Republic of the Philippines will, and left at her death the real properties which, with P3,948, or if deemed
P3,948, or if deemed proper, to recognize the plaintiff
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
their respective cash values, are as follows:
1. A house of strong material, with the
lot on which it is built, situated on P6,000.00
Escolta Street, Vigan, and valued at
2. A house of mixed material, with the
lot on which it stands, at No. 88 1,500.00
Washington Street, Vigan; valued at
3. A lot on Magallanes Street, Vigan;
100.00
valued at
4. A parcel of rice land, situated in the
60.00
barrio of San Julian, Vigan; valued at
5. A parcel of rice land in the pueblo of
86.00
Santa Lucia; valued at
6. Three parcels of land in the pueblo of
150.00
Candon; valued at
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
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
1
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 one-half 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 indiviso properties; 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
2
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
indiviso property 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.
3
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
4
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 the pro 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.

Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur.

5
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32047 November 1, 1930
MANUEL MELENCIO, MARIANO MELENCIO, PURA
MELENCIO, and CARIDAD MELENCIO, plaintiffs-
appellants,
vs.
DY TIAO LAY, defendant-appellee.
Jose V. Valladolid, Jose P. Melencio and Camus and
Delgado for appellants.
Araneta and Zaragoza for appellee.
OSTRAND, J.:
On August 1,1927, the plaintiffs, Manuel, Mariano, Pura
and Caridad Melencio, brought the present action against
the defendant-appellee, Dy Tiao Lay for the recovery of
the possession of a parcel of land situated in the town of
Cabanatuan, Nueva Ecija, and containing an area of
4,628.25 square meters. The plaintiffs further demand a
monthly rental of P300 for the use and occupation of the
parcel from May, 1926, until the date of the surrender to
them of the possession thereof; and that if it is found that
the said appellee was occupying the said parcel of land
by virtue of a contract of lease, such contract should be
declared null and void for lack of consent, concurrence,
and ratification by the owners thereof.
In his answer, the defendant pleaded the general issue,
and as special defenses, he alleged in substance that he
was occupying the said tract of land by virtue of a
contract of lease executed on July 24,1905, in favor of his
predecessor in interest, by Ruperta Garcia, Pedro
Melencio, Juliana Melencio, and Ruperta Melencio under
the terms specified therein, and which contract is still in
force; that Liberata Macapagal, the mother of the
plaintiffs, in her capacity as judicial administratrix of the
estate of Ramon Melencio, one of the original coowners
of the parcel of land in question, actually recognized and
ratified the existence and validity of the contract
aforesaid by virtue of the execution of a public document
by her on or about November 27,1920, and by collecting
from the assignees of the original lessee the monthly rent
for the premises until April 30, 1926; and that said
defendant deposits with the clerk of court the sum of
P20.20 every month as rent thereof and that as a
counterclaim, he seeks the recovery of P272 for goods
and money delivered by him to the plaintiffs.
The plaintiffs filed a reply to the answer alleging, among
other things, that Ruperta Garcia was not one of the
coowners of the land in question; that the person who
signed the alleged contract of lease never represented
themselves as being the sole and exclusive owners of the
land subject to the lease as alleged by the defendant in
his answer; that the said contract of lease of July 24,1905,
is null and void for being executed without the
intervention and consent of two coowners, Ramon
Melencio and Jose P. Melencio, and without the marital
consent of the husbands of Juliana and Ruperta Melencio;
that the lessee has repeatedly violated the terms and
conditions of the said contract; and that Liberata
Macapagal, in her capacity as administratrix of the
property of her deceased husband, could not lawfully and
legally execute a contract of lease with the conditions and
terms similar to that of the one under consideration, and
that from this it follows that she could not ratify the said
lease as claimed by the defendant.
On January 21,1928, Liberata Macapagal Viuda de
Melencio, duly appointed and qualified as administratrix
of the estate of her deceased husband, Ramon Melencio,
filed a petition praying to be allowed to join the plaintiffs
as party to the present case, which petition was granted
in open court on January 31,1928. Her amended
complaint of intervention of February 14,1928, contains
allegations similar to those alleged in the complaint of
the original plaintiffs, and she further alleges that the
defendant-appellee has occupied the land in question
ever since November, 1920, under and by virtue of a
verbal contract of lease for a term from month to month.
To this complaint of intervention, the defendant-appellee
filed an answer reproducing the allegations contained in
his answer reproducing the allegations contained in his
answer to the complaint of the original plaintiffs and
setting up prescription as a further special defense.
It appears from the evidence that the land in question
was originally owned by one Julian Melencio. He died
prior to the year 1905 leaving his widow, Ruperta Garcia,
and his five children, Juliana, Ramon, Ruperta, Pedro R.,
and Emilio Melencio. Emilio Melencio also died before
1905, his son Jose P. Melencio, then a minor, succeeding
to his interest in the said parcel of land by
representation. A question has been raised as to whether
the land was community property of the marriage of
Julian Melencio and Ruperta Garcia, but the evidence is
practically undisputed that Ruperta Garcia in reality held
nothing but a widow's usufruct in the land.
On July 24,1905, Ruperta Garcia, Pedro R. Melencio,
Juliana Melencio, and Ruperta Melencio executed a
contract of lease of the land in favor of one Yap Kui Chin,
but neither Jose P. Melencio nor Ramon Melencio were
mentioned in the lease. The term of the lease was for
twenty years, extendible for a like period at the option of
the lessee. The purpose of the lessee was to establish a
rice mill on the land, with the necessary buildings for
warehouses and for quarters for the employees, and it
was further stipulated that at the termination of the
original period of the lease, or the extension therof, the
lessors might purchase all the buildings and
improvements on the land at a price to be fixed by
experts appointed by the parties, but that if the lessors
should fail to take advantage of that privilege, the lease
would continue for another and further period of twenty
years. The document was duly acknowledged but was
never recorded with the register of deeds. The original
rent agreed upon was P25 per month, but by reason of
the construction of a street through the land, the monthly
rent was reduced of P20.20.
Shortly after the execution of the lease, the lessee took
possession of the parcel in question and erected the mill
as well as the necessary buildings, and it appears that in
matters pertaining to the lease, he dealt with Pedro R.
Melencio, who from 1905 until his death in 1920, acted
as manager of the property held in common by the heirs
of Julian Melencio and Ruperta Garcia. The original
lessee, Yap Kui Chin, died in 1912, and the lease, as well
as the other property, was transferred to Uy Eng Jui who
again transferred it to Uy Eng Jui & Co., an unregistered
partnership. Finally the lease came into the hands of Dy
Tiao Lay, the herein defendant-appellee.
Ramon Melencio died in 1914, and his widow, Liberata
Macapagal, was appointed administratrix of his estate. In
1913 the land which includes the parcel in question was
registered under the Torrens system. The lease was not
mentioned in the certificate of title, but it was stated that
6
one house and three warehouses on the land were the
property of Yap Kui Chin.
In 1920 the heirs of Julian Melencio made an extrajudicial
partition of parts of the inheritance, and among other
things, the land here in question fell to the share of the
children of Ramon Melencio, who are the original
plaintiffs in the present case. Their mother, Liberata
Macapagal, as administratrix of the estate of her
deceased husband, Ramon, collected the rent for the
lease at the rate of P20.20 per month until the month of
May,1926, when she demanded of the lessee that the rent
should be increased to P300 per month, and she was then
informed by the defendant that a written lease existed
and that according to the terms thereof, the defendant
was entitled to an extension of the lease at the original
rental. The plaintiffs insisted that they never had any
knowledge of the existence of such a contract of lease and
maintained that in such case the lease was executed
without their consent and was void. It may be noted that
upon careful search, a copy of the contract of lease was
found among the papers of the deceased Pedro R,
Melencio. Thereafter the present action was brought to
set aside the lease and to recover possession of the land.
Upon trial, the court below rendered judgment in favor
of the defendant declaring the lease valid and ordering
the plaintiffs to pay the P272 demanded by the defendant
in his counterclaim. From this judgment the plaintiffs
appealed.
The contention of the appellants is that the aforesaid
contract of lease (Exhibit C) is null and void for the
following reasons:
1. That Exhibit C calls for an alteration of the
property in question and therefore ought to have
been signed by all the coowners as by law required
in the premises.
2. That the validity and fulfillment of the said
agreement of lease were made to depend upon the
will of the lessee exclusively.
3. That the said contract of lease being for a term of
over six years, the same is null and void pursuant to
the provision of article 1548 of the Civil Code.
4. That the duration of the same is unreasonably
long, thus being against public policy.
5. That the defendant-appellee and his predecessors
in interest repeatedly violated the provisions of the
agreement.
The first proposition is based on article 397 of the Civil
Code which provides that "none of the owners shall,
without the consent of the others, make any alterations
in the common property even though such alterations
might be advantageous to all." We do not think that the
alterations are of sufficient importance to nullify the
lease, especially so since none of the coowners objected
to such alterations until over twenty years after the
execution of the contract of lease. The decision of this
court in the case of Enriquez vs. A. S. Watson and Co. (22
Phil., 623), contains a full discussion of the effect of
alterations of leased community property, and no further
discussion upon the point need here be considered.
The second proposition is likewise of little merit. Under
the circumstances, the provision in the contract that the
lessee, at any time before he erected any building on the
land, might rescind the lease, can hardly be regarded as a
violation of article 1256 of the Civil Code.
The third and fourth proposition are, in our opinion,
determinative of the controversy. The court below based
its decision principally on the case of Enriquez vs. A.S.
Watson & Co. (22 Phil., 623), and on the resolution of
the Direccion General de los Registros dated April
26,1907. (Jurisprudencia Civil, vol.107, p. 222.) An
examination of the Enriquez case will show that it differs
materially from the present. In that case all of the
coowners of a lot and building executed a contract of
lease of the property for the term of eighteen years in
favor of A. S. Watson & Co.; one of the owners was minor,
but he was represented by his legally appointed
guardian, and the action of the latter in signing the lease
on behalf of the minor was formally approved by the
Court of First Instance. In the present case only a small
majority of the coowners executed the lease here in
question, and according to the terms of the contract the
lease might be given a duration of sixty years; that is
widely different from a lease granted by all of the
coowners for a term of only eighteen years.
The resolution of April 26,1907, is more in point. It
relates to the inscription or registration of a contract of
lease of some pasture grounds. The majority of the
coowners of the property executed the lease for the term
of twelve years but when the lessees presented the lease
for inscription in the registry of property, the registrar
denied the inscription on the ground that the term of the
lease exceeded six years and that therefore the majority
of the coowners lacked authority to grant the lease.
The Direccion General de los Registros held that the
contract of lease for a period exceeding six years,
constitutes a real right subject to registry and that the
lease in question was valid.
The conclusions reached by the Direccion General led to
considerable criticism and have been overruled by a
decision of the Supreme Court of Spain dated June
1,1909. In that decision the court made the following
statement of the case (translation):
The joint owners of 511 out of 1,000 parts of the
realty denominated El Mortero, leased out the whole
property for twelve years to Doña Josefa de la Rosa;
whereupon the Count and Countess Trespalacios
together with other coowners brought this suit to
annul the lease and, in view of the fact that the land
was indivisible, prayed for its sale by public auction
and the distribution of the price so obtained; they
alleged that they neither took part nor consented to
the lease; that the decision of the majority of part
owners referred to in article 398 of the Code, implies
a common deliberation on the step to be taken , for
to do without it, would, even more than to do
without the minority, be nothing less than plunder;
and that, even if this deliberation were not
absolutely necessary, the power of the majority
would still be confined to decisions touching the
management and enjoyment of the common
property, and would not include acts of ownership,
such as a lease for twelve years, which according to
the Mortgage Law gives rise to a real right, which
must be recorded, and which can be performed only
by the owners of the property leased.
The part owners who had executed the contract
prayed in reconvention that it held valid for all the
owners in common, and if this could not be, then for
all those who had signed it, and for the rest, for the
period of six years; and the Audiencia of
Caceres having rendered judgment holding the
7
 contract null and void, and ordering the sale of the
realty and the distribution of the price, the
defendants appealed alleging under the third and
fourth assignments of error, that the judgment was
a violation of article 398 of the Civil Code, which is
absolute and sets no limit of time for the efficacy of
the decisions arrived at by the majority of the part
owners for the enjoyment of the common property,
citing the decisions of June 30th, 1897, of July
8th,1902, and of October 30th, 1907; under the fifth
assignments of error the appellants contended that
in including joint owners among those referred to in
said article, which sets certain limits to the power of
leasing, in the course of the management of
another's property, the court applied article 1548
unduly; and by the seventh assignments of error,
they maintained the judgment appealed from also
violated article 1727, providing that the principal is
not bound where his agent has acted beyond his
authority; whence it may be inferred that if in order
to hold the contract null and void, the majority of the
part owners are looked upon as managers or agents
exercising limited powers, it must at least be
conceded that in so far as the act in question lies
within the scope of their powers, it is valid; the
contract cannot be annulled in toto.
The Supreme Court held that the appeal from the
decision of the Audiencia of Caceres was not well taken
and expressed the following consideranda:
Considering that, although as a rule the contract of
lease constitutes an act of management, as this court
has several times held, cases may yet arise, either
owing to the nature of the subject matter, or to the
period of duration, which may render it imperative
to record the contract in the registry of property, in
pursuance of the Mortgage Law, where the contract
of lease may give rise to a real right in favor of the
lessee, and it would then constitute such a sundering
of the ownership as transcends mere management;
in such cases it must of necessity be recognized that
the part owners representing the greater portion of
the property held in common have no power to lease
said property for a longer period than six years
without the consent of all the coowners, whose
propriety rights, expressly recognized by the law,
would by contracts of long duration be restricted or
annulled; and as under article 1548 of the Civil Code
such contracts cannot be entered into by the
husband with respect to his wife's property, by the
parent or guardian with respect to that of the child
or ward, and by the manager in default of special
power, since the contract of lease only produces
personal obligations, and cannot without the
consent of all persons interested or express
authority from the owner, be extended to include
stipulations which may alter its character, changing
it into a contract of partial alienation of the property
leased;
Considering that, applying this doctrine to the case
before us, one of the grounds upon which the
judgment appealed from, denying the validity of the
lease made by the majority of the part owners of the
pasture land El Mortero is based, must be upheld; to
wit, that the period of duration is twelve years and
the consent of all the coowners has not been
obtained; hence, the third, fourth. and fifth
assignments of error are without merit; firstly,
because article 398 of the Civil Code, alleged to have
been violated, refers to acts decided upon by the
majority of the part owners, touching the
management and enjoyment of the common
property, and does not contradict what we have
stated in the foregoing paragraph; secondly because
although the cases cited were such as arose upon
leases for more than six years, yet this point was not
raised on appeal, and could not therefore be passed
upon; and thirdly, because it cannot be denied that
there is an analogy between a manager without
special authority, who is forbidden by article 1548
of the Code to give a lease for a period of over six
years, and the joint owners constituting a legal
majority, who may decide to lease out the indivisible
property, with respect to the shares of the other
coowners; and having come to the conclusion that
the contract is null and void, there is no need to
discuss the first two assignments of error which
refer to another of the bases adopted, however
erroneously, by the trial court;
Considering that the sixth assignment of error is
without merit, inasmuch as the joint ownership of
property is not a sort of agency and cannot be
governed by the provisions relating to the latter
contract; whence, article 1727 of the Code alleged to
have been violated, can no more be applied, than,
the question of the validity or nullity of the lease
being raise, upon the contract as celebrated, it
would be allowable to modify a posteriori some one
or other of the main conditions stipulated, like that
regarding the duration of the lease, for this would
amount to a novation; still less allowable would it be
to authorize diverse periods for the different
persons unequally interested in the fulfillment.
Taking into consideration articles 398,1548, and 1713 of
the Civil Code and following the aforesaid decision of
June 1,1909, we hold that the contract of lease here in
question is null and void.
It has been suggested that by reason of prescription and
by acceptance of benefits under the lease, the plaintiffs
are estopped to question the authority for making the
lease.To this we may answer that the burden of proof of
prescription devolved upon the defendant and that as far
as we can find, there is no proof that Ramon Melencio and
his successors ever had knowledge of the existence of the
lease in question prior to 1926. We cannot by mere
suspicion conclude that they were informed of the
existence of the document and its terms; it must be
remembered that under a strict interpretation of the
terms of the lease, the lessees could remain indefinitely
in their tenancy unless the lessors could purchase the
mill and the buildings on the land. In such circumstances,
better evidence than that presented by the defendant in
regard to the plaintiff's knowledge of the lease must be
required.
The fact that Ramon during his lifetime received his
share of the products of land owned in common with his
coheirs is not sufficient proof of knowledge of the
existence of the contract of lease when it is considered
that the land in question was only a small portion of a
large tract which Pedro R. Melencio was administering in
connection with other community property.
The appealed judgment as to the validity of the lease is
therefore reversed, and it is ordered that the possession
of the land in controversy be delivered to the intervenor
Liberata Macapagal in her capacity as administratrix of
the estate of the deceased Ramon Melencio. It is further
ordered that the defendant pay to said administratrix a
monthly rent of P50 for the occupation of the land from
May 1st, 1926, until the land is delivered to the
administratrix. The sum of P272 demanded by the
defendant in his counterclaim may be deducted from the
total amount of the rent due and unpaid. The building
8
erected on the land by the defendant and his
predecessors in interest may be removed by him, or
otherwise disposed of, within six months from the
promulgation of this decision. Without costs. So ordered.

