THIRD DIVISION

[G.R. No. 123509. March 14, 2000]

LUCIO ROBLES, EMETERIA ROBLES, ALUDIA ROBLES and EMILIO ROBLES, petitioners, vs. COURT OF
APPEALS, Spouses VIRGILIO SANTOS and BABY RUTH CRUZ, RURAL BANK OF CARDONA, Inc.,
HILARIO ROBLES, ALBERTO PALAD JR. in his capacity as Director of Lands, and JOSE MAULEON in
his capacity as District Land Officer of the Bureau Of Lands, respondents.
DECISION
PANGANIBAN, J.:
To be entitled to the remedy of quieting of title, petitioners must show that they have title to the real property at
issue, and that some deed or proceeding beclouds its validity or efficacy. Buyers of unregistered real property,
especially banks, must exert due diligence in ascertaining the titles of mortgagors and sellers, lest some
innocent parties be prejudiced. Failure to observe such diligence may amount to bad faith and may result in the
nullity of the mortgage, as well as of the subsequent foreclosure and/or auction sale. Unless the co-ownership is
clearly repudiated, a co-owner cannot, by prescription, acquire title to the shares of the other co-owners. Mesm
The Case
Before us is a Petition for Review under Rule 45, assailing the June 15, 1995 Decision and the January 15, 1996
Resolution of the Court of Appeals[1] (CA) in CA-GR CV No. 34213.[2] In its Decision, the CA ruled:[3]
"WHEREFORE, the trial courts June 17, 1991 decision is REVERSED and SET ASIDE, and in lieu thereof a new
one is hereby entered ordering the dismissal of the plaintiffs-appellees['] second amended complaint."
Earlier, the trial court had disposed as follows: Spped jo
"WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. Declaring free patent Title No. IV-1-010021 issued by the Bureau of Lands as null and void;
2. Ordering the defendant spouses Vergel Santos and Ruth Santos to deliver the property subject of this case to
the plaintiff; and
3. Declaring the heirs of Silvino Robles as the absolute owner of the land in controversy."
The January 15, 1996 CA Resolution denied petitioners' Motion for Reconsideration.
The Facts
The present Petition is rooted in a case for quieting of title before the Regional Trial Court of Morong, Rizal, filed
on March 14, 1988,[4] by Petitioners Lucio Robles, Emeteria Robles, Aludia Robles and Emilio Robles. The facts
were narrated by the trial court in this wise:
"There seems to be no dispute that Leon Robles primitively owned the land situated in Kay Taga, Lagundi,
Morong, Rizal with an area of 9,985 square meters. He occupied the same openly and adversely. He also
declared the same in his name for taxation purposes as early as 1916 covered by Tax Declaration No. 17865
(Exh. "I") and paid the corresponding taxes thereon (Exh. "B"). When Leon Robles died, his son Silvino Robles
inherited the land, who took possession of the land, declared it in his name for taxation purposes and paid the
taxes thereon. Rtc-spped
"Upon the death of Silvino Robles in 1942, his widow Maria de la Cruz and his children inherited the property.
They took adverse possession of said property and paid taxes thereon. The task of cultivat[ing] the land was
assigned to plaintiff Lucio Robles who planted trees and other crops. He also built a nipa hut on the land. The
plaintiffs entrusted the payment of the land taxes to their co-heir and half-brother, Hilario Robles.

"In 1962, for unknown reasons, the tax declaration of the parcel of land in the name of Silvino Robles was
canceled and transferred to one Exequiel Ballena (Exh. "19"), father of Andrea Robles who is the wife of
defendant Hilario Robles. Thereafter, Exequiel Ballena secured a loan from the Antipolo Rural Bank, using the
tax declaration as security. Somehow, the tax declaration was transferred [to] the name of Antipolo Rural Bank
(Exh. "17") and later on, was transferred [to] the name of defendant Hilario Robles and his wife (Exh.
"16"). Calrky
"In 1996, Andrea Robles secured a loan from the Cardona Rural Bank, Inc., using the tax declaration as security.
Andrea Robles testified without contradiction that somebody else, not her husband Hilario Robles, signed the
loan papers because Hilario Robles was working in Marinduque at that time as a carpenter.
"For failure to pay the mortgage debt, foreclosure proceedings were had and defendant Rural Bank emerged as
the highest bidder during the auction sale in October 1968.
"The spouses Hilario Robles failed to redeem the property and so the tax declaration was transferred in the
name of defendant Rural Bank. On September 25, 1987, defendant Rural Bank sold the same to the Spouses
Vergel Santos and Ruth Santos. Jo spped
"In September 1987, plaintiff discovered the mortgage and attempted to redeem the property, but was
unsuccessful. On May 10,1988, defendant spouses Santos took possession of the property in question and was
able to secure Free Patent No. IV-1-010021 in their names."[5]
On the other hand, the Court of Appeals summarized the facts of the case as follows:
"The instant action for quieting of title concerns the parcel of land bounded and more particularly described as
follows: Sd-aad-sc
"A parcel of land located at Kay Taga, Lagundi, Morong, Rizal. Bounded [i]n the north by the property of
Venancio Ablay y Simeon Ablay; [i]n the east by the property of Veronica Tulak y Dionisio Ablay; [i]n the south by
the property of Simeon Ablay y Dionisio Ablay; and [i]n the west by the property of Dionisio Ablay y Simeon
Ablay, with an area of 9,985 square meters, more or less, assessed in the year 1935 at P60.00 under Tax
Declaration No. 23219.
"As the heirs of Silvino Robles who, likewise inherited the above-described parcel from Leon Robles, the siblings
Lucio, Emeteria, Aludia and Emilio, all surnamed Robles, commenced the instant suit with the filing of their
March 14, 1988 complaint against Spouses Virgilio and Ruth Santos, as well as the Rural Bank of Cardona, Inc.
Contending that they had been in possession of the land since 1942, the plaintiff alleged, among other matters,
that it was only in September of 1987 that they came to know of the foreclosure of the real estate mortgage
constituted thereon by the half-brother, Hilario Robles, in favor of defendant Rural Bank; and that they likewise
learned upon further inquiry, that the latter had already sold the self-same parcel in favor of the Santos spouses
(pp. 1-3, orig. rec.). Twice amended to implead Hilario Robles (pp. 76-80, orig. rec) and, upon subsequent
discovery of the issuance of Free Patent No. IV-I-010021 in favor of the defendant spouses, the Director of
Lands and the District Land Officer of the Bureau of Lands as parties-defendants (pp. 117-121, orig. rec). The
plaintiffs complaint sought the following reliefs on the theory that the encumbrance of their half-brother,
constituted on the land, as well as all proceedings taken subsequent thereto, were null and void, to wit:
"Wherefore, it is respectfully prayed that (a) a preliminary mandatory injunction be issued forthwith restoring
plaintiffs to their possession of said parcel of land; (b) an order be issued annulling said Free Patent No. IV-I010021 in the name of defendants spouses Vergel Santos and Ruth C. Santos, the deed of sale aforementioned
and any tax declaration which have been issued in the name of defendants; and (c) ordering defendants jointly
and severally, to pay plaintiffs the sum of P10,000.00 as attorneys fees.
"Plaintiffs pray for other relief as [may be] just and equitable under the premises." (pp. 120-121, orig. rec.)

xxxxxxxxx
"With the termination of the pre-trial stage upon the parties-litigants agreement (p. 203, orig. rec.) the trial court
proceeded to try the case on the merits. It thereafter rendered the challenged June 17, 1991 decision upon the
following findings and conclusions:
"The real estate mortgage allegedly executed by Hilario Robles is not valid because his signature in the
mortgage deed was forged. This fact, which remains unrebutted, was admitted by Andrea Robles.
"Inasmuch as the real estate mortgage executed allegedly by Hilario Robles in favor of the defendant Cardona
Rural Bank, Inc. was not valid, it stands to reason that the foreclosure proceedings therein were likewise not
valid. Therefore, the defendant bank did not acquire any right arising out of the foreclosure proceedings.
Consequently, defendant bank could not have transferred any right to the spouses Santos.
"The fact that the land was covered by a free patent will not help the defendant Santos any.
"There can be no question that the subject [property was held] in the concept of owner by Leon Robles since
1916. Likewise, his successor-in-interest, Silvino Robles, his wife Maria de la Cruz and the plaintiffs occupied the
property openly, continuously and exclusively until they were ousted from their possession in 1988 by the
spouses Vergel and Ruth Santos.
"Under the circumstances, therefore, and considering that "open, exclusive and undisputed possession of
alienable public lands for the period prescribed by law (30 years), creates the legal fiction whereby the land,
upon completion of the requisite period, ipso jure and without the need of judicial or other action, ceases to be
public land and becomes private property. Possession of public land x x x which is [of] the character and duration
prescribed by the statute is the equivalent of an express grant from the State, considering the dictum of the
statute itself[:]; "The possessor x x x shall be conclusively presumed to have performed all the conditions
essential to a government grant and shall be entitled to a certificate of title x x x." No proof is admissible to
overcome a conclusive presumption[,] and confirmation proceedings would be a little more than a formality, at
the most limited to ascertaining whether the possession claimed is of the required character and length of time.
Registration thereunder would not confer title, but simply recognize a title already vested. (Cruz v. IAC, G.R. No.
75042, November 29, 1988) The land in question has become private land.
"Consequently, the issuance of [a] free patent title to the Spouses Vergel Santos and Ruth C. Santos is not valid
because at the time the property subject of this case was already private land, the Bureau of Lands having no
jurisdiction to dispose of the same." (pp. 257-259, orig. rec.)"
"Dissatisfied with the foregoing decision, the Santos spouses and the defendant Rural Bank jointly filed their July
6, 1991 Notice of Appeal (p.260, orig. rec.) x x x."[6]
Ruling of the Court of Appeals
In reversing the trial court, the Court of Appeals held that petitioners no longer had any title to the subject
property at the time they instituted the Complaint for quieting of title. The CA ratiocinated as follows: Mis spped
"As correctly urged by the appellants, the plaintiff-appellees no longer had any title to the property at the time of
the institution of the instant complaint. (pp. 25-27, rec.) The latters claim of continuous possession
notwithstanding (pp. 3-5, TSN, July 5, 1990; p. 12, TSN, July 12, 1990), the aforesaid loss of title is amply
evidenced by the subsequent declaration of the subject realty for taxation purposes not only in the name of
Exequiel Ballena (Exhibits "1" and "2", pp. 23-24, orig. rec.) but also in the name of the Rural Bank of Antipolo
(Exhibit 17, vol. II, orig. rec.). On the theory that tax declarations can be evincive of the transfer of a parcel of
land or a portion thereof (Gacos v. Court of Appeals, 212 SCRA 214), the court a quo clearly erred in simply
brushing aside the apparent transfers [which] the land in litigation had undergone. Whether legal or equitable, it
cannot, under the circumstances, be gainsaid that the plaintiff-appellees no longer had any title to speak of when

Exequiel Ballena executed the November 7, 1966 Deed of Absolute Sale transferring the land in favor of the
spouses Hilario and Andrea Robles (Exhibit "3", p. 25, orig. rec.)
"Even on the theory that the plaintiffs-appellees and their half-brother, Hilario Robles, are co-owners of the land
left behind by their common father, Silvino Robles, such title would still be effectively discounted by what could
well serve as the latters acts of repudiation of the co-ownership, i.e., his possession (p. 22, TSN, November 15,
1990) and declaration thereof for taxation purposes in his own name (Exhibit "4", p. 26, orig. rec.). In view of the
plaintiffs-appellees inaction for more than twenty (20) years from the time the subject realty was transferred in
favor of Hilario Robles, the appellants correctly maintain that prescription had already set in. While it may be
readily conceded that an action to quiet title to property in the possession of the plaintiff is imprescriptible
(Almanza vs. Arguelles, 156 SCRA 718; Coronel vs. Intermediate Appellate Court, 155 SCRA 270; CaragayLayno vs. Court of Appeals, 133 SCRA 718; Charon Enterprises vs. Court of Appeals, 124 SCRA 784; Faja vs.
Court of Appeals, 75 SCRA 441; Burton vs. Gabar, 55 SCRA 4999), it equally bears emphasis that a co-owner
or, for that matter, the said co-owner[']s successors-in-interest who occupy the community property other than as
co-owner[s] can claim prescription as against the other co-owners (De Guzman vs. Austria, 148 SCRA 75;
Ramos vs. Ramos, 45 Phil. 362; Africa vs. Africa, 42 Phil. 902; Bargayo vs. Camumot, 40 Phil. 857; De Castro
vs. Echarri, 20 Phil. 23). If only in this latter sense, the appellants correctly argue that the plaintiffs-appellees
have lost their cause of action by prescription.
"Over and above the foregoing considerations, the court a quo gravely erred in invalidating the real estate
mortgage constituted on the land solely on the basis of Andrea Robles testimony that her husbands signature
thereon was forged (p. 257, orig. rec.),
xxx xxx xxx
"In according to the foregoing testimony x x x credibility which, while admittedly unrebutted, was altogether
uncorroborated, the trial court lost sight of the fact that the assailed deed of real estate mortgage (Exhibit "5",
Vol. II, orig. rec.) is a public document, the acknowledgment of which is a prima facie evidence of its due
execution (Chua vs. Court of Appeals, 206 SCRA 339). As such, it retains the presumption of validity in the
absence of a full, clear and convincing evidence to overcome such presumption (Agdeppa vs. Ibe, 220 SCRA
584). Maniks
"The foregoing principles take even more greater [sic] when it is, moreover, borne in mind that Hilario Robles
made the following admissions in his March 8, 1989 answer, viz:
"3. The complaint filed against herein answering defendant has no legal basis considering that as the lawful
owner of the subject real property, defendant Hilario Robles has the right to mortgage the said real property and
could dispose the same in whatever manner he wishe[s] to do." (p. 96, orig. rec.)
"Appropriately underscored by the appellants, the foregoing admission is binding against Hilario [Robles].
Judicial admissions, verbal or written, made by the parties in the pleadings or in the course of the trial or other
proceedings in the same case are conclusive, no evidence being required to prove the same. They cannot be
contradicted unless shown to have been made through [a] palpable mistake or [unless] no such admission was
actually made (Philippine American General Insurance, Inc. vs. Sweet Lines, Inc., 212 SCRA 194).
"It does not help the plaintiffs-appellees cause any that, aside from complying with the requirements for the
foreclosure of the subject real estate mortgage (Exhibits "6", "7", "8" and "10", Volume II[)], the appellant Rural
Bank had not only relented to the mortgagors request to postpone the (Exhibit "g", Vol. II, orig. rec.) but had
likewise granted the latters request for an extension of the redemption period therefor (Exhibits "11" and "12", pp.
35-36, orig. rec.). Without going into minute detail in discussing the Santos spouses rights as purchasers for
value and in good faith (Exhibit "21", Vol. II, orig. rec.), the mortgagor and the plaintiffs-appellees cannot now be
heard to challenge the validity of the sale of the land after admittedly failing to redeem the same within the
extension the appellant Rural Bank granted (pp. 10-11, TSN, November 15, 1990).

"Being dependent on the supposed invalidity of the constitution and foreclosure of the subject real estate
mortgage, the plaintiffs-appellees attack upon x x x Free Patent No. IV-I must necessarily fail. The trial court,
therefore, misread, and ignored the evidence o[n] record, to come up with erroneous conclusion." Manikx
Contending that such ruling was contrary to law and jurisprudence, Petitioners Lucio, Emeteria, Aludia and
Emilio -- all surnamed Robles -- filed this Petition for Review.[7]
The Assigned Error
Petitioners ascribe the following error to the respondent court:
"Respondent Court of Appeals grievously erred in ruling that with the transfers of the tax declaration over the
parcel of land in question from Silvino Robles to Exequiel Ballena, then to the Rural Bank of Antipolo, then to
Respondent Hilario Robles, then to Respondent Rural Bank of Cardona Inc., and then finally to Respondent
Spouses Santos, petitioners, who by themselves and their predecessors in interest have been in open, actual
and adverse possession of said parcel of land since 1916 up to their forced removal therefrom in 1988, have lost
their title to said property by prescription to their half-brother, Respondent Hilario Robles, and then finally, to
Respondent Spouses Santos."[8]
For a better understanding of the case, the above issue will be broken down into three points: first, the nature of
the remedy of quieting of title; second, the validity of the real estate mortgage; and third, the efficacy of the free
patent granted to the Santos spouses. Spped
First Issue: Quieting of Title
Article 476 of the Civil Code provides:
"Whenever there is cloud on title to real property or any interest therein, by reason of any instrument, record,
claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may be prejudicial to said title, an action may be brought to remove
such cloud or to quiet title.
"An action may also be brought to prevent a cloud from being cast upon title to real property or any interest
therein."
Based on the above definition, an action to quiet title is a common-law remedy for the removal of any cloud or
doubt or uncertainty on the title to real property.[9] It is essential for the plaintiff or complainant to have a legal or
an equitable title to or interest in the real property which is the subject matter of the action.[10] Also, the deed,
claim, encumbrance or proceeding that is being alleged as a cloud on plaintiffs title must be shown to be in fact
invalid or inoperative despite its prima facie appearance of validity or legal efficacy.[11]
That there is an instrument or a document which, on its face, is valid and efficacious is clear in the present case.
Petitioners allege that their title as owners and possessors of the disputed property is clouded by the tax
declaration and, subsequently, the free patent thereto granted to Spouses Vergel and Ruth Santos. The more
important question to be resolved, however, is whether the petitioners have the appropriate title that will entitle
them to avail themselves of the remedy of quieting of title. Nexold
Petitioners anchor their claim to the disputed property on their continued and open occupation and possession
as owners thereof. They allege that they inherited it from their father, Silvino, who in turn had inherited it from his
father, Leon. They maintain that after their fathers death, they agreed among themselves that Petitioner Lucio
Robles would be tending and cultivating it for everyone, and that their half-brother Hilario would be paying the
land taxes.
Petitioners insist that they were not aware that from 1962 until 1987, the subject property had been declared in
the names of Exequiel Ballena, the Rural Bank of Antipolo, Hilario Robles, the Rural Bank of Cardona, Inc., and

