Spouses REMPSON SAMSON and MILAGROS SAMSON; and REMPSON REALTY

& DEVELOPMENT CORPORATION, petitioners, vs. Judge MAURICIO M.

RIVERA, in His Capacity as Presiding Judge of the Regional Trial Court of
Antipolo City, Branch 73; Atty. JOSELITA MALIBAGO-SANTOS, in Her
Capacity as Ex Officio Sheriff, RTC of Antipolo City; and LENJUL REALTY
CORPORATION, respondents.

DECISION
PANGANIBAN, J.:

In denying the Petition, this Court applies the well-entrenched rule that the buyer in
an extrajudicial foreclosure sale is entitled to possession of the purchased property.Any
question regarding the regularity and validity of the mortgage and foreclosure sale may
be determined only after the issuance of the writ of possession.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to
set aside the March 7, 2002 Resolution[2] and the July 18, 2002 Resolution[3] of the Court
of Appeals (CA) in CA-GR SP No. 69266. The March 7, 2002 Resolution disposed as
follows:

WHEREFORE, the instant petition is DISMISSED.[4]

The July 18, 2002 Resolution denied reconsideration.

The Facts

The pertinent facts are undisputed. Petitioner Spouses Rempson and Milagros
Samson incurred from Far East Bank and Trust Company (FEBTC) loan obligations, the
principal of which amounted to fifty-five million pesos (P55,000,000).[5] On October 10,
1994 and February 22, 1996, in order to secure the payment of the loan obligations,
Spouses Samson executed in favor of FEBTC two real estate mortgages covering five
parcels of commercial property located at Antipolo City, Rizal.[6]
Petitioner spouses failed to settle their loan obligations. Thus, on May 16, 2000,
FEBTC filed an Application for Extra-Judicial Foreclosure of Real Estate
Mortgage[7]before the Office of the Clerk of Court and Ex-Officio Sheriff of the Regional
Trial Court (RTC) of Antipolo City.[8] In their application, FEBTC requested the said office
to foreclose the two mortgages extrajudicially, in the manner and form prescribed by Act
3135, as amended, to satisfy the debt of P72,219,158.45, inclusive of interest, penalties
and other charges.[9]
 Acting on the application, the Office of the Clerk of Court and Ex-Officio Sheriff issued
a Notice of Sheriff Sale dated May 19, 2000,[10] setting the foreclosure sale on June 22,
2000.[11] There was only one bidder during the foreclosure sale, so in accordance with
AM 99-10-05-0,[12] the sheriff postponed the auction to July 5, 2000.[13]
On July 5, 2000, the auction sale proceeded with two bidders participating -- FEBTC
and Lenjul Realty and Development Corporation, with the latter declared as the highest
bidder in the amount of eighty million pesos (P80,000,000).[14] On July 11, 2000, a
Certificate of Sheriffs Sale was issued confirming the sale of the foreclosed properties to
the winning bidder.[15] Shortly thereafter, the Certificate of Sale was registered with the
Registry of Deeds of Antipolo City.[16] On February 19, 2001, new Certificates of Title over
the foreclosed properties were issued by the Register of Deeds of Antipolo City in favor
of Lenjul Realty Corporation.[17]
On April 3, 2001, Private Respondent Lenjul Realty filed a Petition for the Issuance
of a Writ of Possession, which sought an ex parte issuance of a writ of possession over
the foreclosed properties.[18] The Petition was docketed as Land Registration Case No.
01-2698 and raffled to Branch 73 presided by Judge Mauricio M. Rivera. [19] On June 11,
2001 and June 15, 2001, Spouses Samson and Rempson Corporation filed their
respective Answer/Opposition.[20]
While the Petition was pending, Spouses Samson and Rempson Corporation filed
with the Antipolo City RTC, an action for Annulment of Extra-Judicial Foreclosure and/or
Nullification of Sale and the Certificates of Title, plus Reconveyance and Damages with
Prayer for a Temporary Restraining Order and/or Writ of Preliminary
Injunction. Petitioners filed it against Lenjul Realty Corporation, FEBTC, Bank of the
Philippine Islands, Joselita Malibao-Santos in her capacity as the clerk of court and ex
officio sheriff of the Antipolo City RTC, and the Register of Deeds of Antipolo City. The
case was docketed as Civil Case No. 01-6219 and raffled to Branch 71 presided by Judge
Felix S. Caballes.[21] On August 15, 2001, upon motion of Petitioner Rempson Realty and
Development Corporation, Judge Caballes issued an Order directing the consolidation of
the civil case with the land registration case.[22]
On September 18, 2001, Judge Rivera issued an order denying the consolidation of
the Petition for Writ of Possession and the civil case for annulment of foreclosure. [23]On
October 22, 2001 and December 4, 2001, respectively, Rempson Corporation and
Spouses Samson moved for a reconsideration of the September 18, 2001 Order denying
consolidation.[24]
On November 5, 2001, Judge Rivera gave due course to the Petition for the Issuance
of a Writ of Possession and denied the Opposition of Spouses Samson and Rempson
Corporation.[25] Thus, they filed their respective Motions for Reconsideration on
December 4, 2001 and December 7, 2001.[26]
On February 11, 2002, Judge Rivera denied reconsideration of the Order giving due
course to the Petition for the Issuance of the Writ of Possession and directed the issuance
of such writ of possession.[27]
 On February 20, 2002, Judge Rivera issued an Order granting petitioners Motion for
Reconsideration with regard to the September 18, 2001 Order denying the consolidation
of cases.[28]
On February 26, 2002, a Writ of Possession[29] was issued directing the sheriff of the
Antipolo City RTC to place Lenjul Realty Corporation in physical possession of the
foreclosed properties. On the same date, the sheriff issued a Notice to
Vacate[30] addressed to Rempson Corporation, ordering it to leave the properties on
or before March 2, 2002.
On February 22, 2002, petitioners filed with the Court of Appeals the aforesaid
Special Civil Action for Certiorari with Prohibition/Mandamus under Rule 65 with an
Application for Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining
Order to annul the November 5, 2001 and the February 11, 2002 Orders of Judge
Rivera.[31]