Avanceña, C.J., , Malcolm, Johns, Romualdez, and Villa-

Real, JJ., concur.
Jonhson, J., I reserve my vote.

9
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-3404 April 2, 1951
ANGELA I. TUASON, plaintiff-appellant,
vs.
ANTONIO TUASON, JR., and GREGORIO ARANETA,
INC., defendants-appellees.
Alcuaz & Eiguren for appellant.
Araneta & Araneta for appellees.
MONTEMAYOR, J.:
In 1941 the sisters Angela I. Tuason and Nieves Tuason
de Barreto and their brother Antonio Tuason Jr., held a
parcel of land with an area of 64,928.6 sq. m. covered by
Certificate of Title No. 60911 in Sampaloc, Manila, in
common, each owning an undivided 1/3 portion. Nieves
wanted and asked for a partition of the common
property, but failing in this, she offered to sell her 1/3
portion. The share of Nieves was offered for sale to her
sister and her brother but both declined to buy it. The
offer was later made to their mother but the old lady also
declined to buy, saying that if the property later
increased in value, she might be suspected of having
taken advantage of her daughter. Finally, the share of
Nieves was sold to Gregorio Araneta Inc., a domestic
corporation, and a new Certificate of Title No. 61721 was
issued in lieu of the old title No. 60911 covering the same
property. The three co-owners agreed to have the whole
parcel subdivided into small lots and then sold, the
proceeds of the sale to be later divided among them. This
agreement is embodied in a document (Exh. 6) entitled
"Memorandum of Agreement" consisting of ten pages,
dated June 30, 1941.
Before, during and after the execution of this contract
(Exh. 6), Atty. J. Antonio Araneta was acting as the
attorney-in-fact and lawyer of the two co-owners, Angela
I. Tuason and her brother Antonio Tuason Jr. At the same
time he was a member of the Board of Director of the
third co-owner, Araneta, Inc.
The pertinent terms of the contract (Exh. 6) may be
briefly stated as follows: The three co-owners agreed to
improve the property by filling it and constructing roads
and curbs on the same and then subdivide it into small
lots for sale. Araneta Inc. was to finance the whole
development and subdivision; it was prepare a schedule
of prices and conditions of sale, subject to the subject to
the approval of the two other co-owners; it was invested
with authority to sell the lots into which the property was
to be subdivided, and execute the corresponding
contracts and deeds of sale; it was also to pay the real
estate taxes due on the property or of any portion thereof
that remained unsold, the expenses of surveying,
improvements, etc., all advertising expenses, salaries of
personnel, commissions, office and legal expenses,
including expenses in instituting all actions to eject all
tenants or occupants on the property; and it undertook
the duty to furnish each of the two co-owners, Angela and
Antonio Tuason, copies of the subdivision plans and the
monthly sales and rents and collections made thereon. In
return for all this undertaking and obligation assumed by
Araneta Inc., particularly the financial burden, it was to
receive 50 per cent of the gross selling price of the lots,
and any rents that may be collected from the property,
while in the process of sale, the remaining 50 per cent to
be divided in equal portions among the three co-owners
so that each will receive 16.33 per cent of the gross
receipts.
Because of the importance of paragraphs 9, 11 and 15 of
the contract (Exh. 6), for purposes of reference we are
reproducing them below:
(9) This contract shall remain in full force and effect
during all the time that it may be necessary for the
PARTY OF THE SECOND PART to fully sell the said
property in small and subdivided lots and to fully
collect the purchase prices due thereon; it being
understood and agreed that said lots may be rented
while there are no purchasers thereof;
(11) The PARTY OF THE SECOND PART (meaning
Araneta Inc.) is hereby given full power and authority
to sign for and in behalf of all the said co-owners of
said property all contracts of sale and deeds of sale of
the lots into which this property might be subdivided;
the powers herein vested to the PARTY OF THE
SECOND PART may, under its own responsibility and
risk, delegate any of its powers under this contract to
any of its officers, employees or to third persons;
(15) No co-owner of the property subject-matter of
this contract shall sell, alienate or dispose of his
ownership, interest or participation therein without
first giving preference to the other co-owners to
purchase and acquire the same under the same terms
and conditions as those offered by any other
prospective purchaser. Should none of the co-owners
of the property subject-matter of this contract
exercise the said preference to acquire or purchase
the same, then such sale to a third party shall be made
subject to all the conditions, terms, and dispositions
of this contract; provided, the PARTIES OF THE FIRST
PART (meaning Angela and Antonio) shall be bound
by this contract as long as the PARTY OF THE
SECOND PART, namely, the GREGORIO ARANETA,
INC. is controlled by the members of the Araneta
family, who are stockholders of the said corporation
at the time of the signing of this contract and/or their
lawful heirs;
On September 16, 1944, Angela I. Tuason revoked the
powers conferred on her attorney-in-fact and lawyer, J.
Antonio Araneta. Then in a letter dated October 19, 1946,
Angela notified Araneta, Inc. that because of alleged
breach of the terms of the "Memorandum of Agreement"
(Exh. 6) and abuse of powers granted to it in the
document, she had decided to rescind said contract and
she asked that the property held in common be
partitioned. Later, on November 20, 1946, Angela filed a
complaint in the Court of First Instance of Manila asking
the court to order the partition of the property in
question and that she be given 1/3 of the same including
rents collected during the time that the same including
rents collected during the time that Araneta Inc.,
administered said property.
The suit was administered principally against Araneta,
Inc. Plaintiff's brother, Antonio Tuason Jr., one of the co-
owners evidently did not agree to the suit and its
purpose, for he evidently did not agree to the suit and its
purpose, for he joined Araneta, Inc. as a co-defendant.
After hearing and after considering the extensive
evidence introduce, oral and documentary, the trial court
presided over by Judge Emilio Peña in a long and
considered decision dismissed the complaint without
pronouncement as to costs. The plaintiff appealed from
10
that decision, and because the property is valued at more
than P50,000, the appeal came directly to this Court.
Some of the reasons advanced by appellant to have the
memorandum contract (Exh. 6) declared null and void or
rescinded are that she had been tricked into signing it;
that she was given to understand by Antonio Araneta
acting as her attorney-in-fact and legal adviser that said
contract would be similar to another contract of
subdivision of a parcel into lots and the sale thereof
entered into by Gregorio Araneta Inc., and the heirs of D.
Tuason, Exhibit "L", but it turned out that the two
contracts widely differed from each other, the terms of
contract Exh. "L" being relatively much more favorable to
the owners therein the less favorable to Araneta Inc.; that
Atty. Antonio Araneta was more or less disqualified to act
as her legal adviser as he did because he was one of the
officials of Araneta Inc., and finally, that the defendant
company has violated the terms of the contract (Exh. 6)
by not previously showing her the plans of the
subdivision, the schedule of prices and conditions of the
sale, in not introducing the necessary improvements into
the land and in not delivering to her her share of the
proceeds of the rents and sales.
We have examined Exh. "L" and compared the same with
the contract (Exh. 6) and we agree with the trial court
that in the main the terms of both contracts are similar
and practically the same. Moreover, as correctly found by
the trial court, the copies of both contracts were shown
to the plaintiff Angela and her husband, a broker, and
both had every opportunity to go over and compare them
and decide on the advisability of or disadvantage in
entering into the contract (Exh. 6); that although Atty.
Antonio Araneta was an official of the Araneta Inc.; being
a member of the Board of Directors of the Company at the
time that Exhibit "6" was executed, he was not the party
with which Angela contracted, and that he committed no
breach of trust. According to the evidence Araneta, the
pertinent papers, and sent to her checks covering her
receive the same; and that as a matter of fact, at the time
of the trial, Araneta Inc., had spent about P117,000 in
improvement and had received as proceeds on the sale
of the lots the respectable sum of P1,265,538.48. We
quote with approval that portion of the decision
appealed from on these points:
The evidence in this case points to the fact that the
actuations of J. Antonio Araneta in connection with
the execution of exhibit 6 by the parties, are above
board. He committed nothing that is violative of the
fiduciary relationship existing between him and the
plaintiff. The act of J. Antonio Araneta in giving the
plaintiff a copy of exhibit 6 before the same was
executed, constitutes a full disclosure of the facts, for
said copy contains all that appears now in exhibit 6.
Plaintiff charges the defendant Gregorio Araneta,
Inc. with infringing the terms of the contract in that
the defendant corporation has failed (1) to make the
necessary improvements on the property as
required by paragraphs 1 and 3 of the contract; (2)
to submit to the plaintiff from time to time schedule
of prices and conditions under which the subdivided
lots are to be sold; and to furnish the plaintiff a copy
of the subdivision plans, a copy of the monthly gross
collections from the sale of the property.
The Court finds from the evidence that he defendant
Gregorio Araneta, Incorporated has substantially
complied with obligation imposed by the contract
exhibit 6 in its paragraph 1, and that for
improvements alone, it has disbursed the amount of
P117,167.09. It has likewise paid taxes,
commissions and other expenses incidental to its
obligations as denied in the agreement.
With respect to the charged that Gregorio Araneta,
Incorporated has failed to submit to plaintiff a copy
of the subdivision plains, list of prices and the
conditions governing the sale of subdivided lots, and
monthly statement of collections form the sale of the
lots, the Court is of the opinion that it has no basis.
The evidence shows that the defendant corporation
submitted to the plaintiff periodically all the data
relative to prices and conditions of the sale of the
subdivided lots, together with the amount
corresponding to her. But without any justifiable
reason, she refused to accept them. With the
indifferent attitude adopted by the plaintiff, it was
thought useless for Gregorio Araneta, Incorporated
to continue sending her statement of accounts,
checks and other things. She had shown on various
occasions that she did not want to have any further
dealings with the said corporation. So, if the
defendant corporation proceeded with the sale of
the subdivided lots without the approval of the
plaintiff, it was because it was under the correct
impression that under the contract exhibit 6 the
decision of the majority co-owners is binding upon
all the three.
The Court feels that recission of the contract exhibit
6 is not minor violations of the terms of the
agreement, the general rule is that "recission will
not be permitted for a slight or casual breach of the
contract, but only for such breaches as are so
substantial and fundamental as to defeat the object
of the parties in making the agreement" (Song Fo &
Co. vs. Hawaiian-Philippine Co., 47 Phil. 821).
As regards improvements, the evidence shows that
during the Japanese occupation from 1942 and up to
1946, the Araneta Inc. although willing to fill the land,
was unable to obtain the equipment and gasoline
necessary for filling the low places within the parcel. As
to sales, the evidence shows that Araneta Inc. purposely
stopped selling the lots during the Japanese occupantion,
knowing that the purchase price would be paid in
Japanese military notes; and Atty. Araneta claims that for
this, plaintiff should be thankfull because otherwise she
would have received these notes as her share of the
receipts, which currency later became valueles.
But the main contention of the appellant is that the
contract (Exh. 6) should be declared null and void
because its terms, particularly paragraphs 9, 11 and 15
which we have reproduced, violate the provisions of Art.
400 of the Civil Code, which for the purposes of reference
we quote below:
ART. 400. No co-owner shall be obliged to remain a
party to the community. Each may, at any time,
demand the partition of the thing held in common.
Nevertheless, an agreement to keep the thing
undivided for a specified length of time, not
exceeding ten years, shall be valid. This period may
be a new agreement.
We agree with the trial court that the provisions of Art.
400 of the Civil Code are not applicable. The contract
(Exh., 6) far from violating the legal provision that
forbids a co-owner being obliged to remain a party to the
community, precisely has for its purpose and object the
dissolution of the co-ownership and of the community by
selling the parcel held in common and dividing the
proceeds of the sale among the co-owners. The obligation
11
imposed in the contract to preserve the co-ownership community and co-ownership, in a manner most
until all the lots shall have been sold, is a mere incident profitable to the said parties.
to the main object of dissolving the co-owners. By virtue
of the document Exh. 6, the parties thereto practically In view of the foregoing, the decision appealed from is
and substantially entered into a contract of partnership hereby affirmed. There is no pronouncement as to costs.
as the best and most expedient means of eventually
dissolving the co-ownership, the life of said partnership
to end when the object of its creation shall have been So ordered.
attained.
Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista
This aspect of the contract is very similar to and was Angelo, JJ., concur.
perhaps based on the other agreement or contract (Exh. Paras, C. J., I certify that Mr. Justice Feria voted to affirm.
"L") referred to by appellant where the parties thereto in
express terms entered into partnership, although this
object is not expressed in so many words in Exh. 6. We
repeat that we see no violation of Art. 400 of the Civil
Code in the parties entering into the contract (Exh. 6) for
the very reason that Art. 400 is not applicable.