finally, Spouses Vergel and Ruth Santos. Maintaining that as co-owners of the subject property, they did not
agree to the real estate mortgage constituted on it, petitioners insist that their shares therein should not have
been prejudiced by Hilarios actions. Miso
On the other hand, Private Respondents Vergel and Ruth Santos trace their claim to the subject property to
Exequiel Ballena, who had purportedly sold it to Hilario and Andrea Robles. According to private respondents,
the Robles spouses then mortgaged it to the Rural Bank of Cardona, Inc. -- not as co-owners but as absolute
owners -- in order to secure an agricultural loan worth P2,000. Upon their failure to pay their indebtedness, the
mortgage was foreclosed and the property sold to the bank as the highest bidder. Thereafter, private
respondents purchased the property from the bank. Sppedjo
Undisputed is the fact that the land had previously been occupied by Leon and later by Silvino Robles,
petitioners predecessors-in-interest, as evidenced by the different tax declarations issued in their names. Also
undisputed is the fact that the petitioners continued occupying and possessing the land from the death of Silvino
in 1942 until they were allegedly ousted therefrom in 1988. In 1962, the subject property was declared in the
name of Exequiel for taxation purposes. On September 30, 1965, it was again declared in the same name; on
October 28, 1965, in the name of the Rural Bank of Antipolo; on November 7, 1966, in the name of Hilario and
Andrea; and thereafter, in the name of the Rural Bank of Cardona and, finally, in the name of the Santos
spouses.
Ostensibly, the Court of Appeals failed to consider irregularities in the transactions involving the disputed
property. First, while it was declared in the name of Exequiel in 1962, there was no instrument or deed of
conveyance evidencing its transfer from the heirs of Silvino to him. This fact is important, considering that the
petitioners are alleging continued possession of the property. Second, Exequiel was the father-in-law of Hilario,
to whom petitioners had entrusted the payment of the land taxes. Third, considering that the subject property
had been mortgaged by Exequiel to the Rural Bank of Antipolo, and that it was foreclosed and in fact declared in
the banks name in 1965, why was he able to sell it to Spouses Hilario and Andrea in 1966? Lastly, inasmuch as
it was an unregistered parcel of land, the Rural Bank of Cardona, Inc., did not observe due diligence in
determining Hilarios title thereto. Jospped
The failure to show the indubitable title of Exequiel to the property in question is vital to the resolution of the
present Petition. It was from him that Hilario had allegedly derived his title thereto as owner, an allegation which
thereby enabled him to mortgage it to the Rural Bank of Cardona. The occupation and the possession thereof by
the petitioners and their predecessors-in-interest until 1962 was not disputed, and Exequiels acquisition of the
said property by prescription was not alleged. Thus, the deed of conveyance purportedly evidencing the transfer
of ownership and possession from the heirs of Silvino to Exequiel should have been presented as the best
proof of that transfer. No such document was presented, however. Scmis
Therefore, there is merit to the contention of the petitioners that Hilario mortgaged the disputed property to the
Rural Bank of Cardona in his capacity as a mere co-owner thereof. Clearly, the said transaction did not divest
them of title to the property at the time of the institution of the Complaint for quieting of title.
Contrary to the disquisition of the Court of Appeals, Hilario effected no clear and evident repudiation of the coownership. It is a fundamental principle that a co-owner cannot acquire by prescription the share of the other coowners, absent any clear repudiation of the co-ownership. In order that the title may prescribe in favor of a coowner, the following requisites must concur: (1) the co-owner has performed unequivocal acts of repudiation
amounting to an ouster of the other co-owners; (2) such positive acts of repudiation have been made known to
the other co-owners; and (3) the evidence thereof is clear and convincing.[12]
In the present case, Hilario did not have possession of the subject property; neither did he exclude the
petitioners from the use and the enjoyment thereof, as they had indisputably shared in its fruits.[13] Likewise, his
act of entering into a mortgage contract with the bank cannot be construed to be a repudiation of the co-

ownership. As absolute owner of his undivided interest in the land, he had the right to alienate his share, as he in
fact did.[14] Neither should his payment of land taxes in his name, as agreed upon by the co-owners, be
construed as a repudiation of the co-ownership. The assertion that the declaration of ownership was tantamount
to repudiation was belied by the continued occupation and possession of the disputed property by the petitioners
as owners. Mis sc
Second Issue: Validity of the Real Estate Mortgage
In a real estate mortgage contract, it is essential that the mortgagor be the absolute owner of the property to be
mortgaged; otherwise, the mortgage is void.[15] In the present case, it is apparent that Hilario Robles was not
the absolute owner of the entire subject property; and that the Rural Bank of Cardona, Inc., in not fully
ascertaining his title thereto, failed to observe due diligence and, as such, was a mortgagee in bad faith.
First, the bank was utterly remiss in its duty to establish who the true owners and possessors of the subject
property were. It acted with precipitate haste in approving the Robles spouses loan application, as well as the
real estate mortgage covering the disputed parcel of land.[16] Had it been more circumspect and assiduous, it
would have discovered that the said property was in fact being occupied by the petitioners, who were tending
and cultivating it.
Second, the bank should not have relied solely on the Deed of Sale purportedly showing that the ownership of
the disputed property had been transferred from Exequiel Ballena to the Robles spouses, or that it had
subsequently been declared in the name of Hilario. Because it was dealing with unregistered land, and the
circumstances surrounding the transaction between Hilario and his father-in-law Exequiel were suspicious, the
bank should have exerted more effort to fully determine the title of the Robleses. Rural Bank of Compostela v.
Court of Appeals[17] invalidated a real estate mortgage after a finding that the bank had not been in good faith.
The Court explained: "The rule that persons dealing with registered lands can rely solely on the certificate of title
does not apply to banks." In Tomas v. Tomas, the Court held: Sc-slx
"x x x. Banks, indeed, should exercise more care and prudence in dealing even with registered lands, than
private individuals, for their business is one affected with public interest, keeping in trust money belonging to
their depositors, which they should guard against loss by not committing any act of negligence which amounts to
lack of good faith by which they would be denied the protective mantle of land registration statute, Act 496,
extended only to purchasers for value and in good faith, as well as to mortgagees of the same character and
description. x x x."[18]
Lastly, the Court likewise finds it unusual that, notwithstanding the banks insistence that it had become the
owner of the subject property and had paid the land taxes thereon, the petitioners continued occupying it and
harvesting the fruits therefrom.[19]
Considering that Hilario can be deemed to have mortgaged the disputed property not as absolute owner but only
as a co-owner, he can be adjudged to have disposed to the Rural Bank of Cardona, Inc., only his undivided
share therein. The said bank, being the immediate predecessor of the Santos spouses, was a mortgagee in bad
faith. Thus, justice and equity mandate the entitlement of the Santos spouses, who merely stepped into the
shoes of the bank, only to what legally pertains to the latter -- Hilarios share in the disputed property. Missc
Third Issue: Efficacy of Free Patent Grant
Petitioners repeatedly insist that the disputed property belongs to them by private ownership and, as such, it
could not have been awarded to the Santos spouses by free patent. They allege that they possessed it in the
concept of owners -- openly, peacefully, publicly and continuously as early as 1916 until they were forcibly
ousted therefrom in 1988. They likewise contend that they cultivated it and harvested its fruits. Lucio Robles
testified:
"xxx xxx xxx

Q By the way, why do you know this parcel of land?

A Because before my father died, he showed me all the documents.
Q Before the death of your father, who was the owner of this parcel of land?
A My father, sir. Spped
Q How did your father acquire this parcel of land?
A My father knew that it [was] by inheritance, sir.
Q From whom?
A From his father, Leon Robles, sir.
Q And do you know also [from] whom Leon Robles acquired this land?
A It was inherited from his father, sir.
Q What is the nature of this parcel of land?
A Its an agricultural land, sir,
Q Now, at the time of the death of your father, this land was planted with what crops?
A Mango trees, santol trees, and I was the one who planted those trees, sir.
Q When did you plant those trees?
A Before the death of my father, sir. M-issdaa
Q Now, after the death of your father, who cultivated this parcel of land?
A I took charge of the land after the death of my father, sir.
Q Up to when?
A Up to the present, sir, after this case was already filed."[20]
The preceding claim is an assertion that the subject property is private land. The petitioners do not concede, and
the records do not show, that it was ever an alienable land of the public domain. They allege private ownership
thereof, as evidenced by their testimonies and the tax declarations issued in the names of their predecessors-ininterest. It must be noted that while their claim was not corroborated by other witnesses, it was not controverted
by the other parties, either. Kycalr
Carlos Dolores insisted that the Rural Bank of Cardona, Inc., of which he was the manager, had acquired and
possessed the subject property. He did not, however, give any reason why the petitioners had continued
occupying it, even as he admitted on the stand that he had visited it twice.[21]
In the light of their open, continuous, exclusive and notorious possession and occupation of the land, petitioners
are "deemed to have acquired, by operation of law, a right to a grant, a government grant, without the necessity
of a certificate of title being issued."[22] The land was "segregated from the public domain." Accordingly, the
director of lands had no authority to issue a free patent thereto in favor of another person. Verily, jurisprudence
holds that a free patent covering private land is null and void.[23]
Worth quoting is the disquisition of the Court in Agne v. Director of Lands,[24] in which it held that a riparian
owner presently in possession had a better right over an abandoned river bed than had a registered owner by
virtue of a free patent.

"Under the provisions of Act 2874 pursuant to which the title of private respondents predecessor-in-interest was
issued, the President of the Philippines, or his alter ego, the Director of Lands, has no authority to grant a free
patent for land that has ceased to be a public land and has passed to private ownership and a title so issued is
null and void. The nullity arises, not from fraud or deceit, but from the fact that the land is not under the
jurisdiction of the Bureau of Lands. The jurisdiction of the Director of Lands is limited only to public lands and
does not cover lands publicly owned. The purpose of the Legislature in adopting the former Public Land Act, Act
No. 2874, was and is to limit its application to lands of the public domain, and lands held in private ownership are
not included therein and are not affected in any manner whatsoever thereby. Land held in freehold or fee title, or
of private ownership, constitutes no part of the public domain, and cannot possibly come within the purview of
said act 2874, inasmuch as the subject of such freehold or private land is not embraced in any manner in the title
of the Act and the same is excluded from the provisions of the text thereof. Kyle
"We reiterate that private ownership of land is not affected by the issuance of the free patent over the same land
because the Public Land Act applies only to lands of the public domain. Only public land may be disposed of by
the Director of Lands. Since as early as 1920, the land in dispute was already under the private ownership of
herein petitioners and no longer a part of the lands of the public domain, the same could not have been the
subject matter of a free patent. The patentee and his successors-in-interest acquired no right or title to said land.
Necessarily, Free Patent No. 23263 issued to Herminigildo Agpoon is null and void and the subsequent titles
issued pursuant thereto cannot become final and indefeasible. Hence we ruled in Director of Lands v. Sicsican,
et al. that if at the time the free patents were issued in 1953 the land covered therein were already private
property of another and, therefore, not part of the disposable land of the public domain, then applicants
patentees acquired no right or title to the land.
"Now, a certificate of title fraudulently secured is null and void ab initio if the fraud consisted in misrepresenting
that the land is part of the public domain, although it is not. As earlier stated, the nullity arises, not from the fraud
or deceit, but from the fact that the land is not under the jurisdiction of the Bureau of Lands. Being null and void,
the free patent granted and the subsequent titles produce no legal effect whatsoever. Quod nullum est, nullum
producit effectum.
"A free patent which purports to convey land to which the government did not have any title at the time of its
issuance does not vest any title in the patentee as against the true owner. The Court has previously held that the
Land Registration Act and the Cadastral Act do not give anybody who resorts to the provisions thereof a better
title than what he really and lawfully has. Exsm
xxx xxx xxx
"We have, therefore, to arrive at the unavoidable conclusion that the title of herein petitioners over the land in
dispute is superior to the title of the registered owner which is a total nullity. The long and continued possession
of petitioners under a valid claim of title cannot be defeated by the claim of a registered owner whose title is
defective from the beginning."
The Santos spouses argue that petitioners do not have the requisite personality to question the free patent
granted them, inasmuch as "it is a well-settled rule that actions to nullify free patents should be filed by the Office
of the Solicitor General at the behest of the Director of Lands."[25]
Private respondents reliance on this doctrine is misplaced. Indeed, the Court held in Peltan Development, Inc. v.
Court of Appeals[26] that only the solicitor general could file an action for the cancellation of a free patent. Ruling
that the private respondents, who were applicants for a free patent, were not the proper parties in an action to
cancel the transfer certificates covering the parcel of land that was the subject of their application, the Court
ratiocinated thus: Sl-xm-is
"The Court also holds that private respondents are not the proper parties to initiate the present suit. The
complaint, praying as it did for the cancellation of the transfer certificates of title of petitioners on the ground that

they were derived from a "spurious" OCT No. 4216, assailed in effect the validity of said title. While private
respondents did not pray for the reversion of the land to the government, we agree with the petitioners that the
prayer in the complaint will have the same result of reverting the land to the government under the Regalian
Doctrine. Gabila v. Barinaga[27] ruled that only the government is entitled to this relief. x x x."
Because the cancellation of the free patent as prayed for by the private respondents in Peltan would revert the
property in question to the public domain, the ultimate beneficiary would be the government, which can be
represented by the solicitor general only. Therefore, the real party-in-interest is the government, not the private
respondents.
This ruling does not, however, apply to the present case. While the private respondents in Peltan recognized that
the disputed property was part of the public domain when they applied for free patent, [28] herein petitioners
asserted and proved private ownership over the disputed parcel of land by virtue of their open, continued and
exclusive possession thereof since 1916. Msesm
Neither does the present case call for the reversion of the disputed property to the State. By asking for the
nullification of the free patent granted to the Santos spouses, the petitioners are claiming the property which,
they contend, rightfully belongs to them.
Indeed, the same issue was resolved by this Court in Heirs of Marciano Nagano v. Court of Appeals.[29] In that
case, the trial court dismissed a Complaint seeking the declaration of nullity of an Original Certificate of Title
issued pursuant to a free patent, reasoning that the action should have been instituted by the solicitor general. In
reversing the trial court, the Supreme Court held: Sl-xsc
"It is settled that a Free Patent issued over private land is null and void, and produces no legal effect
whatsoever. Quod nullum est, nullum producit effectum. Moreover, private respondents claim of open, peaceful,
continuous and adverse possession of the 2,250 square meter portion since 1920, and its illegal inclusion in the
Free Patent of petitioners and in their original certificate of title, gave private respondents a cause of action for
quieting of title which is imprescriptible." Scmis
In any event, the Office of the Solicitor General was afforded an opportunity to express its position in these
proceedings. But it manifested that it would not file a memorandum, because "this case involves purely private
interests."[30]
The foregoing considered, we sustain the contention of petitioners that the free patent granted to the Santos
spouses is void. It is apparent that they are claiming ownership of the disputed property on the basis of their
possession thereof in the concept of owners -- openly, peacefully, publicly, continuously and adversely since
1916. Because they and their predecessors-in-interest have occupied, possessed and cultivated it as owners for
more than thirty years,[31] only one conclusion can be drawn -- it has become private land and is therefore
beyond the authority of the director of lands. Misspped
Epilogue
We recognize that both the petitioners and the Santos spouses fell victim to the dubious transaction between
Spouses Hilario and Andrea Robles and the Rural Bank of Cardona, Inc. However, justice and equity mandate
that we declare Petitioners Lucio, Emerita, Aludia and Emilio Robles to have the requisite title essential to their
suit for quieting of title. Considering the circumstances peculiar to this complicated problem, the Court finds this
conclusion the logical and just solution. Sc
The claim that petitioners were guilty of laches in not asserting their rights as owners of the property should be
viewed in the light of the fact that they thought their brother was paying the requisite taxes for them, and more
important, the fact that they continued cultivating it and harvesting and gaining from its fruits.

From another viewpoint, it can even be said that it was the Rural Bank of Cardona, Inc., which was guilty of
laches because, granting that it had acquired the subject property legally, it failed to enforce its rights as owner. It
was oblivious to the petitioners continued occupation, cultivation and possession thereof. Considering that they
had possessed the property in good faith for more than ten years, it can even be argued that they thus regained
it by acquisitive prescription. In any case, laches is a remedy in equity, and considering the circumstances in this
case, the petitioners cannot be held guilty of it. Jurismis
In sum, the real estate mortgage contract covering the disputed property a contract executed between Spouses
Hilario and Andrea on the one hand and the Rural Bank of Cardona, Inc., on the other -- is hereby declared
null and void insofar as it prejudiced the shares of Petitioners Lucio, Emerita, Aludia and Emilio Robles; it is valid
as to Hilario Robles share therein. Consequently, the sale of the subject property to the Santos spouses is valid
insofar as it pertained to his share only. Likewise declared null and void is Free Patent No. IV-1-010021 issued
by the Bureau of Lands covering the subject property. Jjjuris
WHEREFORE, the Petition is hereby GRANTED. The assailed Decision is REVERSED and SET ASIDE. Except
as modified by the last paragraph of this Decision, the trial courts Decision is REINSTATED. No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 72694 December 1, 1987
AURORA DEL BANCO, EVELYN DEL BANCO, FEDERICO TAINO, SOLEDAD TAINO, JOVENCIO TAINO,
SAMSON TAINO, NOE TAINO, SOCORRO TAINO and CLEOFAS TAINO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT (Second Civil Cases Division), ALEJANDRA PANSACOLA, LEONILA
ENCALLADO, VEDASTO ENCALLADO, JOSE YEPES, et al., respondents.