Ruling of the Court of Appeals

The Court of Appeals ruled that certiorari was improper, because there was an
adequate remedy in the ordinary course of law. Citing Section 8 of Act No. 3135, it opined
that petitioners remedy was to file a petition to set aside the foreclosure sale and to cancel
the writ of possession in LR Case No. 01-2698. The CA further noted that certiorari was
premature inasmuch as petitioners had failed to file a motion for reconsideration of the
Order directing the issuance of the writ of possession.[32]
In denying the Motion for Reconsideration, the Court of Appeals held that the
issuance of a writ of possession was a ministerial function that was done upon the filing
of the proper motion and the approval of the corresponding bond. [33] It further ruled that
prohibition did not lie to enjoin the implementation of the writ.[34]
Hence this Petition.[35]

The Issues

In their Memorandum, petitioners assign the following issues for our consideration:

1.) Whether or not the Court of Appeals had erroneously affirmed the ruling of x x x
Judge Rivera ordering the immediate issuance of a writ of possession in favor of private
respondent Lenjul Realty Corporation without first requiring presentation of evidence
and formal offer thereof;

2.) Whether or not the Court of Appeals had erroneously affirmed the ruling of x x x
Judge Rivera upholding the validity of the issuance of new titles over the foreclosed
properties in the name of Private Respondent Lenjul Realty Corporation despite the fact
that the consolidation of ownership therein was done prior to the expiration of the 1-year
period of redemption.

3.) Whether or not the Court of Appeals had erroneously affirmed the ruling of x x x
Judge Rivera upholding the now 3-month period of redemption for juridical mortgagors
under the General Banking Act of Year 2000 and the application of said law
retroactively as to violate the equal protection clause of the [n]ew Constitution and the
prohibition therein on non-impairment of contracts.

4.) Whether or not the Court of Appeals had erroneously affirmed the ruling of x x x
Judge Rivera refusing consolidation of the annulment case pending in the sala of Judge
Caballes with the case below despite the fact that petitioners had already contested
Private Respondent Lenjul Realty Corporations presumed ownership over the
foreclosed properties so that the issue of such presumed ownership should first be
resolved before the petition for writ of possession is heard.

5.) Whether or not the Court of Appeals had erroneously affirmed the ruling of x x x
Judge Rivera giving due course to the petition for writ of possession despite the fact that
Private Respondent Lenjul Realty Corporation was not the winning bidder at the
foreclosure sale, nor a transferee and/or successor-in-interest of the rightful winning
bidder Lenjul Realty and Development Corporation.