Looking at the case from a practical standpoint as did the

trial court, we find no valid ground for the partition
insisted upon the appellant. We find from the evidence as
was done by the trial court that of the 64,928.6 sq. m.
which is the total area of the parcel held in common, only
1,600 sq. m. or 2.5 per cent of the entire area remained
unsold at the time of the trial in the year 1947, while the
great bulk of 97.5 per cent had already been sold. As well
observed by the court below, the partnership is in the
process of being dissolved and is about to be dissolved,
and even assuming that Art. 400 of the Civil Code were
applicable, under which the parties by agreement may
agree to keep the thing undivided for a period not
exceeding 10 years, there should be no fear that the
remaining 1,600 sq. m. could not be disposed of within
the four years left of the ten-years period fixed by Art.
400.

We deem it unnecessary to discuss and pass upon the

other points raised in the appeal and which counsel for
appellant has extensively and ably discussed, citing
numerous authorities. As we have already said, we have
viewed the case from a practical standpoint, brushing
aside technicalities and disregarding any minor
violations of the contract, and in deciding the case as we
do, we are fully convinced that the trial court and this
Tribunal are carrying out in a practical and expeditious
way the intentions and the agreement of the parties
contained in the contract (Exh. 6), namely, to dissolve the

12
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 101522 May 28, 1993
LEONARDO MARIANO, AVELINA TIGUE, LAZARO
MARIANO, MERCEDES SAN PEDRO, DIONISIA M.
AQUINO, and JOSE N.T. AQUINO, petitioners,
vs.
HON. COURT OF APPEALS, (Sixteenth Division),
GRACE GOSIENGFIAO, assisted by her husband
GERMAN GALCOS; ESTER GOSIENGFIAO, assisted by
her husband AMADOR BITONA; FRANCISCO
GOSIENGFIAO, JR., NORMA GOSIENGFIAO, and PINKY
ROSE GUENO, respondents.
The Baristers Law Office for petitioners.
Simeon T. Agustin for private respondents.
NOCON, J.:
Before Us is a petition foe review of the decision, dated
May 13, 1991 of the Court of Appeals in CA-G.R. CV No.
13122, entitled Grace Gosiengfiao, et al. v. Leonardo
Mariano v. Amparo Gosiengfiao 1 raising as issue the
distinction between Article 10882 and Article 16203 of
the Civil Code.
The Court of Appeals summarized the facts as follows:
It appears on record that the decedent Francisco
Gosiengfiao is the registered owner of a residential
lot located at Ugac Sur, Tuguegarao, Cagayan,
particularly described as follows, to wit:
"The eastern portion of Lot 1351, Tuguegarao
Cadastre, and after its segregation now designated
as Lot 1351-A, Plan PSD-67391, with an area of
1,1346 square meters."
and covered by Transfer Certificate of Title No. T-
2416 recorded in the Register of Deeds of Cagayan.
The lot in question was mortgaged by the decedent
to the Rural Bank of Tuguegarao (designated as
Mortgagee bank, for brevity) on several occasions
before the last, being on March 9, 1956 and 29, 1958.
On August 15, 1958, Francisco Gosiengfiao died
intestate survived by his heirs, namely: Third-Party
Defendants: wife Antonia and Children Amparo,
Carlos, Severino and herein plaintiffs-appellants
Grace, Emma, Ester, Francisco, Jr., Norma, Lina
(represented by daughter Pinky Rose), and Jacinto.
The loan being unpaid, the lot in dispute was
foreclosed by the mortgagee bank and in the
foreclosure sale held on December 27, 1963, the
same was awarded to the mortgagee bank as the
highest bidder.
On February 7, 1964, third-party defendant Amparo
Gosiengfiao-Ibarra redeemed the property by
paying the amount of P1,347.89 and the balance of
P423.35 was paid on December 28, 1964 to the
mortgagee bank.
On September 10, 1965, Antonia Gosiengfiao on her
behalf and that of her minor children Emma, Lina,
Norma together with Carlos and Severino executed
a "Deed of Assignment of the Right of Redemption"
in favor of Amparo G. Ibarra appearing in the
notarial register of Pedro (Laggui) as Doc. No. 257,
Page No. 6, Book No. 8, Series of 1965.
On August 15, 1966, Amparo Gosiengfiao sold the
entire property to defendant Leonardo Mariano
who subsequently established residence on the lot
subject of this controversy. It appears in the Deed of
Sale dated August 15, 1966 that Amparo, Antonia,
Carlos and Severino were signatories thereto.
Sometime in 1982, plaintiff-appellant Grace
Gosiengfiao learned of the sale of said property by
the third-party defendants. She went to the
Barangay Captain and asked for a confrontation
with defendants Leonardo and Avelina Mariano to
present her claim to said property.
On November 27, 1982, no settlement having been
reached by the parties, the Barangay captain issued
a certificate to file action.
On December 8, 1982, defendant Leonardo Mariano
sold the same property to his children Lazaro F.
Mariano and Dionicia M. Aquino as evidenced by a
Deed of Sale notarized by Hilarion L. Aquino as Doc.
No. 143, Page No. 19, Book No. V, Series of 1982.
On December 21, 1982, plaintiffs Grace Gosiengfiao,
et al. filed a complaint for "recovery of possession
and legal redemption with damages" against
defendants Leonardo and Avelina Mariano.
Plaintiffs alleged in their complaint that as co-heirs
and co-owners of the lot in question, they have the
right to recover their respective shares in the same,
and property as they did not sell the same, and the
right of redemption with regard to the shares of
other co-owners sold to the defendants.
Defendants in their answer alleged that the plaintiffs
has (sic) no cause of action against them as the
money used to redeem lot in question was solely
from the personal funds of third-party defendant
Amparo Gosiengfiao-Ibarra, who consequently
became the sole owner of the said property and thus
validly sold the entire property to the defendants,
and the fact that defendants had already sold the
said property to the children, Lazaro Mariano and
Dionicia M. Aquino. Defendants further contend that
even granting that the plaintiffs are co-owners with
the third-party defendants, their right of
redemption had already been barred by the Statute
of Limitations under Article 1144 of the Civil Code,
if not by laches.4
After trial on the merits, the Regional Trial Court of
Cagayan, Branch I, rendered a decision dated September
16, 1986, dismissing the complaint and stating that
respondents have no right of ownership or possession
over the lot in question. The trial court further said that
when the subject property foreclosed and sold at public
auction, the rights of the heirs were reduced to a mere
right of redemption. And when Amparo G. Ibarra
redeemed the lot from the Rural Bank on her own behalf
and with her own money she became the sole owner of
the property. Respondents' having failed to redeem the
13
property from the bank or from Amparo G. Ibarra, lost
whatever rights the might have on the property.5
The Court of Appeals in its questioned decision reversed
and set aside the ruling of the trial court and declared
herein respondents as co-owners of the property in the
question. The Court of Appeals said:
The whole controversy in the case at bar revolves on
the question of "whether or not a co-owner who
redeems the whole property with her own personal
funds becomes the sole owner of said property and
terminates the existing state of co-ownership."
Admittedly, as the property in question was
mortgaged by the decedent, a co-ownership existed
among the heirs during the period given by law to
redeem the foreclosed property. Redemption of the
whole property by a co-owner does not vest in him
sole ownership over said property but will inure to
the benefit of all co-owners. In other words, it will
not end to the existing state of co-ownership.
Redemption is not a mode of terminating a co-
ownership.
xxx xxx xxx
In the case at bar, it is undisputed and supported by
records, that third-party defendant Amparo G.
Ibarra redeemed the propety in dispute within the
one year redemption period. Her redemption of the
property, even granting that the money used was
from her own personal funds did not make her the
exclusive owner of the mortgaged property owned
in common but inured to the benefit of all co-
owners. It would have been otherwise if third-party
defendant Amparo G. Ibarra purchased the said
property from the mortgagee bank (highest, bidder
in the foreclosure sale) after the redemption period
had already expired and after the mortgagee bank
had consolidated it title in which case there would
no longer be any co-ownership to speak of .6
The decision of the Court of Appeals is supported by a
long line of case law which states that a redemption by a
co-owner within the period prescribed by law inures to
the benefit of all the other co-owners.7
The main argument of petitioners in the case at bar is sale and shown a copy of the document at the Office of
that the Court of Appeals incorrectly applied Article 1620 the Barangay Captain sometime November 18, 1982, this
of the Civil Code, instead of Article 1088 of the same code was not supported by the evidence presented. On the
which governs legal redemption by co-heirs since the lot contrary, respondent, Grace Gosiengfiao, in her
in question, which forms part of the intestate estate of testimony, declared as follows:
the late Francisco Gosiengfiao, was never the subject of
partition or distribution among the heirs, thus, private Q. When you went back to the residence of Atty.
respondents and third-party defendants had not ceased Pedro Laggui were you able to see him?
to be co-heirs.
A. Yes, I did.
On that premise, petitioners further contend that the
right of legal redemption was not timely exercised by the
private respondents, since Article 1088 prescribes that Q. When you saw him, what did you tell?
the same must be done within the period of one month
from the time they were notified in writing of the sale by A. I asked him about the Deed of Sale which Mrs.
the vendor. Aquino had told me and he also showed me a Deed
of Sale. I went over the Deed of Sale and I asked Atty.
Laggui about this and he mentioned here about the
According to Tolentino, the fine distinction between
Article 1088 and Article 1620 is that when the sale names of the legal heirs. I asked why my name is not
included and I was never informed in writing
consists of an interest in some particular property or
properties of the inheritance, the right redemption that because I would like to claim and he told me to
better consult my own attorney.
arises in favor of the other co-heirs is that recognized in
Article 1620. On the other hand, if the sale is the
hereditary right itself, fully or in part, in the abstract Q. And did you go?
sense, without specifying any particular object, the right
recognized in Article 1088 exists.8 A. Yes, I did.
Petitioners allege that upon the facts and circumstances Q. What kind of copy or document is that?
of the present case, respondents failed to exercise their
right of legal redemption during the period provided by
law, citing as authority the case of Conejero, et al., v. Court A. It is a deed of sale signed by my mother, sister
of Appeals, et al.9 wherein the Court adopted the principle Amparo and my brothers.
that the giving of a copy of a deed is equivalent to the
notice as required by law in legal redemption. Q. If shown to you the copy of the Deed of Sale will
you be able to identify it?
We do not dispute the principle laid down in
the Conejero case. However, the facts in the said case are A. Yes, sir.11
not four square with the facts of the present case.
In Conejero, redemptioner Enrique Conejero was Thereafter, Grace Gosiengfiao explicitly stated that she
shown and given a copy of the deed of sale of the subject was never given a copy of the said Deed of Sale.
property. The Court in that case stated that the
furnishing of a copy of the deed was equivalent to the
giving of a written notice required by law. 11 Q. Where did Don Mariano, Dr. Mariano and you see
each other?
The records of the present petition, however, show no
written notice of the sale being given whatsoever to A. In the house of Brgy. Captain Antonio Bassig.
private respondents. Although, petitioners allege that
sometime on October 31, 1982 private respondent, Grace
Gosiengfiao was given a copy of the questioned deed of
14
 Q. What transpired in the house of the Brgy. Captain
when you saw each other there?
A. Brgy. Captain Bassig informed my intention of
claiming the lot and I also informed him about the
Deed of Sale that was not signed by me since it is
mine it is already sold and I was informed in writing
about it. I am a legal heir and I have also the right to
claim.
Q. And what was the reply of Don Mariano and Dr.
Mariano to the information given to them by Brgy.
Captain Bassig regarding your claim?
A. He insisted that the lot is already his because of
the Deed of Sale. I asked for the exact copy so that I
could show to him that I did not sign and he said he
does not have a copy. 12
The above testimony was never refuted by Dr. Mariano
who was present before Brgy. Captain Bassig.
The requirement of a written notice has long been settled
as early as in the case of Castillo v. Samonte,13 where this
Court quoted the ruling in Hernaez v. Hernaez, 32 Phil.,
214, thus:
Both the letter and spirit of the New Civil Code argue
against any attempt to widen the scope of the notice
specified in Article 1088 by including therein any
other kind of notice, such as verbal or by
registration. If the intention of the law had been to
include verbal notice or any other means of
information as sufficient to give the effect of this
notice, then there would have been no necessity or
reasons to specify in Article 1088 of the New Civil
Code that the said notice be made in writing for,
under the old law, a verbal notice or information
was sufficient. 14
Moreover, petitioners themselves adopted in their
argument respondents' allegation In their complaint that
sometime on October, 1982 they sought the redemption
of the property from spouses Leonardo Mariano and
Avelina Tigue, by tendering the repurchase money of
P12,000.00, which the spouses rejected.15 Consequently,
private respondents exercised their right of redemption
at the first opportunity they have by tendering the
repurchase price to petitioners. The complaint they filed, tender of payment is enough on time as a basis for an
before the Barangay Captain and then to the Regional action to compel the vendee a retro to resell the
Trial Court was necessary to assert their rights. As we property; no subsequent consignation was necessary to
learned in the case of Castillo, supra: entitle private respondents to such
reconveyance. 18
It would seem clear from the above that the
reimbursement to the purchaser within the period Premises considered, respondents have not lost their
of one month from the notice in writing is a requisite right to redeem, for in the absence of a written
or condition precedent to the exercise of the right of notification of the sale by the vendors, the 30-day period
legal redemption; the bringing of an action in court has not even begun to run.
is the remedy to enforce that right in case the
purchaser refuses the redemption. The first must be WHEREFORE, the decision of the Court of Appeals is
done within the month-period; the second within hereby AFFIRMED. Cost against petitioners.
the prescriptive period provided in the Statute of
Limitation. 16
SO ORDERED.
The ruling in Castillo v. Samonte; supra, was reiterated in
the case of Garcia v. Calaliman, where We also discussed Narvasa, C.J., Padilla and Nocon, JJ., concur.
the reason for the requirement of the written notice. We
said:
Consistent with aforesaid ruling, in the
interpretation of a related provision (Article 1623 of
the New Civil Code) this Court had stressed that
written notice is indispensable, actual knowledge of
the sale acquired in some other manners by the
redemptioner, notwithstanding. He or she is still
entitled to written notice, as exacted by the code to
remove all uncertainty as to the sale, its terms and its
validity, and to quiet and doubt that the alienation is
not definitive. The law not having provided for any
alternative, the method of notifications remains
exclusive, though the Code does not prescribe any
particular form of written notice nor any distinctive
method written notification of redemption
(Conejero et al. v. Court of Appeals et al., 16 SCRA
775 [1966]; Etcuban v. Court of Appeals, 148 SCRA
507 [1987]; Cabrera v. Villanueva, G.R. No. 75069,
April 15, 1988).17 (Emphasis ours)
We likewise do not find merit in petitioners' position that
private respondents could not have validly effected
redemption due to their failure to consign in court the
full redemption price after tender thereof was rejected
by the petitioners. Consignation is not necessary,
because the tender of payment was not made to
discharge an obligation, but to enforce or exercise a right.
It has been previously held that consignation is not
required to preserve the right of repurchase as a mere
15
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24419 July 15, 1968
LEONORA ESTOQUE, plaintiff-appellant,
vs.
ELENA M. PAJIMULA, assisted by her husband
CIRIACO PAJIMULA, defendants-appellees.
Jesus P. Mapanao for plaintiff-appellant.
Vergara and Dayot for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal from an order of the Court of First Instance
of La Union, in its Civil Case No. 1990, granting a motion
to dismiss the complaint for legal redemption by a co-
owner (retracto legal de comuneros) on account of failure
to state a cause of action.
The basic facts and issues are stated in the decision
appealed from, as follows:
Plaintiff based her complaint for legal redemption
on a claim that she is a co-owner of Lot No. 802, for
having purchased 1/3 portion thereof, containing an
area of 640 square meters as evidenced by a deed of
sale, Annex "A", which was executed on October 28,
1951 by Crispina Perez de Aquitania, one of the co-
owners, in her favor.
On the other hand, the defendant, who on December
30, 1959 acquired the other 2/3 portion of Lot No.
802 from Crispina Aquitania and her children,
claimed that the plaintiff bought the 1/3
southeastern portion, which is definitely identified
and segregated, hence there existed no co-
ownership at the time and after said plaintiff bought
the aforesaid portion, upon which right of legal
redemption can be exercised or taken advantage of.
From the complaint, it would appear that Lot No.
802 of the Cadastral survey of Rosario, covered by
original certificate of title No. RO-2720 (N.A.) was
originally owned by the late spouses, Rosendo Perez
and Fortunata Bernal, who were survived by her
children, namely, Crispina Perez, Lorenzo Perez and
Ricardo Perez. Ricardo Perez is also now dead. On
October 28, 1951, Crispina P. Vda. de Aquitania sold
her right and participation in Lot No. 802 consisting
of 1/3 portion with an area of 640 square meters to
Leonora Estoque (Annex A of the complaint). On
October 29, 1951, Lorenzo Perez, Crispina Perez and
Emilia P. Posadas, widow of her deceased husband,
Ricardo Perez for herself and in behalf of her minor
children, Gumersindo, Raquel, Emilio and Ricardo,
Jr., executed a deed of extrajudicial settlement
wherein Lorenzo Perez, Emilia P. Posadas and her
minor children assigned all their right, interest and
participation in Lot No. 802 to Crispina Perez
(Annex B of the complaint). On December 30, 1959,
Crispina Perez and her children Rosita Aquitania
Belmonte, Remedios Aquitania Misa, Manuel
Aquitania, Sergio Aquitania and Aurora Aquitania
sold to Elena Pajimula, the remaining 2/3 western
portion of Lot No. 802 with an area of 958 square
meters (Annex C of the complaint).
The action of the plaintiff is premised on the claim of
co-ownership. From the deed of sale executed in
favor of the plaintiff, it can be seen that the 1/3
portion sold to plaintiff is definitely identified as the
1/3 portion located on the southeastern part of Lot
No. 802 and specifically bounded on the north by De
Guzman Street, on the east by Posadas Street, on the
south by Perez Street, and on the west by remaining
portion of the same lot, which contained an area of
640 square meters. And in the deed of sale executed
by Crispina Perez and her children in favor of
defendant Elena Pajimula over the remaining 2/3
portion of Lot No. 802, said portion is identified as
the western portion of Lot No. 802 which is bounded
on the north by De Guzman Street, on the east by
properties of Leonarda Estoque, on the south by the
national road and on the west by Lots Nos. 799 and
801, containing an area of 598 square meters.
The appellant's stand is that the deed in her favor was
inoperative to convey the southeastern third of Lot 802
of the Rosario Cadastre notwithstanding the description
in the deed itself, for the reason that the vendor, being a
mere co-owner, had no right to sell any definite portion
of the land held in common but could only transmit her
undivided share, since the specific portion
corresponding to the selling co-owner is not known until
partition takes place (Lopez vs. Ilustre, 5 Phil. 567;
Ramirez vs. Bautista, 14 Phil. 528). From this premise,
the appellant argues that the sale in her favor, although
describing a definite area, should be construed as having
conveyed only the undivided 1/3 interest in Lot 802
owned at the time by the vendor, Crispina Perez Vda. de
Aquitania. Wherefore, when the next day said vendor
acquired the 2/3 interest of her two other co-owners, Lot
802 became the common property of appellant and
Crispina Perez. Therefore, appellant argues, when
Crispina sold the rest of the property to appellee
Pajimula spouses, the former was selling an undivided
2/3 that appellant, as co-owner, was entitled to redeem,
pursuant to Article 1620 of the New Civil Code.
ART. 1620. A co-owner of a thing may exercise the
right of redemption in case the shares of all the other
co-owners or of any of them, are sold to a third
person. If the price of the alienation is grossly
excessive the redemptioner shall pay only a
reasonable one.
Should two or more co-owners desire to exercise the
right of redemption, they may only do so in
proportion to the share they may respectively have
in the thing owned in common.
The lower court, upon motion of defendant, dismissed
the complaint, holding that the deeds of sale show that
the lot acquired by plaintiff Estoque was different from
that of the defendants Pajimula; hence they never
became co-owners, and the alleged right of legal
redemption was not proper. Estoque appealed.
We find no error in the order of dismissal, for the facts
pleaded negate the claim that appellant Estoque ever
became a co-owner of appellees Pajimula.
(1) The deed of sale to Estoque (Annex A of the
complaint) clearly specifies the object sold as the
southeastern third portion of Lot 802 of the Rosario
Cadastre, with an area of 840 square meters, more or
less. Granting that the seller, Crispina Perez Vda. de
Aquitania could not have sold this particular portion of
the lot owned in common by her and her two brothers,
Lorenzo and Ricardo Perez, by no means does it follow
that she intended to sell to appellant Estoque her 1/3
16
undivided interest in the lot forementioned. There is
nothing in the deed of sale to justify such inference. That
the seller could have validly sold her one-third undivided
interest to appellant is no proof that she did choose to
sell the same. Ab posse ad actu non valet illatio.

(2) While on the date of the sale to Estoque (Annex A)

said contract may have been ineffective, for lack of power
in the vendor to sell the specific portion described in the
deed, the transaction was validated and became fully
effective when the next day (October 29, 1951) the
vendor, Crispina Perez, acquired the entire interest of
her remaining co-owners (Annex B) and thereby became
the sole owner of Lot No. 802 of the Rosario Cadastral
survey (Llacer vs. Muñoz, 12 Phil. 328). Article 1434 of
the Civil Code of the Philippines clearly prescribes that
—.

When a person who is not the owner of a thing sells

or alienates and delivers it, and later the seller or
grantor acquires title thereto, such title passes by
operation of law to the buyer or grantee."

Pursuant to this rule, appellant Estoque became the

actual owner of the southeastern third of lot 802 on
October 29, 1951. Wherefore, she never acquired an
undivided interest in lot 802. And when eight years later
Crispina Perez sold to the appellees Pajimula
the western two-thirds of the same lot, appellant did not
acquire a right to redeem the property thus sold, since
their respective portions were distinct and separate.

IN VIEW OF THE FOREGOING, the appealed order of

dismissal is affirmed. Costs against appellant
Estoque.1äwphï1.ñët

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez,

Castro, Angeles and Fernando, JJ., concur.