PARAS, J.:
This is a petition for review on certiorari by way of appeal from: (a) the decision of respondent Court of Appeals
(Intermediate Appellate Court) * promulgated on May 17, 1985 in AC-G.R. CV No. 70460, entitled "Alejandra Pansacola,
et al. vs. Domen Villabona del Banco, et al." which reversed and set aside the judgment ** of the trial court; and (b) its
resolution ** of October 15, 1985 in the same case, denying petitioners' motion for reconsideration of the aforementioned
decision and their supplement to motion for reconsideration.
The dispositive portion of the questioned decision (Rollo, p. 97) reads, as follows:
ACCORDINGLY, the decision appealed from is hereby SET ASIDE insofar as it dismisses the complaint,
and another one entered
(1) Declaring plaintiffs-appellants and defendants-appellees, in their respective capacities as described in
par. V of the complaint, as co-owners of the property in dispute, but subject to the four-part proindiviso division already made by said property;
(2) Ordering the cancellation of all certificates of title that may have been issued to any of the parties
hereto; and
(3) Ordering the complete and final partition of the subject property in conformity with law.
For this purpose, this case is hereby remanded to the Court of origin so that a final partition shall be made
in accordance with Sections 2, 3, et. seq., Rule 69 of the Rules of Court.
Let a copy of this decision be furnished to the Register of Deeds for the Province of Quezon.
The facts of the case are taken from the decision of the Appellate Court (Rollo, p. 39) as follows:
In a document executed in the Municipality of San Rafael, Bulacan, on February 11, 1859, three brothers, Benedicto
Pansacola, Jose Pansacola and Manuel Pansacola (known as Fr. Manuel Pena) entered into an agreement which provided,
among others:
(1) That they will purchase from the Spanish Government the lands comprising the Island of Cagbalite which is located
within the boundaries of the Municipality of Mauban, Province of Tayabas (now Quezon) and has an approximate area of
1,600 hectares;
(2) That the lands shall be considered after the purchase as their common property;
(3) That the co-ownership includes Domingo Arce and Baldomera Angulo, minors at that time represented by their father,
Manuel Pansacola (Fr. Manuel Pena) who will contribute for them in the proposed purchase of the Cagbalite Island;

(4) That whatever benefits may be derived from the Island shall be shared equally by the co-owners in the following
proportion: Benedicto Pansacola-1/4 share; Jose Pansacola-1/4 share; and, Domingo Arce and Baldomera Angulo-2/4 shares
which shall be placed under the care of their father, Manuel Pansacola (Fr. Manuel Pena).
On August 14, 1866, co-owners entered into the actual possession and enjoyment of the Island purchased by them from the
Spanish Government. On April 11, 1868 they agreed to modify the terms and conditions of the agreement entered into by
them on February 11, 1859. The new agreement provided for a new sharing and distribution of the lands, comprising the
Island of Cagbalite and whatever benefits may be derived therefrom, as follows:
(a) The first one-fourth (1/4) portion shall belong to Don Benedicto Pansacola;
(b) The second one-fourth (1/4) portion shall belong to Don Jose Pansacola;
(c) The third one-fourth(1/4) portion shall henceforth belong to the children of their deceased brother, Don
Eustaquio Pansacola, namely: Don Mariano Pansacola,- Maria Pansacola and Don Hipolito Pansacola;
(d) The fourth and last one-fourth (1/4) portion shall belong to their nephews and nieces (1) Domingo
Arce, (2) Baldomera Angulo, (3) Marcelina Flores, (4) Francisca Flores, (5) Candelaria dela Cruz, and
(6) Gervasio Pansacola who, being all minors, are still under the care of their brother, Manuel Pansacola
(Fr. Manuel Pena). The latter is the real father of said minors.
About one hundred years later, on November 18, 1968, private respondents brought a special action for partition in the
Court of First Instance of Quezon, under the provisions of Rule 69 of the Rules of Court, including as parties the heirs and
successors-in-interest of the co-owners of the Cagbalite Island in the second contract of co-ownership dated April 11, 1968.
In their answer some of the defendants, petitioners herein, interposed such defenses as prescription, res judicata, exclusive
ownership, estoppel and laches.
After trial on the merits, the trial court rendered a decision *** dated November 6, 1981 dismissing the complaint, the
dispositive portion of which reads as follows:
WHEREFORE, and in the fight of all the foregoing this Court finds and so holds that the Cagbalite Island
has already been partitioned into four (4) parts among the original co-owners or their successors-ininterest.
Judgment is therefore rendered for the defendants against the plaintiffs dismissing the complaint in the
above entitled case.
Considering that the cross claims filed in the above entitled civil case are not compulsory cross claims and
in order that they may be litigated individually the same are hereby dismissed without prejudice.
IT IS SO ORDERED.
The motion for reconsideration filed by the plaintiffs, private respondents herein, was denied by the trial court in an order
dated February 25, 1982 (Record on Appeal, p. 241).
On appeal, respondent Court reversed and set aside the decision of the lower court (Rollo, p. 117). It also denied the motion
for reconsideration and the supplement to motion for reconsideration filed by private respondents, in its resolution dated
October 15, 1983 (Rollo, p. 86).
Instant petition was filed with the Court on December 5, 1985 (Rollo, p. 12). Petitioners Josefina Pansacola, et al. having
filed a separate petition (G.R. No. 72620) on the same subject matter and issues raised in the instant 'petition, the counsel
for private respondents filed a consolidated comment on the separate petitions for review on February 24, 1986 with the
First Division of the Court (Rollo, p. 119). It appears that counsel for petitioners also filed a consolidated reply to the
consolidated comment of private respondents as required by the Second Division of the Court (Rollo, p. 151). However,
petitioners filed a separate reply in the instant case on February 18,1987 (Rollo, p. 168)as required by the Court in a
Resolution of the Second Division dated November 24, 1986 (Rollo, p. 160).

On May 19, 1987, private respondents in the instant petition filed a manifestation praying for the denial of the instant
petition in the same manner that G.R. No. 72620 was denied by the Court in its Resolution dated July 23, 1986 (Rollo, p.
151). Their rejoinder to the reply of petitioners was filed on May 25,1987 (Rollo, p. 179).
On June 8, 1987, the Court resolved to give due course to the petition (Rollo, p. 192). The memorandum of private
respondents was mailed on July 18, 1987 and received in the Court on July 29, 1987 (Rollo, p. 112); the memorandum for
petitioners was mailed on August 18, 1987 and received in the Court on September 7, 1987 (Rollo, p. 177).
The sole issue to be resolved by the Court is the question of whether or not Cagbalite Island is still undivided property
owned in common by the heirs and successors-in-interest of the brothers, Benedicto, Jose and Manuel Pansacola.
The Pansacola brothers purchased the Island in 1859 as common property and agreed on how they would share in the
benefits to be derived from the Island. On April 11, 1868, they modified the terms and conditions of the agreement so as to
include in the co-ownership of the island the children of their deceased brothers Eustaquio and the other children of Manuel
Pansacola (Fr. Manuel Pena) who were committed in the agreement of February 11, 1859. The new agreement provided for
a new sharing proportion and distribution of the Island among the co-owners.
On January 20, 1907, the representative of the heirs of all the original owners of Cagbalite Island entered into an agreement
to partition the Island, supplemented by another agreement dated April 18, 1908. The contract dated January 20, 1907
provides as follows:
Sa Mauban, Tayabas, ika 20 ng Enero ng 1907 caming mga quinatawan ng mga ibang co-herederos na
hindi caharap, sa pulong na ito, sa nasa naming lahat na magcaroon na ng catahimikan ang aming-aming
cabahagui sa Pulong Kagbalete sumacatuid upang mapagtoos ang hangahan ng apat na sapul na
pagcacabahagui nitong manang ito, pagcacausap na naming lahat at maihanay at mapagtalonan ang saysay
ng isa't isa, ay cusa naming pinagcasunduan at pinasiya ang nangasosonod:
Una: Ang malaquing calupaan, alis ang lahat na pacatan ay babahaguin alinsunod sa pagcabaki na
guinawa sa croquis na niyari ng practico agrimensor Don Jose Garcia.
Icalawa: Ang Lomingoy, doon ang tuid na guhit sa ilong ng Pait ay pagaapatin ding sinlaqui ayon sa
dating pagkakabaki.
Icatlo: Cung magawa na ang tunay na piano at icapit na sa lupa, paglalagay ng nadarapat na mojon, ang
masacupan ng guhit, sumacatuid ang caingin at pananim ng isa na nasacupan ng pucto na noocol sa iba, ay
mapapasulit sa dapat mag-ari, na pagbabayaran nito ang nagtanim sa halagang:- bawat caponong niog na
nabunga, P 1.00 'un peso); cung ang bias ay abot sa isang vara, P 0.50; cung bagong tanim o locloc P 0. 50
ang capono.
Icapat: Ang lahat na pacatan ay bacod na pagaapatin at bawat bahagui ay noocol sa isat-isa sa apat na
sanga ng paganacang nagmana.
Icalima: Upang ang naipatanim ng bawat isa ay matama sa canya ng mailagan ang hirap ng loob ng
nagatikha; ay pagtotolong-tolongan ng lahat naiba na mahusay ang dalawang partes na magcalapit na
mapa ayong tumama, hangang may pagluluaran, sa nagsikap at maoyanam, maidaco sa lugar na walang
cailangang pagusapan.
Icanim: Ang casulatang ito, cung mapermahan na na magcacaharap sampong ng mga ibang co-herederos
na notipicahan nitong lahat na pinagcasundoan ay mahahabilin sa camay ng agrimensor, Amadeo
Pansacola, upang canyang mapanusugan ang maipaganap ang dito'y naootos.
Na sa catunayan at catibayan ng lahat na nalalagda dito, sa pag galang at pag ganap dito sa paingacaisahan
ay pumirma sampo ng mga sacsing caharap at catanto ngayong fecha ayon sa itaas.
The contract dated April 18, 1908 provides as follows:

Sa Mauban, ika 18 ng Abril ng 1908, sa pagcacatipon ng lahat na firmantes nito ay pinagcaisahan itong
nangasosonod:
Una Pinagtitibay ang mga pinagcasundoan sa itaas noong 20 ng Enero ng 1907, liban na lamang sa
mga pangcat na una at icapat at tongcol doon pinasiya naming bahaguinin ng halohalo at paparejo ang
calupaan at pacatan.
Ycalawa Sa pagsucat ng agrimensor na si Amadeo at paggawa ng piano at descripcion ay pagbabayaran
siya ng sa bawat isa naoocol sa halagang isang piso sa bawat hectares.
Icatlo Ang counting pucto sa 'Mayanibulong' na may caingin ni G. Isidro Altamarino, asawa ni
Restitute ay tutumbasan naman cay G. Norberto Pansacola sa lugar ng Dapo calapit ng Pinangalo ng
gasing sucat.
Icapat Sa inilahad na piano ay pinasiya nang itoloy at upang maca pagparehistro ang isa't isa ay
pinagcaisahang magcacagastos na parepareho para sa tablang pangmohon at ibat iba pang cagastusan.
Sa catunayan at catibayan ay cami, pumirma. (Record on Appeal, p. 224)
There is nothing in all four agreements that suggests that actual or physical partition of the Island had really been made by
either the original owners or their heirs or successors-in-interest. The agreement entered into in 1859 simply provides for the
sharing of whatever benefits can be derived from the island. The agreement, in fact, states that the Island to be purchased
shall be considered as their common property. In the second agreement entered in 1868 the co-owners agreed not only on
the sharing proportion of the benefits derived from the Island but also on the distribution of the Island each of the brothers
was allocated a 1/4 portion of the Island with the children of the deceased brother, Eustaquio Pansacola allocated a 1/4
portion and the children of Manuel Pansacola (Fr. Manuel Pena) also allocated a 1/4 portion of the Island. With the
distribution agreed upon each of the co-owner is a co-owner of the whole, and in this sense, over the whole he exercises the
right of dominion, but he is at the same time the sole owner of a portion, in the instant case, a 1/4 portion (for each group of
co-owners) of the Island which is truly abstract, because until physical division is effected such portion is merely an Ideal
share, not concretely determined (3 Manresa, Codigo Civil, 3rd Ed., page 486, cited in Lopez vs. Cuaycong, 74 Phil. 601;
De la Cruz vs. Cruz, 32 SCRA 307 [1970]; Felices vs. Colegado, 35 SCRA 173 [1970],; Dultra vs. CFl 70 SCRA 465
[1976]; Gatchalian vs. Arlegui, 75 SCRA 234 [1977].)
In the agreement of January 20, 1907, the heirs that were represented agreed on how the Island was to be partitioned. The
agreement of April 18, 1908 which supplements that of January 20, 1907 reveals that as of the signing of the 1908
agreement no actual partition of the Island had as yet been done. The second and fourth paragraphs of the agreement speaks
of a survey yet to be conducted by a certain Amadeo and a plan and description yet to be made. Virgilio Pansacola, a son of
the surveyor named Amadeo who is referred to in the contract dated April 18, 1908 as the surveyor to whom the task of
surveying Cagbalite Island pursuant to said agreement was entrusted, however, testified that said contracts were never
implemented because nobody defrayed the expenses for surveying the same (Record on Appeal, p. 225).
Petitioners invoke res judicata to bar this action for partition in view of the decision of the Court in G.R. No.
21033,"Domingo Arce vs. Maria Villabona, et al.," 21034, "Domingo Arce vs. Francisco Pansacola, et al.," and
21035,"Domingo Arce vs. Emiliano Pansacola, et al." promulgated on February 20, 1958 (Rollo, p. 141) and Brief for
Defendants-Appellees, p. 87 Appendix 1), wherein the Court said:
Considering the facts that he waited for a period of nearly 23 years after the return from his deportation
before taking any positive action to recover his pretended right in the property in question, gives great
credit, in our opinion, to the declaration of the witnesses for the defense (a) that the original parcel of land
was partitioned as they claim, and (b) that the plaintiff had disposed of all the right and interest which he
had in the portion which had been given to him.

The issue in the aforementioned case which were tried together is not whether there has already been a partition of the
Cagbalite Island. The actions were brought by the plaintiff to recover possession of three distinct parcels of land, together
with damages. In fact the word partition was used in the metaphysical or Ideal sense (not in its physical sense).
Commenting on the above ruling of the Court in connection with the instant case, the respondent Court said:
Concededly, the Supreme Court decision in G.R. Nos. 21033-35 (Exh. X) did use or employ the word
"partition." A careful reading of the said decision will, however, reveal, and we so hold, that the
employment or use of the word "partition" therein was made not in its technical and legal meaning or
sense adverted to above, but, rather in its Ideal, abstract and spiritual sense, this is (at) once evident from
the bare statement in said decision to the effect that the property was divided into four parts, without any
reference to the specific parts of the property that may have been adjudicated to each owner. There being
no such reference in the decision and in the judgment affirmed therein to the adjudication of specific and
definite portions of the property to each co-owner, there is a clear and logical inference that there was
indeed no adjudication of specific and definite portions of the property made to each co-owner.
It must be admitted that the word "partition" is not infrequently used both in popular and technical parlance (Fule vs. Fule,
52 Phil. 750 [1929]). For purposes of the aforementioned case, evidently the Court used the word "partition" to refer to the
distribution of the Cagbalite Island agreed upon by the original owners and in the later agreements, by the heirs and their
subsequent successors-in-interest. There need not be a physical partition; a distribution of the Island even in a state of
indiviso or was sufficient in order that a co-owner may validly sell his portion of the co-owned property. The sale of part of
a particular lot thus co-owned by one co-owner was within his right pro-indiviso is valid in its entirety (Pamplona vs.
Moreto, 96 SCRA 775 [1980]) but he may not convey a physical portion with boundaries of the land owned in common
(Mercado vs. Liwanag, 5 SCRA 472 [1962]). Definitely, there was no physical partition of the Island in 1859. Neither could
there have been one in 1894 because the manner of subdividing the Island was only provided for in the later agreements
entered into by the heirs in 1907 and 1908. There was a distribution of the Island in 1868 as agreed upon by the original coowners in their agreement of April 11, 1868. Any agreement entered into by the parties in 1894 could be no more than
another agreement as to the distribution of the Island among the heirs of the original co-owners and the preparation of a
tentative plan by a practical surveyor, a Mr. Jose Garcia, mentioned in the first paragraph of the 1907 agreement,
preparatory to the preparation of the real plan to be prepared by the surveyor Amadeo, mentioned in the agreement of April
18, 1908.
What is important in the Court's ruling in the three aforementioned cases is that, the fact that there was a distribution of the
Island among the co-owners made the sale of Domingo Arce of the portion allocated to him though pro-indiviso, valid. He
thus disposed of all his rights and interests in the portion given to him.
It is not disputed that some of the private respondents and some of the petitioners at the time the action for partition was
filed in the trial court have been in actual possession and enjoyment of several portions of the property in question (Rollo, p.
148). This does not provide any proof that the Island in question has already been actually partitioned and co-ownership
terminated. A co-owner cannot, without the conformity of the other co-owners or a judicial decree of partition issued
pursuant to the provision of Rule 69 of the Rules of Court (Rule 71 of the Old Rules), adjudicate to himself in fee simple a
determinate portion of the lot owned in common, as his share therein, to the exclusion of other co-owners (Santos, Jr. vs.
Buenconsejo, 14 SCRA 407 [1965]; Carvajal vs. Court of Appeals, 112 SCRA 237 [1982]). It is a basic principle in the law
of co-ownership both under the present Civil Code as in the Code of 1889 that no individual co- owner can claim any
definite portion thereof (Diversified Credit Corporation vs. Rosada 26 SCRA 470 [1968]). lt is therefore of no moment that
some of the co-owners have succeeded in securing cadastral titles in their names to some portions of the Island occupied by
them (Rollo, p. 10).
It is not enough that the co-owners agree to subdivide the property. They must have a subdivision plan drawn in accordance
with which they take actual and exclusive possession of their respective portions in the plan and titles issued to each of them
accordingly (Caro vs. Court of Appeals, 113 SCRA 10 [1982]). The mechanics of actual partition should follow the
procedure laid down in Rule 69 of the Rules of Court. Maganon vs. Montejo, 146 SCRA 282 [1986]).

