and successors-in-interest, is hereby ordered to pay Ruby Monteroso, Marlene Monteroso-Pospos, Adelita Monteroso-Berenguel and Henrieto Monteroso the following sums of money: (a.) P10,000.00 for moral damages; (d.) (e.) (f.) (g.) (h.) To Soledad Monteroso Cagampang - - P6,477.54 To Reygula Monteroso Bayan - - - - P6,477.54 To Hrs. of Benjamin D. Monteroso - To Tirso D. Monteroso - - - - - - - - - To Florenda P. Monteroso - - - - - - - To Reynato P. Monteroso - - - - - - - To Alberto P. Monteroso - - - - - - - - To Hrs. of Fabian P. Monteroso, Jr. - -

(b.) (c.) (d.)

P10,000.00 for exemplary damages; P3,000.00 for costs of suit; and P10,000.00 for attorneys fees.

before Perfecto, who happened to be the husband of the alleged vendee, Soledad MonterosoCagampang. The RTC also declared as null and void the donation of Parcel F-5 to Reygula Monteroso-Bayan owing to clear legal infirmities attaching to the covering deed of donation.[12] For one, the parcel in question, while purportedly donated free from any liens or encumbrance, was in fact the subject of a deed of absolute sale between Don Fabian and the Cagampang spouses. For another, one of the signatory-donors, Mauricia Nakila, Benjamins widow, did not have the right to effect a donation because she was not a compulsory heir of her husband by representation. The RTC added that the real owners of the rights and interests of Benjamin over Parcel F-5 are her children as representative heirs. Finally, the RTC declared the Order dated March 11, 1936 issued in SP No. 309 approving the Project of Partition to be valid, and that it constitutes res judicata on the affected properties, i.e., Parcel F-4 and one-half of Parcel F-5, which were equally distributed to the heirs of Soledad D. Monteroso. Pursuing this point and on the finding that Parcels F-1 to F-8 were acquired during the first marriage and Parcels S-1 to S-4 during the second, the RTC thus held that Don Fabians intestate estate consisted of the whole of Parcels F -1, F-2, and F3; and half of Parcels F-5 to F-8 and half of Parcels S-1 to S-4, to be distributed in accordance with the law on intestate succession. This means, the RTC concluded, that the estate shall descend to Don Fabians compulsory heirs and their representatives, as in the case of the la te Benjamin and Fabian, Jr., subject to accounting of the income or produce of the subject properties for the applicable period, less advances made or received by any heir, if any. The Ruling of the CA From the above June 9, 1987 Decision, Tirso, defendant in Civil Case No. 1292, appealed to the CA, so did the Cagampang spouses, defendants in Civil Case No. 1332. The other defendants in Civil Case No. 1332, namely: Sofia Pendejito Vda. de Monteroso, Florenda Monteroso, Alberto Monteroso, Heirs of Fabian Monteroso, Jr., Reynato Monteroso, and Reygula Monteroso-Bayan, also interposed their own appeal. The separate appeals were consolidated and docketed as CA-G.R. CV No. 15805. On March 31, 1992, the CA rendered the assailed decision, affirming with modification the June 9, 1987 RTC Decision, disposing as follows: WHEREFORE, the decision appealed from is hereby modified, as follows: a) In the event that a homestead patent over Parcel S-1 is issued by the Bureau of Lands pursuant to the patent application of Sofia Pendejito Vda. de Monteroso, said patent shall issue not in the name of the applicant but in favor of the eight heirs of Fabian Monteroso, Sr. who thereafter shall be declared absolute owners of the said parcel of land in the proportion stated in this decision but who nevertheless shall allow Sofia Pendejito Vda. de Monteroso to exercise during her lifetime usufructuary rights over a portion of the said parcel of land equivalent to the share therein of each of the heirs of her deceased husband;

22. Under Civil Case No. 1292, Soledad Monteroso de Cagampang and Reygula Monteroso Bayan are hereby ordered jointly and severally to pay Ruby Monteroso, Marlene Monteroso-Pospos, Adelita Monteroso-Berenguel and Henrieto Monteroso the following sums of money: (a.) (b.) (c.) (d.) P10,000.00 for moral damages; P10,000.00 for exemplary damages; P2,000.00 for costs of suit; and P10,000.00 for attorneys fees.

23. Under Civil Case No. 1332, Soledad Monteroso Cagampang, Atty. Perfecto L. Cagampang, Sr. and Sofia Pendejito Vda. de Monteroso or their heirs, assigns and successorsin-interest, are hereby ordered to pay jointly and severally, unto and in favor of Tirso D. Monteroso or his heirs, assigns and successorsin-interest, the following sums of money: (a.) (b.) (c.) (d.) P20,000.00 for moral damages; P20,000.00 for exemplary damages; P5,000.00 for costs of suit; and P10,000.00 for attorneys fees.

24. It is hereby ordered that a judicial administrator of the intestate estate of Don Fabian B. Monteroso, Sr. shall be appointed by this Court upon written recommendation by all the parties within thirty (30) days from promulgation of this decision. Should the parties fail to submit unanimously a recommendee, the Court at its discretion may appoint an administrator, unless none of the parties appeal this decision and this judgment is complied with by all the parties and/or so executed in accordance with the provisions of the New Rules of Court. SO ORDERED.[10] As regards Civil Case No. 1292, the RTC found that the heirs of Benjamin have indeed been deprived of their inheritance which corresponds to one-fourth share due their father from the intestate estate of their grandmother, Soledad D. Monteroso. Thus, the court ordered the equal distribution of Parcel F-4, i.e., Lot 380, Pls-736 located in Pandanon, Cabadbaran, Agusan del Norte, among the children of the first marriage of Don Fabian, and partitioned it based on the subdivision survey map prepared by a geodetic engineer. Turning on the alleged sale of Parcels F-1, F-2, F-3, F-7, and F-8 by Don Fabian to Soledad Monteroso-Cagampang, the RTC found the covering three deeds of absolute sale[11] to be null and void for the reason that the alleged conveyances were fictitious, simulated, and/or without sufficient consideration. Alternatively, the RTC ruled that the conveyances, even if considered as donation, would be inofficious for impairing the legitime of the other compulsory heirs, not to mention the lack of due acceptance of the donation by Soledad Monteroso-Cagampang. Adding a vitiating element to the conveyances, as the RTC noted, was the fact that the corresponding documents were prepared by and acknowledged

Property | Art. 494 to 498 | 21

b) The said heirs of Fabian Monteroso, Sr. are hereby declared absolute owners of Parcel F-6 to the extent of their respective shares therein as presently individually possessed by them pursuant to an extrajudicial partition of the said parcel of land which the Court hereby declares as a valid contract among the said heirs; and c) With the exception of those pertaining to Parcel F-4 as stated in this decision, the parties thus found to have unjustly misappropriated the fruits of the subject parcels of land are hereby directed to render an accounting thereof consistent with our findings in the case at bar. With the exception of the foregoing modifications, the decision under review is hereby AFFIRMED in all other respects. No pronouncement as to costs. SO ORDERED.[13] The CA summarized into three issues the multifarious assignments of errors raised by the parties, to wit: first, whether or not the intestate estate of Soledad Doldol Monteroso was settled in SP No. 309, thus according the Project of Partition approved therein the effect of res judicata; second, whether or not it was appropriate to partition Parcels F-1, F2, and F-3, and half of Parcels F-5, F-6, F-7, F-8, S-1, S-2, S-3, and S-4; and third, whether or not Tirso D. Monteroso is entitled to damages. The CA resolved the first issue in the affirmative, SP No. 309 being a valid and binding proceedings insofar as the properties subject thereof are concerned, i.e., Parcels F-1 to F-5 of which the whole of Parcel F-4 and one-half of Parcel F-5, as Soledad D. Monterosos intestate estate, were distributed to her heirs. This is not to mention that the authenticity and due execution of the documents filed or issued in relation therewith referring to the Proyecto de Particion dated February 12, 1935 which is a carbon copy of the original, the Orden issued by the CFI on March 11, 1936, and the Mocion dated March 18, 1936having duly been established. Affirming the RTC, the CA rejected Tirsos claim that SP No. 309 is void for settling only a part of the estate of Soledad D. Monteroso. The CA held that partial settlement is not a ground for the nullification of the judicial partition under either the Spanish Civil Code of 1889 or the present Civil Code. The appellate court added that the proper remedy in such a situation is to ask for the partition and the subsequent distribution of the property omitted. The CA likewise disposed of the second issue in the affirmative, dismissing the opposition of the Cagampang spouses and Reygulo Monteroso-Bayan who all claimed ownership over some of the parcels of land on the strength of the deeds of conveyance executed in their favor. The CA upheld the RTCs finding that the three deeds of absolute sale in which Don Fabian purportedly sold Parcels F-1, F-2, F-3, F-7, and F-8 to Soledad Monteroso-Cagampang were infirm. The CA noted that even the Cagampang spouses recognized these infirmities, and instead of denying their existence, they tried to justify the same and seek an exception therefrom.