6.) Whether or not the Court of Appeals had erroneously affirmed the ruling of x x x
Judge Rivera ignoring and disregarding existing rules of procedure and jurisprudence
that foreclosed properties, consisting of separate lots covered by individual transfer
certificates of title, should be sold separately and not en masse.

7.) Whether or not the Court of Appeals had erred in dismissing the special civil action
for certiorari on grounds of perceived technicalities and/or alleged procedural
imperfections rather than on its merits.[36]

The issues to be addressed in this case are as follows: (1) whether the trial court
committed grave abuse of discretion in granting the Petition for the Issuance of a Writ of
Possession; and (2) whether the filing of a Petition for Certiorari with the Court of Appeals
was the proper remedy.

The Courts Ruling

The Petition has no merit.

First Issue:
Writ of Possession
 The Court of Appeals correctly sustained the issuance of the Writ of Possession. The
issuance of the Writ is explicitly authorized by Act 3135[37] (as amended by Act 4118),
which regulates the methods of effecting an extrajudicial foreclosure of
mortgage.[38] Section 7 thereof provides:

Section 7. Possession during redemption period. In any sale made under the provisions
of this Act, the purchaser may petition the [Regional Trial Court] where the property or
any part thereof is situated, to give him possession thereof during the redemption
period, furnishing bond in an amount equivalent to the use of the property for a period of
twelve months, to indemnify the debtor in case it be shown that the sale was made
without violating the mortgage or without complying with the requirements of this
Act. Such petition shall be made under oath and filed in form of an ex parte motion in
the registration or cadastral proceedings if the property is registered, or in special
proceedings in the case of property registered under the Mortgage Law or under section
one hundred and ninety-four of the Administrative Code, or of any other real property
encumbered with a mortgage duly registered in the office of any register of deeds in
accordance with any existing law, and in each case the clerk of the court shall, upon the
filing of such petition, collect the fees specified in paragraph eleven of section one
hundred and fourteen of Act Numbered Four hundred and ninety-six, as amended by
Act Numbered Twenty-eight hundred and sixty-six, and the court shall, upon approval of
the bond, order that a writ of possession issue, addressed to the sheriff of the province
in which the property is situated, who shall execute said order immediately.

Entitlement to
Writ of Possession

Under the provision cited above, the purchaser in a foreclosure sale may apply for a
writ of possession during the redemption period by filing for that purpose an ex parte
motion under oath, in the corresponding registration or cadastral proceeding in the case
of a property with torrens title. Upon the filing of such motion and the approval of the
corresponding bond, the court is expressly directed to issue the writ.[39]
This Court has consistently held that the duty of the trial court to grant a writ of
possession is ministerial.[40] Such writ issues as a matter of course upon the filing of the
proper motion and the approval of the corresponding bond. No discretion is left to the trial
court.[41] Any question regarding the regularity and validity of the sale, as well as the
consequent cancellation of the writ, is to be determined in a subsequent proceeding as
outlined in Section 8 of Act 3135.[42] Such question cannot be raised to oppose the
issuance of the writ, since the proceeding is ex parte.[43] The recourse is available even
before the expiration of the redemption period provided by law and the Rules of Court. [44]
The purchaser, who has a right to possession that extends after the expiration of the
redemption period,[45] becomes the absolute owner of the property when no redemption
is made. Hence, at any time following the consolidation of ownership and the issuance of
a new transfer certificate of title in the name of the purchaser, he or she is even more
entitled to possession of the property.[46] In such a case, the bond required under Section
7 of Act 3135 is no longer necessary, since possession becomes an absolute right of the
purchaser as the confirmed owner.[47]

The Petition for Writ of Possession

Not Stayed by the Annulment Case

This Court has long settled that a pending action for annulment of mortgage or
foreclosure does not stay the issuance of a writ of possession. [48] Therefore, the
contention of petitioners that the RTC should have consolidated Civil Case No. 01-6219
with LR Case No. 01-2698 and resolved the annulment case prior to the issuance of the
Writ of Possession is unavailing.
Their reliance on Active Wood Products Co., Inc. v. Court of Appeals[49] is
misplaced. In that case, the sole issue was the consolidation of a civil case regarding the
validity of the mortgage and a land registration case for the issuance of a writ of
possession. It did not declare that the writ of possession must be stayed until the
questions on the mortgage or the foreclosure sale were resolved. Moreover, the issue of
consolidation in the present case has become moot, considering that the trial court has
already granted it.