Neither can such actual possession and enjoyment of some portions of the Island by some of the petitioners herein be
considered a repudiation of the co-ownership. It is undisputed that the Cagbalite Island was purchased by the original coowners as a common property and it has not been proven that the Island had been partitioned among them or among their
heirs. While there is co-ownership, a co-owner's possession of his share is co-possession which is linked to the possession of
the other co-owners (Gatchalian vs. Arlegui, 75 SCRA 234 [1977]).
Furthermore, no prescription shall run in favor of a co-owner against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership (Valdez vs. Olonga, 51 SCRA 71 [1973], Tero vs. Tero, 131 SCRA 100 [1984]). Coowners cannot acquire by prescription the share of the other co-owners, absent a clear repudiation of the co-ownership
clearly communicated to the other co-owners (Mariano vs. De Vega, 148 SCRA 342 [1987]).
An action for partition does not prescribe. Article 403 of the Old Civil Code, now Article 497, provides that the assignees of
the co-owners may take part in the partition of the common property, and Article 400 of the Old Code, now Article 494
provides that each co-owner may demand at any time the partition of the common property, a provision which implies that
the action to demand partition is imprescriptible or cannot be barred by laches (Budlong vs. Pondoc, 79 SCRA 24 [1977]).
An action for partition does not lie except when the co-ownership is properly repudiated by the co- owner (Jardin vs.
Hollasco, 117 SCRA 532 [1982]).
On July 23, 1986, the Court through its Second Division denied the petition for the review of G.R. No. 72620, the petition
for review on certiorari separately filed by Josefina Pansacola (Rollo, p. 151).
PREMISES CONSIDERED, the instant petition is likewise DENIED for lack of merit.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4656

November 18, 1912

RICARDO PARDELL Y CRUZ and

VICENTA ORTIZ Y FELIN DE PARDELL, plaintiffs-appellees,
vs.
GASPAR DE BARTOLOME Y ESCRIBANO and
MATILDE ORTIZ Y FELIN DE BARTOLOME, defendants-appellants.
Gaspar de Bartolome, in his own behalf.
B. Gimenez Zoboli, for appellees.

TORRES, J.:
This is an appeal by bill of exceptions, from the judgment of October 5, 1907, whereby the Honorable Dionisio Chanco,
judge, absolved the defendants from the complaint, and the plaintiff from a counterclaim, without special finding as to costs.
Counsel for the spouses Ricardo y Cruz and Vicente Ortiz y Felin de Pardell, the first of whom, absent in Spain by reason of
his employment, conferred upon the second sufficient and ample powers to appear before the courts of justice, on June 8,
1905, in his written complaint, alleged that the plaintiff, Vicente Ortiz, and the defendant, Matilde Ortiz, are the duly
recognized natural daughters of the spouses Miguel Ortiz and Calixta Felin y Paula who died in Vigan, Ilocos Sur, in 1875
and 1882, respectively; that Calixta Felin, prior to her death, executed on August 17, 1876, a nuncupative will in Vigan

whereby she made her four children, named Manuel, Francisca, Vicenta, and Matilde, surnamed Ortiz y Felin, her sole and
universal heirs of all her property; that, of the persons enumerated, Manuel died before his mother and Francisca a few years
after her death, leaving no heirs by force of law, and therefore the only existing heirs of the said testatrix are the plaintiff
Vicenta Ortiz and the defendant Matilde Ortiz; that, aside from some personal property and jewelry already divided among
the heirs, the testatrix possessed, at the time of the execution of her will, and left at her death the real properties which, with
their respective cash values, are as follows:
1. A house of strong material, with the lot on which it is built, situated on Escolta Street, Vigan, and
valued at
2. A house of mixed material, with the lot on which it stands, at No. 88 Washington Street, Vigan;
valued at
3. A lot on Magallanes Street, Vigan; valued at

P6,000.00
1,500.00
100.00

4. A parcel of rice land, situated in the barrio of San Julian, Vigan; valued at

60.00

5. A parcel of rice land in the pueblo of Santa Lucia; valued at

86.00

6. Three parcels of land in the pueblo of Candon; valued at

150.00
Total

7,896.00

That, on or about the first months of the year 1888, the defendants, without judicial authorization, nor friendly or
extrajudicial agreement, took upon themselves the administration and enjoyment of the said properties and collected the
rents, fruits, and products thereof, to the serious detriment of the plaintiffs' interest; that, notwithstanding the different and
repeated demands extrajudicially made upon Matilde Ortiz to divide the aforementioned properties with the plaintiff Vicente
and to deliver to the latter the one-half thereof, together with one-half of the fruits and rents collected therefrom, the said
defendant and her husband, the self-styled administrator of the properties mentioned, had been delaying the partition and
delivery of the said properties by means of unkept promises and other excuses; and that the plaintiffs, on account of the
extraordinary delay in the delivery of one-half of said properties, or their value in cash, as the case might be, had suffered
losses and damages in the sum of P8,000. Said counsel for the plaintiffs therefore asked that judgment be rendered by
sentencing the defendants, Gaspar de Bartolome, and Matilde Ortiz Felin de Bartolome, to restore and deliver to the
plaintiffs one-half of the total value in cash, according to appraisal, of the undivided property specified, which one-half
amounted approximately to P3,948, or if deemed proper, to recognize the plaintiff Vicenta Ortiz to be vested with the full
and absolute right of ownership to the said undivided one-half of the properties in question, as universal testamentary heir
thereof together with the defendant Matilde Ortiz, to indemnify the plaintiffs in the sum of P8,000, for losses and damages,
and to pay the costs.
Counsel for the defendants, in his answer denied the facts alleged in paragraphs 1, 4, 6, 7, and 8 thereof, inasmuch as, upon
the death of the litigating sister's brother Manuel, their mother, who was still living, was his heir by force of law, and the
defendants had never refused to give to the plaintiff Vicente Ortiz her share of the said properties; and stated that he
admitted the facts alleged in paragraph 2, provided it be understood, however, that the surname of the defendant's mother
was Felin, and not Feliu, and that Miguel Ortiz died in Spain, and not in Vigan; that he also admitted paragraph 3 of the
complaint, with the difference that the said surname should be Felin, and likewise paragraph 5, except the part thereof
relating to the personal property and the jewelry, since the latter had not yet been divided; that the said jewelry was in the
possession of the plaintiffs and consisted of: one Lozada gold chronometer watch with a chain in the form of a bridle curb
and a watch charm consisting of the engraving of a postage stamp on a stone mounted in gold and bearing the initials M. O.,
a pair of cuff buttons made of gold coins, four small gold buttons, two finger rings, another with the initials M. O., and a
gold bracelet; and that the defendants were willing to deliver to the plaintiffs, in conformity with their petitions, one-half of
the total value in cash, according to appraisement, of the undivided real properties specified in paragraph 5, which half
amounted to P3,948.
In a special defense said counsel alleged that the defendants had never refused to divide the said property and had in fact
several years before solicited the partition of the same; that, from 1886 to 1901, inclusive, there was collected from the

property on Calle Escolta the sum of 288 pesos, besides a few other small amounts derived from other sources, which were
delivered to the plaintiffs with other larger amounts, in 1891, and from the property on Calle Washington, called La Quinta,
990.95 pesos, which proceeds, added together, made a total of 1,278.95 pesos, saving error or omission; that, between the
years abovementioned, Escolta, and that on Calle Washington, La Quinta, 376.33, which made a total of 1,141.71, saving
error or omission; that, in 1897, the work of reconstruction was begun of the house on Calle Escolta, which been destroyed
by an earthquake, which work was not finished until 1903 and required an expenditure on the part of the defendant Matilde
Ortiz, of 5,091.52 pesos; that all the collections made up to August 1, 1905, including the rent from the stores, amounted to
only P3,654.15, and the expenses, to P6,252.32, there being, consequently, a balance of P2,598.17, which divided between
the sisters, the plaintiff and the defendant, would make the latter's share P1,299.08; that, as shown by the papers kept by the
plaintiffs, in the year 1891 the defendant Bartolome presented to the plaintiffs a statement in settlements of accounts, and
delivered to the person duly authorized by the latter for the purpose, the sum of P2,606.29, which the said settlement
showed was owing his principals, from various sources; that, the defendant Bartolome having been the administrator of the
undivided property claimed by the plaintiffs, the latter were owing the former legal remuneration of the percentage allowed
by law for administration; and that the defendants were willing to pay the sum of P3,948, one-half of the total value of the
said properties, deducting therefrom the amount found to be owing them by the plaintiffs, and asked that judgment be
rendered in their favor to enable them to recover from the latter that amount, together with the costs and expenses of the
suit.
The defendants, in their counter claim, repeated each and all of the allegations contained in each of the paragraphs of
section 10 of their answer; that the plaintiffs were obliged to pay to the administrator of the said property the remuneration
allowed him by law; that, as the revenues collected by the defendants amounted to no more than P3,654.15 and the
expenditures incurred by them, to P6,252.32, it followed that the plaintiffs owed the defendants P1,299.08, that is one-half
of the difference between the amount collected from and that extended on the properties, and asked that judgment be
therefore rendered in their behalf to enable them to collect this sum from the plaintiffs, Ricardo Pardell and Vicenta Ortiz,
with legal interest thereon from December 7, 1904, the date when the accounts were rendered, together with the sums to
which the defendant Bartolome was entitled for the administration of the undivided properties in question.
By a written motion of August 21, 1905, counsel for the plaintiffs requested permission to amend the complaint by inserting
immediately after the words "or respective appraisal," fifth line of paragraph 5, the phrase "in cash in accordance with the
assessed value," and likewise further to amend the same, in paragraph 6 thereof, by substituting the following word in lieu
of the petition for the remedy sought: "By reason of all the foregoing, I beg the court to be pleased to render the judgment
by sentencing the defendants, Gaspar de Bartolome and Matilde Ortiz Felin de Bartolome, to restore and deliver to the
plaintiffs an exact one-half of the total vale of the undivided properties described in the complaint, such value to be
ascertained by the expert appraisal of two competent persons, one of whom shall be appointed by the plaintiffs and the other
by the defendants, and, in case of disagreement between these two appointees such value shall be determined by a third
expert appraiser appointed by the court, or, in a proper case, by the price offered at public auction; or, in lieu thereof, it is
requested that the court recognize the plaintiff, Vicenta Ortiz, to be vested with a full and absolute right to an undivided onehalf of the said properties; furthermore, it is prayed that the plaintiffs be awarded an indemnity of P8,000 for losses and
damages, and the costs." Notwithstanding the opposition of the defendants, the said amendment was admitted by the court
and counsel for the defendants were allowed to a period of three days within which to present a new answer. An exception
was taken to this ruling.
The proper proceedings were had with reference to the valuation of the properties concerned in the division sought and
incidental issues were raised relative to the partition of some of them and their award to one or the other of the parties. Due
consideration was taken of the averments and statements of both parties who agreed between themselves, before the court,
that any of them might at any time acquire, at the valuation fixed by the expert judicial appraiser, any of the properties in
question, there being none in existence excluded by the litigants. The court, therefore, by order of December 28, 1905, ruled
that the plaintiffs were entitled to acquire, at the valuation determined by the said expert appraiser, the building known as La
Quinta, the lot on which it stands and the warehouses and other improvements comprised within the inclosed land, and the

seeds lands situated in the pueblos of Vigan and Santa Lucia; and that the defendants were likewise entitled to acquire the
house on Calle Escolta, the lot on Calle Magallanes, and the three parcels of land situated in the pueblo of Candon.
After this partition had been made counsel for the defendants, by a writing of March 8, 1906, set forth: That, having
petitioned for the appraisement of the properties in question for the purpose of their partition, it was not to be understood
that he desired from the exception duly entered to the ruling made in the matter of the amendment to the complaint; that the
properties retained by the defendants were valued at P9,310, and those retained by the plaintiffs, at P2,885, one-half of
which amounts each party had to deliver to the other, as they were pro indivisoproperties; that, therefore, the defendants had
to pay the plaintiffs the sum of P3,212.50, after deducting the amount which the plaintiffs were obliged to deliver to the
defendants, as one-half of the price of the properties retained by the former; that, notwithstanding that the amount of the
counterclaim for the expenses incurred in the reconstruction of the pro indiviso property should be deducted from the sum
which the defendants had to pay the plaintiffs, the former, for the purpose of bringing the matter of the partition to a close,
would deliver to the latter, immediately upon the signing of the instrument of purchase and sale, the sum of P3,212.50,
which was one-half of the value of the properties alloted to the defendants; such delivery, however, was not to be
understood as a renouncement of the said counterclaim, but only as a means for the final termination of the pro
indiviso status of the property.
The case having been heard, the court on October 5, 1907, rendered judgment holding that the revenues and the expenses
were compensated by the residence enjoyed by the defendant party, that no losses or damages were either caused or
suffered, nor likewise any other expense besides those aforementioned, and absolved the defendants from the complaint and
the plaintiffs from the counterclaim, with no special finding as to costs. An exception was taken to this judgment by counsel
for the defendants who moved for a new trial on the grounds that the evidence presented did not warrant the judgment
rendered and that the latter was contrary to law. This motion was denied, exception whereto was taken by said counsel, who
filed the proper bill of exceptions, and the same was approved and forwarded to the clerk of this court, with a transcript of
the evidence.
Both of the litigating sisters assented to a partition by halves of the property left in her will by their mother at her death; in
fact, during the course of this suit, proceedings were had, in accordance with the agreement made, for the division between
them of the said hereditary property of common ownership, which division was recognized and approved in the findings of
the trial court, as shown by the judgment appealed from.
The issues raised by the parties, aside from said division made during the trial, and which have been submitted to this court
for decision, concern: (1) The indemnity claimed for losses and damages, which the plaintiffs allege amount to P8,000, in
addition to the rents which should have been derived from the house on Calle Escolta, Vigan; (2) the payment by the
plaintiffs to the defendants of the sum of P1,299.08, demanded by way of counterclaim, together with legal interest thereon
from December 7, 1904; (3) the payment to the husband of the defendant Matilde Ortiz, of a percentage claimed to be due
him as the administrator of the property of common ownership; (4) the division of certain jewelry in the possession of the
plaintiff Vicenta Ortiz; and (5) the petition that the amendment be held to have been improperly admitted, which was made
by the plaintiffs in their written motion of August 21, 1905, against the opposition of the defendants, through which
admission the latter were obliged to pay the former P910.50.lawphil.net
Before entering upon an explanation of the propriety or impropriety of the claims made by both parties, it is indispensable to
state that the trial judge, in absolving the defendants from the complaint, held that they had not caused losses and damages
to the plaintiffs, and that the revenues and the expenses were compensated, in view of the fact that the defendants had been
living for several years in the Calle Escolta house, which was pro indivisoproperty of joint ownership.
By this finding absolving the defendants from the complaint, and which was acquiesced in by the plaintiffs who made no
appeal therefrom, the first issue has been decided which was raised by the plaintiffs, concerning the indemnity for losses
and damages, wherein are comprised the rents which should have been obtained from the upper story of the said house
during the time it was occupied by the defendants, Matilde Ortiz and her husband, Gaspar de Bartolome.

Notwithstanding the acquiescence on the part of the plaintiffs, assenting to the said finding whereby the defendants were
absolved from the complaint, yet, as such absolution is based on the compensation established in the judgment of the trial
court, between the amounts which each party is entitled to claim from the other, it is imperative to determine whether the
defendant Matilde Ortiz, as coowner of the house on Calle Escolta, was entitled, with her husband, to reside therein, without
paying to her coowner, Vicenta Ortiz, who, during the greater part of the time, lived with her husband abroad, one-half of
the rents which the upper story would have produced, had it been rented to a stranger.
Article 394 of the Civil Code prescribes:
Each coowner may use the things owned in common, provided he uses them in accordance with their object and in
such manner as not to injure the interests of the community nor prevent the coowners from utilizing them according
to their rights.
Matilde Ortiz and her husband occupied the upper story, designed for use as a dwelling, in the house of joint ownership; but
the record shows no proof that, by so doing, the said Matilde occasioned any detriment to the interest of the community
property, nor that she prevented her sister Vicenta from utilizing the said upper story according to her rights. It is to be noted
that the stores of the lower floor were rented and accounting of the rents was duly made to the plaintiffs.
Each coowner of realty held pro indiviso exercises his rights over the whole property and may use and enjoy the same with
no other limitation than that he shall not injure the interests of his coowners, for the reason that, until a division be made, the
respective part of each holder can not be determined and every one of the coowners exercises, together with his other
coparticipants, joint ownership over the pro indiviso property, in addition to his use and enjoyment of the same.
As the hereditary properties of the joint ownership of the two sisters, Vicenta Ortiz, plaintiff, and Matilde Ortiz, defendant,
were situated in the Province of Ilocos Sur, and were in the care of the last named, assisted by her husband, while the
plaintiff Vicenta with her husband was residing outside of the said province the greater part of the time between 1885 and
1905, when she left these Islands for Spain, it is not at all strange that delays and difficulties should have attended the efforts
made to collect the rents and proceeds from the property held in common and to obtain a partition of the latter, especially
during several years when, owing to the insurrection, the country was in a turmoil; and for this reason, aside from that
founded on the right of coownership of the defendants, who took upon themselves the administration and care of the
properties of joint tenancy for purposes of their preservation and improvement, these latter are not obliged to pay to the
plaintiff Vicenta one-half of the rents which might have been derived from the upper of the story of the said house on Calle
Escolta, and, much less, because one of the living rooms and the storeroom thereof were used for the storage of some
belongings and effects of common ownership between the litigants. The defendant Matilde, therefore, in occupying with her
husband the upper floor of the said house, did not injure the interests of her coowner, her sister Vicenta, nor did she prevent
the latter from living therein, but merely exercised a legitimate right pertaining to her as coowner of the property.
Notwithstanding the above statements relative to the joint-ownership rights which entitled the defendants to live in the
upper story of the said house, yet in view of the fact that the record shows it to have been proved that the defendant
Matilde's husband, Gaspar de Bartolome, occupied for four years a room or a part of the lower floor of the same house on
Calle Escolta, using it as an office for the justice of the peace, a position which he held in the capital of that province, strict
justice, requires that he pay his sister-in-law, the plaintiff, one half of the monthly rent which the said quarters could have
produced, had they been leased to another person. The amount of such monthly rental is fixed at P16 in accordance with the
evidence shown in the record. This conclusion as to Bartolome's liability results from the fact that, even as the husband of
the defendant coowner of the property, he had no right to occupy and use gratuitously the said part of the lower floor of the
house in question, where he lived with his wife, to the detriment of the plaintiff Vicenta who did not receive one-half of the
rent which those quarters could and should have produced, had they been occupied by a stranger, in the same manner that
rent was obtained from the rooms on the lower floor that were used as stores. Therefore, the defendant Bartolome must pay
to the plaintiff Vicenta P384, that is, one-half of P768, the total amount of the rents which should have been obtained during
four years from the quarters occupied as an office by the justice of the peace of Vigan.