On the alleged donation of Parcel F-5 by Don Fabian to Reygula MonterosoBayan, the CA likewise agreed with the RTCs finding on the nullity thereof. The CA pointed out that Reygula Monteroso-Bayan did not controvert the RTCs finding, except to gratuitously say that the trial courts declaration of nullity was wrong since nobody questioned the authenticity of the donation in the first place. Apropos Parcel S-1, a disposable agricultural land of the public domain which is the subject of a homestead patent application by Don Fabian, the CA, as opposed to the RTCs disposition, held that a patent, if eventually issued, ought to be in the name of the legal heirs of Don Fabian, not of his surviving spouse, Pendejito. This conclusion, so the CA explained, is in line with the provision of Section 105 of the Public Land Act or Commonwealth Act No. 141 (CA 141), as amended. As to Parcel S-2, the CA agreed with the RTC that it is a conjugal property acquired during the second marriage through a deed of sale[14] executed on August 15, 1947 by Marcelo Morancel. Likewise, the CA said that Parcels S-3 and S-4 are conjugal properties as no evidence was adduced supporting the alleged purchase by Pendejito of said properties with her own funds. Anent the RTCs order partitioning Parcel F-6, the CA agreed with the defendants in Civil Case No. 1332 that Parcel F-6 has long been partitioned equitably among all the eight children of Don Fabian. Thus, the CA further modified the RTC on this point. On the third and last issues, the CA set aside all awards of actual damages made by the RTC premised on the income generating capacity of the subject properties, except that of Parcel F-4, as an order of accounting of the fruits of the other subject properties unjustly appropriated by them would address the issue of damages. It bears to stress at this juncture that, save for the grant of damages and the disposition of Parcels F-6 and S-1, the CA affirmed the questioned RTC Decision on all other points. On June 15, 1992, Tirso D. Monteroso thereafter filed before the Court his partial petition for review under Rule 45, docketed as G.R. No. 105608. On the other hand, Pendejito, together with the other defendants in Civil Case No. 1332, first interposed a joint motion for partial reconsideration, which the CA denied per its equally assailed December 16, 1993 Resolution,[15] before elevating the case via a petition for review under Rule 45, docketed as G.R. No. 113199. G.R. No. 105608 Denied with Finality Per its Resolution[16] dated June 29, 1992, the Court denied Tirso D. Monterosos petition under G.R. No. 105608 for late payment of fees and non-compliance with the requirements of the Rules of Court and Circular Nos. 1-88 and 28-91 on the submission of a certified copy of the assailed decision/order and a certification of non-forum shopping. Another Resolution[17] of August 12, 1992 followed, this time denying with finality Tirso D. Monterosos motion for reconsideration filed on July 29, 1992. On August 31, 1992, an Entry of Judgment[18] was issued. In net effect, the March 31, 1992 CA Decision in CA-G.R. CV No. 15805 is final and executory as to Tirso D. Monteroso, and the Court need not pass upon the issues he raised in his petition under G.R. No. 105608, albeit we shall take stock of his Comment[19] and Memorandum[20] in G.R. No. 113199. The Issues Petitioners in G.R. No. 113199 raise the following issues for our consideration:

1. Whether the finding that the Deeds of Sale (Exhibits C, D and E) were not supported by valuable consideration and sham, fictitious and simulated is supported by the evidence. 2. Whether the finding or conclusion that petitioners Spouses Atty. Perfecto and Soledad Cagampang did not dispute the finding of the trial Court that the Deeds of Sale in question are sham, fictitious and simulated is supported by evidence. 3. Whether the [CA] committed reversible error in concluding that, By invoking the benefits of prescription in their favor, the Cagampang spouses are deemed to have admitted the existence of a co-ownership. 4. Whether the [CA] committed reversible error in upholding partition as the proper remedy of private respondent Tirso Monteroso to recover the properties sold by Fabian Monteroso, Sr. to Soledad D. Monteroso de Cagampang when co-ownership is not pleaded as theory in the Complaint. 5. Whether the [CA] committed reversible error in holding that the cause of action of private respondent Tirso Monteroso is not barred by extinctive prescription and laches. 6. Whether the [CA] committed reversible error in granting reliefs not prayed for in the Complaint in favor of parties who did not assert or claim such relief, such as partition and accounting among the parties and the nullification of the donation in favor of petitioner Reygula Bayan when x x x Tirso Monteroso and the petitioners herein who are signatories to the Deed of Donation did not question or ask for the nullification of the donation in favor of Reygula Bayan. 7. Whether the [CA] committed reversible error in ordering the partition of parcels S-1, S-2, S-3 and S-4 which are admitted in the Complaint to be in the exclusive, adverse possession of petitioners Sofia vda. de Monteroso, Florenda, Alberto and Reynato and the Heirs of Fabian Monteroso, Jr. since the death of Fabian Monteroso, Sr. in 1948, appropriating the harvests unto themselves, to the exclusion of plaintiff (private respondent Tirso Monteroso) who was deprived of his share continuously up to the present.[21]

The Courts Ruling After a circumspect consideration of the arguments earnestly pressed by the parties and in the light of the practically parallel findings of the RTC and CA, we find the petition under G.R. No. 113199 to be devoid of merit. It is a rule of long standing that: [T]he jurisdiction of the Court in cases brought before it from the Court of Appeals via Rule 45 of the Rules of Court is limited
Property | Art. 494 to 498 | 22

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 petitioners main and reply briefs are not disputed b y the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record.[22] None of the above exceptions, however, obtains in the instant case. First and Second Issues: Simulated Sale In connection with the first two related issues, petitioners maintain that the CA erred when it affirmed the RTCs conclusion on the fictitious or simulated nature, for lack or inadequate consideration, of the Deeds of Sale (Exhibits C, D, and E), noting that Tirso failed to present substantial evidence to support the alleged infirmity of the underlying sale. The fact that one of the lots sold under Exhibit C on May 10, 1939 for PhP 2,500 was used as collateral for a PhP 600 loan is not, so petitioners claim, proof that the amount of PhP 600 represents the maximum loan value of the property or that the sale in question is not supported by valuable consideration. Moreover, petitioners belabored to explain that the trial court erred in concluding that the property conveyed under Exhibit C and covered by Transfer Certificate of Title (TCT) No. RT-203 (420) in the name of Soledad Monteroso-Cagampang, married to Perfecto, was fictitious on the ground that the certificate did not indicate that it was a conjugal property. Petitioners assert that the registration of a property only in the name of one of the spouses is not proof that no consideration was paid therefor. As petitioners would stress, what determines whether a given property is conjugal or separate is the law itself, not what appears in the certificate of title. Lastly, petitioners take exception from the appellate courts posture that the Cagampang spouses did not dispute the trial courts finding that the deeds of sale (Exhibits C, D, and E) were simulated and fictitious for lack of consideration. Petitioners insist that they in fact contested such conclusion of the RTC in their brief before the CA, adding they only raised the issue of prescription as an alternative defense without conceding the RTCs findings on contract infirmity. We are not persuaded. The antecedent facts, as borne by the records, strongly indicate the simulated character of the sale covered by the deeds of absolute sale over Parcels F-1 (Exhibit C), F-2 (Exhibit D), F-3, F-5, F-7, and F-8 (Exhibit E). As found below, Don Fabian never relinquished possession of the covered properties during his lifetime. The first deed, Exhibit E, was executed on May 1, 1939; the second, Exhibit C, on May 10, 1939; and the third, Exhibit D, on September 24, 1939. Soledad Monteroso-Cagampang, however, only took possession of the subject properties after Don Fabians death in 1948 or nine years after

contract execution. The gap, unexplained as it were, makes for a strong case that the parties to the sale never intended to be bound thereby. The more telling circumstance, however, is the fact that Perfecto had judicially sought the amendment of the corresponding TCTs so that only the name of his wife, Soledad, shall be inscribed as real party-in-interest on the Memorandum of Encumbrances at the back portion of the titles. If only to stress the point, when the deeds were executed in 1939, Soledad and Perfecto Cagampang, the notarizing officer, were already married. A property acquired during the existence of a marriage is presumed conjugal. This postulate notwithstanding, Perfecto Cagampang went out of his way to make it appear that the subject parcels of land were effectively his wifes paraphernal properties. No explanation was given for this unusual move. Hence, we agree with the trial and appellate courts that the unexplained situations described above sufficiently show that the purported conveyances were simulated. We also accord credence to Tirsos allegation that the Cagampang spouses tricked Don Fabian into believing that his creditors were after the properties which have to be hidden by means of simulated conveyances to Soledad Monteroso-Cagampang. The fact that only one of the subject lots was used as collateral for a PhP 600 loan which the Cagampang spouses took out does not weaken the conclusion on the simulated character of the contracts, as logically drawn from the twin circumstances adverted to. The Court can allow that petitioners indeed attempted to traverse, before the CA, the RTCs findings on the area of simulated sale and that they only raised the matter of acquisitive prescription as an alternative defense. However, as we shall explain shortly, the fact of petitioners having made the attempt aforestated will not carry the day for them. Third Issue: Recognition of Co-ownership in Acquisitive Prescription In its assailed decision, the CA declared, By invoking the benefits of prescription in their favor, the Cagampang spouses are deemed to have admitted the existence of a coownership x x x. The petitioners tag this declaration as flawed since the benefit of prescription may be availed of without necessarily recognizing co-ownership. Prescription and coownership, they maintain, are so diametrically opposed legal concepts, such that one who invokes prescription is never deemed to admit the existence of co-ownership. Petitioners are mistaken; their error flows from compartmentalizing what the CA wrote. The aforecited portion of the CAs decision should not have been taken in isolation. It should have been read in the context of the appellate courts disquisition on the matter of Tirso being a co-owner of the subject undivided properties whose rights thereto, as a compulsory heir, accrued at the moment of death of Don Fabian, vis--vis the defense of acquisitive prescription foisted by the Cagampang spouses. For clarity, we reproduce the pertinent portion of the assailed decision: Nor do we find any merit in the third. From the allegation in the Complaint in Civil Case No. 1332 as well as from the arguments advanced by the parties on the issues raised therein, this Court is convinced that therein plaintiff Tirso Monterosos principal cause of action is unmistakably one for partition which by its very nature is imprescriptible and cannot be barred by laches x x x. The only exception to the rule on the imprescriptibility of an action for partition is provided in a case where the co-ownership of the properties sought to be partitioned had been properly repudiated by a co-owner at which instance the remedy available to the aggrieved heirs lies not in action for partition but for reconveyance which is subject to the rules on extinctive prescription. By invoking the benefits of prescription in their favor, the Cagampang spouses