Second Issue:
Proper Remedy

The Court of Appeals correctly declared that petitioners pursued the wrong remedy. A
special civil action for certiorari could be availed of only if the lower tribunal has acted
without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and if there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law.[50]

No Grave Abuse of Discretion

There is grave abuse when the court -- in the exercise of its judgment -- acts in a
capricious, whimsical, arbitrary or despotic manner equivalent to acting with lack of
jurisdiction.[51] Considering that the trial court issued the Writ of Possession in compliance
with the express provisions of Act 3135, it cannot be charged with having acted in excess
of its jurisdiction or with grave abuse of discretion.[52]
Since there was no grave abuse of discretion, petitioner should have filed an ordinary
appeal instead of a petition for certiorari. In GSIS v. CA,[53] this Court held that the wisdom
or soundness of the x x x order granting [the] writ of possession x x x is a matter of
judgment [in] which the remedy is ordinary appeal.[54] An error of judgment committed by
a court in the exercise of its legitimate jurisdiction is not the same as grave abuse of
discretion.[55] Errors of judgment are correctible by appeal, while those of jurisdiction are
reviewable by certiorari.[56]

Available Remedy

Section 8 of Act 3135 provides the plain, speedy, and adequate remedy in opposing
the issuance of a writ of possession. [57] The provision reads:

Section 8. Setting aside of sale and writ of possession. The debtor may, in the
proceedings in which possession was requested, but not later than thirty days after
the purchaser was given possession, petition that the sale be set aside and the writ
of possession cancelled, specifying the damages suffered by him, because the
mortgage was not violated or the sale was not made in accordance with the provisions
hereof, and the court shall take cognizance of this petition in accordance with the
summary procedure provided for in section one hundred and twelve of Act Numbered
Four hundred and ninety-six; and if it finds the complaint of the debtor justified, it shall
dispose in his favor of all or part of the bond furnished by the person who obtained
possession. Either of the parties may appeal from the order of the judge in accordance
with section fourteen of Act Numbered Four hundred and ninety-six; but the order of
possession shall continue in effect during the pendency of the appeal. (Emphasis
supplied)

A party may petition for the setting aside of a foreclosure sale and for the cancellation
of a writ of possession in the same proceedings where the writ of possession was
requested. In petitioners case, the filing of the Petition is no longer necessary because
the pendency of Civil Case No. 01-6219 (which was consolidated with the present case)
already challenged the foreclosure sale.
Pending proceedings assailing the issuance of the writ, the purchaser in a foreclosure
sale is entitled to possession of property. If the trial court later finds merit in a petition to
set the writ aside, it shall dispose in favor of the mortgagor the bond furnished by the
purchaser.[58]
It should also be noted that prior to the filing of a petition for certiorari, a motion for
reconsideration is generally required.[59] Petitioner may have filed a Motion for
Reconsideration with regard to the trial courts Order giving due course to the Petition, but
not with regard to the Order directing the issuance of a writ of possession.
Finally, petitioners allegation that the RTC issued the Writ of Possession despite
failing to receive evidence is unsupported by the record. The documents submitted to this
Court show sufficient basis for the trial court to rule accordingly. Despite the ex parte
nature of the proceedings, and aside from the oral arguments, the RTC allowed
petitioners to file pleadings to oppose the Petition for the issuance of the Writ of
Possession.
SPOUSES RICARDO ROSALES and ERLINDA SIBUG, vs. SPOUSES
ALFONSO and LOURDES SUBA, THE CITY SHERIFF OF MANILA

DOCTRINE: Clearly, as a general rule, there is no right of redemption in a judicial foreclosure of

mortgage. The only exemption is when the mortgagee is the Philippine National Bank or a bank or a
banking institution. Since the mortgagee in this case is not one of those mentioned, no right of
redemption exists in favor of petitioners. They merely have an equity of redemption, which,
to reiterate, is simply their right, as mortgagor, to extinguish the mortgage and retain ownership
of the property by paying the secured debt prior to the confirmation of the foreclosure
sale. However, instead of exercising this equity of redemption, petitioners chose to
delay the proceedings by filing several manifestations with the trial court. Thus,
they only have themselves to blame for the consequent loss of their property.