With respect to the second question submitted for decision to this court, relative to the payment of the sum demanded as a
counterclaim, it was admitted and proved in the present case that, as a result of a serious earthquake on August 15, 1897, the
said house on Calle Escolta was left in ruins and uninhabitable, and that, for its reconstruction or repair, the defendants had
to expend the sum of P6,252.32. This expenditure, notwithstanding that it was impugned, during the trial, by the plaintiffs,
was duly proved by the evidence presented by the defendants. Evidence, unsuccessfully rebutted, was also introduced which
proved that the rents produced by all the rural and urban properties of common ownership amounted, up to August 1, 1905,
to the sum of P3,654.15 which, being applied toward the cost of the repair work on the said house, leaves a balance of
P2,598.17, the amount actually advanced by the defendants, for the rents collected by them were not sufficient for the
termination of all the work undertaken on the said building, necessary for its complete repair and to replace it in a habitable
condition. It is therefore lawful and just that the plaintiff Vicenta Ortiz, who was willing to sell to her sister Matilde for
P1,500, her share in the house in question, when it was in a ruinous state, should pay the defendants one-half of the amount
expanded in the said repair work, since the building after reconstruction was worth P9,000, according to expert appraisal.
Consequently, the counterclaim made by the defendants for the payment to them of the sum of P1,299.08, is a proper
demand, though from this sum a reduction must be made of P384, the amount of one-half of the rents which should have
been collected for the use of the quarters occupied by the justice of the peace, the payment of which is incumbent upon the
husband of the defendant Matilde, as aforesaid, and the balance remaining, P915.08, is the amount which the plaintiff
Vicenta must pay to the defendants.
The defendants claim to be entitled to the collection of legal interest on the amount of the counterclaim, from December 7,
1904. This contention can not be sustained, inasmuch as, until this suit is finally decided, it could not be known whether the
plaintiffs would or would not be obliged to pay the sum whatever in reimbursement of expenses incurred by the plaintiffs in
the repair work on the said house on Calle Escolta, whether or not the defendants, in turn, were entitled to collect any such
amount, and, finally, what the net sum would be which the plaintiff's might have to pay as reimbursement for one-half of the
expenditure made by the defendants. Until final disposal of the case, no such net sum can be determined, nor until then can
the debtor be deemed to be in arrears. In order that there be an obligation to pay legal interest in connection with a matter at
issue between the parties, it must be declared in a judicial decision from what date the interest will be due on the principal
concerned in the suit. This rule has been established by the decisions of the supreme court of Spain, in reference to articles
1108, 1109, and 1110 of the Civil Code, reference on April 24, 1867, November 19, 1869, and February 22, 1901.
With regard to the percentage, as remuneration claimed by the husband of the defendant Matilde for his administration of
the property of common ownership, inasmuch as no stipulation whatever was made in the matter by and between him and
his sister-in-law, the said defendant, the claimant is not entitled to the payment of any remuneration whatsoever. Of his own
accord and as an officious manager, he administered the said pro indiviso property, one-half of which belonged to his wife
who held it in joint tenancy, with his sister-in-law, and the law does not allow him any compensation as such voluntary
administrator. He is merely entitled to a reimbursement for such actual and necessary expenditures as he may have made on
the undivided properties and an indemnity for the damages he may have suffered while acting in that capacity, since at all
events it was his duty to care for and preserve the said property, half of which belonged to his wife; and in exchange for the
trouble occasioned him by the administration of his sister-in-law's half of the said property, he with his wife resided in the
upper story of the house aforementioned, without payment of one-half of the rents said quarters might have produced had
they been leased to another person.
With respect to the division of certain jewelry, petitioned for by the defendants and appellants only in their brief in this
appeal, the record of the proceedings in the lower court does not show that the allegation made by the plaintiff Vicenta is not
true, to the effect that the deceased mother of the litigant sisters disposed of this jewelry during her lifetime, because, had
she not done so, the will made by the said deceased would have been exhibited in which the said jewelry would have been
mentioned, at least it would have been proved that the articles in question came into the possession of the plaintiff Vicenta
without the expressed desire and the consent of the deceased mother of the said sisters, for the gift of this jewelry was
previously assailed in the courts, without success; therefore, and in view of its inconsiderable value, there is no reason for
holding that the said gift was not made.

As regards the collection of the sum of P910.50, which is the difference between the assessed value of the undivided real
properties and the price of the same as determined by the judicial expert appraiser, it is shown by the record that the ruling
of the trial judge admitting the amendment to the original complaint, is in accord with the law and principles of justice, for
the reason that any of the coowners of a pro indiviso property, subject to division or sale, is entitled to petition for its
valuation by competent expert appraisers. Such valuation is not prejudicial to any of the joint owners, but is beneficial to
their interests, considering that, as a general rule, the assessed value of a building or a parcel of realty is less than the actual
real value of the property, and this being appraiser to determine, in conjunction with the one selected by the plaintiffs, the
value of the properties of joint ownership. These two experts took part in the latter proceedings of the suit until finally, and
during the course of the latter, the litigating parties agreed to an amicable division of the pro indiviso hereditary property, in
accordance with the price fixed by the judicial expert appraiser appointed as a third party, in view of the disagreement
between and nonconformity of the appraisers chosen by the litigants. Therefore it is improper now to claim a right to the
collection of the said sum, the difference between the assessed value and that fixed by the judicial expert appraiser, for the
reason that the increase in price, as determined by this latter appraisal, redounded to the benefit of both parties.
In consideration of the foregoing, whereby the errors assigned to the lower court have been duly refuted, it is our opinion
that, with a partial reversal of the judgment appealed from, in so far as it absolves the plaintiffs from the counterclaim
presented by the defendants, we should and hereby do sentence the plaintiffs to the payment of the sum of P915.08, the
balance of the sum claimed by the defendants as a balance of the one-half of the amount which the defendants advanced for
the reconstruction or repair of the Calle Escolta house, after deducting from the total of such sum claimed by the latter the
amount of P384 which Gaspar de Bartolome, the husband of the defendant Matilde, should have paid as one-half of the
rents due for his occupation of the quarters on the lower floor of the said house as an office for the justice of the peace court
of Vigan; and we further find: (1) That the defendants are not obliged to pay one-half of the rents which could have been
obtained from the upper story of the said house; (2) that the plaintiffs can not be compelled to pay the legal interest from
December 7, 1904, on the sum expanded in the reconstruction of the aforementioned house, but only the interest fixed by
law, at the rate of 6 per cent per annum, from the date of the judgment to be rendered in accordance with this decision; (3)
that the husband of the defendant Matilde Ortiz is not entitled to any remuneration for the administration of thepro
indiviso property belonging to both parties; (4) that, neither is he entitled to collect from the plaintiffs the sum of P910.50,
the difference between the assessed valuation and the price set by the expert appraisal solicited by the plaintiffs in their
amendment to the complaint; and, (5) that no participation shall be made of jewelry aforementioned now in the possession
of the plaintiff Vicenta Ortiz. The said judgment, as relates to the points appealed, is affirmed, in so far as its findings agree
with those of this decision, and is reversed, in so far as they do not. No special finding is made regarding the costs of both
instances. So ordered.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-46001 March 25, 1982
LUZ CARO, petitioner,
vs.
HONORABLE COURT OF APPEALS and BASILIA LAHORRA VDA. DE BENITO, AS ADMINISTRATRIX OF
THE INTESTATE ESTATE OF MARIO BENITO, respondents.

GUERRERO, J.:
This is a petition for certiorari under Rule 45 of the Revised Rules of Court seeking a review of the decision of the Court of
Appeals, 1 promulgated on February 11, 1977, in CA-G.R. No. 52570-R entitled "Basilia Lahorra Vda. de Benito, as
Administratrix of the Intestate Estate of Mario Benito vs. Luz Caro", as well as the resolution of the respondent Court, dated
May 13, 1977, denying petitioner's Motion for Reconsideration.
The facts of the case are as follows:
Alfredo Benito, Mario Benito and Benjamin Benito were the original co-owners of two parcels of land covered by Transfer
Certificates of Title Nos. T-609 and T-610 of the Registry of Deeds of Sorsogon. Mario died sometime in January, 1957. His
surviving wife, Basilia Lahorra and his father, Saturnino Benito, were subsequently appointed in Special Proceeding No.
508 of the Court of First Instance of Sorsogon as joint administrators of Mario's estate.
On August 26, 1959, one of the co-owners, Benjamin Benito, executed a deed of absolute sale of his one-third undivided
portion over said parcels of land in favor of herein petitioner, Luz Caro, for the sum of P10,000.00. This was registered on
September 29, 1959. Subsequently, with the consent of Saturnino Benito and Alfredo Benito as shown in their affidavits
both dated September 15, 1960, Exhibits G and F respectively, a subdivision title was issued to petitioner Luz Caro over Lot
I-C, under T.C.T. No. T-4978.
Sometime in the month of May, 1966, private respondent Basilia Lahorra Vda. de Benito learned from an allegation in a
pleading presented by petitioner in Special Proceeding No. 508 that the latter acquired by purchase from Benjamin Benito
the aforesaid one-third undivided share in each of the two parcels of land. After further verification, she sent to petitioner
thru her counsel, a written offer to redeem the said one-third undivided share dated August 25, 1966. Inasmuch as petitioner
ignored said offer, private respondent sought to intervene in Civil Case No. 2105 entitled "Rosa Amador Vda. de Benito vs.
Luz Caro" for annulment of sale and mortgage and cancellation of the annotation of the sale and mortgage involving the
same parcels of land, but did not succeed as the principal case was dismissed on a technicality, that is, for failure to
prosecute and the proposed intervenor failed to pay the docketing fees. Private respondent, thus, filed the present case as an
independent one and in the trial sought to prove that as a joint administrator of the estate of Mario Benito, she had not been
notified of the sale as required by Article 1620 in connection with Article 1623 of the New Civil Code.
On the other hand, petitioner presented during the hearing of the case secondary evidence of the service of written notice of
the intended sale to possible redemptioners in as much as the best thereof, the written notices itself sent to and Saturnino
Benito, could not be presented for the reason that said notices were sent to persons who were already dead when the
complaint for legal redemption was brought. Instead, the affidavit of Benjamin Benito, executed ante litem motam, attesting
to the fact that the possible redemptioners were formally notified in writing of his intention to sell his undivided share, was
presented in evidence. The deposition of Saturnino's widow was likewise taken and introduced in evidence, wherein she
testified that she received and gave to her husband the written notice of the intended sale but that the latter expressed
disinterest in buying the property.

After hearing the evidence, the trial judge dismissed the complaint on the grounds that: (a) private respondent, as
administratrix of the intestate estate of Mario Benito, does not have the power to exercise the right of legal redemption, and
(b) Benjamin Benito substantially complied with his obligation of furnishing written notice of the sale of his one-third
undivided portion to possible redemptioners.
Private respondent's Motion for Reconsideration of the trial court's decision having been denied, she appealed to the
respondent Court of Appeals contending that the trial Judge erred in
I. . . not inhibiting himself from trying and deciding the case because his son is an associate or member of
the law office of Atty. Rodolfo A. Madrid, the attorney of record of defendant-appellee in the instant case;
II. . contending that Benjamin Benito complied with the provisions of Article 1623 of the Revised Civil
Code that before a co-owner could sell his share of the property owned in common with the other co-heirs,
he must first give written notice of his desire to his co-heirs; (p. 49, R.A.)
III. concluding that the fact that one of the administrators who was actively managing the estate was
furnished a written notice by the co-owner of his desire to sell his share was enough compliance of the
provisions of Article 1623 of the Civil Code for the reason that the intention of the law is only to give a
chance to the new co-owner to buy the share intended to be sold if he desires to buy the same; (p. 50,
R.A.)
IV. . refusing to allow plaintiff to redeem the subject property upon authority of Butte vs. Manuel Uy &
Sons, L-15499, Feb. 28, 1962 (p. 51, R.A.) and in consequently dismissing the complaint (p. 52, R.A.).
In disposing of the aforesaid errors, the Court of Appeals finding for plaintiff (herein private respondent) held:
1. That it is not clear that Atty. Arcangel, son of the trial Judge, was legally associated as practitioner with counsel for Luz
Caro; that it is not shown at any rate that plaintiff had asked for Judge Arcangel's disqualification and that at any rate also, in
such factual situation, an optional ground for disqualification is addressed to his sound discretion with which it would not be
correct for appellate court to interfere or overrule.
2. That since the right of the co-owner to redeem in case his share be sold to a stranger arose after the death of Mario
Benito, such right did not form part of the hereditary estate of Mario but instead was the personal right of the heirs, one of
whom is Mario's widow. Thus, it behooved either the vendor, Benjamin, or his vendee, Luz Caro, to have made a written
notice of the intended or consummated sale under Article 1620 of the Civil Code.
3. That the recital in the deed of sale that the vendor notified his co-owners of his desire to dispose of his share, who all
declined to buy, was but a unilateral statement and could not be proof of the notice required by the law.
4. That the registration of the deed of sale did not erase that right.
5. That the affidavit of notice executed on January 20, 1960 of Benjamin Benito declaring that written notices of the sale as
required by law were duly sent to Alfredo Benito and Saturnino Benito, the latter in his capacity as administrator of the
estate of Mario Benito, as well as the sworn statement of Saturnino Benito's widow dated November 18, 1968 confirming
that her husband received the written notice of the sale referred to in Benjamin Benito's affidavit of notice would not satisfy
that there was clear notice in writing of the specific term of the intended sale. Worse, Saturnino was only a co-administrator
and hence, his unilateral act could not bind the principal because there was no less than a renunciation of a right pertaining
to the heirs, under Article 1818, NCC, apart from the fact that the right of redemption is not within their administration.
6. That the further claim of defendant that offer to redeem was filed out of time and that there was no actual tender loses all
importance, there being no date from which to count the 30-day period to redeem because there was no notice given.
The dispositive part of the decision of the Court of Appeals reads as follows:
IN VIEW THEREOF, this Court is constrained to reverse, as it now reverses, judgment appealed from,
upon payment by plaintiff or deposit in Court, within 30 days after this judgment should have become

final, of the sum of P10,000.00, defendant is ordered to execute a deed of redemption over the one-third
share of BENJAMIN BENITO in favor of plaintiff for herself and as representative of the children of
Mario Benito and therefrom, to deliver said one-third share of BENJAMIN BENITO, costs against
defendant-appellee.
SO ORDERED.
Upon denial of the motion for reconsideration, petitioner brought this petition for review raising the following errors:
1. Respondent Court erred in allowing the exercise of the right of legal redemption with respect to the lots in question.
2. Respondent Court erred when it made the finding that there was no notice in law from which to count the tolling of the
period of redemption and that the sale was not made known at all to private respondent.
The alleged first error of respondent Court is premised on the fact that the lot in question sought to be redeemed is no longer
owned in common. Petitioner contends that the right sought to be exercised by private respondent in the case assumes that
the land in question is under co-ownership, the action being based on Article 1620 of the New Civil Code which provides:
A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or
any of them, are sold to a third person. If the price of alienation is grossly excessive, the petitioner shall
pay only a reasonable price.
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.
However, the fact is that as early as 1960, co-ownership of the parcels of land covered by Transfer Certificates of Title Nos.
T-609 and T-610 was terminated when Alfredo Benito, Luz Caro and the Intestate Estate of Mario Benito, represented by
administrators Saturnino Benito, as trustee and representative of the heirs of Mario Benito, agreed to subdivide the property.
An agreement of partition, though oral, is valid and consequently binding upon the parties. (Hernandez vs.
Andal, et al., 78 Phil. 196)
A petition for subdivision was then filed for the purpose. This was accompanied by the affidavits of Alfredo Benito and
Saturnino Benito, both dated September 15, 1960 to the effect that they agree to the segregation of the land formerly owned
in common by Mario Benito, Alfredo Benito and Benjamin Benito. A subdivision plan was made and by common
agreement Lot I-C thereof, with an area of 163 hectares, more or less, was ceded to petitioner. Thereafter, the co-owners
took actual and exclusive possession of the specific portions respectively assigned to them. A subdivision title was
subsequently issued on the lot assigned to petitioner, to wit, Transfer Certificate of Title No. T-4978.
In Caram, et al. vs. Court of Appeals, et al., 101 Phil. 315, a case squarely in point, this Court held:
Inasmuch as the purpose of the law in establishing the right of legal redemption between co-owners is to
reduce the number of participants until the community is done away with (Viola vs. Tecson, 49 Phil. 808),
once the property is subdivided and distributed among the co-owners, the community has terminated and
there is no reason to sustain any right of legal redemption.
Although the foregoing pronouncement has reference to the sale made after partition, this Court therein saw no difference
with respect to a conveyance which took place before the partition agreement and approval by the court. Thus, it held:
Nevertheless, the result is the same, because We held in Saturnino vs. Paulino, 97 Phil. 50, that the right of
redemption under Article 1067 may be exercised only before partition. In this case the right was asserted
not only after partition but after the property inherited had actually been subdivided into several parcels
which were assigned by lot to the several heirs.
In refutation, private respondent argues that petitioner Luz Caro acted in bad faith and in fraud of the rights of the heirs of a
deceased Mario Benito in obtaining a subdivision title over a one-third portion of the land in question which she brought