are deemed to have admitted the existence of a co-ownership among the heirs of Fabian Monteroso, Sr. over the properties forming the decedents estate.[23] (Emphasis ours.) From the foregoing disquisition, what the appellate court tried to convey is clear and simple: partition is the proper remedy available to Tirso who is a co-owner of the subject properties by virtue of his being a compulsory heir, like siblings Soledad, Reygula, and Benjamin, of Don Fabian. The right to seek partition is imprescriptible and cannot be barred by laches. Consequently, acquisitive prescription or laches does not lie in favor of the Cagampang spouses and against Tirso, the general rule being that prescription does not run against a co-owner or co-heir. The only exception to the imprescriptibility of an action for partition against a co-owner is when a co-owner repudiates the co-ownership. Thus, the appellate court ruled that by invoking extinctive prescription as a defense, the lone exception against imprescriptibility of action by a co-owner, the Cagampang spouses are deemed to have contextually recognized the co-ownership of Tirso and must have repudiated such coownership in order for acquisitive prescription to set in. Taking off from that premise, the appellate court then proceeded to tackle the issue of repudiation by the Cagampang spouses. Therefore, we hold that the appellate court did not err in finding that the Cagampang spouses are effectively barred from invoking prescription, given that the subject properties are conjugal properties of the decedent, Don Fabian, which cannot be subjected to acquisitive prescription, the necessary consequence of recognizing the co-ownership stake of other legal heirs. Fourth and Fifth Issues: Partition Proper, not Barred by Laches nor by Acquisitive Prescription Being inextricably intertwined, we tackle both issues together. Petitioners, citing Article 494 of the Civil Code[24] and Art. 1965 of the Spanish Civil Code, aver that the right to ask partition is proper only where co-ownership is recognized. They also suggest that no coownership obtains in this case considering that no less than Tirso avers in his complaint in Civil Case No. 1332 that from the time of Don Fabians death in 1948, the lots in question have been in the exclusive, adverse, and public possession of the Cagampang spouses. Assayed against this perspective, petitioners submit that partition is not proper, ergo unavailing, but an action for reconveyance which is subject to the rules on extinctive prescription. Corollary to the posture above taken, petitioners assert that there being no coownership over the properties sold by Don Fabian to Soledad Monteroso-Cagampang, Tirsos cause of action, under the Code of Civil Procedure (Act No. 190) in relation to Art. 1116 of the Civil Code,[25] had already prescribed, either in 1949, i.e., 10 years after the subject properties were registered in Soledad Monteroso-Cagampangs name, or in 1958, i.e., 10 years after the cause of action accrued in 1948 (death of Don Fabian), citing Osorio v. Tan.[26] Tirsos complaint in Civil Case No. 1332 was commenced in 1970. Petitioners contend that the evidence adduced clearly demonstrates that Soledad Monteroso-Cagampang acquired ownership of the subject properties by virtue of the deeds of sale executed in 1939 by Don Fabian. After the sale, she registered them under her name and then took exclusive, adverse, and public possession over them. Thus, they submit that the prescriptive period applicable to the instant case under Act No. 190 had long expired, adding that the CA erred in finding that Soledad Monteroso-Cagampang repudiated the co-ownership only in 1961 when she and the other heirs ignored the demand of Tirso for partition.

As a final point, petitioners alleged that the exclusion of Tirso from the enjoyment of the fruits of the subject properties since after the death of Don Fabian in 1948 is consistent with Soledad Monteroso-Cagampangs claim of exclusive ownership and dominion.
Property | Art. 494 to 498 | 23

We cannot subscribe to petitioners theory. The fact that Tirso and the other compulsory heirs of Don Fabian were excluded from the possession of their legitime and the enjoyment of the fruits thereof does not per se argue against the existence of a co-ownership. While Tirso may not have expressly pleaded the theory of co-ownership, his demand from, and act of initiating Civil Case No. 1332 against, the Cagampang spouses for his share necessarily implies that he was asserting his right as co-owner or co-heir of the properties unjustly withheld by the Cagampang spouses through the instrumentality of simulated deeds of sale covering some of the hereditary properties. By asserting his right as a compulsory heir, Tirso has effectively brought into the open the reality that the Cagampang spouses were holding some of the subject properties in trust and that he is a co-owner of all of them to the extent of his legal share or legitime thereon. Consequently, we are one with the trial and appellate courts that partition is the proper remedy for compulsory or legal heirs to get their legitime or share of the inheritance from the decedent. An action for partition is at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the properties involved. [27] Also, Sec. 1, Rule 69 of the Rules of Court pertinently provides:

However, considering that the new Civil Code was already then in effect, Art. 1141 of said Code[32] applies; thus, Tirso has at the very least 10 years and at the most 30 years to file the appropriate action in court. The records show that Tirsos cause of action has not prescribed as he instituted an action for partition in 1970 or only nine years after the considered express repudiation. Besides, acquisitive prescription also does not lie against Tirso even if we consider that a valid express repudiation was indeed made in 1961 by the Cagampang spouses since in the presence of evident bad faith, the required extraordinary prescription period[33] of 30 years has not yet lapsed, counted from said considered repudiation. Such would still be true even if the period is counted from the time of the death of Don Fabian when the Cagampang spouses took exclusive possession of the subject properties. Sixth Issue: Partition Proper for Conjugal Properties of Second Marriage On the ground of prescription under Act No. 190, petitioners assert that Tirso lost the right to seek the partition of Parcels S-1, S-2, S-3, and S-4, he having admitted, as early as 1948, the adverse, exclusive, and public possession thereof by Pendejito and her children. This type of possession, they maintain, works as a repudiation by Pendejito and her children of the co-ownership claim of Tirso. They further argue that Parcel S-1 pertains to Pendejito as her paraphernal property since the homestead application therefor was under her name. We are not persuaded. Tirsos acknowledgment of Pendejito and her childrens possession of Parcels S 1, S-2, S-3, and S-4 cannot be viewed as the required repudiation to bar Tirso from pursuing his right to seek partition. Under the law on co-ownership, it behooves on the person desiring to exclude another from the co-ownership to do the repudiating. Verily, the records do not show that Pendejito and her children performed acts clearly indicating an intention to repudiate the co-ownership and then apprising Tirso and other co-owners or co-compulsory heirs of such intention. To be sure, Tirso and his siblings from the first marriage have a stake on Parcels S-2, S-3, and S-4, even if these parcels of land formed part of the conjugal partnership of gains of the second marriage. There can be no serious dispute that the children of the first marriage have a hereditary right over the share of Don Fabian in the partnership assets of the first marriage. Anent Parcel S-1, we join the CA in its holding that it belongs to the heirs of Don Fabian under Sec. 105 of CA 141, which pertinently provides: Sec. 105. If at any time the applicant or grantee shall die before the issuance of the patent or the final grant of the land, or during the life of the lease, or while the applicant or grantee still has obligations pending towards the Government, in accordance with this Act, he shall be succeeded in his rights and obligations with respect to the land applied for or granted or issued under this Act by his heirs in law, who shall be entitled to have issued to them the patent or final concession if they show that they have complied with the requirements therefor, and who shall be subrogated in all his rights and obligations for the purposes of this Act. (Emphasis ours.) It is undisputed that Don Fabian was the homestead patent applicant who was subrogated to the rights of the original applicants, spouses Simeon Cagaanan and Severina Naranjo, by purchasing from the latter Parcel S-1 on May 8, 1943. Don Fabian cultivated the

applied area and declared it for taxation purposes. The application, however, would be rejected because death supervened. In 1963, Pendejito filed her own homestead application for Parcel S-1. Assayed against the foregoing undisputed facts in the light of the aforequoted Sec. 105 of CA 141, the heirs of Don Fabian are entitled to Parcel S-1. Said Sec. 105 has been interpreted in Soliman v. Icdang[34] as having abrogated the right of the widow of a deceased homestead applicant to secure under Sec. 3 of Act No. 926, otherwise known as the Public Land Act of 1903, a patent in her own name, thus: [W]e should bear in mind that, although Adolfo Icdang was married to plaintiff when he filed the homestead application, an applicant may be said to have acquired a vested right over a homestead only by the presentation of the final proof and its approval by the Director of Lands. (Ingara vs. Ramelo, 107 Phil., 498; Balboa vs. Farrales, 51 Phil., 498; Republic vs. Diamon, 97 Phil., 838.) In the case at bar, the final proof appears to have been presented to, and approved by the Director of Lands, in 1954, or several years after the death of Adolfo Icdang and the dissolution of his conjugal partnership with plaintiff herein. Hence, the land in question could not have formed part of the assets of said partnership. It belonged to the heirs of Adolfo Icdang, pursuant to section 105 of Commonwealth Act No. 141, reading: xxxx It is worthy of notice that, under the Public Land Act of 1903 (Act No. 926, section 3), in the event of the death of an applicant prior to the issuance of a patent, his widow shall be entitled to have a patent for the land applied for issue to her upon showing that she has consummated the requirements of law for homesteading the lands, and that only in case the deceased applicant leaves no widow shall his interest in the land descend and the patent issue to his legal heirs. Incorporated substantially in section 103 of the Public Land Act of 1919 (Act No. 2874), this policy was changed by Act No. 3517, pursuant to which the deceased shall be succeeded no longer by his widow, but by his heirs in law, who shall be entitled to have issued to them the patentif they show that they have complied with the requirements therefor. And this is, in effect, the rule maintained in the above quoted section 105 of Commonwealth Act No. 141.[35] (Emphasis added.) It appearing that Don Fabian was responsible for meeting the requirements of law for homesteading Parcel S-1, said property, following Soliman, cannot be categorized as the paraphernal property of Pendejito. Thus, the homestead patent thereto, if eventually issued, must be made in the name of the compulsory heirs of Don Fabian. Over it, Pendejito shall be entitled, pursuant to Art. 834 of the Spanish Civil Code of 1889, only to a usufructuary right over the property equal to the corresponding share of each of Don Fabians compulsory heirs, i.e., his eight children. Seventh Issue: Judgment Must not Only be Clear but Must Also be Complete Petitioners bemoan the fact that both the trial and appellate courts granted relief and remedies not prayed for by the parties. As argued, Civil Case No. 1292, initiated by the heirs of Benjamin against Tirso, basically sought recovery of real properties; while Civil Case
Property | Art. 494 to 498 | 24