17
 SECOND DIVISION
G.R. No. 75884 September 24, 1987
JULITA GO ONG, FOR HERSELF AND AS JUDICIAL
GUARDIAN OF STEVEN GO ONG, petitioners,
vs.
THE HON. COURT OF APPEALS, ALLIED BANKING
CORPORATION and the CITY SHERIFF OF QUEZON
CITY, respondents.
PARAS, J.:
This is a petition for review on certiorari of the March 21,
1986 Decision * of the Court of Appeals in AC-G.R. CV No.
02635, "Julita Ong etc. vs. Allied Banking Corp. et al."
affirming, with modification, the January 5, 1984
Decision of the Regional Trial Court of Quezon City in
Civil Case No. Q-35230.
The uncontroverted facts of this case, as found by the
Court of Appeals, are as follows:
...: Two (2) parcels of land in Quezon City Identified
as Lot No. 12, Block 407, Psd 37326 with an area of
1960.6 sq. m. and Lot No. 1, Psd 15021, with an area
of 3,660.8 sq. m. are covered by Transfer Certificate
of Title No. 188705 in the name of "Alfredo Ong Bio
Hong married to Julita Go Ong "(Exh. D). Alfredo Ong
Bio Hong died on January 18, 1975 and Julita Go Ong
was appointed administratrix of her husband's
estate in Civil Case No. 107089. The letters of
administration was registered on TCT No. 188705
on October 23, 1979. Thereafter, Julita Go Ong sold
Lot No. 12 to Lim Che Boon, and TCT No. 188705
was partially cancelled and TCT No. 262852 was
issued in favor of Lim Che Boon covering Lot No. 12
(Exh. D-4). On June 8, 1981 Julita Go Ong through her
attorney-in-fact Jovita K. Yeo (Exh. 1) mortgaged Lot
No. 1 to the Allied Banking Corporation to secure a
loan of P900,000.00 obtained by JK Exports, Inc. The
mortgage was registered on TCT No. 188705 on the
same date with the following notation: "...
mortgagee's consent necessary in case of
subsequent alienation or encumbrance of the
property other conditions set forth in Doc. No. 340,
Page No. 69, Book No. XIX, of the Not. Public of
Felixberto Abad". On the loan there was due the sum
of P828,000.00 and Allied Banking Corporation
tried to collect it from Julita Go Ong, (Exh. E). Hence,
the complaint alleging nullity of the contract for lack
of judicial approval which the bank had allegedly
promised to secure from the court. In response
thereto, the bank averred that it was plaintiff Julita
Go Ong who promised to secure the court's
approval, adding that Julita Go Ong informed the
defendant that she was processed the sum of
P300,000.00 by the JK Exports, Inc. which will also
take charge of the interest of the loan.
Concluding, the trial court ruled:
Absent (of) any evidence that the property in
question is the capital of the deceased husband
brought into the marriage, said property should be
presumed as acquired during the marriage and,
therefore, conjugal property,
After the dissolution of the marriage with the death
of plaintiff's husband, the plaintiff acquired, by law,
her conjugal share, together with the hereditary
rights thereon. (Margate vs. Rabacal, L-14302, April
30, 1963). Consequently, the mortgage constituted
on said property, upon express authority of plaintiff,
notwithstanding the lack of judicial approval, is
valid, with respect to her conjugal share thereon,
together with her hereditary rights.
On appeal by petitioner, respondent Court of Appeals
affirmed, with modification, the appealed decision
(Record, pp. 19-22). The dispositive portion of the
appellate court's decision reads:
WHEREFORE, with the modification that the
extrajudicial foreclosure proceedings instituted by
defendant against plaintiff shall be held in abeyance
to await the final result of Civil Case No. 107089 of the
Court of First Instance of Manila, 6th Judicial District
Branch XXXII, entitled "IN THE MATTER OF THE
INTESTATE ESTATE OF THE LATE ALFREDO ONG
BIO: JULITA GO ONG, ADMINISTRATRIX". In
pursuance with which the restraining order of the
lower court in this case restraining the sale of the
properties levied upon is hereby ordered to continue
in full force and effect coterminous with the final
result of Civil Case No. 107089, the decision appealed
from is hereby affirmed. Costs against plaintiff-
appellant.
SO ORDERED.
On April 8, 1986, petitioner moved for the
reconsideration of the said decision (Ibid., pp. 24-29), but
in a Resolution dated September 11, 1986, respondent
court denied the motion for lack of merit (Ibid., p. 23).
Hence, the instant petition (Ibid., pp. 6-17).
The Second Division of this Court, in a Resolution dated
November 19, 1986 (Rollo, p. 30), without giving due
course to the petition, resolved to require private
respondent to comment thereon and it did on February
19, 1987 (Ibid., pp. 37-42). Thereafter, in a Resolution
dated April 6, 1987, the petition was given due course
and the parties were required to file their respective
memoranda (Ibid., p. 43).
Petitioner filed her Memorandum on May 13, 1987 (Ibid.,
pp. 45-56), while private respondent filed its
Memorandum on May 20, 1987 (Ibid., pp. 62-68).
The sole issue in this case is —
WHETHER OR NOT THE MORTGAGE CONSTITUTED
OVER THE PARCEL OF LAND UNDER PETITIONER'S
ADMINISTRATION IS NULL AND VOID FOR WANT OF
JUDICIAL APPROVAL.
The instant petition is devoid of merit.
The well-settled rule that the findings of fact of the trial
court are entitled to great respect, carries even more
weight when affirmed by the Court of Appeals as in the
case at bar.
In brief, the lower court found: (1) that the property
under the administration of petitioner — the wife of the
deceased, is a community property and not the separate
property of the latter; (2) that the mortgage was
constituted in the wife's personal capacity and not in her
capacity as administratrix; and (3) that the mortgage
affects the wife's share in the community property and
her inheritance in the estate of her husband.
18
Petitioner, asserting that the mortgage is void for want of
judicial approval, quoted Section 7 of Rule 89 of the Rules
of Court and cited several cases wherein this Court ruled
that the regulations provided in the said section are
mandatory.
While petitioner's assertion may have merit insofar as
the rest of the estate of her husband is concerned the
same is not true as regards her conjugal share and her
hereditary rights in the estate. The records show that
petitioner willingly and voluntarily mortgaged the
property in question because she was processed by JK
Exports, Inc. the sum of P300,000.00 from the proceeds
of the loan; and that at the time she executed the real
estate mortgage, there was no court order authorizing
the mortgage, so she took it upon herself, to secure an
order.
Thus, in confirming the findings of the lower court, as
supported by law and the evidence, the Court of Appeals
aptly ruled that Section 7 of Rule 89 of the Rules of Court
is not applicable, since the mortgage was constituted in
her personal capacity and not in her capacity as
administratrix of the estate of her husband.
Nevertheless, petitioner, citing the cases of Picardal, et al.
vs. Lladas (21 SCRA 1483) and Fernandez, et al. vs.
Maravilla (10 SCRA 589), further argues that in the
settlement proceedings of the estate of the deceased
spouse, the entire conjugal partnership property of the
marriage is under administration. While such may be in
a sense true, that fact alone is not sufficient to invalidate
the whole mortgage, willingly and voluntarily entered
into by the petitioner. An opposite view would result in
an injustice. Under similar circumstances, this Court
applied the provisions of Article 493 of the Civil Code,
where the heirs as co-owners shall each have the full
ownership of his part and the fruits and benefits
pertaining thereto, and he may therefore alienate, assign
or mortgage it, and even effect of the alienation or
mortgage, with respect to the co-owners, shall be limited
to the portion which may be allotted to him in the
division upon the termination of the co-ownership
(Philippine National Bank vs. Court of Appeals, 98 SCRA
207 [1980]).
Consequently, in the case at bar, the trial court and the
Court of Appeals cannot be faulted in ruling that the
questioned mortgage constituted on the property under
administration, by authority of the petitioner, is valid,
notwithstanding the lack of judicial approval, with
respect to her conjugal share and to her hereditary
rights. The fact that what had been mortgaged was in
custodia legis is immaterial, insofar as her conjugal share
and hereditary share in the property is concerned for
after all, she was the ABSOLUTE OWNER thereof. This
ownership by hers is not disputed, nor is there any claim
that the rights of the government (with reference to
taxes) nor the rights of any heir or anybody else have
been prejudiced for impaired. As stated by Associate
Justice (later Chief Justice) Manuel Moran in Jakosalem
vs. Rafols, et al., 73 Phil. 618 —
The land in question, described in the appealed
decision, originally belonged to Juan Melgar. The
latter died and the judicial administration of his
estate was commenced in 1915 and came to a close
on December 2, 1924, only. During the pendency of
the said administration, that is, on July 5, 1917,
Susana Melgar, daughter of the deceased Juan
Melgar, sold the land with the right of repurchase to
Pedro Cui, subject to the stipulation that during the
period for the repurchase she would continue in
possession of the land as lessee of the purchase. On
December 12, 1920, the partition of the estate left by
the deceased Juan Melgar was made, and the land in
question was adjudicated to Susana Melgar. In 1921,
she conveyed, in payment of professional fees, one-
half of the land in favor of the defendant-appellee
Nicolas Rafols, who entered upon the portion thus
conveyed and has been in possession thereof up to
the present. On July 23, 1921, Pedro Cui brought an
action to recover said half of the land from Nicolas
Rafols and the other half from the other defendants,
and while that case was pending, or about August 4,
1925, Pedro Cui donated the whole land in question
to Generosa Teves, the herein plaintiff-appellant,
after trial, the lower court rendered a decision
absolving Nicolas Rafols as to the one-half of the
land conveyed to him by Susana Melgar, and
declaring the plaintiff owner of the other half by
express acknowledgment of the other defendants.
The plaintiff appealed from that part of the
judgment which is favorable to Nicolas Rafols.
The lower court absolved Nicolas Rafols upon the
theory that Susana Melgar could not have sold
anything to Pedro Cui because the land was then
in custodia legis, that is, under judicial
administration. This is error. That the land could not
ordinary be levied upon while in custodia legis, does
not mean that one of the heirs may not sell the right,
interest or participation which he has or might have
in the lands under administration. The ordinary
execution of property in custodia legis is prohibited
in order to avoid interference with the possession
by the court. But the sale made by an heir of his
share in an inheritance, subject to the result of the
pending administration, in no wise stands in the
way of such administration.
The reference to judicial approval in Sec. 7, Rule 89 of the
Rules of Court cannot adversely affect
the substantive rights of private respondent to dispose of
her Ideal [not inchoate, for the conjugal partnership
ended with her husband's death, and her hereditary
rights accrued from the moment of the death of the
decedent (Art. 777, Civil Code) share in the co-heirship
and/or co-ownership formed between her and the other
heirs/co-owners (See Art. 493, Civil Code, supra.). Sec. 7,
Art. 89 of the Civil Code applies in a case where judicial
approval has to be sought in connection with, for
instance, the sale or mortgage of property under
administration for the payment, say of a conjugal debt,
and even here, the conjugal and hereditary shares of the
wife are excluded from the requisite judicial approval for
the reason already adverted to hereinabove, provided of
course no prejudice is caused others, including the
government.
Moreover, petitioner is already estopped from
questioning the mortgage. An estoppel may arise from
the making of a promise even though without
consideration, if it was intended that the promise should
be relied upon and in fact it was relied upon, and if a
refusal to enforce it would be virtually to sanction the
perpetration of fraud or would result in other injustice
(Gonzalo Sy Trading vs. Central Bank, 70 SCRA 570).
PREMISES CONSIDERED, the instant petition is hereby
DENIED and the assailed decision of the Court of Appeals
is hereby AFFIRMED.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Padilla and