from Benjamin Benito, and for this reason, she is deemed to hold said property in trust for said heirs. The rule, however, is it
fraud in securing the registration of titles to the land should be supported by clear and convincing evidence. (Jaramil vs.
Court of Appeals, 78 SCRA 420). As private respondent has not shown and proved the circumstances constituting fraud, it
cannot be held to exist in this case.
As aforesaid, a subdivision title has been issued in the name petitioner on the lot ceded to her. Upon the expiration of the
term of one year from the date of the entry of the subdivision title, the Certificate of Title shall be incontrovertible (Section
38, Act 496). Since the title of petitioner is now indefeasible, private respondent cannot, by means of the present action,
directly attack the validity thereof.
Even on the assumption that there still is co-ownership here and that therefore, the right of legal redemption exists, private
respondent as administratrix, has no personality to exercise said right for and in behalf of the intestate estate of Mario
Benito. She is on the same footing as co-administrator Saturnino Benito. Hence, if Saturnino's consent to the sale of the onethird portion to petitioner cannot bind the intestate estate of Mario Benito on the ground that the right of redemption was not
within the powers of administration, in the same manner, private respondent as co-administrator has no power exercise the
right of redemption the very power which the Court of Appeals ruled to be not within the powers of administration.
While under Sec. 3, Rule 85, Rules of Court, the administrator has the right to the possession of the real
and personal estate of the deceased, so far as needed for the payment of the expenses of administration,
and the administrator may bring and defend action for the recovery or protection of the property or right of
the deceased (Sec. 2, Rule 88), such right of possession and administration do not include the right of legal
redemption of the undivided share sold to a stranger by one of the co-owners after the death of another,
because in such case, the right of legal redemption only came into existence when the sale to the stranger
was perfected and formed no part of the estate of the deceased co-owner; hence, that right cannot be
transmitted to the heir of the deceased co-owner. (Butte vs. Manuel Uy and Sons, Inc., 4 SCRA 526).
Private respondent cannot be considered to have brought this action in her behalf and in behalf of the heirs of Mario Benito
because the jurisdictional allegations of the complaint specifically stated that she brought the action in her capacity as
administratrix of the intestate estate of Mario Benito.
It is petitioner's contention that, assuming that private respondent may exercise the right of redemption, there was no
compliance with the conditions precedent for the valid exercise thereof.
In Conejero et al. vs. Court of Appeals, et al., 16 SCRA 775, this Court explained the nature of the right of redemption in
this wise:
While the co-owner's right of legal redemption is a substantive right, it is exceptional in nature, limited in
its duration and subject to strict compliance with the legal requirements. One of these is that the
redemptioner should tender payment of the redemption money within thirty (30) days from written notice
of the sale by the co-owner.
It has been held that this thirty-day period is peremptory because the policy of the law is not to leave the purchaser's title in
uncertainty beyond the established 30-day period. (Butte vs. Manuel Uy and Sons, Inc., 4 SCRA 526). It is not a
prescriptive period but is more a requisite or condition precedent to the exercise of the right of legal redemption.
In the case at bar, private respondent alleged in her complaint that she learned of the sale sometime in May, 1966 upon
receipt of a pleading in Special Proceeding No. 508 of the Court of First Instance of Sorsogon. She likewise alleged that she
gave a letter informing petitioner of her desire to redeem the land on August 25, 1966. Clearly, three months have elapsed
since the notice of the sale. Hence, petitioner claims that the thirty-day period of redemption has already expired. In
addition, petitioner makes capital of the admission of private respondent that she already knew of the said transaction even
before receipt of the said pleading (t.s.n., p. 16) as well as of the evidence presented that Saturnino Benito, the admittedly
active administrator until 1966, duly received a written notice of the intended sale of Benjamin Benito's share. Said
evidence consists of the affidavit of the vendor stating that the required notice had been duly given to possible

redemptioners, the statement in the deed of sale itself and the deposition of Saturnino Benito's widow with respect to her
receipt of the written notice. Finally, petitioner points to the records which disclose that private respondent knew of the
subdivision (t.s.n., p. 25) and hence, rationalized that private respondent should have known also of the previous sale.
Since We have ruled that the right of legal redemption does not exist nor apply in this case because admittedly a subdivision
title (T.C.T. No. T-4978) has already been issued in the name of the petitioner on Lot I-C sold to her, it becomes moot and
academic, if not unnecessary to decide whether private respondent complied with the notice requirements for the exercise of
the right of legal redemption under Article 1623 of the New Civil Code.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the Court of Appeals is hereby REVERSED and SET
ASIDE, and judgment is hereby rendered DISMISSING the complaint.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 78178 April 15, 1988
DELIA BAILON-CASILAO, LUZ PAULINO-ANG, EMMA PAULINO-YBANEZ, NILDA PAULINOTOLENTINO, and SABINA BAILON, petitioners,
vs.
THE HONORABLE COURT OF APPEALS and CELESTINO AFABLE, respondents.
Veronico E. Rubio for petitioners.
Mario G. Fortes for private-respondent.

CORTES, J.:
The fate of petitioners' claim over a parcel of land rests ultimately on a determination of whether or not said petitioners are
chargeable with such laches as may effectively bar their present action.
The petitioners herein filed a case for recovery of property and damages with notice of lis pendens on March 13, 1981
against the defendant and herein private respondent, Celestino Afable. The parcel of land involved in this case, with an area
of 48,849 square meters, is covered by Original Certificate of Title No. 1771 issued on June 12, 1931, in the names of
Rosalia, Gaudencio, Sabina Bernabe, Nenita and Delia, all surnamed Bailon, as co-owners, each with a 1/6 share.
Gaudencio and Nenita are now dead, the latter being represented in this case by her children. Luz, Emma and Nilda.
Bernabe went to China in 1931 and had not been heard from since then [Decision of the Court of Appeals, Rollo, p. 39].
It appears that on August 23, 1948, Rosalia Bailon and Gaudencio Bailon sold a portion of the said land consisting of
16,283 square meters to Donato Delgado. On May 13, 1949, Rosalia Bailon alone sold the remainder of the land consisting
of 32,566 square meters to Ponciana V. Aresgado de Lanuza. On the same date, Lanuza acquired from Delgado the 16,283
square meters of land which the latter had earlier acquired from Rosalia and Gaudencio. On December 3, 1975, John
Lanuza, acting under a special power of attorney given by his wife, Ponciana V. Aresgado de Lanuza, sold the two parcels
of land to Celestino Afable, Sr.
In all these transfers, it was stated in the deeds of sale that the land was not registered under the provisions of Act No. 496
when the fact is that it is. It appears that said land had been successively declared for taxation first, in the name of Ciriaca
Dellamas, mother of the registered co-owners, then in the name of Rosalia Bailon in 1924, then in that of Donato Delgado
in 1936, then in Ponciana de Lanuza's name in 1962 and finally in the name of Celestino Afable, Sr. in 1983.
In his answer to the complaint filed by the herein petitioners, Afable claimed that he had acquired the land in question
through prescription and contended that the petitioners were guilty of laches.He later filed a third-party complaint against
Rosalia Bailon for damages allegedly suffered as a result of the sale to him of the land.
After trial, the lower court rendered a decision:
1. Finding and declaring Celestino Afable, a co-owner of the land described in paragraph III of the
complaint having validly bought the two-sixth (2/6) respective undivided shares of Rosalia Bailon and
Gaudencio Bailon;
2. Finding and declaring the following as pro-indiviso co-owners, having 1/6 share each, of the property
described in paragraph III of the complaint, to wit:
a. Sabina Bailon
b. Bernabe Bailon
c. Heirs of Nenita Bailon-Paulino
d. Delia Bailon-Casilao;
3. Ordering the segregation of the undivided interests in the property in order to terminate co-ownership to
be conducted by any Geodetic Engineer selected by the parties to delineate the specific part of each of the
co-owners.
4. Ordering the defendant to restore the possession of the plaintiffs respective shares as well as all
attributes of absolute dominion;
5. Ordering the defendant to pay the following:
a. P5,000.00 as damages;
b. P2,000.00 as attorney's fees and;

c. to pay the costs.

[Decision of the Trial Court, Rollo, p. 37-38].
On appeal, the respondent Court of Appeals affirmed the decision of the lower court insofar as it held that prescription does
not he against plaintiffs-appellees because they are co-owners of the original vendors. However, the appellate court declared
that, although registered property cannot be lost by prescription, nevertheless, an action to recover it may be barred by
laches, citing the ruling in Mejia de Lucaz v. Gamponia[100 Phil. 277 (1956)]. Accordingly, it held the petitioners guilty of
laches and dismissed their complaint. Hence, this petition for review on certiorari of the decision of the Court of Appeals.
The principal issue to be resolved in this case concerns the applicability of the equitable doctrine of laches. Initially though,
a determination of the effect of a sale by one or more co-owners of the entire property held in common without the consent
of all the co-owners and of the appropriate remedy of the aggrieved co-owners is required.
The rights of a co-owner of a certain property are clearly specified in Article 493 of the Civil Code.Thus:
Art. 493. Each co-owner shall have the full ownership of his part and of the acts and benefits pertaining
thereto, and he may therefore alienate assign or mortgage it and even substitute another person in its
enjoyment, except when personal rights are involved. But the effect of the alienation or mortgage, with
respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon
the termination of the co-ownership. [Emphasis supplied.]
As early as 1923, this Court has ruled that even if a co-owner sells the whole property as his, the sale will affect only his
own share but not those of the other co-owners who did not consent to the sale [Punsalan v. Boon Liat 44 Phil. 320 (1923)].
This is because under the aforementioned codal provision, the sale or other disposition affects only his undivided share and
the transferee gets only what would correspond to his grantor in the partition of the thing owned in common.[Ramirez v.
Bautista, 14 Phil. 528 (1909)]. Consequently, by virtue of the sales made by Rosalia and Gaudencio Bailon which are valid
with respect to their proportionate shares, and the subsequent transfers which culminated in the sale to private respondent
Celestino Afable, the said Afable thereby became a co-owner of the disputed parcel of land as correctly held by the lower
court since the sales produced the effect of substituting the buyers in the enjoyment thereof [Mainit v. Bandoy, 14 Phil. 730
(1910)].
From the foregoing, it may be deduced that since a co-owner is entitled to sell his undivided share, a sale of the entire
property by one co-owner without the consent of the other co-owners is not null and void. However, only the rights of the
co-owner-seller are transferred, thereby making the buyer a co-owner of the property.
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 co-owners who alienated their shares, but the
DIVISION of the common property as if it continued to remain in the possession of the co-owners who possessed and
administered it [Mainit v. Bandoy, supra.]
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. Neither recovery of possession nor restitution can be granted
since the defendant buyers are legitimate proprietors and possessors in joint ownership of the common property claimed
[Ramirez v. Bautista, supra].
As to the action for petition, neither prescription nor laches can be invoked.
In the light of the attendant circumstances, defendant-appellee's defense of prescription is a vain proposition. Pursuant to
Article 494 of the Civil Code, '(n)o 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.' [Emphasis supplied.] In Budiong
v. Bondoc [G.R. No. L-27702, September 9, 1977, 79 SCRA 241, this Court has interpreted said provision of law to mean
that the action for partition is imprescriptible or 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- heir so long as he expressly or impliedly
recognizes the co-ownership."
Furthermore, the disputed parcel of land being registered under the Torrens System, the express provision of Act No. 496
that '(n)o title to registered land in derogation to that of the registered owner shall be acquired by prescription or adverse
possession' is squarely applicable. Consequently, prescription will not lie in favor of Afable as against the petitioners who
remain the registered owners of the disputed parcel of land.
It is argued however, that as to the petitioners Emma, Luz and Nelda who are not the registered co-owners but merely
represented their deceased mother, the late Nenita Bailon, prescription lies.Respondents bolster their argument by citing a
decision of this Court in Pasion v. Pasion [G.R.No. L-15757, May 31, 1961, 2 SCRA 486, 489] holding that "the
imprescriptibility of a Torrens title can only be invoked by the person in whose name the title is registered" and that 'one
who is not the registered owner of a parcel of land cannot invoke imprescriptibility of action to claim the same.'
Reliance on the aforesaid Pasion case is futile. The ruling therein applies only against transferees other than direct issues or
heirs or to complete strangers. The rational is clear:
If prescription is unavailing against the registered owner, it must be equally unavailing against the latter's
hereditary successors, because they merely step into the shoes of the decedent by operation of law (New
Civil Code, Article 777; Old Civil Code, Article 657), the title or right undergoing no change by its
transmission mortis causa [Atus, et al., v. Nunez, et al., 97 Phil. 762, 764].
The latest pronouncement of this Court in Umbay v. Alecha [G. R. No. 67284, March 18, 1985, 135 SCRA 427, 429], which
was promulgated subsequent to the Pasion case reiterated the Atus doctrine. Thus:
Prescription is unavailing not only against the registered owner but also against his hereditary successors,
because they merely step into the shoes of the decedent by operation of law and are merely the
continuation of the personality of their predecessor-in-interest. [Barcelona v. Barcelona, 100 Phil. 251,
257].
Laches is likewise unavailing as a shield against the action of herein petitioners.
Well-stated in this jurisdiction are the four basic elements of laches, namely: (1) conduct on the part of the defendant or of
one under whom he claims, giving rise to the situation of which complaint is made and for which the complainant seeks a
remedy; (2) delay in asserting the corporations complainant's rights, the complainant having had knowledge or notice of the
defendant's conduct and having been afforded an opportunity to institute suit; (3) lack of knowledge or notice on the part of
the defendant that the complainant would assert the right on which he bases his suit; and, (4) injury or prejudice to the
defendant in the event relief is accorded to the complainant, or the suit is not held to be barred [Go China Gun, et al. v. Co
Cho et al., 96 Phil. 622 (1955)].
While the first and last elements are present in this case, the second and third elements are missing.
The second element speaks of delay in asserting the complainant's rights. However, the mere fact of delay is insufficient to
constitute, laches. It is required that (1) complainant must have had knowledge of the conduct of defendant or of one under
whom he claims and (2) he must have been afforded an opportunity to institute suit. This court has pointed out that laches is
not concerned with the mere lapse of time. Thus:
Laches has been defined as the failure or neglect, for an unreasonable length of time to do that which by
exercising due diligence could or should have been done earlier; it is negligence or omission to assert a
right within a reasonable time warranting a presumption that the party entitled to assert it either has
abandoned it or declined to assert it. Tijam, et al., v. Sibonghanoy, G.R. No. L-21450, April 25, 1968, 23
SCRA 29,35; Tendo v. Zamacoma, G.R. No. L-63048, August 7, 1985, 138 SCRA 78, 90].
The doctrine of "laches" or of "stale demands" is based upon grounds of public policy which requires for
the peace of society, the discouragement of stale claims and unlike the statute of limitations, is not a mere

question of time but is principally a question of inequity or unfairness of permitting a right or claim to be
enforced or asserted," [Tijam v. Sibonghanoy, supra, p. 35]. [Emphasis supplied.]
It must be noted that while there was delay in asserting petitioners' rights, such delay was not attended with any knowledge
of the sale nor with any opportunity to bring suit. In the first place, petitioners had no notice of the sale made by their eldest
sister. It is undisputed that the petitioner co-owners had entrusted the care and management of the parcel of land to Rosalia
Bailon who was the oldest among them [TSN, July 27, 1983, p. 14]. In fact, Nicanor Lee, a son of Rosalia, who was
presented as a witness by the plaintiffs-petitioners, testified on cross-examination that his mother was only the administrator
of the land as she is the eldest and her brothers and sisters were away [TSN, October 5, 1983, p. 15]. Indeed, when Delia
Bailon-Casilao left Sorsogon in 1942 after she got married, it was only in 1983 that she returned. Sabina on the other hand,
is said to be living in Zamboanga while Bernabe who left for China in 1931 has not been heard from since then.
Consequently, when Rosalia, from whom the private respondent derived his title, made the disputed sales covering the
entire property, the herein petitioners were unaware thereof.
In the second place, they were not afforded an opportunity to bring suit inasmuch as until 1981, they were kept in the dark
about the transactions entered into by their sister. It was only when Delia Bailon-Casilao returned to Sorsogon in 1981 that
she found out about the sales and immediately, she and her co-petitioners filed the present action for recovery of property.
The appellate court thus erred in holding that 'the petitioners did nothing to show interest in the land." For the administration
of the parcel of land was entrusted to the oldest co-owner who was then in possession thereof precisely because the other
co-owners cannot attend to such a task as they reside outside of Sorsogon where the land is situated. Her co-owners also
allowed her to appropriate the entire produce for herself because it was not even enough for her daily consumption [TSN,
October 5, 1983, pp. 17-18]. And since petitioner was the one receiving the produce, it is but natural that she was the one to
take charge of paying the real estate taxes. Now, if knowledge of the sale by Rosalia was conveyed to the petitioners only
later, they cannot be faulted for the acts of their co-owner who failed to live up to the trust and confidence expected of her.
In view of the lack of knowledge by the petitioners of the conduct of Rosalia in selling the land without their consent in
1975 and the absence of any opportunity to institute the proper action until 1981, laches may not be asserted against the
petitioners.
The third element of laches is likewise absent. There was no lack of knowledge or notice on the part of the defendant that
the complainants would assert the right on which they base the suit. On the contrary, private respondent is guilty of bad faith
in purchasing the property as he knew that the property was co-owned by six persons and yet, there were only two
signatories to the deeds of sale and no special authorization to self was granted to the two sellers by the other co-owners.
Even as the land here was misrepresented in the deeds of sale as "unregistered," the truth was that Afable already had notice
that the land was titled in the name of six persons by virtue of the Certificate of Title which was already in his possession
even before the sale. Such fact is apparent from his testimony before the court a quo:
COURT:
Q: From whom did you get the certificate of Title?
A: When it was mortgaged by Ponciana Aresgado.
Q: It was mortgaged to you before you bought it?
A: Yes, Your Honor. (TSN, March 5, 1984, p. 12) When cross-examined, he stated:
Q: Mr. Witness, the original Certificate of Title was given to you in the year 1974, was it
not?
A: 1975.
Q: In 1975, you already discovered that the title was in the name of several persons, is it
not?