SECTION 1. Complaint in action for partition of real estate. A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. (Emphasis ours.) Being a compulsory heir of Don Fabian, Tirso has the right to compel partition of the properties comprising the intestate estate of Don Fabian as a measure to get his hereditary share. His right as an heir to a share of the inheritance covers all the properties comprising the intestate estate of Don Fabian at the moment of his death,[28] i.e., on October 26, 1948. Before partition and eventual distribution of Don Fabians intestate estate, a regime of co-ownership among the compulsory heirs existed over the undivided estate of Don Fabian. Being a co-owner of that intestate estate, Tirsos right over a share thereof is imprescriptible.[29] As a matter of law, acquisitive prescription does not apply nor set in against compulsory heirs insofar as their pro-indiviso share or legitime is concerned, unless said heirs repudiate their share.[30] Contrary to petitioners stance, reconveyance is not the proper remedy available to Tirso. Be it remembered in this regard that Tirso is not asserting total ownership rights over the subject properties, but only insofar as his legitime from the intestate estate of his father, Don Fabian, is concerned. Acquisitive prescription, however, may still set in in favor of a co-owner, where there exists a clear repudiation of the co-ownership, and the co-owners are apprised of the claim of adverse and exclusive ownership.[31] In the instant case, however, no extinctive or acquisitive prescription has set in against Tirso and other compulsory heirs in favor of the Cagampang spouses because effective repudiation had not timely been made against the former. As aptly put by the appellate court, the repudiation which must be clear and open as to amount to an express disavowal of the co-ownership relation happened not when the deeds of absolute sale were executed in 1939, as these could not have amounted to a clear notice to the other heirs, but in 1961 when the Cagampang spouses refused upon written demand by Tirso for the partition and distribution of the intestate estate of Don Fabian. Since then, Tirso was deemed apprised of the repudiation by the Cagampang spouses.

No. 1332, a countersuit filed by Tirso, was for partition and damages, the main thrust of which is to recover his alleged share from properties in the exclusive possession and enjoyment of other heirs since the death of Don Fabian in 1948. Thus, petitioners take issue against both decisions of the trial and appellate courts which ordered partition not only in favor of Tirso but also in favor of the other petitioners he sued. What is particularly appalling, according to them, is the order for accounting which no one requested.

The fact that nobody objected to the donation is of little consequence, for as the CA aptly observed, The circumstance that parties to a void contract choose to ignore its nullity can in no way enhance the invalid character of such contract. It is axiomatic that void contracts cannot be the subject of ratification, either express or implied.[41] WHEREFORE, the petition in G.R. No. 113199 is DENIED for lack of merit. The assailed Decision and Resolution dated March 31, 1992 and December 16, 1993, respectively, of the CA in CA-G.R. CV No. 15805 are hereby AFFIRMED IN TOTO. Costs against the petitioners. SO ORDERED. ARMANDO V. ALANO [Deceased], Substituted by Elena Alano-Torres, Petitioner, - versusPLANTERS DEVELOPMENT BANK, as Successor-in-Interest of MAUNLAD SAVINGS and LOAN ASSOCIATION, INC.,

Meanwhile, Lydia filed with the Register of Deeds of Quezon City an Affidavit of Cancellation of Adverse Claim, which caused the cancellation of the adverse claim annotated on TCT No. 18990. Thereafter, by virtue of a Deed of Absolute Sale allegedly executed by her children in her favor, TCT No. 18990 was cancelled and a new one, TCT No. 90388, was issued solely in her name. On February 8, 1994, Slumberworld, Inc., represented by its President, Melecio A. Javier, and Treasurer, Lydia, obtained from Maunlad Savings and Loan Association, Inc. a loan of P2.3 million, secured by a Real Estate Mortgage over the property covered by TCT No. 90388. On April 20, 1994, petitioner filed a Complaint against Lydia, Melecio A. Javier, Maunlad Savings and Loan Association, Inc. and the Register of Deeds of Quezon City before the Regional Trial Court (RTC) of Quezon City, which was raffled to Branch 92. Petitioner sought the cancellation of TCT No. 90388, the issuance of a new title in his name for his one-half share of the Quezon City property, and the nullification of real estate mortgage insofar as his one-half share is concerned. Defendants Maunlad Savings and Loan Association, Inc. and the Register of Deeds of Quezon City filed their respective Answers. Defendants Lydia and Melecio A. Javier, however, failed to file their respective Answers. Thus, the RTC in an Order dated August 29, 1994 declared them in default. Ruling of the Regional Trial Court

Petitioners lament, while understandable, is specious. Our judicial system requires courts to apply the law and grant remedies when appropriately called for by law and justice. In the exercise of this mandate, courts have the discretion to apply equity in the absence or insufficiency of the law. Equity has been defined as justice outside law, being ethical rather than jural and belonging to the sphere of morals than of law. It is grounded on the precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law.[36] In the instant case, a disposition only ordering partial partition and without accounting, as petitioners presently urge, would be most impractical and against what we articulated in Samala v. Court of Appeals.[37] There, we cautioned courts against being dogmatic in rendering decisions, it being preferable if they take a complete view of the case and in the process come up with a just and equitable judgment, eschewing rules tending to frustrate rather than promote substantial justice. Surely, the assailed path taken by the CA on the grant of relief not specifically sought is not without precedent. In National Housing Authority v. Court of Appeals, where the petitioner questioned the competence of the courts a quo to resolve issues not raised in the pleadings, and to order the disposition of the subject property when what was raised was the issue of right to possession, this Court in dismissing the challenge stated that a case should be decided in its totality, resolving all interlocking issues in order to render justice to all concerned and to end the litigation once and for all.[38] Verily, courts should always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seed of future litigation.[39] Eighth Issue: Deed of Donation Null and Void Finally, as an incidental issue, petitioners asseverate that the deed of donation (Exhibit F) executed on September 19, 1948, or after the death of Don Fabian, in favor of Reygula M. Bayan, is valid, particularly so since Tirso and the heirs of Benjamin, as represented by their mother, Nakila, do not question the validity of said deed as they in fact signed the same. That the donated property was the same property described and included in the deed of sale (Exhibit E) in favor of Soledad Monteroso-Cagampang is not, they contend, an invalidating factor since what Don Fabian sold under Exhibit E did not extend beyond his conjugal share thereon. Just like the issue of the nullity of the three deeds of absolute sale (Exhibits C, D, and E) heretofore discussed, we agree with the determination of the RTC and CA as to the invalidity of the donation of Parcel F-5 to Reygula M. Bayan. We need not repeat the reasons for such determination, except the most basic. We refer to the authority of the person who executed the deed of donation. As it were, the widow of Benjamin, Nakila, signed the deed of donation. She, however, cannot give consent to the donation as she has no disposable right thereto. The legal maxim nemo dat quod non habet[40] applies to this instance as Nakila only has usufructuary right equal to the share of her children under Art. 834 of the Spanish Civil Code of 1889. Besides, Nakila signed the deed of donation in her name and not in the name of her children who are the heirs in representation of their father, Benjamin. Lest it be overlooked, the then minor children were not under the legal guardianship of Nakila, a situation which thus disqualifies her from signing on their behalf.

Respondent. No one can give what he does not have" (Nemo dat quod non habet). This Amended Petition for Review on Certiorari under Rule 45 of the Rules of Court assails the June 9, 2005 Decision and the February 21, 2006 Resolution of the Court of Appeals (CA) in CA G.R. CV No. 58554. Factual Antecedents Petitioner Armando V. Alano and his brother, the late Agapito V. Alano, Jr., inherited from their father a parcel of land located at Gov. Forbes St., Sampaloc, Manila. On June 30, 1988, petitioner executed a Special Power of Attorney authorizing his brother to sell their property in Manila. From the proceeds of the sale, the brothers purchased on September 22, 1988 a residential house located at No. 60 Encarnacion St., BF Homes, Quezon City. The title of the Quezon City property, however, was not immediately transferred to them because the duplicate and original copies of the title were destroyed by a fire that gutted the Quezon City Hall Building. On June 27, 1990, Agapito V. Alano, Jr. died leaving behind his wife, Lydia J. Alano (Lydia), and four legitimate children, who adjudicated to themselves the property in Quezon City. Consequently, title to the said property was reconstituted as Transfer Certificate of Title (TCT) No. 18990 and registered solely in the names of Lydia and her four children. This prompted petitioner to execute an Affidavit of Adverse Claim which was annotated on TCT No. 18990. But because of the assurance of his nieces that they would put things right, petitioner agreed to delay the filing of a case in court. On September 12, 1996, the RTC rendered its Decision declaring petitioner the owner of onehalf of the subject property since an implied trust exists between him and the heirs of his brother. The RTC, however, sustained the validity of the real estate mortgage. According to the RTC, Maunlad Savings and Loan Association, Inc. had the right to rely on the Torrens title as there was no reason for it to doubt the mortgagors ownership over the subject property. Accordingly, the fallo of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. Declaring plaintiff Armando Alano the owner of one-half of the property in question; 2. Ordering the Register of Deeds of Quezon City to cancel TCT No. 90388 issued in the name of Lydia J. Alano and the corresponding owners duplicate certificate and to issue a new one in the names of Armando V. Alano, single[,] share pro indiviso and Lydia Alano, widow, share pro indiviso with the corresponding mortgage lien annotation in favor of the Maunlad Savings and Loan [Association,] Inc. upon finality of this decision; 3. Ordering the defendant Maunlad Savings and Loan [Association,] Inc. to surrender [the] owners duplicate copy of TCT No. 90388 to the Register of Deeds of Quezon City for cancellation upon finality of this decision;

Property | Art. 494 to 498 | 25

4. Ordering defendants Lydia J. Alano and Melecio Javier to jointly and severally pay the plaintiff the sum of P20,000.00 as attorneys fees and to pay the costs of suit. SO ORDERED.