Sarmiento, JJ., concur.
19
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 102380 January 18, 1993
HERODOTUS P. ACEBEDO and DEMOSTHENES P.
ACEBEDO, petitioners,
vs.
HON. BERNARDO P. ABESAMIS, MIGUEL ACEBEDO,
ALEXANDER ACEBEDO, NAPOLEON ACEBEDO,
RIZALINO ACEBEDO, REPUBLICA ACEBEDO,
FILIPINAS ACEBEDO and YU HWA PING, respondents.
Heminio L. Ruiz for petitioners.
Vicente D. Millora for private respondents.
Romero A. Yu for respondent Yu Hua Ping.
CAMPOS, JR., J.:
The lower court's jurisdiction in approving a Deed of
Conditional Sale executed by respondents-heirs and
ordering herein administrator-petitioner Herodotus
Acebedo to sell the remaining portions of said properties,
despite the absence of its prior approval as a probate
court, is being challenged in the case at bar.
The late Felix Acebedo left an estate consisting of several
real estate properties located in Quezon City and
Caloocan City, with a conservative estimated value of
about P30 million. Said estate allegedly has only the
following unsettled claims:
a. P87,937.00 representing unpaid real estate taxes
due Quezon City;
b. P20,244.00 as unpaid real estate taxes due
Caloocan City;
c. The unpaid salaries/allowances of former
Administrator Miguel Acebedo, and the incumbent
Administrator Herodotus Acebedo; and
d. Inheritance taxes that may be due on the net estate.
The decedent was succeeded by eight heirs, two of whom
are the petitioners herein, and the others are the private
respondents.
Due to the prolonged pendency of the case before the
respondent Court for sixteen years, respondents-heirs
filed a "Motion for Approval of Sale", on October 4, 1989.
The said sale involved the properties covered by
Transfer Certificate of Title Nos. 155569, 120145, 9145,
and 18709, all of which are registered in Quezon City, and
form part of the estate. The consideration for said lots
was twelve (12) million pesos and by that time, they
already had a buyer. It was further stated in said Motion
that respondents-heirs have already received their
proportionate share of the six (6) million pesos paid by
the buyer, Yu Hwa Ping, as earnest money; that the
balance of P6,000,000.00 is more than enough to pay the
unsettled claims against the estate. Thus, they prayed for
the Court to direct the administrator, Herodotus Acebedo
(referred to as petitioner-administrator hereafter):
1. to sell the properties mentioned in the motion;
2. with the balance of P6 million, to pay all the claims
against the Estate; and
3. to distribute the residue among the Heirs in final
settlement of the Estate.
To the aforesaid Motion, herein petitioner-administrator
interposed an "Opposition to Approval of Sale", to wit:
1. That he has learned that some of the heirs herein
have sold some real estate property of the Estate
located at Balintawak, Quezon City, without the
knowledge of the herein administrator, without the
approval of this Honorable Court and of some heirs,
and at a shockingly low price;
2. That he is accordingly hereby registering his
vehement objection to the approval of the sale,
perpetrated in a manner which can even render the
proponents of the sale liable for punishment for
contempt of this Honorable Court;
3. The herein Administrator instead herein prays
this Honorable Court to authorize the sale of the
above mentioned property of the Estate to generate
funds to pay certain liabilities of the Estate and with
the approval of this Honorable Court if warranted,
to give the heirs some advances chargeable against
theirs (sic) respective shares, and, for the purpose to
authorize the herein Administrator, and the other
heirs to help the Administrator personally or
through a broker, to look for a buyer for the highest
obtainable price, subject always to the approval of
this Honorable Court.1
On October 30, 1989, herein petitioners moved to be
given a period of forty-five (45) days within which to
look for a buyer who will be willing to buy the properties
at a price higher than P12,000,000.00.
The case was set for hearing on December 15, 1989.
However, by said date, petitioners have not found any
buyer offering better terms. Thus, they asked the Court,
on February 8, 1990, for an in extendible period of thirty
days to look for a buyer.
Petitioner-administrator then filed a criminal complaint
for falsification of a public document against Yu Hwa Ping
and notary public Eugenio Obon on February 26, 1990.
He initiated this complaint upon learning that it was Yu
Hwa Ping who caused the notarization of the Deed of
Conditional Sale wherein allegedly petitioner-
administrator's signature was made to appear. He also
learned that after he confronted the notary public of the
questioned document, the latter revoked his notarial act
on the same.
On April 2, 1990, petitioner-administrator filed the civil
action to secure the declaration by the Court of the nullity
of the Deed of Conditional Sale and the Deed of Absolute
Sale.
The period granted herein petitioners having lapsed
without having found a buyer, petitioner Demosthenes
Acebedo sought to nullify the Orders granting them
several periods within which to look for a better buyer.
Respondents filed a comment thereon.
Having miserably failed to find a better buyer, after seven
long months, petitioner-administrator filed another
"Opposition to Approval of Sale", dated May 10, 1990,
maintaining that the sale should wait for the country to
recover from the effects of the coup d'etat attempts,
20
otherwise, the properties should be divided among the
heirs.
On June 21, 1990, petitioners filed a "Motion for Leave of
Court to Mortgage and Lease some of the Properties of
the Estate". To this Motion, respondents filed an
Opposition on the following grounds : that the motion is
not proper because of the pending motion to approve the
sale of the same properties; that said conditional sale was
initiated by petitioner-administrator who had earlier
signed a receipt for P500,000.00 as earnest money; that
the approval of the sale would mean Yu Hwa Ping's
assumption of payment of the realty taxes; that the estate
has no further debts and thus, the intestate administrator
may be terminated.
On August 17, 1990, respondent Court issued an Order,
the dispositive portion of which, stated, among others, to
wit:2
b. the motion filed by the heirs-movants, dated
October 4, 1989, praying that the new administrator
be directed to sell the properties covered by TCT
Nos. 155569, 120145, 9145 and 18709, in favor of
Yu Hwa Ping is hereby denied; and
c. the new administrator is hereby granted leave to
mortgage some properties of the estate at a just and
reasonable amount, subject to the approval of the
Court.
On December 4, 1990, the respondent Judge issued an
order resolving to call the parties to a conference on
December 17, 1990. The conference was held, but still
the parties were unable to arrive at an agreement. So, on
January 4, 1991, it was continued, wherein the parties
actually agreed that the heirs be allowed to sell their
shares of the properties to Yu Hwa Ping for the price
already agreed upon, while herein petitioners negotiate
for a higher price with Yu Hwa Ping.
Petitioners, then, instead filed a "Supplemental
Opposition" to the approval of the Deed of Conditional
Sale.
On March 29, 1991, the respondent Court issued the
challenged Order, the dispositive portion of which states,
to wit:
WHEREFORE, the Order dated August 7, 1990, is
hereby lifted, reconsidered and set aside, and
another one is hereby issued as follows:
1. Approving the conditional sale, dated September
10, 1989, executed by the heirs-movants, in favor of
Yu Hwa Ping, pertaining to their respective shares in
the properties covered by TCT Nos. 155569,
120145, 1945 and 18709 of the Register of Deeds of
Quezon City;
2. Ordering the administrator Herodotus Acebedo to
sell the remaining portions of the said properties
also in favor of Yu Hwa Ping at the same price as the
sale executed by the herein heirs-movants;
3. Ordering Yu Hwa Ping to deposit with the Court
the total remaining balance of the purchase price for
the said lots within TWENTY (20) DAYS from notice
hereof;
4. The motion to cite former administrator Miguel
Acebedo in contempt of court, resulting from his
failure to submit the owner's copy of TCT Nos.
155569, and 120145 is hereby denied.3
Yu Hwa Ping, on April 4, 1991, deposited the remaining
balance of the purchase price for the properties subject
of the Deed of Conditional Sale in the amount of
P6,500,000.00.
Petitioners herein received the questioned Order on
April 11, 1991. Twenty one (21) days thereafter, they
filed a Motion for Reconsideration, praying that the Court
reinstate its Order of August 17, 1990. To this, private
respondents filed their Opposition.4
Instead of making a reply, petitioners herein filed a
Supplemental Motion for Reconsideration. The motions
for reconsideration of herein petitioners were denied by
the respondent Court on August 23, 1991.
On September 23, 1991, herein petitioners filed a Motion
for Partial Reconsideration, hoping for the last time that
they would be able to convince the Court that its Order
dated March 29, 1991 in effect approving the conditional
sale is erroneous and beyond its jurisdiction.
On October 17, 1991, the respondent Court denied the
Motion for Partial Reconsideration for "lack of merit".
On November 7, 1991, private respondents filed a Motion
for Execution of the Order dated March 29, 1991. This
was pending resolution when the petitioners filed this
Petition for Certiorari.
The controversy in the case at bar revolves around one
question: Is it within the jurisdiction of the lower court,
acting as a probate court, to issue an Order approving the
Deed of Conditional Sale executed by respondents-heirs
without prior court approval and to order herein
Administrator to sell the remaining portion of said
properties?
We answer in the positive?
In the case of Dillena vs. Court of Appeals,5 this Court
made a pronouncement that it is within the jurisdiction
of the probate court to approve the sale of properties of
a deceased person by his prospective heirs before final
adjudication. Hence, it is error to say that this matter
should be threshed out in a separate action.
The Court further elaborated that although the Rules of
Court do not specifically state that the sale of an
immovable property belonging to an estate of a decedent,
in a special proceeding, should be made with the
approval of the court, this authority is necessarily
included in its capacity as a probate court. Therefore, it is
clear that the probate court in the case at bar, acted
within its jurisdiction in issuing the Order approving the
Deed of Conditional Sale.
We cannot countenance the position maintained by
herein petitioners that said conditional sale is null and
void for lack of prior court approval. The sale precisely
was made conditional, the condition being that the same
should first be approved by the probate court.
Petitioners herein anchor their claim on Section 7, Rule
89 of the Rules of Court.6 It is settled that court approval
is necessary for the validity of any disposition of the
21
decedent's estate. However, reference to judicial
approval cannot adversely affect the substantive rights
of the heirs to dispose of their ideal share in the co-
heirship and/or co-ownership among the heirs.7
This Court had the occasion to rule that there is no doubt
that an heir can sell whatever right, interest, or
participation he may have in the property under
administration. This is a matter which comes under the
jurisdiction of the probate court.8
The right of an heir to dispose of the decedent's property,
even if the same is under administration, is based on the
Civil Code provision9 stating that the possession of
hereditary property is deemed transmitted to the heir
without interruption and from the moment of the death
of the decedent, in case the inheritance is accepted.
Where there are however, two or more heirs, the whole
estate of the decedent is, before its partition, owned in
common by such heirs. 10
thus formed among the co-owners of the estate which
remains undivided'."
Private respondents having secured the approval of the
probate court, a matter which is unquestionably within
its jurisdiction, and having established private
respondents' right to alienate the decedent's property
subject of administration, this Petition should be
dismissed for lack of merit.
PREMISES considered, Petition is hereby DISMISSED.
With Costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur.