FACTS:
1.The spouses Ricardo Rosales and Erlinda Sibug were indebted to a certain Felicisimo
Macaspac. Later, Macaspac sued the spouses for their failure to pay. During trial, it was found out that
there existed an equitable mortgage between the spouses and Macaspac. The court ordered the
spouses to pay Macaspac and if they fail to do so, their property shall be foreclosed.
2. The spouses failed to pay Macaspac hence the court ordered the sale at a public auction of
their land in May 1998. The highest bidder was the spouses Alfonso and Lourdes Suba. In June
1998, the trial court issued an order confirming the sale made to the spouses Suba. The spouses
Rosales then filed a motion for reconsideration. The trial court ruled against their motion as it ruled
that there is no right of redemption in judicial foreclosures. The Court of Appeals affirmed
the decision of the trial court.

ISSUE: Whether or not the debtor-mortgagor can exercise the right of redemption in
judicial foreclosure.

HELD: No. There is no right of redemption in judicial foreclosure. What can be exercised is equity
of redemption. Equity of redemption is simply the right of the mortgagor to extinguish the mortgage
and retain ownership of the property by paying the secured debt within the 90-day period after the
judgment becomes final, in accordance with Rule 68 of the Rules of Court, or even after the
foreclosure sale but prior to its confirmation by the court (prior to the court’s
confirmation of the sale).
In this case, unfortunately, the spouses Rosales never exercised their equity of redemption. When can
equity of redemption be exercised? The mortgagor may exercise his equity of redemption even
beyond the 90-day period ‘from the date of service of the order,’ and even after the foreclosure sale
itself, provided it be before the order of confirmation of the sale.

Are there any exceptions to the rule that “there is no right of redemption in judicial foreclosure”?
Yes, the only exemption is when the mortgagee is the Philippine National Bank or a bank or a
banking institution. In such cases, the mortgagor can exercise the right of redemption.
CASE DIGEST: LEONARDO NOTARTE, GUILLERMO
NOTARTE, REGALADO NOTARTE AND HEIRS OF FELIPE
NOTARTE,Petitioners, v. GODOFREDO NOTARTE,
Respondent.

FACTS: Petitioners Leonardo, Guillermo, Regalado, all

surnamed Notarte, and the heirs of Felipe Notarte were co-
owners of a 263,233-square meter land covered by Original
Certificate of Title (OCT) No. 48098.

On October 15, 1984, respondent Godofredo Notarte

(Godofredo) bought a portion of the said land from Patrocenia
Nebril-Gamboa (Patrocenia), cousin of Felipe Notarte.
Thereafter, Godofredo filed a complaint before the MTC to
correct and remove the overlapping of boundaries of the lots
originally covered by OCT No. 48098. He averred that the
said parcel of land is no longer undivided as it had been
physically segregated into the designated shares of the
registered owners.

Leonardo, et al. countered that the land was never validly

partitioned since there was neither extrajudicial nor judicial
partition executed. They claimed that their respective areas of
possession were just orally assigned to each one of them.

ISSUE: Is an oral partition of co-owned property valid?

HELD: We sustain the RTC and CA in finding that the

property covered by OCT No. 48098 had already been
partitioned long before respondent purchased his lot. Under
Article 1082 of the Civil Code, every act which is intended to
put an end to indivision among co-heirs is deemed to be a
partition even though it should purport to be a sale, an
exchange, or any other transaction. Partition may thus be
inferred from circumstances sufficiently strong to support the
presumption. The validity of an oral partition is already well-
settled. In another case, we have held that after exercising
acts of ownership over their respective portions of the
contested estate, petitioners are estopped from denying the
existence of an oral partition.

On this point, this Court has ruled that: "on general principle,
independent and in spite of the statute of frauds, courts of
equity have enforced oral partition when it has been
completely or partly performed. Regardless of whether a parol
partition or agreement to partition is valid and enforceable at
law, equity will in proper cases, where the parol partition has
actually been consummated by the taking of possession in
severalty and the exercise of ownership by the parties of the
respective portions set off to each, recognize and enforce
such parol partition and the rights of the parties thereunder.
Lacbayan Vs. Samoy
Facts:
 Betty Lacbayan (petitioner) and Bayani S. Samoy (respondent) had an illicit
relationship.
 During their relationship, they, together with three more incorporators, were able to
establish a manpower services company.
 The company acquired five parcels of land were registered in petitioner and
respondent’s names, ostensibly as husband and wife.
 When their relationship turned sour, they decided to divide the said properties and
terminate their business partnership by executing a Partition Agreement.
 Initially, respondent agreed to petitioner’s proposal that the properties in Malvar St.
and Don Enrique Heights be assigned to the latter, while the ownership over the
three other properties will go to respondent.
 However, when Lacbayan wanted additional demands to be included in the
partition agreement, Samoy refused.
 Feeling aggrieved, petitioner filed a complaint for judicial partition of the said
properties.
 Petitioner’s contention: She claimed that they started to live together as husband
and wife in 1979 without the benefit of marriage and worked together as business
partners, acquiring real properties amounting to P15,500,000.00.
 Respondent’s contention: He purchased the properties using his own personal
funds.
 RTC and CA ruled in favor or respondent.