Petitioners Arguments Petitioner insists that Maunlad Savings and Loan Association, Inc. is not a mortgagee in good faith as it failed to exercise due diligence in inspecting and ascertaining the status of the mortgaged property. Petitioner calls attention to the testimony of Credit Investigator Carlos S. Maosca, who admitted that when he inspected the mortgaged property, he only checked the finishing of the house and the number of rooms. Hence, he failed to see petitioners apartment at the back portion of the property. Moreover, the fact that there was an adverse claim annotated on the previous title of the property should have alerted Maunlad Savings and Loan Association, Inc. to conduct further investigation to verify the ownership of the mortgaged property. All these prove that Maunlad Savings and Loan Association, Inc. was not a mortgagee in good faith. Corollarily, pursuant to Articles 2085 and 493 of the Civil Code, the real estate mortgage executed by Lydia is void insofar as petitioners share in the mortgaged property is concerned. Respondents Arguments Respondent contends that the issue of whether Maunlad Savings and Loan Association, Inc. is a mortgagee in good faith is a question of fact, which is beyond the jurisdiction of this Court. As to petitioners allegation that there was a separate apartment at the back portion of the property, respondent claims that this was never raised during the trial or on appeal. Hence, it is barred by estoppel. Respondent further claims that Maunlad Savings and Loan Association, Inc. has no obligation to look beyond the title considering that there was no adverse claim annotated on TCT No. 90388 covering the mortgaged property. And since the mortgaged property was occupied by the mortgagor Lydia, there was also no need for Maunlad Savings and Loan Association, Inc. to verify the extent of her possessory rights. Our Ruling

not a mortgagee in good faith.

Dissatisfied, petitioner moved for partial reconsideration but the RTC denied the same in its Order dated February 24, 1997. Ruling of the Court of Appeals Petitioner appealed to the CA but to no avail. The CA found Maunlad Savings and Loan Association, Inc. to be a mortgagee in good faith since it took the necessary precautions to ascertain the status of the property sought to be mortgaged as well as the identity of the mortgagor by conducting an ocular inspection of the property and requiring the submission of documents, such as the latest tax receipts and tax clearance. The CA thus disposed of the appeal as follows: WHEREFORE, premises considered, the appeal is hereby DISMISSED for lack of merit. The September 12, 1996 Decision of the Regional Trial Court of Quezon City, Branch 92, is hereby AFFIRMED. SO ORDERED.

The general rule that a mortgagee need not look beyond the title does not apply to banks and other financial institutions as greater care and due diligence is required of them. Imbued with public interest, they are expected to be more cautious than ordinary individuals. Thus, before approving a loan, the standard practice for banks and other financial institutions is to conduct an ocular inspection of the property offered to be mortgaged and verify the genuineness of the title to determine the real owner or owners thereof. Failure to do so makes them mortgagees in bad faith. In this case, petitioner contends that Maunlad Savings and Loan Association, Inc. failed to exercise due diligence in inspecting and ascertaining the status of the mortgaged property because during the ocular inspection, the credit investigator failed to ascertain the actual occupants of the subject property and to discover petitioners apartment at the back portion of the subject property. Indeed, the existence of petitioners apartment at the back portion of the subject property was never brought up before the trial court and the appellate court. Nevertheless, we find petitioners allegation of negligence substantiated by the testimony of the credit investigator, to wit: ATTY. JAVELLANA xxxx Q You said also that you inspected the property that was offered as collateral which is a house and lot located at Encarnacion Street, BF Homes. Did you enter the property? Yes, maam. And then you found out that the property was the home of Mrs. Lydia Alano and her children? Yes, maam.

Petitioner sought reconsideration but the CA denied the same in its Resolution dated February 21, 2006. Issues Hence, the present recourse, petitioner raising the following issues: I. WHETHER THE REAL ESTATE MORTGAGE EXECUTED BY DEFENDANT LYDIA J. ALANO WAS VALID AND BINDING WITH RESPECT TO PETITIONERS CO-OWNERS SHARE IN THE SUBJECT PROPERTY. WHETHER DEFENDANT MAUNLAD SAVINGS AND LOAN ASSOCIATION, INC. WAS AN INNOCENT MORTGAGEE IN GOOD FAITH. The instant case is an exception to the rule that factual issues may not be raised in a petition under Rule 45 of the Rules of Court. The petition has merit.

A Q A

ATTY. JAVELLANA The rule that only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court is not without exception. A review of factual issues is allowed when there is a misapprehension of facts or when the inference drawn from the facts is manifestly mistaken. This case falls under exception. Maunlad Savings and Loan Association, Inc. is Q A Q A And you also saw that her brother-in-law Armando Alano was also residing there? I do not recall if he was there, maam. You did not see him there? When we went there maam, we only checked on the finishing of the house and also checked as to the number of bedrooms and number of CR, maam.
Property | Art. 494 to 498 | 26

II.

III. WHETHER PETITIONER MAY RIGHTFULLY BE MADE TO SUFFER THE CONSEQUENCES OF DEFENDANT LYDIA J. ALANOS WRONGFUL ACT OF MORTGAGING THE SUBJECT PROPERTY.

Q A Q A Q A

You did not verify who were actually residing there? No, maam. You said that you also conducted a neighborhood checking, did you ask the neighbor who were residing in that property? Yes, and we were told that Lydia Alano was the one residing there, maam. You did not verify from them as to whether anybody else was residing there? No, maam. (Emphasis supplied).

On February 22, 1976, Jesus B. Gaviola sold two parcels of land with a total area of 17,140 square meters situated in Southern Leyte to Protacio B. Go, Jr. (Protacio, Jr.). Twenty three years later, or on March 29, 1999, Protacio, Jr. executed an Affidavit of Renunciation and Waiver, whereby he affirmed under oath that it was his father, Protacio Go, Sr. (Protacio, Sr.), not he, who had purchased the two parcels of land (the property). On November 25, 1987, Marta Barola Go died. She was the wife of Protacio, Sr. and mother of the petitioners. On December 28, 1999, Protacio, Sr. and his son Rito B. Go (joined by Ritos wife Dina B. Go) sold a portion of the property with an area of 5,560 square meters to Ester L. Servacio (Servacio) for 5,686,768.00. On March 2, 2001, the petitioners demanded the return of the property, but Servacio refused to heed their demand. After barangay proceedings failed to resolve the dispute, they sued Servacio and Rito in the Regional Trial Court in Maasin City, Southern Leyte (RTC) for the annulment of the sale of the property. The petitioners averred that following Protacio, Jr.s renunciation, the property became conjugal property; and that the sale of the property to Servacio without the prior liquidation of the community property between Protacio, Sr. and Marta was null and void. Servacio and Rito countered that Protacio, Sr. had exclusively owned the property because he had purchased it with his own money. On October 3, 2002, the RTC declared that the property was the conjugal property of Protacio, Sr. and Marta, not the exclusive property of Protacio, Sr., because there were three vendors in the sale to Servacio (namely: Protacio, Sr., Rito, and Dina); that the participation of Rito and Dina as vendors had been by virtue of their being heirs of the late Marta; that under Article 160 of the Civil Code, the law in effect when the property was acquired, all property acquired by either spouse during the marriage was conjugal unless there was proof that the property thus acquired pertained exclusively to the husband or to the wife; and that Protacio, Jr.s renunciation was grossly insufficient to rebut the legal presumption. Nonetheless, the RTC affirmed the validity of the sale of the property, holding that: xxx As long as the portion sold, alienated or encumbered will not be allotted to the other heirs in the final partition of the property, or to state it plainly, as long as the portion sold does not encroach upon the legitimate (sic) of other heirs, it is valid. Quoting Tolentinos commentary on the matter as authority, the RTC opined: In his comment on Article 175 of the New Civil Code regarding the dissolution of the conjugal partnership, Senator Arturo Tolentino, says [sic] Alienation by the survivor. After the death of one of the spouses, in case it is necessary to sell any portion of the community property in order to pay outstanding obligation of the partnership, such sale must be made in the manner and with the formalities established by the Rules of Court for the sale of the property of the deceased persons. Any sale, transfer, alienation or disposition of said property affected without said formalities shall be null and void, except as regards the portion that belongs to the vendor as

determined in the liquidation and partition. Pending the liquidation, the disposition must be considered as limited only to the contingent share or interest of the vendor in the particular property involved, but not to the corpus of the property. This rule applies not only to sale but also to mortgages. The alienation, mortgage or disposal of the conjugal property without the required formality, is not however, null ab initio, for the law recognizes their validity so long as they do not exceed the portion which, after liquidation and partition, should pertain to the surviving spouse who made the contract. [underlining supplied] It seems clear from these comments of Senator Arturo Tolentino on the provisions of the New Civil Code and the Family Code on the alienation by the surviving spouse of the community property that jurisprudence remains the same - that the alienation made by the surviving spouse of a portion of the community property is not wholly void ab initio despite Article 103 of the Family Code, and shall be valid to the extent of what will be allotted, in the final partition, to the vendor. And rightly so, because why invalidate the sale by the surviving spouse of a portion of the community property that will eventually be his/her share in the final partition? Practically there is no reason for that view and it would be absurd. Now here, in the instant case, the 5,560 square meter portion of the 17,140 square-meter conjugal lot is certainly mush (sic) less than what vendors Protacio Go and his son Rito B. Go will eventually get as their share in the final partition of the property. So the sale is still valid. WHEREFORE, premises considered, complaint is hereby DISMISSED without pronouncement as to cost and damages. SO ORDERED. The RTCs denial of their motion for reconsideration prompted the petitioners to appeal directly to the Court on a pure question of law. Issue The petitioners claim that Article 130 of the Family Code is the applicable law; and that the sale by Protacio, Sr., et al. to Servacio was void for being made without prior liquidation. In contrast, although they have filed separate comments, Servacio and Rito both argue that Article 130 of the Family Code was inapplicable; that the want of the liquidation prior to the sale did not render the sale invalid, because the sale was valid to the extent of the portion that was finally allotted to the vendors as his share; and that the sale did not also prejudice any rights of the petitioners as heirs, considering that what the sale disposed of was within the aliquot portion of the property that the vendors were entitled to as heirs.
Property | Art. 494 to 498 | 27