The Civil Code, under the provisions on co-ownership,

further qualifies this right.11 Although it is mandated that
each co-owner shall have the full ownership of his part
and of the fruits and benefits pertaining thereto, and thus
may alienate, assign or mortgage it, and even substitute
another person in its enjoyment, the effect of the
alienation or the mortgage, with respect to the
co-owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of the
co-ownership.12 In other words, the law does not
prohibit a co-owner from selling, alienating or
mortgaging his ideal share in the property held in
common.13

As early as 1942, this Court has recognized said right of

an heir to dispose of property under administration. In
the case of Teves de Jakosalem vs. Rafols, et al.,14 it was
said that the sale made by an heir of his share in an
inheritance, subject to the result of the pending
administration, in no wise, stands in the way of such
administration. The Court then relied on the provision of
the Old Civil Code, Article 440 and Article 339 which are
still in force as Article 533 and Article 493, respectively,
in the new Civil Code. The Court also cited the words of a
noted civilist, Manresa: "Upon the death of a person, each
of his heirs 'becomes the undivided owner of the whole
estate left with respect to the part or portion which might
be adjudicated to him, a community of ownership being

22
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 61584 November 25, 1992
DONATO S. PAULMITAN, JULIANA P. FANESA and
RODOLFO FANESA, petitioners,
vs.
COURT OF APPEALS, ALICIO PAULMITAN, ELENA
PAULMITAN, ABELINO PAULMITAN, ANITA
PAULMITAN, BAKING PAULMITAN, ADELINA
PAULMITAN and ANITO PAULMITAN, respondents.
ROMERO, J.:
This is a petition for review on certiorari seeking the
reversal of the decision 1 of the Court of Appeals, dated
July 14, 1982 in CA-G.R. No. 62255-R entitled "Alicio
Paulmitan, et al. v. Donato Sagario Paulmitan, et al."
which affirmed the decision 2 of the then Court of First
Instance (now RTC) of Negros Occidental, 12th Judicial
District, Branch IV, Bacolod City, in Civil Case No. 11770.
The antecedent facts are as follows:
Agatona Sagario Paulmitan, who died sometime in
1953, 3 left the two following parcels of land located in
the Province of Negros Occidental: (1) Lot No. 757 with
an area of 1,946 square meters covered by Original
Certificate of Title (OCT) No. RO-8376; and (2) Lot No.
1091 with an area of 69,080 square meters and covered
by OCT No. RO-11653. From her marriage with Ciriaco
Paulmitan, who is also now deceased, Agatona begot two
legitimate children, namely: Pascual Paulmitan, who also
died in 1953, 4 apparently shortly after his mother
passed away, and Donato Paulmitan, who is one of the
petitioners. Petitioner Juliana P. Fanesa is Donato's
daughter while the third petitioner, Rodolfo Fanes, is
Juliana's husband. Pascual Paulmitan, the other son of
Agatona Sagario, is survived by the respondents, who are
his children, name: Alicio, Elena, Abelino, Adelina, Anita,
Baking and Anito, all surnamed Paulmitan.
Until 1963, the estate of Agatona Sagario Paulmitan
remained unsettled and the titles to the two lots
mentioned above remained in the name of Agatona.
However, on August 11, 1963, petitioner Donato
Paulmitan executed an Affidavit of Declaration of
Heirship, extrajudicially adjudicating unto himself Lot
No. 757 based on the claim that he is the only surviving
heir of Agatona Sagario. The affidavit was filed with the
Register of Deeds of Negros Occidental on August 20,
1963, cancelled OCT No. RO-8376 in the name of Agatona
Sagario and issued Transfer Certificate of Title (TCT) No.
35979 in Donato's name.
As regards Lot No. 1091, Donato executed on May 28,
1974 a Deed of Sale over the same in favor of petitioner
Juliana P. Fanesa, his daughter. 5
In the meantime, sometime in 1952, for non-payment of
taxes, Lot No. 1091 was forfeited and sold at a public
auction, with the Provincial Government of Negros
Occidental being the buyer. A Certificate of Sale over the
land was executed by the Provincial Treasurer in favor of
the Provincial Board of Negros Occidental. 6
On May 29, 1974, Juliana P. Fanesa redeemed the
property from the Provincial Government of Negros
Occidental for the amount of P2,959.09. 7
On learning of these transactions, respondents children
of the late Pascual Paulmitan filed on January 18, 1975
with the Court of First Instance of Negros Occidental a
Complaint against petitioners to partition the properties
plus damages.
Petitioners set up the defense of prescription with
respect to Lot No. 757 as an affirmative defense,
contending that the Complaint was filed more than
eleven years after the issuance of a transfer certificate of
title to Donato Paulmitan over the land as consequence
of the registration with the Register of Deeds, of Donato's
affidavit extrajudicially adjudicating unto himself Lot No.
757. As regards Lot No. 1091, petitioner Juliana P. Fanesa
claimed in her Answer to the Complaint that she acquired
exclusive ownership thereof not only by means of a deed
of sale executed in her favor by her father, petitioner
Donato Paulmitan, but also by way of redemption from
the Provincial Government of Negros Occidental.
Acting on the petitioners' affirmative defense of
prescription with respect to Lot No. 757, the trial court
issued an order dated April 22, 1976 dismissing the
complaint as to the said property upon finding merit in
petitioners' affirmative defense. This order, which is not
the object of the present petition, has become final after
respondents' failure to appeal therefrom.
Trial proceeded with respect to Lot No. 1091. In a
decision dated May 20, 1977, the trial court decided in
favor of respondents as to Lot No. 1091. According to the
trial court, the respondents, as descendants of Agatona
Sagario Paulmitan were entitled to one-half (1/2) of Lot
No. 1091, pro indiviso. The sale by petitioner Donato
Paulmitan to his daughter, petitioner Juliana P. Fanesa,
did not prejudice their rights. And the repurchase by
Juliana P. Fanesa of the land from the Provincial
Government of Negros Occidental did not vest in Juliana
exclusive ownership over the entire land but only gave
her the right to be reimbursed for the amount paid to
redeem the property. The trial court ordered the
partition of the land and directed petitioners Donato
Paulmitan and Juliana P. Fanesa to pay private
respondents certain amounts representing the latter's
share in the fruits of the land. On the other hand,
respondents were directed to pay P1,479.55 to Juliana P.
Fanesa as their share in the redemption price paid by
Fanesa to the Provincial Government of Negros
Occidental. The dispositive portion of the trial court's
decision reads:
WHEREFORE, judgment is hereby rendered on the
second cause of action pleaded in the complain as
follows:
1. The deed of sale (Exh. "F") dated May 28, 1974 is
valid insofar as the one-half undivided portion of Lot
1091 is concerned as to vest ownership over said
half portion in favor of defendant Juliana Fanesa and
her husband Rodolfo Fanesa, while the remaining
half shall belong to plaintiffs, pro-indiviso;
2. Lot 1091, Cadastral Survey of Pontevedra,
Province of Negros Occidental, now covered by TCT
No. RO-11653 (N.A.), is ordered partitioned. The
parties must proceed to an actual partition by
property instrument of partition, submitting the
corresponding subdivision within sixty (60) days
from finality of this decision, and should they fail to
agree, commissioners of partition may be appointed
by the Court;
23
 3. Pending the physical partition, the Register of
Deeds of Negros Occidental is ordered to cancel
Original Certificate of Title No. RO-11653 (N.A.)
covering Lot 1091, Pontevedra Cadastre, and to
issue in lieu thereof a new certificate of title in the
name of plaintiffs and defendants, one-half portion
each, pro-indiviso, as indicated in paragraph 1
above;
4. Plaintiffs are ordered to pay, jointly and severally,
defendant Juliana Fanesa the amount of P1,479.55
with interest at the legal rate from May 28, 1974
until paid;
5 Defendants Donato Sagario Paulmitan and Juliana
Paulmitan Fanesa are ordered to account to
plaintiffs and to pay them, jointly and severally, the
value of the produce from Lot 1091 representing
plaintiffs' share in the amount of P5,000.00 per year
from 1966 up to the time of actual partition of the
property, and to pay them the sum of P2,000.00 as
attorney's fees as well as the costs of the suit.
xxx xxx xxx
On appeal, the Court of Appeals affirmed the trial court's
decision. Hence this petition.
To determine the rights and obligations of the parties to
the land in question, it is well to review, initially, the
relatives who survived the decedent Agatona Sagario
Paulmitan. When Agatona died in 1953, she was survived
by two (2) sons, Donato and Pascual. A few months later
in the same year, Pascual died, leaving seven children, the
private respondents. On the other had, Donato's sole
offspring was petitioner Juliana P. Fanesa.
At the time of the relevant transactions over the
properties of decedent Agatona Sagario Paulmitan, her
son Pascual had died, survived by respondents, his
children. It is, thus, tempting to apply the principles
pertaining to the right of representation as regards
respondents. It must, however, be borne in mind that
Pascual did no predecease his mother, 8 thus precluding
the operation of the provisions in the Civil Code on the
right of representation 9 with respect to his children, the
respondents. When Agatona Sagario Paulmitan died
intestate in 1952, her two (2) sons Donato and Pascual
were still alive. Since it is well-settled by virtue of Article
777 of the Civil Code that "[t]he rights to the succession
are transmitted from the moment of the death of the
decedent," 10 the right of ownership, not only of Donato
but also of Pascual, over their respective shares in the
inheritance was automatically and by operation of law
vested in them in 1953 when their mother died intestate.
At that stage, the children of Donato and Pascual did not
yet have any right over the inheritance since "[i]n every
inheritance, the relative nearest in degree excludes the
more distant
ones." 11 Donato and Pascual excluded their children as
to the right to inherit from Agatona Sagario Paulmitan,
their mother.
From the time of the death of Agatona Sagario Paulmitan
to the subsequent passing away of her son Pascual in
1953, the estate remained unpartitioned. Article 1078 of
the Civil Code provides: "Where there are two or more
heirs, the whole estate of the decedent is, before its
partition, owned in common by such heirs, subject to the
payment of debts of the deceased." 12 Donato and Pascual
Paulmitan were, therefore, co-owners of the estate left by
their mother as no partition was ever made.
When Pascual Paulmitan died intestate in 1953, his
children, the respondents, succeeded him in the co-
ownership of the disputed property. Pascual Paulmitan's
right of ownership over an undivided portion of the
property passed on to his children, who, from the time of
Pascual's death, became co-owners with their uncle
Donato over the disputed decedent estate.
Petitioner Juliana P. Fanesa claims ownership over Lot
No. 1091 by virtue of two transactions, namely: (a) the
sale made in her favor by her father Donato Paulmitan;
and (b) her redemption of the land from the Provincial of
Negros Occidental after it was forfeited for non-payment
of taxes.
When Donato Paulmitan sold on May 28, 1974 Lot No.
1091 to his daughter Juliana P. Fanesa, he was only a co-
owner with respondents and as such, he could only sell
that portion which may be allotted to him upon
termination of the co-ownership. 13 The sale did not
prejudice the rights of respondents to one half (1/2)
undivided share of the land which they inherited from
their father. It did not vest ownership in the entire land
with the buyer but transferred only the seller's pro-
indiviso share in the property 14 and consequently made
the buyer a co-owner of the land until it is partitioned.
In Bailon-Casilao v. Court of Appeals, 15 the Court,
through Justice Irene R. Cortes, outlined the effects of a
sale by one co-owner without the consent of all the co-
owners, thus:
The rights of a co-owner of a certain property are
clearly specified in Article 493 of the Civil Code,
Thus:
Art. 493. Each co-owner shall have the full
ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate,
assign or mortgage it and even substitute another
person its enjoyment, except when personal rights
are involved. But the effect of the alienation or
mortgage, with respect to the co-owners, shall be
limited to the portion which may be allotted to him in
the division upon the termination of the co-
ownership. [Emphasis supplied.]
As early as 1923, this Court has ruled that even if a
co-owner sells the whole property as his, the sale
will affect only his own share but not those of the
other co-owners who did not consent to the sale
[Punsalan v. Boon Liat, 44 Phil. 320 (1923)]. This is
because under the aforementioned codal provision,
the sale or other disposition affects only his
undivided share and the transferee gets only what
would correspond to his grantor in the partition of
the thing owned in common [Ramirez v. Bautista, 14
Phil. 528 (1909)]. Consequently, by virtue of the
sales made by Rosalia and Gaudencio Bailon which
are valid with respect to their proportionate shares,
and the subsequent transfers which culminated in
the sale to private respondent Celestino Afable, the
said Afable thereby became a co-owner of the
disputed parcel of land as correctly held by the
lower court since the sales produced the effect of
substituting the buyers in the enjoyment thereof
[Mainit v. Bandoy, 14 Phil. 730 (1910)].
From the foregoing, it may be deduced that since a
co-owner is entitled to sell his undivided share, a
sale of the entire property by one co-owner without
the consent of the other co-owners is not null and
void. However, only the rights of the co-owner-seller
24
 are transferred, thereby making the buyer a co-
owner of the property.
Applying this principle to the case at bar, the sale by
petitioner Donato Paulmitan of the land to his daughter,
petitioner Juliana P. Fanesa, did not give to the latter
ownership over the entire land but merely transferred to
her the one half (1/2) undivided share of her father, thus
making her the co-owner of the land in question with the
respondents, her first cousins.
Petitioner Juliana P. Fanesa also claims ownership of the
entire property by virtue of the fact that when the
Provincial Government of Negros Occidental bought the
land after it was forfeited for non-payment of taxes, she
redeemed it.
The contention is without merit.
The redemption of the land made by Fanesa did not
terminate the co-ownership nor give her title to the
entire land subject of the co-ownership. Speaking on the
same issue raised by petitioners, the Court, in Adille
v. Court of Appeals, 16 resolved the same with the
following pronouncements:
The petition raises a purely legal issue: May a co-
owner acquire exclusive ownership over the
property held in common?
Essentially, it is the petitioners' contention that the