Issues:
1. WON an action for partition precludes a settlement on the issue of ownership.
2. Would a resolution on the issue of ownership subject the Torrens title issued over the
disputed realties to a collateral attack?
Held:

1. No.
While it is true that the complaint involved here is one for partition, the same is premised
on the existence or non-existence of co-ownership between the parties. Until and unless
this issue of co-ownership is definitely and finally resolved, it would be premature to effect
a partition of the disputed properties. More importantly, the complaint will not even lie if
the claimant, or petitioner in this case, does not even have any rightful interest over the
subject properties.
A careful perusal of the contents of the so-called Partition Agreement indicates that the
document involves matters which necessitate prior settlement of questions of law, basic
of which is a determination as to whether the parties have the right to freely divide among
themselves the subject properties.

2. No.
There is no dispute that a Torrens certificate of title cannot be collaterally attacked, but
that rule is not material to the case at bar. What cannot be collaterally attacked is the
certificate of title and not the title itself. The certificate referred to is that document issued
by the Register of Deeds known as the TCT. In contrast, the title referred to by law means
ownership which is, more often than not, represented by that document.
Moreover, placing a parcel of land under the mantle of the Torrens system does not mean
that ownership thereof can no longer be disputed. Mere issuance of the certificate of title
in the name of any person does not foreclose the possibility that the real property may be
under co-ownership with persons not named in the certificate, or that the registrant may
only be a trustee, or that other parties may have acquired interest over the property
subsequent to the issuance of the certificate of title. Needless to say, registration does
not vest ownership over a property, but may be the best evidence thereof.

Other topic:
Whether respondent is estopped from repudiating co-ownership over the subject realties.

YES. Petitioner herself admitted that she did not assent to the Partition Agreement after
seeing the need to amend the same to include other matters. Petitioner does not have
any right to insist on the contents of an agreement she intentionally refused to sign.
Moreover, to follow petitioner’s argument would be to allow respondent not only to admit
against his own interest but that of his legal spouse as well, who may also be lawfully
entitled co-ownership over the said properties.
 HEIRS OF FLORES RESTAR v. HEIRS OF DOLORES R. CICHON

475 SCRA 73 (2005)

Ordinary acquisitive prescription requires possession of things in good faith and with
just title for a period of ten years while extraordinary acquisitive prescription only
requires uninterrupted adverse possession for thirty years.

Emilio Restar died intestate, leaving eight children-compulsory heirs. Restar’s eldest
child, Flores, on the basis of a Joint Affidavit he executed with Helen Restar, caused the
cancellation of Tax Declaration in Restar’s name. The same covers a 5,918 square meter
parcel of land in Aklan which was among the properties left by Restar. Flores thereafter
sought the issuance of another Tax Declaration in his name. Flores later on died.

Ten years later, the heirs of Flores’ sisters, Dolores R. Cichon, et. al. (Heirs of Cichon)
filed a Complaint against Flores’ heirs for “partition of the lot, declaration of nullity of
documents, ownership with damages and preliminary injunction” before the Regional
Trial Court (RTC) of Aklan alleging that the widow Esmenia appealed to them to allow
her to hold on to the lot to finance the education of her children, to which they agreed on
the condition that after the children had finished their education, it would be divided into
eight equal parts; and upon their demand for partition of the lot,
the defendants Flores‘ heirs refused, they claiming that they were the lawful owners
thereof as they had inherited it from Flores.

Flores‘ heirs claimed that they had been in possession of the lot in the concept of owner
for more than thirty (30) years and have been paying realty taxes since time immemorial.
And they denied having shared with the plaintiffs the produce of the lot or that upon
Flores’ death in 1989, Esmenia requested the plaintiffs to allow her to hold on to it to
finance her children’s education, they contending that by 1977, the children had
already finished their respective courses.