Clearly, while the credit investigator conducted an ocular inspection of the property as well as a neighborhood checking and found the subject property occupied by the mortgagor Lydia and her children, he, however, failed to ascertain whether the property was occupied by persons other than the mortgagor. Had he done so, he would have discovered that the subject property is co-owned by petitioner and the heirs of his brother. Since Maunlad Savings and Loan Association, Inc. was remiss in its duty in ascertaining the status of the property to be mortgaged and verifying the ownership thereof, it is deemed a mortgagee in bad faith. Consequently, the real estate mortgage executed in its favor is valid only insofar as the share of the mortgagor Lydia in the subject property. We need not belabor that under Article 493 of the Civil Code, a coowner can alienate only his pro indiviso share in the co-owned property, and not the share of his co-owners. WHEREFORE, the petition is hereby GRANTED. The assailed June 9, 2005 Decision and the February 21, 2006 Resolution of the Court of Appeals in CA G.R. CV No. 58554 are SET ASIDE. The September 12, 1996 Decision of the Regional Trial Court of Quezon City, Branch 92, is hereby MODIFIED by declaring the mortgage in favor of respondent Maunlad Savings and Loan Association, Inc. NULL and VOID insofar as the share of petitioner in the subject property is concerned, and ordering the annotation of the mortgage lien in favor of respondent only on the share of Lydia J. Alano in the subject property. SO ORDERED. THE HEIRS OF PROTACIO GO, SR. and MARTA BAROLA, namely: LEONOR, SIMPLICIO, PROTACIO, JR., ANTONIO, BEVERLY ANN LORRAINNE, TITA, CONSOLACION, LEONORA and ASUNCION, all surnamed GO, represented by LEONORA B. GO, Petitioners, -versus ESTER L. SERVACIO and RITO B. GO, Respondents.

The disposition by sale of a portion of the conjugal property by the surviving spouse without the prior liquidation mandated by Article 130 of the Family Code is not necessarily void if said portion has not yet been allocated by judicial or extrajudicial partition to another heir of the deceased spouse. At any rate, the requirement of prior liquidation does not prejudice vested rights. Antecedents

Ruling The appeal lacks merit. Article 130 of the Family Code reads: Article 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within one year from the death of the deceased spouse. If upon the lapse of the six month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. Article 130 is to be read in consonance with Article 105 of the Family Code, viz: Article 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership of gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application. The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. (n) [emphasis supplied] It is clear that conjugal partnership of gains established before and after the effectivity of the Family Code are governed by the rules found in Chapter 4 (Conjugal Partnership of Gains) of Title IV (Property Relations Between Husband And Wife) of the Family Code. Hence, any disposition of the conjugal property after the dissolution of the conjugal partnership must be made only after the liquidation; otherwise, the disposition is void. Before applying such rules, however, the conjugal partnership of gains must be subsisting at the time of the effectivity of the Family Code. There being no dispute that Protacio, Sr. and Marta were married prior to the effectivity of the Family Code on August 3, 1988, their property relation was properly characterized as one of conjugal partnership governed by the Civil Code. Upon Martas death in 1987, the conjugal partnership was dissolved, pursuant to Article 175 (1) of the Civil Code, and an implied ordinary co-ownership ensued among Protacio, Sr. and the other heirs of Marta with respect to her share in the assets of the conjugal partnership pending a liquidation following its liquidation. The ensuing implied ordinary co-ownership was governed by Article 493 of the Civil Code, to wit:

Article 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. (399)

Thus, it is now settled that the appropriate recourse of co-owners in cases where their consent were not secured in a sale of the entire property as well as in a sale merely of the undivided shares of some of the co-owners is an action for PARTITION under Rule 69 of the Revised Rules of Court. xxx In the meanwhile, Servacio would be a trustee for the benefit of the co-heirs of her vendors in respect of any portion that might not be validly sold to her. The following observations of Justice Paras are explanatory of this result, viz: xxx [I]f it turns out that the property alienated or mortgaged really would pertain to the share of the surviving spouse, then said transaction is valid. If it turns out that there really would be, after liquidation, no more conjugal assets then the whole transaction is null and void. But if it turns out that half of the property thus alienated or mortgaged belongs to the husband as his share in the conjugal partnership, and half should go to the estate of the wife, then that corresponding to the husband is valid, and that corresponding to the other is not. Since all these can be determined only at the time the liquidation is over, it follows logically that a disposal made by the surviving spouse is not void ab initio. Thus, it has been held that the sale of conjugal properties cannot be made by the surviving spouse without the legal requirements. The sale is void as to the share of the deceased spouse (except of course as to that portion of the husbands share inherited by her as the surviving spouse). The buyers of the property that could not be validly sold become trustees of said portion for the benefit of the husbands other heirs, the cestui que trust ent. Said heirs shall not be barred by prescription or by laches (See Cuison, et al. v. Fernandez, et al.,L-11764, Jan.31, 1959.) WHEREFORE, we DENY the petition for review on certiorari; and AFFIRM the decision of the Regional Trial Court. The petitioners shall pay the costs of suit. SO ORDERED.

Protacio, Sr., although becoming a co-owner with his children in respect of Martas share in the conjugal partnership, could not yet assert or claim title to any specific portion of Martas share without an actual partition of the property being first done either by agreement or by judicial decree. Until then, all that he had was an ideal or abstract quota in Martas share. Nonetheless, a co-owner could sell his undivided share; hence, Protacio, Sr. had the right to freely sell and dispose of his undivided interest, but not the interest of his co-owners. Consequently, the sale by Protacio, Sr. and Rito as co-owners without the consent of the other co-owners was not necessarily void, for the rights of the selling co-owners were thereby effectively transferred, making the buyer (Servacio) a co-owner of Martas share. This result conforms to the well-established principle that the binding force of a contract must be recognized as far as it is legally possible to do so (quando res non valet ut ago, valeat quantum valere potest). Article 105 of the Family Code, supra, expressly provides that the applicability of the rules on dissolution of the conjugal partnership is without prejudice to vested rights already acquired in accordance with the Civil Code or other laws. This provision gives another reason not to declare the sale as entirely void. Indeed, such a declaration prejudices the rights of Servacio who had already acquired the shares of Protacio, Sr. and Rito in the property subject of the sale. In their separate comments, the respondents aver that each of the heirs had already received a certain allotted portion at the time of the sale, and that Protacio, Sr. and Rito sold only the portions adjudicated to and owned by them. However, they did not present any public document on the allocation among her heirs, including themselves, of specific shares in Martas estate. Neither did they aver that the conjugal properties had already been liquidated and partitioned. Accordingly, pending a partition among the heirs of Marta, the efficacy of the sale, and whether the extent of the property sold adversely affected the interests of the petitioners might not yet be properly decided with finality. The appropriate recourse to bring that about is to commence an action for judicial partition, as instructed in Bailon-Casilao v. Court of Appeals, to wit: From the foregoing, it may be deduced that since a coowner 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. The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or coowners who alienated their shares, but the DIVISION of the common property as if it continued to remain in the possession of the coowners who possessed and administered it [Mainit v. Bandoy, supra].
Property | Art. 494 to 498 | 28