property subject of dispute devolved upon him upon
the failure of his co-heirs to join him in its
redemption within the period required by law. He
relies on the provisions of Article 1515 of the old
Civil Code, Article 1613 of the present Code, giving
the vendee a retro the right to demand redemption
of the entire property.
There is no merit in this petition.
The right of repurchase may be exercised by co-
owner with respect to his share alone (CIVIL CODE,
art. 1612, CIVIL CODE (1889), art. (1514.). While the
records show that petitioner redeemed the property
in its entirety, shouldering the expenses therefor,
that did not make him the owner of all of it. In other
words, it did not put to end the existing state of co-
ownership (Supra, Art. 489). There is no doubt that WHEREFORE, the petition is DENIED and the decision of
redemption of property entails a necessary expense. the Court of Appeals AFFIRMED.
Under the Civil Code:
SO ORDERED.
Art. 488. Each co-owner shall have a right to compel
the other co-owners to contribute to the expenses of Gutierrez, Jr., Bidin, Davide, Jr., Romero and Melo, JJ.,
preservation of the thing or right owned in common concur.
and to the taxes. Any one of the latter may exempt
himself from this obligation by renouncing so much
of his undivided interest as may be equivalent to his
share of the expenses and taxes. No such waiver
shall be made if it is prejudicial to the co-ownership.
The result is that the property remains to be in a
condition of co-ownership. While a vendee a retro,
under Article 1613 of the Code, "may not be
compelled to consent to a partial redemption," the
redemption by one co-heir or co-owner of the
property in its totality does not vest in him
ownership over it. Failure on the part of all the co-
owners to redeem it entitles the vendee a retro to
retain the property and consolidate title thereto in
his name (Supra, art. 1607). But the provision does
not give to the redeeming co-owner the right to the
entire property. It does not provide for a mode of
terminating a co-ownership.
Although petitioner Fanesa did not acquire ownership
over the entire lot by virtue of the redemption she made,
nevertheless, she did acquire the right to reimbursed for
half of the redemption price she paid to the Provincial
Government of Negros Occidental on behalf of her co-
owners. Until reimbursed, Fanesa hold a lien upon the
subject property for the amount due her. 17
Finally, petitioners dispute the order of the trial court,
which the Court of Appeals affirmed, for them to pay
private respondents P5,000.00 per year from 1966 until
the partition of the estate which represents the share of
private respondents in the fruits of the land. According to
petitioners, the land is being leased for P2,000.00 per
year only. This assigned error, however raises a factual
question. The settled rule is that only questions of law
may be raised in a petition for review. As a general rule,
findings of fact made by the trial court and the Court of
Appeals are final and conclusive and cannot be reviewed
on appeal. 18
25
 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 Parañaque where their father could spend and
enjoy his remaining years in a peaceful neighborhood.
Initially, the brothers agreed that Virgilio's share in the
co-ownership was two-thirds while that of Senen was
one-third. By virtue of a written memorandum dated 23
February 1970, Virgilio and Senen agreed that
henceforth their interests in the house and lot should be
equal, with Senen assuming the remaining mortgage
obligation of the original owners with the Social Security
System (SSS) in exchange for his possession and
enjoyment of the house together with their father.
Since Virgilio was then disqualified from obtaining a loan
from SSS, the brothers agreed that the deed of sale would
be executed and the title registered in the meantime in
the name of Senen. It was further agreed that Senen
would take care of their father and his needs since
Virgilio and his family were staying in Cebu.
After Maximiano Aguilar died in 1974, petitioner
demanded from private respondent that the latter vacate
the house and that the property be sold and proceeds
thereof divided among them.
Because of the refusal of respondent to give in to
petitioner's demands, the latter filed on 12 January 1979
an action to compel the sale of the house and lot so that
the they could divide the proceeds between them.
In his complaint, petitioner prayed that the proceeds of
the sale, be divided on the basis of two-thirds (2/3) in his
favor and one-third (1/3) to respondent. Petitioner also
prayed for monthly rentals for the use of the house by
respondent after their father died.
In his answer with counterclaim, respondent alleged that
he had no objection to the sale as long as the best selling
price could be obtained; that if the sale would be effected,
the proceeds thereof should be divided equally; and, that
being a co-owner, he was entitled to the use and
enjoyment of the property.
Upon issues being joined, the case was set for pre-trial on
26 April 1979 with the lawyers of both parties notified of
the pre-trial, and served with the pre-trial order, with
private respondent executing a special power of attorney
to his lawyer to appear at the pre-trial and enter into any
amicable settlement in his behalf.1
On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel
for respondent, filed a motion to cancel pre-trial on the
ground that he would be accompanying his wife to
Dumaguete City where she would be a principal sponsor
in a wedding.
On 23 April 1979, finding the reasons of counsel to be
without merit, the trial court denied the motion and
directed that the pre-trial should continue as scheduled.
When the case was called for pre-trial as scheduled on 26
April 1979, plaintiff and his counsel appeared. Defendant
did not appear; neither his counsel in whose favor he
executed a special power of attorney to represent him at
the pre-trial. Consequently, the trial court, on motion of
plaintiff, declared defendant as in default and ordered
reception of plaintiff's evidence ex parte.
On 7 May 1979, defendant through counsel filed an
omnibus motion to reconsider the order of default and to
defer reception of evidence. The trial court denied the
motion and plaintiff presented his evidence.
On 26 July 1979, rendering judgment by default against
defendant, the trial court found him and plaintiff to be co-
owners of the house and lot, in equal shares on the basis
of their written agreement. However, it ruled that
plaintiff has been deprived of his participation in the
property by defendant's continued enjoyment of the
house and lot, free of rent, despite demands for rentals
and continued maneuvers of defendants, to delay
partition. The trial court also upheld the right of plaintiff
as co-owner to demand partition. Since plaintiff could
not agree to the amount offered by defendant for the
former's share, the trial court held that this property
should be sold to a third person and the proceeds divided
equally between the parties.
The trial court likewise ordered defendant to vacate the
property and pay plaintiff P1,200.00 as rentals2 from
January 1975 up to the date of decision plus interest from
the time the action was filed.
On 17 September 1979, defendant filed an omnibus
motion for new trial but on 22 October 1979 the trial
court denied the motion.
Defendant sought relief from the Court of Appeals
praying that the following orders and decision of the trial
court be set aside: (a) the order of 23 April 1970 denying
defendants motion for postponement of the pre-trial set
on 26 April 1979; (b) the order of 26 April 1979 declaring
him in default and authorizing plaintiff to present his
evidence ex-parte; (e) the default judgment of 26 July
1979; and, (d) the order dated 22 October 1979 denying
his omnibus motion for new trial.
On 16 October 1986, the Court of Appeals set aside the
order of the trial court of 26 April 1979 as well as the
assailed judgment rendered by default., The appellate
court found the explanation of counsel for defendant in
his motion to cancel pre-trial as satisfactory and devoid
of a manifest intention to delay the disposition of the
26
case. It also ruled that the trial court should have granted
the motion for postponement filed by counsel for
defendant who should not have been declared as in
default for the absence of his counsel.
Petitioner now comes to us alleging that the Court of
Appeals erred (1) in not holding that the motion of
defendant through counsel to cancel the pre-trial was
dilatory in character and (2) in remanding the case to the
trial court for pre-trial and trial.
The issues to be resolved are whether the trial court
correctly declared respondent as in default for his failure
to appear at the pre-trial and in allowing petitioner to
present his evidence ex-parte, and whether the trial
court correctly rendered the default judgment against
respondent.
We find merit in the petition.
As regards the first issue, the law is clear that the
appearance of parties at the pre-trial is mandatory.3 A
party who fails to appear at a pre-trial conference may be
non-suited or considered as in default.4 In the case at bar,
where private respondent and counsel failed to appear at
the scheduled pre-trial, the trial, court has authority to
declare respondent in default.5
Although respondent's counsel filed a motion to
postpone pre-trial hearing, the grant or denial thereof is
within the sound discretion of the trial court, which
should take into account two factors in the grant or
denial of motions for postponement, namely: (a) the
reason for the postponement and (b) the merits of the
case of movant.6
In the instant case, the trial court found the reason stated
in the motion of counsel for respondent to cancel the pre-
trial to be without merit. Counsel's explanation that he
had to go to by boat as early as 25 March 1979 to fetch
his wife and accompany her to a wedding in Dumaguete
City on 27 April 1979 where she was one of the principal
sponsors, cannot be accepted. We find it insufficient to
justify postponement of the pre-trial, and the Court of
Appeals did not act wisely in overruling the denial. We
sustain the trial court and rule that it did not abuse its
discretion in denying the postponement for lack of merit.
Certainly, to warrant a postponement of a mandatory
process as pre-trial would require much more than mere
attendance in a social function. It is time indeed we
emphasize that there should be much more than mere
perfunctory treatment of the pre-trial procedure. Its
observance must be taken seriously if it is to attain its
objective, i.e., the speedy and inexpensive disposition of
cases.
Moreover, the trial court denied the motion for
postponement three (3) days before the scheduled pre-
trial. If indeed, counsel for respondent could not attend
the pre-trial on the scheduled date, respondent at least
should have personally appeared in order not to be
declared as in default. But, since nobody appeared for
him, the order of the trial court declaring him as in
default and directing the presentation of petitioner's
evidence ex parte was proper.7
With regard to the merits of the judgment of the trial
court by default, which respondent appellate court did
not touch upon in resolving the appeal, the Court holds
that on the basis of the pleadings of the parties and the
evidence presented ex parte, petitioner and respondents
are co-owners of subject house and lot in equal shares;
either one of them may demand the sale of the house and
lot at any time and the other cannot object to such
demand; thereafter the proceeds of the sale shall be
divided equally according to their respective interests.
Private respondent and his family refuse to pay monthly
rentals to petitioner from the time their father died in
1975 and to vacate the house so that it can be sold to
third persons. Petitioner alleges that respondent's
continued stay in the property hinders its disposal to the
prejudice of petitioner. On the part of petitioner, he
claims that he should be paid two-thirds (2/3) of a
monthly rental of P2,400.00 or the sum of P1,600.00.
In resolving the dispute, the trial court ordered
respondent to vacate the property so that it could be sold
to third persons and the proceeds divided between them
equally, and for respondent to pay petitioner one-half
(1/2) of P2,400.00 or the sum of P1,200.00 as monthly
rental, conformably with their stipulated sharing
reflected in their written agreement.
We uphold the trial court in ruling in favor of petitioner,
except as to the effectivity of the payment of monthly
rentals by respondent as co-owner which we here
declare to commence only after the trial court ordered
respondent to vacate in accordance with its order of 26
July 1979.
Article 494 of the Civil Code provides that no co-owner
shall be obliged to remain in the co-ownership, and that
each co-owner may demand at any time partition of the
thing owned in common insofar as his share is
concerned. Corollary to this rule, Art. 498 of the Code
states that whenever the thing is essentially, indivisible
and the co-owners cannot agree that it be, allotted to one
of them who shall indemnify the others, it shall be sold
and its proceeds accordingly distributed. This is resorted
to (1) when the right to partition the property is invoked
by any of the co-owners but because of the nature of the
property it cannot be subdivided or its subdivision would
prejudice the interests of the co-owners, and (b) the co-
owners are not in agreement as to who among them shall
be allotted or assigned the entire property upon proper
reimbursement of the co-owners. In one case,8 this Court
upheld the order of the trial court directing the holding
of a public sale of the properties owned in common
pursuant to Art. 498 of the Civil Code.
However, being a co-owner respondent has the right to
use the house and lot without paying any compensation
to petitioner, as he may use the property owned in
common long as it is in accordance with the purpose for
which it is intended and in a manner not injurious to the
interest of the other co-owners.9 Each co-owner of
property held pro indiviso exercises his rights over the
whole property and may use and enjoy the same with no
other limitation than that he shall not injure the interests
of his co-owners, the reason being that until a division is
made, the respective share of each cannot be determined
and every co-owner exercises, together with his co-
participants joint ownership over the pro
indiviso property, in addition to his use and enjoyment of
the
same. 10
Since petitioner has decided to enforce his right in court
to end the co-ownership of the house and lot and
respondent has not refuted the allegation that he has
been preventing the sale of the property by his continued
occupancy of the premises, justice and equity demand
that respondent and his family vacate the property so
that the sale can be effected immediately. In fairness to
petitioner, respondent should pay a rental of P1,200.00
per month, with legal interest; from the time the trial
court ordered him to vacate, for the use and enjoyment
27
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.