The RTC of Kalibo, Aklan held that Flores and his heirs had performed acts sufficient to
constitute repudiation of the co-ownership, concluded that they had acquired the lot by
prescription. The Court of Appeals reversed the decision finding that there was no
adequate notice by Flores to his co-heirs of the repudiation of the co-ownership and
neither was there a categorical assertion by the defendants of their exclusive right to the
entire lot that barred the plaintiffs’ claim of ownership.

ISSUE:

Whether or not Heirs of Flores acquired ownership over the lot by extraordinary
prescription

HELD:

Acquisitive prescription of dominion and other real rights may be ordinary or

extraordinary. Ordinary acquisitive prescription requires possession of things in good
faith and with just title for a period of ten years. Without good faith and just title,
acquisitive prescription can only be extraordinary in character which requires
uninterrupted adverse possession for thirty years.

When Restar died in 1935, his eight children became pro indiviso co-owners
of the lot by intestate succession. Heirs of Chichon never possessed the lot, however,
much less asserted their claim thereto until January 21, 1999 when they filed the
complaint for partition subject of the present petition. In contrast, Flores took possession
of the lot after Restar’s death and exercised acts of dominion thereon — tilling and
cultivating the land, introducing improvements, and enjoying the produce thereof. Flores’
possession thus ripened into ownership through acquisitive prescription after the lapse
of thirty years in accordance with the earlier quoted Article 1137 of the New Civil Code.

Heirs of Cichon did not deny that aside from the verbal partition of one parcel of land in
Carugdog, Lezo, Aklan way back in 1945, they also had an amicable partition of the lands
of Emilio Restar in Cerrudo and Palale, Banga Aklan on September 28, 1973 (exhibit
“20”). If they were able to demand the partition, why then did they not demand the
inclusion of the land in question in order to settle once and for all the inheritance from
their father Emilio Restar, considering that at that time all of the brothers and sisters, the
eight heirs of Emilio Restar, were still alive and participated in the signing of the extra-
judicial partition?

Indeed, the following acts of Flores show possession adverse to his co-heirs: the
cancellation of the tax declaration certificate in the name of Restar and securing another
in his name; the execution of a Joint Affidavit stating that he is the owner and possessor
thereof to the exclusion of respondents; payment of real estate tax and irrigation fees
without respondents having ever contributed any share therein; and
continued enjoyment of the property and its produce to the exclusion of respondents. And
Flores’ adverse possession was continued by his heirs.

The trial court’s finding and conclusion that Flores and his heirs had for more than 38
years possessed the land in open, adverse and continuous possession in the concept of
owner — which length of possession had never been questioned, rebutted or disputed by
any of the heirs of Cichon, being thus duly supported by substantial evidence, he and
his heirs have become owner of the lot by extraordinary prescription. It is unfortunate
that respondents slept on their rights. Dura lex sed lex.
G.R. No. 152195 PEDRO SEPULVEDA, SR., substituted by SOCORRO S. LAWAS, Administratrix of
His Estate,vs. ATTY. PACIFICO S. PELAEZ

FACTS:

In1972, Atty. Pacifico Pelaez filed a complaint against his granduncle, Pedro Sepulveda, Sr., with
the then Court of First Instance (CFI) of Cebu, for the recovery of possession and ownership of
his one-half (1/2) undivided share of several parcels of land covered by Tax Declaration (T.D.)
Nos. 28199, 18197, 18193 and 28316; his undivided one-third (1/3) share in several other lots
covered by T.D. Nos. 28304, 35090, 18228, 28310, 26308, 28714, 28311, 28312 and 28299 (all
located in Danao, Cebu); and for the partition thereof among the co-owners.

The eleven (11) lots were among the twenty-five (25) parcels of land which the private
respondent’s mother, Dulce Sepulveda, inherited from her grandmother, Dionisia Sepulveda
under the Project of Partition2 dated April 16, 1937 submitted by Pedro Sepulveda, Sr. as the
administrator of the former’s estate, duly approved by the then CFI of Cebu in Special Proceeding
No. 778-0.