Art. 498 G.R. No. 76351 October 29, 1993 VIRGILIO B. AGUILAR vs. COURT OF APPEALS, ET AL FIRST DIVISION [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. Siruelo, Muyco & Associates Law Office for private respondent. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; PRE-TRIAL; APPEARANCE OF PARTIES THEREIN; MANDATORY. The law is clear that the appearance of parties at the pre-trial is mandatory. A party who fails to appear at a pre-trial conference may be non-suited or considered as in default. In the case at bar, where private respondent and counsel failed to appear at the scheduled pre-trial, the trial court has authority to declare respondent in default. 2. ID.; ID.; ID.; GRANT OR DENIAL OF POSTPONEMENT THEREOF; SUBJECT TO THE SOUND DISCRETION OF THE TRIAL JUDGE; CASE AT BAR. 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. 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 Iloilo by boat as early as 25 March 1979 to fetch his wife and accompany her to a wedding in Dumaguete City on 27 April 1979 where she was one of the principal sponsors, cannot be accepted. We find it insufficient to justify postponement of the pre-trial, and the Court of Appeals did not act wisely in overruling the denial. We sustain the trial court and rule that it did not abuse its discretion in denying the postponement for lack of merit. Certainly, to warrant a postponement of a mandatory process as pre-trial would require much more than mere attendance in a social function. It is time indeed we emphasize that there should be much more than mere perfunctory treatment of the pre-trial procedure. Its observance must be taken seriously if it is to attain its objective, i. e., the speedy and inexpensive disposition of cases. 3. CIVIL LAW; CO-OWNERSHIP; RIGHT OF CO-OWNER OVER AN INDIVISIBLE PROPERTY. 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 coowners are not in agreement as to who among them shall be allotted or assigned the entire property upon proper reimbursement of the co-owners. In one case, this Court upheld the order of the trial court directing the holding of a public sale of the properties owned in common pursuant to Art. 498 of the Civil Code. However, being a co-owner respondent has the right to use the house and lot without paying any compensation to petitioner, as he may use the property owned in common so long as it is in accordance with the purpose for which it is intended and in a manner not injurious to the interest of the other co-owners. Each co-owner of property held pro indiviso exercises his rights over the whole property and may use and enjoy the same with no other limitation than that he shall not injure the interests of his coowners, 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. 4. ID.; ID.; TERMINATION THEREOF; EFFECT; CASE AT BAR. 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. DECISION BELLOSILLO, J p: 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. LLjur 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 Paraaque 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. llcd 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 twothirds (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. cdphil 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 defendant 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 the 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 rentals 2 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 defendant's 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; (c) 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. LLpr 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
Property | Art. 494 to 498 | 29

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 Iloilo by boat as early as 25 March 1979 to fetch his wife and accompany her to a wedding in Dumaguete City on 27 April 1979 where she was one of the principal sponsors, cannot be accepted. We find it insufficient to justify postponement of the pre-trial, and the Court of Appeals did not act wisely in overruling the denial. We sustain the trial court and rule that it did not abuse its discretion in denying the postponement for lack of merit. Certainly, to warrant a postponement of a mandatory process as pre-trial would require much more than mere attendance in a social function. It is time indeed we emphasize that there should be much more than mere perfunctory treatment of the pre-trial procedure. Its observance must be taken seriously if it is to attain its objective., i.e., the speedy and inexpensive disposition of cases. LLpr 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 same 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. LLphil Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in the coownership, 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 coowners 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 so long as it is in accordance with the purpose for which it is intended and in a manner not injurious to the interest of the other co-owners. 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. 6912-P dated 26 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 decision, 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. LLpr 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. THIRD DIVISION [G.R. No. 56550. October 1, 1990.] MARINA Z. REYES, AUGUSTO M. ZABALLERO and SOCORRO Z. FRANCISCO, petitioners, vs. THE HONORABLE ALFREDO B. CONCEPCION, Presiding Judge, CFI of Cavite, Tagaytay, Br. IV, SOCORRO MARQUEZ VDA. DE ZABALLERO, EUGENIA Z. LUNA, LEONARDO M. ZABALLERO, and ELENA FRONDA ZABALLERO, respondents. Law Firm of Raymundo A. Armovit for petitioners. Leonardo M. Zaballero for private respondents. DECISION CORTES, J p: On March 13, 1980, petitioners filed with the CFI a complaint for injunction and damages, docketed as Civil Case No. TG-572, seeking to enjoin private respondents Socorro Marquez Vda. De Zaballero, Eugenia Z. Luna and Leonardo M. Zaballero from selling to a third party their pro-indiviso shares as co-owners in eight parcels of registered land (covered by TCT Nos. A-1316 to A-1322) located in the province of Cavite, with an aggregate area of about 96 hectares. Petitioner claimed that under Article 1620 of the new Civil Code, they, as co-owners, had a preferential right to purchase these shares from private respondents for a reasonable price. cdll On March 17, 1980, respondent trial judge denied the ex parte application for a writ of preliminary injunction, on the ground that petitioners' registered notice of lis pendens was ample protection of their rights. On April 24, 1980, private respondents received the summons and copies of the complaint. Private respondents then filed their answer with counterclaim, praying for the partition of the subject properties. Private respondent Elena Fronda Zaballero filed a motion for intervention dated April 29, 1980, adopting therein her co-respondents answer with counterclaim. At the pre-trial hearing, the parties agreed on the following stipulation of facts:

xxx xxx xxx 1. That the plaintiffs, the defendants and the intervenor are the pro-indiviso coowners of the properties cited and described in the complaint; 2. That six and nine tenth (6-9/10) hectares of the land covered by TCT No. T-1319; approximately twelve (12) hectares of that covered by TCT No. T-1320; and the entire parcel of covered by TCT No. T-1321, are subject of expropriation proceedings instituted by the National Housing Authority (NHA) now pending before this Court in Civil Case Nos. TG-392, TG-396 and TG-417; 3. That based on the evidence presented by the herein parties in the aforecited expropriation cases, the current valuation of the land and the improvements thereon is at P95,132.00 per hectare; 4. That on 16 April 1980, the plaintiffs received a written notice from the defendants and the intervenor that the VOLCANO SECURITIES TRADERS AND AGRI-BUSINESS CORPORATION had offered to buy the latter's share in the properties listed in the complaint subject to the following terms: "1. The selling price shall be net at TWELVE & 50/100 (P12.50) PESOS per square meter, or a total price of NINE MILLION (P9,000,000.00) PESOS for a total area of SEVENTY TWO (72) HECTARES ONLY; "2. A downpayment equivalent to THIRTY (30%) PERCENT of the selling price, or a minimum downpayment of TWO MILLION SEVEN HUNDRED THOUSAND (P2,700,000.00) PESOS; "3. The balance of the purchase price to be payable within THREE (3) YEARS from the date of downpayment in THREE (3) EQUAL ANNUAL PAYMENTS with interest at the legal rate prevailing at the time of payment; "4. The balance shall be covered by a BANK GUARANTEE of payments and shall not be governed by Art. 1250 of the Civil Code." (Cf Annexes 1, 2 and 3, Answer) 5. That in said letters (Annexes 1, 2 and 3, Answer), the plaintiffs were requested: a) To exercise their pre-emptive right to purchase defendants' and intervenor's shares under the above-quoted terms; or b) To agree to a physical partition of the properties; or c) To sell their shares, jointly with the defendants and the intervenor, to the VOLCANO SECURITIES TRADERS AND AGRI-BUSINESS CORPORATION at the price and under the terms aforequoted. 6. That the VOLCANO SECURITIES TRADERS AND AGRI-BUSINESS CORPORATION is ready, willing and able to purchase not only the aliquot shares of the defendants and the intervenor, but also that of the plaintiffs, in and to all the properties subject of this case, for and in consideration of the net amount of TWELVE and 50/100 (P12.50) PESOS per square meter and under the afore-quoted terms; xxx xxx xxx [Annex "C" of the Petition, pp. 1-2, Rollo, pp. 43-44.] The parties laid down their respective positions, as follows: PLAINTIFFS 1. That the subject properties are incapable of physical partition; 2. That the price of P12.50 per square meter is grossly excessive; 3. That they are willing to exercise their pre-emptive right for an amount of not more that P95,132.00 per hectare, which is the fair and reasonable value of said properties; 4. That the statutory period for exercising their pre-emptive right was suspended upon the filing of the complaint;. DEFENDANTS AND INTERVENOR 1. That the reasonable price of the subject properties is P12.50 per square meter; 2. That plaintiffs' right of legal pre-emption had lapsed upon their failure to exercise the same within the period prescribed in Art. 1623 of the Civil Code of the Philippines; 3. That, assuming the soundness of plaintiffs' claim that the price of P12.50 per square meter is grossly excessive, it would be to the best interest of the plaintiffs to sell their shares to the VOLCANO SECURITIES TRADERS AND AGRI-BUSINESS CORPORATION,
Property | Art. 494 to 498 | 30

whose sincerity, capacity and good faith is beyond question, as the same was admitted by the parties herein; 4. That the subject properties consisting approximately 95 hectares may be physically partitioned without difficulty in the manner suggested by them to plaintiffs, and as graphically represented in the subdivision plan, which will be furnished in due course to plaintiffs' counsel. [Annex "C" of the Petition, pp. 2-3; Rollo, pp. 44-45.] Based on the foregoing, respondent trial judge rendered a pre-trial order dated July 9, 1980 granting petitioners a period of ten days from receipt of the subdivision plan to be prepared by a competent geodetic engineer within which to express their approval or disapproval of the said plan, or to submit within the same period, if they so desire, an alternative subdivision plan. On July 16, 1980, counsel for private respondents sent to the counsel for petitioners a letter enclosed with a subdivision plan. On August 4, 1980, petitioners filed their comment to the pre-trial order, contending that the question of reasonable value of the subject properties remains a contentious issue of fact ascertainable only after a full trial. Petitioners likewise insisted on their pre-emptive right to purchase private respondents' shares in the co-ownership after due determination of the reasonable price thereof. Thereafter, counsel for private respondents sent the counsel for petitioners another subdivision plan prepared by a geodetic engineer. Still, no definite communication was sent by petitioners signifying their approval or disapproval to the subdivision plans. In order to settle once and for all the controversy between the parties, private respondents filed a motion dated December 16, 1980 requesting that petitioners be required to formally specify which of the two options under Article 498 of the New Civil Code they wished to avail of: that petitioners' shares in the subject properties be sold to private respondents, at the rate of P12.50 per square meter; or that the subject properties be sold to a third party, VOLCANO LAKEVIEW RESORTS, INC. (claimed to have been erroneously referred to in the pre-trial as VOLCANO SECURITIES TRADERS AND AGRI-BUSINESS CORPORATION) and its proceeds thereof distributed among the parties. Finding merit in the private respondents' request, and for the purpose of determining the applicability of Article 498 of the New Civil Code, respondent trial judge issued an order dated February 4, 1981 which directed the parties to signify whether or not they agree to the scheme of allotting the subject properties to one of the co-owners, at the rate of P12.50 per square meter, or whether or not they know of a third party who is able and willing to buy the subject properties at terms and conditions more favorable than that offered by VOLCANO LAKEVIEW RESORTS, INC. The order contained a series of questions addressed to all the parties, who were thereupon required to submit their answers thereto. Private respondents filed a "Constancia" expressing that they were willing to allot their shares in the subject properties to Socorro Marquez Vda. de Zaballero, at the rate of P12.50 per square meter, and that they did not know of any other party who was willing and able to purchase the subject properties under more favorable conditions than that offered by VOLCANO LAKEVIEW RESORTS, INC. However, instead of submitting their answers to the queries posed by respondent trial judge, petitioners filed a motion for clarification as to the true identity of the third party allegedly willing to purchase the subject properties. On February 26, 1981, respondent trial judge rejected petitioners' motion on the ground that it was irrelevant. Thereupon, on February 27, 1981, petitioners filed a pleading captioned "Compliance and Motion", (1) reiterating the relevance of ascertaining the true identity of the third party buyer, VOLCANO SECURITIES TRADERS AND AGRI-BUSINESS CORPORATION or VOLCANO LAKEVIEW RESORTS, INC., (2) expressing their view that there is actually no bona fide and financially able third party willing to purchase the subject properties at the rate of P12.50 per square meter, and, (3) once again insisting on their pre-emptive right to purchase the shares of private respondents in the co-ownership at a "reasonable price", which is less than that computed excessively by the latter at the rate of P12.50 per square meter. Petitioners therein