A: Yes, sir.
Q: When you discovered that it is in the name of several persons, you filed a case in
court for authority to cancel the title to be transferred in your name, is it not?
A: Yes, sir.
Q: And that was denied by the Court of First Instance of Sorsogon because there was
ordinary one signatory to the deed of sale instead of six, was it not?
A: Not one but two signatories.
[Decision of the Regional Trial Court of Sorsogon, Rollo, p. 35]
Such actual knowledge of the existence of other co-owners in whose names the lot subject of the sale was registered should
have prompted a searching inquiry by Afable considering the well- known rule in this jurisdiction that:
... a person dealing with a registered land has a right to rely upon the face of the Torrens certificate of title
and to dispense with the need of inquiring further, except when the party concerned has actual knowledge
of facts and circumstances that would impel a reasonably cautions man to make such inquiry. [Gonzales v.
IAC and Rural Bank of Pavia, Inc., G.R. No. 69622, January 29, 1988).
Moreover, the undisputed fact is that petitioners are relatives of his wife. As a genuine gesture of good faith, he should have
contacted the petitioners who were still listed as co-owners in the certificate of title which was already in his possession
even before the sale. In failing to exercise even a minimum degree of ordinary prudence required by the situation, he is
deemed to have bought the lot at his own risk. Hence any prejudice or injury that may be occasioned to him by such sale
must be borne by him.
Indeed, aware of the flaws impairing his title, Afable went to the herein petitioner Delia Bailon-Casilao, asking the latter to
sign a document obviously to cure the flaw [TSN, July 27, 1983, p.6]. Later, he even filed a petition in the Court of First
Instance to register the title in his name which was denied as aforesaid.
It may be gleaned from the foregoing examination of the facts that Celestino Afable is not a buyer in good faith. Laches
being an equitable defense, he who invokes it must come to the court with clean hands.
WHEREFORE, the petition for certiorari is hereby GRANTED, the challenged decision of the Court of Appeals is SET
ASIDE, and the decision of the trial court is REINSTATED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 75886 August 30, 1988
CONCEPCION ROQUE, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT, ERNESTO ROQUE, FILOMENA OSMUNDO, CECILIA
ROQUE, MARCELA ROQUE, JOSE ROQUE and RUBEN ROQUE, respondents.
Lorenzo J. Liwag for petitioner.
Dominador Ad Castillo for private respondents.

FELICIANO, J.:
The subject of the present Petition for Review is the 31 July 1986 Decision of the former Intermediate Appellate Court in
AC-G.R. CV No. 02248 (entitled, "Concepcion Roque, plaintiff-appellee, vs. Ernesto Roque, Filomena Osmunda Cecilia
Roque, Marcela Roque, Jose Roque and Ruben Roque, defendants-appellants") which reversed and set aside on appeal the
decision of the Regional Trial Court of Malolos, Branch 9.
The controversy here involves a 312 square meter parcel of land situated in San Juan, Malolos, Bulacan and designated as
Lot No. 1549 of the Cadastral Survey of Malolos. The property was registered originally in the name of Januario Avendao,
a bachelor who died intestate and without issue on 22 October 1945.
On 21 September 1959, the intestate heirs of Januario Avendafio executed a document entitled "Paghahati at Pagtagabuyan
ng Mana sa Labas ng Hukuman." 1 Through this instrument, extrajudicial partition of Lot No. 1549 was effected among the
intestate heirs as follows:
a. One-fourth (1/4) undivided portion to Illuminada Avendao.
b. One-fourth (1/4) undivided portion to Gregorio Avendafio and Miguel Avendao.

c. One-fourth (1/4) undivided portion to Bernardino, Bienvenido, Numeriano and Rufina, all surnamed
Avendao.
d. One-fourth (1/4) undivided portion to respondent Emesto Roque and Victor Roque. 2
On 28 September 1959, co-owners Illuminada, Gregorio, Miguel, Bernardino, Bienvenido, Numeriano and Rufina, all
surnamed Avendao, in consideration of the aggregate amount of P500.00, transferred their collective and undivided
threefourths (3/4) share in Lot No. 1549 to respondent Ernesto Roque and Victor Roque, thereby vesting in the latter full
and complete ownership of the property. The transactions were embodied in two (2) separate deeds of sale both entitled
"Kasulatan ng Bilihang Patuluyan" 3 and both duly notarized. Subsequently, in an unnotarized "Bilihan Lubos at
Patuluyan" 4 dated 27 November 1961, Emesto and Victor Roque purportedly sold a three-fourths (3/4) undivided portion
of Lot No. 1549 to their half-sister, petitioner Concepcion Roque, for the same amount. The property, however, remained
registered in the name of the decedent, Januario Avendao.
Upon the instance of petitioner Concepcion Roque and allegedly of respondent Ernesto Roque, Lot No. 1549 was surveyed
on 20 September 1975. Consequent thereto, a Subdivision Plan 5 was drawn up by the Geodetic Engineer Identifying and
delineating a one-fourth (1/4) portion (78 square meters) of the property as belonging to respondent Ernesto Roque and
Victor Roque (who had died on 14 April 1962), upon the one hand, and a three-fourths (3/4) portion (234 square meters) of
the same property as belonging to petitioner Concepion Roque, upon the other hand. Petitioner claimed that preparation of
the Subdivision Plan, which was approved on 3 November 1975 by the Land Registration Commission was a preliminary
step leading eventually to partition of Lot No. 1549, partition allegedly having been previously agreed upon inter se by the
co-owners. Respondents Ernesto Roque and the legal heirs of Victor Roque, however, refused to acknowledge petitioner's
claim of ownership of any portion of Lot No. 1549 and rejected the plan to divide the land.
Attempts at amicable settlement having fallen through, petitioner Concepcion Roque, on 6 December 1977, filed a
Complaint for "Partition with Specific Performance" 6 (docketed as Civil Case No. 5236-M) with Branch 2 of the then
Court of First Instance of Malolos against respondents Emesto Roque and the heirs of Victor Roque. In her complaint,
petitioner (plaintiff below) claimed legal ownership of an undivided threefourths (3/4) portion of Lot No. 1549, by virtue of
the 27 November 1961 "Bilihan Lubos at Patuluyan" executed in her favor by Emesto Roque and Victor Roque. In support
of this claim, petitioner also presented an undated and unnotarized "Kasulatang Pagkilala sa Bilihan Patuluyan ng Bahagui
at Pagmamana sa Labas ng Hukuman at Paghahati-hati at Abuyan ng Bahagui" 7 said to have been signed by the
respondents in acknowledgment of the existence and validity of the Bilihan in favor of petitioner. Finally, petitioner alleged
that, as a coowner of Lot No. 1549, she had a right to seek partition of the property, that she could not be compelled to
remain in the coownership of the same.
In an Answer with Compulsory Counterclaim 8 filed on 28 December 1977, respondents (defendants below) impugned the
genuineness and due execution of the "Bilihan Lubos at Patuluyan" dated 27 November 1961 on the ground "that the
signatures appearing thereon are not the authentic signatures of the supposed signatories ...." It was also alleged that
petitioner Concepcion Roque, far from being a co-owner of Lot No. 1549, "occupied a portion of the lot in question by mere
tolerance of the [defendants]." Respondents also refused to honor the unnotarized Kasulatan and, additionally, denied
having had any participation in the preparation of the Subchvision Plan.
On 27 June 1983, the trial court (now Branch 9, Regional Trial Court of Malolos) rendered a Decision, 9 the dispositive
portion of which read:
WHEREFORE, judgment is hereby rendered, in favor of the plaintiff and against the defendants;
1. Ordering the heirs of the late Victor Roque namely Filomena Osmunda his spouse, his children, Cecilia
Roque, Marcela Roque, Jose Roque and Ruben Roque and their uncle and co-defendant Emesto Roque, to
execute a deed of confirmation of the sale made by Emesto and Victor Roque in favor of plaintiff
Concepcion Roque, entitled "Bilihan Lubos at Patuluyan," executed on November 27, 1961, Exh. E, over
the 3/4 portion of the subject property;

2. Ordering the partition of the parcel of land described in par. 3 of tie complaint covered by Original
Certificate of Title No. 1442 Bulacan issued in the name of Januario Avendafio, in the proportion of 3/4 to
pertain to Concepcion Roque, and 1/4 to pertain to Emesto Roque and his co- defendants, his sister-in-law,
nephews and nieces, in accordance with the approved subdivision plan (LRC Psd-230726).
3. Ordering defendants,jointly and severally, to pay to plaintiff the sum of P2,000.00 as and for attomey's
fees and the costs of suit.
SO ORDERED.
The respondents appealed from this decision alleging the following errors:
I
The lower court erred when it decided and ordered defendantsappellants to execute a confirmation of the
"Bilihan Lubos at Patuluyan," Exh. "E."
II
The lower court erred when it decided and ordered the defendantsappellant,s to deliver unto the plaintiff
[a] 3/4 share of the land in question.
III
The lower court erred in deciding this case in favor of the plaintiff-appellee, based on an unnotarized and
forged signature of defendantappellant Ernesto Roque.
IV
The lower court erred in giving credence to the testimony of the plaintiff-appellee Concepcion Roque
despite [its] gross inconsistencies. 10
Acting on the appeal (docketed as A.C.-G.R. CV No. 02248), the Intermediate Appellate Court, in a Decision 11dated 31
July 1986, reversed the judgment of the trial court and dismissed both the petitioner's complaint and the respondents' appeal.
A Motion for Reconsideration of petitioner Concepcion Roque was denied.
The present Petition for Review was filed with this Court on 18 September 1986. In a resolution dated 27 July 1987, we
gave due course to the Petition and required the parties to submit their respective Memoranda.
1. On the matter of dismissal of petitioner's complaint, the Intermediate Appellate Court stated in its decision:
While the action filed by the plaintiff is for partition, the defendantz, after denying plaintiff's assertion of
co-ownership, asserted that they are the exclusive and sole owners of the 314 portion of the parcel of land
claimed by the plaintiff.
Upon the issue thusjoined by the pleadings, it is obvious that the case has become one ofownership of the
disputed portion of the subject lot.
It is well settled that an action for partition will not prosper as such from the moment an alleged co-owner
asserts an adverse title. The action that may be brought by an aggrieved co-owner is accion reivindicatoria
or action for recovery of title and possession (Jardin vs. Hallasgo, 11 7 SCRA 532, 536, 537; Paner vs.
Gaspar, 3 CA Rep. 155, 158). (Emphasis supplied)
Viewed in the light of the facts of the present case, the Intermediate Appellate Court's decision appears to imply that from
the moment respondents (defendants below) alleged absolute and exclusive ownership of the whole of Lot No. 1549 in their
Answer, the trial court should have immediately ordered the dismissal of the action for partition and petitioner (plaintiff
below), if she so desired, should have refiled the case but this time as an accion reinvindicatoria. Taking this analysis a step
further should the reivindicatory action prosper i.e., a co-ownership relation is found to have existed between the parties

 a second action for partition would still have to be instituted in order to effect division of the property among the coowners.
We do not agree with the above view. An action for partition-which is typically brought by a person claiming to be co-owner
of a specified property against a defendant or defendants whom the plaintiff recognizes to be co-owners may be seen to
present simultaneously two principal issues. First, there is the issue of whether the plaintiff is indeed a co-owner of the
property sought to be partitioned. Second, assuming that the plaintiff successfully hurdles the first issue, there is the
secondary issue of how the property is to be divided between plaintiff and defendant(s) i.e., what portion should go to
which co-owner.
Should the trial court find that the defendants do not dispute the status of the plaintiff as co-owner, the court can forthwith
proceed to the actual partitioning of the property involved. In case the defendants assert in their Answer exclusive title in
themselves adversely to the plaintiff, the court should not dismiss the plaintiffs action for partition but, on the contrary and
in the exercise of its general jurisdiction, resolve the question of whether the plaintiff is co-owner or not. Should the trial
court find that the plaintiff was unable to sustain his claimed status as co-owner, or that the defendants are or have become
the sole and exclusive owners of the property involved, the court will necessarily have to dismiss the action for partition.
This result would be reached, not because the wrong action was commenced by the plaintiff, but rather because the plaintiff
having been unable to show co-ownership rights in himself, no basis exists for requiring the defendants to submit to
partition the property at stake. If, upon the other hand, the court after trial should find the eidstence of co-ownership among
the parties litigant, the court may and should order the partition of the property in the same action. Judgment for one or the
other party being on the merits, the losing party (respondents in this case) may then appeal the same. In either case,
however, it is quite unnecessary to require the plaintiff to file another action, separate and independent from that for
partition originally instituted. Functionally, an action for partition may be seen to be at once an action for declaration of
coownership and for segregation and conveyance of a determinate portion of the property involved. This is the import of our
jurisprudence on the matter. 12 and is sustained by the public policy which abhors multiplicity of actions.
The question of prescription also needs to be addressed in this connection. It is sometimes said that "the action for partition
of the thing owned in common (actio communi dividendo or actio familiae erciscundae) does not prescribe." 13 This
statement bears some refinement. In the words of Article 494 of the Civil Code, "each co-owner may demand at any time
the partition of the thing owned in common, insofar as his share is concemed." No matter how long the co-ownership has
lasted, a co-owner can always opt out of the co-ownership, and provided the defendant co-owners or co-heirs have
theretofore expressly or impliedly recognized the co-ownership, they cannot set up as a defense the prescription of the
action for partition. But if the defendants show that they had previously asserted title in themselves adversely to the plaintiff
and for the requisite period of time, the plaintiffs right to require recognition of his status as a co-owner will have been lost
by prescription and the court cannot issue an order requiring partition. This is precisely what happened in Jardin v.
Hallasgo, 117 SCRA 532 (1982), which the respondent appellate court cited to support its position quoted above.
The case of Jardin involved, among others, two (2) parcels of land which were inherited in 1920 by the brothers Catalino
jardin and Galo Jardin together with their half-brother, Sixto Hallasgo. The three (3) held these lands in co-ownership until
Sixto later (the date was not specified) repudiated the coownership and occupied and possessed both parcels of land,
claiming the same exclusively as his own. Sometime in 1973, the heirs of Catalino and Galo instituted an action for partition
of the two (2) properties against Sixto's heirs, who had refused to surrender any portion of the same to the former. The trial
court, assuming that prescription had started to run in that case even before the Civil Code took effect, held that the action
for partition filed by the heirs of Catalino and Galo had already prescribed. On appeal, this Court affirmed the trial court on
this point in the following terms:
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 the partition of the thing owned in common, insofar as
his share is concerned." It also provides that '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.

While the action for the partition of the thing owned in common (actio communi dividendo or actio
familiae erciscundae) does not prescribe, the co-ownership does not last forever since it may be repudiated
by a co-owner [i.e., Sixto]. In such a case, the action for partition does not lie. What may be brought by
the aggrieved co-owner [i.e., the heirs of Catalino and Galo] is an accion reivindicatoria or action for
recovery of title and possession. That action may be barred by prescription.
If the co-heir or co-owner having possession of the hereditary or community property, holds the same in
his own name, that is, under claim of exclusive ownership, he may acquire the property by prescription if
his possession meets all the other requirements of the law, and after the expiration of the prescriptive
period, his co-heir or co-owner may lose their right to demand partition, and their action may then be held
to have prescribed (De los Santos vs. Santa Teresa, 44 Phil. 811).
xxx xxx xxx
(Emphasis supplied)
In the light of the foregoing discussion, it will be seen that the underscored portion of the Court's opinion in Jardinis
actually obiter. For there, the Court simply held the action for partition by the heirs of Catalino and Galo had prescribed and
did not require such heirs to start a new action (which would have been quite pointless); on the other hand, the Court
remanded the case to the lower court for further proceedings in respect of the recovery of a 350 square meter lot which the
evidence showed was owned by the plaintiffs but wrongfully included by Sixto in the cadastral survey of his share of the
adjoining lot.
In Jardin, the claim of co-ownership asserted by the heirs of Catalino and Galo was effectively refuted by the heirs of Sixto,
who not only claimed for themselves absolute and exclusive ownership of the disputed properties but were also in actual
and adverse possesion thereof for a substantial length of time. The Court found, further, that the action for partition initially
available to the heirs of Catalino and Galo had, as a result of the preceding circumstance, already prescribed.
An entirely different situation, however, obtains in the case at bar. First of all, petitioner Concepcion Roque-the co-owner
seeking partition has been and is presently in open and continuous possession of a three-fourths (3/4) portion of the
property owned in common. The Court notes in this respect the finding of the trial court that petitioner, following execution
of the "Bilihan Lubos at Pattlluyan" on 27 November 1961, had been in "continuous occupancy of the 3/4 portion of the
lot ... up to the present, and whereon plaintifrs house and that of her son are erected. " 14 Respondents do not dispute this
finding of fact, although they would claim that petitioner's possession is merely tolerated by them. Second, prior to filing in
1977 of the Complaint in Civil Case No. 5236-M, neither of the parties involved had asserted or manifested a claim of
absolute and exclusive ownership over the whole of Lot No. 1549 adverse to that of any of the other co-owners: in other
words, co-ownership of the property had continued to be recognized by all the owners. Consequently, the action for partition
could not have and, as a matter of fact, had not yet prescribed at the time of institution by Concepcion of the action below.
2. Coming now to the matter regarding dismissal of the respondents'appeal, the Intermediate Appellate Court held that
inasmuch as the attack on the validity of the "Bilihan Lubos at Patuluyan" was predicated on fraud and no action for
annulment of the document had been brought by respondents within the four (4) year prescriptive period provided under
Article 1391 of the Civil Code, such action had already prescribed.
We find it unnecessary to deal here with the issue of prescription discussed by the respondent court in its assailed decision.
The facts on record clearly show that petitioner Concepcion Roque had been in actual, open and continuous possession of a
three-fourths (3/4) portion of Lot No. 1549 ever since execution of the "Bilihan Lubos at Patuluyan" in November of 1961.
The Court notes that it was only in their Answer with Compulsory Counterclaim filed with the trial court in December of
1977 more than sixteen (16) years later that respondents first questioned the genuineness and authenticity of the
"Bilihan Lubos at Patuluyan." Not once during those sixteen (16) years did respondents contest petitioner's occupation of a
three-fourths (3/4) portion of Lot No. 1549. Furthermore, if indeed it is true that respondents, as they claim, are the absolute
owners of the whole of Lot No. 1549, it is most unusual that respondents would have allowed or tolerated such prolonged
occupation by petitioner of a major portion (3/4) of the land while they, upon the other hand, contented themselves with

occupation of only a fourth thereof. This latter circumstance, coupled with the passage of a very substantial length of time
during which petitioner all the while remained undisturbed and uninterrupted in her occupation and possession, places
respondents here in laches: respondents may no longer dispute the existence of the co-ownership between petitioner and
themselves nor the validity of petitioner's claim of a threefourths (3/4) interest in Lot No. 1549, as they are deemed, by their
unreasonably long inaction, to have acquiesced in the coow,aership. 15 In this respect, we affirm the decision of the
respondent appellate court presently under review.
WHEREFORE, the Decision of the Intermediate Appellate Court dated 31 July 1986 in A.C.-G.R. CV No. 02248 is SET
ASIDE with respect to that portion which orders the dismissal of the Complaint in Civil Case No. 5236-M, but is
AFFIRMED with respect to that portion which orders the dismissal of the respondents'appeal in A.C.-G.R. CV No. 02248.
The Decision of Branch 9 of the Regional Trial Court of Malolos dated 27 June 1983 in Civil Case No. 5236-M is hereby
REINSTATED. No pronouncement as to costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-46296 September 24, 1991
EPITACIO DELIMA, PACLANO DELIMA, FIDEL DELIMA, VIRGILIO DELIMA, GALILEO DELIMA, JR.,
BIBIANO BACUS, OLIMPIO BACUS and PURIFICACION BACUS, petitioners,
vs.
HON. COURT OF APPEALS, GALILEO DELIMA (deceased), substituted by his legal heirs, namely: FLAVIANA
VDA. DE DELIMA, LILY D. ARIAS, HELEN NIADAS, ANTONIO DELIMA, DIONISIO DELIMA, IRENEA
DELIMA, ESTER DELIMA AND FELY DELIMA, respondents.
Gabriel J. Canete for petitioners.
Emilio Lumontad, Jr. for private respondents.