Under the said deed, Pedro Sepulveda, Sr. appeared to be the owner of an undivided portion of
Lot No. 28199, while his brother and Dulce’s uncle Santiago Sepulveda, was the undivided owner
of one-half (1/2) of the parcels of land covered by T.D. Nos. 18197, 18193 and 28316. Dulce and
her uncles, Pedro and Santiago, were likewise indicated therein as the co-owners of the eleven
other parcels of land, each with an undivided one-third (1/3) share thereof.

Private respondent alleged that his mother Dulce died intestate on March 2, 1944, and aside
from himself, was survived by her husband Rodolfo Pelaez and her mother Carlota Sepulveda.

Despite repeated demands by Dulce, her mother Carlota, and respondent Pelaez, the petitioner
allegedly refused to give Dulce’s share in the eleven parcels of land.

The private respondent further narrated that his granduncle executed an affidavit stating that he
was the sole heir of Dionisia when she died intestate when, in fact, the latter was survived by her
three sons, Santiago, Pedro and Vicente. Pedro Sepulveda, Sr. also executed a Deed of Absolute
Sale in 1968 over the property covered by T.D. No. 19804 (T.D. No. 35090) in favor of the City of
Danao for P7,492.00 without his (private respondent’s) knowledge.

In his answer to the complaint, Pedro Sepulveda, Sr. admitted having executed a deed of sale
over the parcel of land covered by T.D. No. 19804 in favor of Danao City, but averred that the
latter failed to pay the purchase price thereof; besides, the private respondent had no right to
share in the proceeds of the said sale. He likewise denied having received any demand for the
delivery of Dulce’s share. During the trial, Pedro Sepulveda, Sr. died intestate. His daughter,
Socorro Sepulveda Lawas, was appointed administratrix of his estate. According to the petitioner,
Dulce and Pedro Sepulveda, Sr. had a verbal agreement wherein the eleven parcels of land
covered by the complaint would serve as the latter’s compensation for his services as
administrator of Dionisia’s estate. Thus, upon the termination of Special Proceeding No. 778-0,
and subsequent to the distribution of the shares of Dionisia’s heirs, Pedro Sepulveda, Sr. then
became the sole owner of Dulce’s shares.

The trial court rendered judgment in favor of the private respondent. It ruled that the private
respondent’s action for reconveyance based on constructive trust had not yet prescribed when
the complaint was filed; that he was entitled to a share in the proceeds of the sale of the property
to Danao City; and that the partition of the subject property among the adjudicatees thereof was
in order.

Petitioner appealed the decision to the CA, which rendered judgment on January 31, 2002,
affirming the appealed decision with modification.

The petitioner now comes to the Court via a petition for review on certiorari.

ISSUE:

Will the private respondent’s action prosper?

RULING:

The petition is granted for the sole reason that the respondent failed to implead as parties, all
the indispensable parties in his complaint.

When his mother Dulce Pelaez died intestate on March 2, 1944, she was survived by her husband
Rodolfo and their son, the private respondent. when his mother Dulce Pelaez died intestate on
March 2, 1944, she was survived by her husband Rodolfo and their son, the private respondent.

Thus, all the co-heirs and persons having an interest in the property are indispensable parties; as
such, an action for partition will not lie without the joinder of the said parties.

The mere fact that Pedro Sepulveda, Sr. has repudiated the co-ownership between him and the
respondent does not deprive the trial court of jurisdiction to take cognizance of the action for
partition, for, in a complaint for partition, the plaintiff seeks, first, a declaration that he is a co-
owner of the subject property; and, second, the conveyance of his lawful shares.

In the present action, the private respondent, as the plaintiff in the trial court, failed to implead
the following indispensable parties: his father, Rodolfo Pelaez; the heirs of Santiago Sepulveda,
namely, Paz Sepulveda and their children; and the City of Danao which purchased the property
covered by T.D. 19804 (T.D. No. 35090) from Pedro Sepulveda, Sr. and maintained that it had
failed to pay for the purchase price of the property.
Rodolfo Pelaez is an indispensable party he being entitled to a share in usufruct, equal to the
share of the respondent in the subject properties. There is no showing that Rodolfo Pelaez had
waived his right to usufruct.

SEC. 7. Compulsory joinder of indispensable parties. – Parties in interest without whom no final
determination can be had of an action shall be joined either as plaintiffs or defendants.

The presence of all indispensable parties is a condition sine qua non for the exercise of judicial
power. It is precisely when an indispensable party is not before the court that the action should
be dismissed.

The trial court should have ordered the dismissal of the complaint.