prayed that further proceedings be conducted in order to settle the factual issue regarding the reasonable value of the subject properties. cdll On March 16, 1981, respondent trial judge issued an order denying petitioners' motion. The judge ruled that petitioners did not possess a pre-emptive right to purchase private respondents' shares in the co-ownership. Thus, finding that the subject properties were essentially indivisible, respondent trial judge ordered the holding of a public sale of the subject properties pursuant to Article 498 of the New Civil Code. A notice of sale was issued setting the date of public bidding for the subject properties on April 13, 1981. Petitioners then filed a motion for reconsideration from the above order. Respondent trial judge reset the hearing on petitioners' motion for reconsideration to April 6, 1981, and moved the scheduled public sale to April 14, 1981. Without awaiting resolution of their motion for reconsideration, petitioners filed the present petition for certiorari, alleging that the respondent trial judge acted without jurisdiction, or in grave abuse of its discretion amounting to lack of jurisdiction, in issuing his order dated March 16, 1981 which denied petitioners' claim of a pre-emptive right to purchase private respondents' pro-indiviso shares and which, peremptorily, ordered the public sale of the subject properties. On April 8, 1981, this Court issued a temporary restraining order enjoining the sale of the subject properties at public auction. With the comment and reply, the Court considered the issues joined and the case submitted for decision. The Court finds no merit in the present petition. The attack on the validity of respondent trial judge's order dated March 16, 1981 is ultimately premised on petitioners' claim that they had a pre-emptive right to purchase the pro-indiviso shares of their co-owners, private respondents herein, at a "reasonable price". It is this same claim which forms the basis of their complaint for injunction and damages filed against private respondents in the court a quo. This claim is patently without basis. In this jurisdiction, the legal provisions on co-ownership do not grant to any of the owners of a property held in common a pre-emptive right to purchase the pro-indiviso shares of his co-owners. Petitioners' reliance on Article 1620 of the New Civil Code is misplaced. Article 1620 provides: A co-owner of a thing may exercise the right of redemption in case the shares of all the coowners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one. Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thing owned in common [Emphasis supplied]. Article 1620 contemplates of a situation where a co-owner has alienated his pro-indiviso shares to a stranger. By the very nature of the right of "legal redemption", a co-owner's right to redeem is invoked only after the shares of the other co-owners are sold to a third party or stranger to the co-ownership [See Estrada v. Reyes, 33 Phil. 31 (1915)]. But in the case at bar, at the time petitioners filed their complaint for injunction and damages against private respondents, no sale of the latter's pro-indiviso shares to a third party had yet been made. Thus, Article 1620 of the New Civil Code finds no application to the case at bar. There is likewise no merit to petitioners' contention that private respondents had acknowledged the pre-emptive right of petitioners to purchase their shares at a "reasonable price". Although it appears that private respondents had agreed to sell their pro-indiviso shares to petitioners, the offer was made at a fixed rate of P12.50 per square meter [See Pretrial Order dated July 9, 1980, Annex "C" of the Petition; Rollo, pp. 43-45]. It cannot be said that private respondents had agreed, without qualification, to sell their shares to petitioners. Hence, petitioners cannot insist on a right to purchase the shares at a price lower than the selling price of private respondents. Neither do petitioners have the legal right to enjoin private respondents from alienating their pro-indiviso shares to a third party. The rights of a co-owner of a property are clearly specified in Article 493 of the New Civil Code, thus: Article 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 of 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. The law does not prohibit a co-owner from selling, alienating or mortgaging his ideal share in the property held in common. The law merely provides that the alienation or mortgage shall be limited only to the portion of the property which may be allotted to him upon termination of the co-ownership [See Mercado v. Liwanag, G.R. No. L-14429, June 30, 1962, 5 SCRA 472; PNB v. The Honorable Court of Appeals, G.R. No. L-34404, June 25, 1980, 98 SCRA 207; Go Ong v. The Honorable Court of Appeals, G.R. No. 75884, September 24, 1987, 154 SCRA 270,] and, as earlier discussed, that the remaining co-owners have the right to redeem, within a specified period, the shares which may have been sold to the third party. [Articles 1620 and 1623 of the New Civil Code.] Considering the foregoing, the Court holds that respondent trial judge committed no grave abuse of discretion when he denied petitioners' claim of a pre-emptive right to purchase private respondents' pro-indiviso shares. Moreover, there is no legal infirmity tainting respondent trial judge's order for the holding of a public sale of the subject properties pursuant to the provisions of Article 498 of the New Civil Code. After a careful examination of the proceedings before respondent trial judge, the Court finds that respondent trial judge's order was issued in accordance with the laws pertaining to the legal or juridical dissolution of co-ownerships. It must be noted that private respondents, in their answer with counterclaim prayed for, inter alia, the partition of the subject properties in the event that the petitioners refused to purchase their pro-indiviso shares at the rate of P12.50 per square meter. Unlike petitioners' claim of a pre-emptive right to purchase the other co-owners' pro-indiviso shares, private respondents' counterclaim for the partition of the subject properties is recognized by law, specifically Article 494 of the New Civil Code which lays down the general rule that no co-owner is obliged to remain in the co-ownership. Article 494 reads as follows: No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time 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 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. None of the legal exceptions under Article 494 applies to the case at bar. Private respondents' counterclaim for the partition of the subject properties was therefore entirely proper. However, during the pre-trial proceedings, petitioners adopted the position that the subject properties were incapable of physical partition. Initially, private respondents disputed this position. But after petitioners inexplicably refused to abide by the pre-trial order issued by respondent trial judge, and stubbornly insisted on exercising an alleged pre-emptive right to purchase private respondents' shares at a "reasonable price", private respondents relented and adopted petitioner's position that the partition of the subject properties was not economically feasible, and, consequently, invoked the provisions of Article 498 of the New Civil Code [Private respondents' "Motion To Allot Properties To Defendants Or To Sell the Same Pursuant To Article 498 Of The Civil Code", Annex "D" of the Petition, Rollo, pp. 46-49]. Inasmuch as the parties were in agreement as regards the fact that the subject properties should not be partitioned, and private respondents continued to manifest their desire to terminate the co-ownership arrangement between petitioners and themselves, respondent trial judge acted within his jurisdiction when he issued his order dated February 4, 1981 requiring the parties to answer certain questions for the purpose of determining whether or not the legal conditions for the applicability of Article 498 of the New Civil Code were present in the case. Article 498 provides that: Whenever the thing is essentially indivisible and the co-owners cannot agree that it be alloted to one of them who shall indemnify the others, it shall be sold and its proceeds distributed. The sale of the property held in common referred to in the above article is resorted to when (1) the right to partition the property among the co-owners is invoked by any of them but because of the nature of the property, it cannot be subdivided or its subdivision [See Article 495 of the
Property | Art. 494 to 498 | 31

New Civil Code] would prejudice the interests of the co-owners [See Section 5 of Rule 69 of the Revised Rules of Court] and (2) the co-owners are not in agreement as to who among them shall be allotted or assigned the entire property upon reimbursement of the shares of the other co-owners. Petitioners herein did not have justifiable grounds to ignore the queries posed by respondent trial judge and to insist that hearings be conducted in order to ascertain the reasonable price at which they could purchase private respondents' pro-indiviso shares [Petitioners' "Compliance and Motion" dated February 27, 1981, Annex "H" of the Petition; Rollo, pp. 5760]. Since at this point in the case it became reasonably evident to respondent trial judge that the parties could not agree on who among them would be allotted the subject properties, the Court finds that respondent trial judge committed no grave abuse of discretion in ordering the holding of a public sale for the subject properties (with the opening bid pegged at P12.50 per square meter), and the distribution of the proceeds thereof amongst the co-owners, as provided under Article 498 of the New Civil Code. Contrary to petitioners' contention, there was no need for further hearings in the case because it is apparent from the various allegations and admissions of the parties made during the pretrial proceedings, and in their respective pleadings, that the legal requisites for the application of Article 498 of the New Civil Code were present in the case. No factual issues remained to be litigated upon. LLpr WHEREFORE, the present petition is DISMISSED for lack of merit. The temporary restraining order issued by the Court is hereby LIFTED. SO ORDERED.

Property | Art. 494 to 498 | 32