MEDIALDEA, J.: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:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the following are the declared owners of Lot No.
7758 of the Talisay-Minglanilla Friar Lands Estate presently covered by transfer Certificate of Title No.
3009, each sharing a pro-indiviso share of one-fourth;
1) Vicente Delima (one-fourth)
2) Heirs of Juanita Delima, namely: Bibiano Bacus, Olimpio Bacus and Purificacion Bacus (on-fourth);
3) Heirs of Eulalio Delima, namely Epitacio, Pagano, Fidel, Virgilio and Galileo Jr., all surnamed Delima
(one-fourth); and

4) The Heirs of Galileo Delima, namely Flaviana Vda. de Delima, Lily D. Arias, Helen Niadas and
Dionisio, Antonio, Eotu Irenea, and Fely, all surnamed Delima (one-fourth).
Transfer Certificate of Title No. 3009 is declared null and void and the Register of Deeds of Cebu is
ordered to cancel the same and issue in lieu thereof another title with the above heirs as pro-indiviso
owners.
After the payment of taxes paid by Galileo Delima since 1958, the heirs of Galileo Delima are ordered to
turn a over to the other heirs their respective shares of the fruits of the lot in question computed at P170.00
per year up to the present time with legal (interest).
Within sixty (60) days from receipt of this decision the parties are ordered to petition the lot in question
and the defendants are directed to immediately turn over possession of the shares here awarded to the
respective heirs.
Defendants are condemned to pay the costs of the suit.
The counterclaim is dismissed.
SO ORDERED. (pp. 54-55, Rollo)
Not satisfied with the decision, respondents appealed to the Court of Appeals. On May 19, 1977, respondent appellate court
reversed the trial court's decision and upheld the claim of Galileo Delima that all the other brothers and sister of Lino
Delima, namely Eulalio, Juanita and Vicente, had already relinquished and waived their rights to the property in his favor,
considering that he (Galileo Delima) alone paid the remaining balance of the purchase price of the lot and the realty taxes
thereon (p. 26, Rollo).
Hence, this petition was filed with the petitioners alleging that the Court of Appeals erred:
1) In not holding that the right of a co-heir to demand partition of inheritance is imprescriptible. If it does,
the defenses of prescription and laches have already been waived.
2) In disregarding the evidence of the petitioners.(p.13, Rollo)
The issue to be resolved in the instant case is whether or not petitioners' action for partition is already barred by the statutory
period provided by law which shall enable Galileo Delima to perfect his claim of ownership by acquisitive prescription to
the exclusion of petitioners from their shares in the disputed property. Article 494 of the Civil Code expressly provides:
Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any
time the partition of the thing owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten
years, shall be valid. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he
expressly or impliedly recognizes the co-ownership.
As a rule, possession by a co-owner will not be presumed to be adverse to the others, but will be held to benefit all. It is
understood that the co-owner or co-heir who is in possession of an inheritance pro-indiviso for himself and in representation
of his co-owners or co-heirs, if, as such owner, he administers or takes care of the rest thereof with the obligation of
delivering it to his co-owners or co-heirs, is under the same situation as a depository, a lessee or a trustee (Bargayo v.
Camumot, 40 Phil, 857; Segura v. Segura, No. L-29320, September 19, 1988, 165 SCRA 368). Thus, an action to compel
partition may be filed at any time by any of the co-owners against the actual possessor. In other words, no prescription shall

run in favor of a co-owner against his co-owners or co-heirs so long as he expressly or impliedly recognizes the coownership (Del Blanco v. Intermediate Appellate Court, No. 72694, December 1, 1987, 156 SCRA 55).
However, from the moment one of the co-owners claims that he is the absolute and exclusive owner of the properties and
denies the others any share therein, the question involved is no longer one of partition but of ownership (De Castro v.
Echarri, 20 Phil. 23; Bargayo v. Camumot, supra; De los Santos v. Santa Teresa, 44 Phil. 811). In such case, the
imprescriptibility of the action for partition can no longer be invoked or applied when one of the co-owners has adversely
possessed the property as exclusive owner for a period sufficient to vest ownership by prescription.
It is settled that possession by a co-owner or co-heir is that of a trustee. In order that such possession is considered adverse
to the cestui que trust amounting to a repudiation of the co-ownership, the following elements must concur: 1) that the
trustee has performed unequivocal acts amounting to an ouster of the cestui que trust; 2) that such positive acts of
repudiation had been made known to the cestui que trust; and 3) that the evidence thereon should be clear and conclusive
(Valdez v. Olorga, No. L-22571, May 25, 1973, 51 SCRA 71; Pangan v. Court of Appeals, No. L-39299, October 18, 1988,
166 SCRA 375).
We have held that when a co-owner of the property in question executed a deed of partition and on the strength thereof
obtained the cancellation of the title in the name of their predecessor and the issuance of a new one wherein he appears as
the new owner of the property, thereby in effect denying or repudiating the ownership of the other co-owners over their
shares, the statute of limitations started to run for the purposes of the action instituted by the latter seeking a declaration of
the existence of the co-ownership and of their rights thereunder (Castillo v. Court of Appeals, No. L-18046, March 31, 1964,
10 SCRA 549). Since an action for reconveyance of land based on implied or constructive trust prescribes after ten (10)
years, it is from the date of the issuance of such title that the effective assertion of adverse title for purposes of the statute of
limitations is counted (Jaramil v. Court of Appeals, No. L-31858, August 31, 1977, 78 SCRA 420).
Evidence shows that TCT No. 2744 in the name of the legal heirs of Lino Delima, represented by Galileo Delima, was
cancelled by virtue of an affidavit executed by Galileo Delima and that on February 4, 1954, Galileo Delima obtained the
issuance of a new title in Ms name numbered TCT No. 3009 to the exclusion of his co-heirs. The issuance of this new title
constituted an open and clear repudiation of the trust or co-ownership, and the lapse of ten (10) years of adverse possession
by Galileo Delima from February 4, 1954 was sufficient to vest title in him by prescription. As the certificate of title was
notice to the whole world of his exclusive title to the land, such rejection was binding on the other heirs and started as
against them the period of prescription. Hence, when petitioners filed their action for reconveyance and/or to compel
partition on February 29, 1968, such action was already barred by prescription. Whatever claims the other co-heirs could
have validly asserted before can no longer be invoked by them at this time.
ACCORDINGLY, the petition is hereby DENIED and the assailed decision of the Court of Appeals dated May 19, 1977 is
AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
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.

Siruello, Muyco & Associates Law Office for private respondent.

BELLOSILLO, J.:
This is a petition for review on certiorari seeking to reverse and set aside the Decision of the Court of Appeals in CA-GR
CV No. 03933 declaring null and void the orders of 23 and 26 April, 1979, the judgment by default of 26 July 1979, and the
order of 22 October 1979 of the then Court of First Instance of Rizal, Pasay City, Branch 30, and directing the trial court to
set the case for pre-trial conference.
Petitioner Virgilio and respondent Senen are brothers; Virgilio is the youngest of seven (7) children of the late Maximiano
Aguilar, while Senen is the fifth. On 28 October 1969, the two brothers purchased a house and lot in 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.
Since Virgilio was then disqualified from obtaining a loan from SSS, the brothers agreed that the deed of sale would be
executed and the title registered in the meantime in the name of Senen. It was further agreed that Senen would take care of
their father and his needs since Virgilio and his family were staying in Cebu.
After Maximiano Aguilar died in 1974, petitioner demanded from private respondent that the latter vacate the house and that
the property be sold and proceeds thereof divided among them.
Because of the refusal of respondent to give in to petitioner's demands, the latter filed on 12 January 1979 an action to
compel the sale of the house and lot so that the they could divide the proceeds between them.
In his complaint, petitioner prayed that the proceeds of the sale, be divided on the basis of two-thirds (2/3) in his favor and
one-third (1/3) to respondent. Petitioner also prayed for monthly rentals for the use of the house by respondent after their
father died.
In his answer with counterclaim, respondent alleged that he had no objection to the sale as long as the best selling price
could be obtained; that if the sale would be effected, the proceeds thereof should be divided equally; and, that being a coowner, 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 pretrial, and served with the pre-trial order, with private respondent executing a special power of attorney to his lawyer to
appear at the pre-trial and enter into any amicable settlement in his behalf. 1
On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel for respondent, filed a motion to cancel pre-trial on the ground that
he would be accompanying his wife to Dumaguete City where she would be a principal sponsor in a wedding.
On 23 April 1979, finding the reasons of counsel to be without merit, the trial court denied the motion and directed that the
pre-trial should continue as scheduled.
When the case was called for pre-trial as scheduled on 26 April 1979, plaintiff and his counsel appeared. Defendant did not
appear; neither his counsel in whose favor he executed a special power of attorney to represent him at the pre-trial.
Consequently, the trial court, on motion of plaintiff, declared defendant as in default and ordered reception of plaintiff's
evidence ex parte.
On 7 May 1979, defendant through counsel filed an omnibus motion to reconsider the order of default and to defer reception
of evidence. The trial court denied the motion and plaintiff presented his evidence.

On 26 July 1979, rendering judgment by default against defendant, the trial court found him and plaintiff to be co-owners of
the house and lot, in equal shares on the basis of their written agreement. However, it ruled that plaintiff has been deprived
of his participation in the property by defendant's continued enjoyment of the house and lot, free of rent, despite demands
for rentals and continued maneuvers of defendants, to delay partition. The trial court also upheld the right of plaintiff as coowner to demand partition. Since plaintiff could not agree to the amount offered by defendant for the former's share, the trial
court held that this property should be sold to a third person and the proceeds divided equally between the parties.
The trial court likewise ordered defendant to vacate the property and pay plaintiff P1,200.00 as 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 defendants motion for postponement of the pre-trial set on 26 April 1979; (b)
the order of 26 April 1979 declaring him in default and authorizing plaintiff to present his evidence ex-parte; (e) the default
judgment of 26 July 1979; and, (d) the order dated 22 October 1979 denying his omnibus motion for new trial.
On 16 October 1986, the Court of Appeals set aside the order of the trial court of 26 April 1979 as well as the assailed
judgment rendered by default., The appellate court found the explanation of counsel for defendant in his motion to cancel
pre-trial as satisfactory and devoid of a manifest intention to delay the disposition of the case. It also ruled that the trial court
should have granted the motion for postponement filed by counsel for defendant who should not have been declared as in
default for the absence of his counsel.
Petitioner now comes to us alleging that the Court of Appeals erred (1) in not holding that the motion of defendant through
counsel to cancel the pre-trial was dilatory in character and (2) in remanding the case to the trial court for pre-trial and trial.
The issues to be resolved are whether the trial court correctly declared respondent as in default for his failure to appear at
the pre-trial and in allowing petitioner to present his evidence ex-parte, and whether the trial court correctly rendered the
default judgment against respondent.
We find merit in the petition.
As regards the first issue, the law is clear that the appearance of parties at the pre-trial is mandatory. 3 A party who fails to
appear at a pre-trial conference may be non-suited or considered as in default. 4 In the case at bar, where private respondent
and counsel failed to appear at the scheduled pre-trial, the trial, court has authority to declare respondent in default. 5
Although respondent's counsel filed a motion to postpone pre-trial hearing, the grant or denial thereof is within the sound
discretion of the trial court, which should take into account two factors in the grant or denial of motions for postponement,
namely: (a) the reason for the postponement and (b) the merits of the case of movant. 6
In the instant case, the trial court found the reason stated in the motion of counsel for respondent to cancel the pre-trial to be
without merit. Counsel's explanation that he had to go to by boat as early as 25 March 1979 to fetch his wife and accompany
her to a wedding in Dumaguete City on 27 April 1979 where she was one of the principal sponsors, cannot be accepted. We
find it insufficient to justify postponement of the pre-trial, and the Court of Appeals did not act wisely in overruling the
denial. We sustain the trial court and rule that it did not abuse its discretion in denying the postponement for lack of merit.
Certainly, to warrant a postponement of a mandatory process as pre-trial would require much more than mere attendance in
a social function. It is time indeed we emphasize that there should be much more than mere perfunctory treatment of the
pre-trial procedure. Its observance must be taken seriously if it is to attain its objective, i.e., the speedy and inexpensive
disposition of cases.
Moreover, the trial court denied the motion for postponement three (3) days before the scheduled pre-trial. If indeed,
counsel for respondent could not attend the pre-trial on the scheduled date, respondent at least should have personally

appeared in order not to be declared as in default. But, since nobody appeared for him, the order of the trial court declaring
him as in default and directing the presentation of petitioner's evidence ex parte was proper. 7
With regard to the merits of the judgment of the trial court by default, which respondent appellate court did not touch upon
in resolving the appeal, the Court holds that on the basis of the pleadings of the parties and the evidence presented ex parte,
petitioner and respondents are co-owners of subject house and lot in equal shares; either one of them may demand the sale
of the house and lot at any time and the other cannot object to such demand; thereafter the proceeds of the sale shall be
divided equally according to their respective interests.
Private respondent and his family refuse to pay monthly rentals to petitioner from the time their father died in 1975 and to
vacate the house so that it can be sold to third persons. Petitioner alleges that respondent's continued stay in the property
hinders its disposal to the prejudice of petitioner. On the part of petitioner, he claims that he should be paid two-thirds (2/3)
of a monthly rental of P2,400.00 or the sum of P1,600.00.
In resolving the dispute, the trial court ordered respondent to vacate the property so that it could be sold to third persons and
the proceeds divided between them equally, and for respondent to pay petitioner one-half (1/2) of P2,400.00 or the sum of
P1,200.00 as monthly rental, conformably with their stipulated sharing reflected in their written agreement.
We uphold the trial court in ruling in favor of petitioner, except as to the effectivity of the payment of monthly rentals by
respondent as co-owner which we here declare to commence only after the trial court ordered respondent to vacate in
accordance with its order of 26 July 1979.
Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in the co-ownership, and that each coowner may demand at any time partition of the thing owned in common insofar as his share is concerned. Corollary to this
rule, Art. 498 of the Code states that whenever the thing is essentially, indivisible and the co-owners cannot agree that it be,
allotted to one of them who shall indemnify the others, it shall be sold and its proceeds accordingly distributed. This is
resorted to (1) when the right to partition the property is invoked by any of the co-owners but because of the nature of the
property it cannot be subdivided or its subdivision would prejudice the interests of the co-owners, and (b) the co-owners are
not in agreement as to who among them shall be allotted or assigned the entire property upon proper reimbursement of the
co-owners. In one case, 8 this Court upheld the order of the trial court directing the holding of a public sale of the properties
owned in common pursuant to Art. 498 of the Civil Code.
However, being a co-owner respondent has the right to use the house and lot without paying any compensation to petitioner,
as he may use the property owned in common long as it is in accordance with the purpose for which it is intended and in a
manner not injurious to the interest of the other co-owners. 9 Each co-owner of property heldpro 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 indivisoproperty, in addition to
his
use
and
enjoyment
of
the
same. 10
Since petitioner has decided to enforce his right in court to end the co-ownership of the house and lot and respondent has
not refuted the allegation that he has been preventing the sale of the property by his continued occupancy of the premises,
justice and equity demand that respondent and his family vacate the property so that the sale can be effected immediately. In
fairness to petitioner, respondent should pay a rental of P1,200.00 per month, with legal interest; from the time the trial
court ordered him to vacate, for the use and enjoyment of the other half of the property appertaining to petitioner.
When petitioner filed an action to compel the sale of the property and the trial court granted the petition and ordered the
ejectment of respondent, the co-ownership was deemed terminated and the right to enjoy the possession jointly also ceased.
Thereafter, the continued stay of respondent and his family in the house prejudiced the interest of petitioner as the property
should have been sold and the proceeds divided equally between them. To this extent and from then on, respondent should
be held liable for monthly rentals until he and his family vacate.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 16 October 1986 is
REVERSED and SET ASIDE. The decision of the trial court in Civil Case No. 69.12-P dated 16 July 1979 is
REINSTATED, with the modification that respondent Senen B. Aguilar is ordered to vacate the premises in question within
ninety (90) days from receipt of this and to pay petitioner Virgilio B. Aguilar a monthly rental of P1,200.00 with interest at
the legal rate from the time he received the decision of the trial court directing him to vacate until he effectively leaves the
premises.
The trial court is further directed to take immediate steps to implement this decision conformably with Art. 498 of the Civil
Code and the Rules of Court. This decision is final and executory.
SO ORDERED.
SECOND 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.
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 forcertiorari. 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 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 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 coownership. 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.