Cruz, Davide, Jr., Quiason, JJ., concur.

28
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-33187 March 31, 1980
CORNELIO PAMPLONA alias GEMINIANO PAMPLONA
and APOLONIA ONTE, petitioners,
vs.
VIVENCIO MORETO, VICTOR MORETO, ELIGIO
MORETO, MARCELO MORETO, PAULINA MORETO,
ROSARIO MORETO, MARTA MORETO, SEVERINA
MENDOZA, PABLO MENDOZA, LAZARO MENDOZA,
VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO
MORETO and LORENZO MENDOZA, respondents.
E.P. Caguioa for petitioners.
Benjamin C. Yatco for respondents.
GUERRERO, J.:
This is a petition for certiorari by way of appeal from the
decision of the Court of Appeals 1 in CA-G.R. No. 35962-
R, entitled "Vivencio Moreto, et al., Plaintiff-Appellees vs.
Cornelio Pamplona, et al., Defendants-Appellants,"
affirming the decision of the Court of First Instance of
Laguna, Branch I at Biñan.
The facts, as stated in the decision appealed from, show
that:
Flaviano Moreto and Monica Maniega were husband and
wife. During their marriage, they acquired adjacent lots
Nos. 1495, 4545, and 1496 of the Calamba Friar Land
Estate, situated in Calamba, Laguna, containing 781-544
and 1,021 square meters respectively and covered by
certificates of title issued in the name of "Flaviano
Moreto, married to Monica Maniega."
The spouses Flaviano Moreto and Monica Maniega begot
during their marriage six (6) children, namely, Ursulo,
Marta, La Paz, Alipio, Pablo, and Leandro, all surnamed
Moreto.
Ursulo Moreto died intestate on May 24, 1959 leaving as
his heirs herein plaintiffs Vivencio, Marcelo, Rosario,
Victor, Paulina, Marta and Eligio, all surnamed Moreto.
Marta Moreto died also intestate on April 30, 1938
leaving as her heir plaintiff Victoria Tuiza.
La Paz Moreto died intestate on July 17, 1954 leaving the
following heirs, namely, herein plaintiffs Pablo, Severina,
Lazaro, and Lorenzo, all surnamed Mendoza.
Alipio Moreto died intestate on June 30, 1943 leaving as
his heir herein plaintiff Josefina Moreto.
Pablo Moreto died intestate on April 25, 1942 leaving no
issue and as his heirs his brother plaintiff Leandro
Moreto and the other plaintiffs herein.
On May 6, 1946, Monica Maniega died intestate in
Calamba, Laguna.
On July 30, 1952, or more than six (6) years after the
death of his wife Monica Maniega, Flaviano Moreto,
without the consent of the heirs of his said deceased wife
Monica, and before any liquidation of the conjugal
partnership of Monica and Flaviano could be effected,
executed in favor of Geminiano Pamplona, married to
defendant Apolonia Onte, the deed of absolute sale (Exh.
"1") covering lot No. 1495 for P900.00. The deed of sale
(Exh. "1") contained a description of lot No. 1495 as
having an area of 781 square meters and covered by
transfer certificate of title No. 14570 issued in the name
of Flaviano Moreto, married to Monica Maniega, although
the lot was acquired during their marriage. As a result of
the sale, the said certificate of title was cancelled and a
new transfer certificate of title No. T-5671 was issued in
the name of Geminiano Pamplona married to Apolonia
Onte (Exh. "A").
After the execution of the above-mentioned deed of sale
(Exh. "1"), the spouses Geminiano Pamplona and
Apolonia Onte constructed their house on the eastern
part of lot 1496 as Flaviano Moreto, at the time of the
sale, pointed to it as the land which he sold to Geminiano
Pamplona. Shortly thereafter, Rafael Pamplona, son of
the spouses Geminiano Pamplona and Apolonia Onte,
also built his house within lot 1496 about one meter from
its boundary with the adjoining lot. The vendor Flaviano
Moreto and the vendee Geminiano Pamplona thought all
the time that the portion of 781 square meters which was
the subject matter of their sale transaction was No. 1495
and so lot No. 1495 appears to be the subject matter in
the deed of sale (Exh. "1") although the fact is that the
said portion sold thought of by the parties to be lot No.
1495 is a part of lot No. 1496.
From 1956 to 1960, the spouses Geminiano Pamplona
and Apolonio Onte enlarged their house and they even
constructed a piggery corral at the back of their said
house about one and one-half meters from the eastern
boundary of lot 1496.
On August 12, 1956, Flaviano Moreto died intestate. In
1961, the plaintiffs demanded on the defendants to
vacate the premises where they had their house and
piggery on the ground that Flaviano Moreto had no right
to sell the lot which he sold to Geminiano Pamplona as
the same belongs to the conjugal partnership of Flaviano
and his deceased wife and the latter was already dead
when the sale was executed without the consent of the
plaintiffs who are the heirs of Monica. The spouses
Geminiano Pamplona and Apolonia Onte refused to
vacate the premises occupied by them and hence, this
suit was instituted by the heirs of Monica Maniega
seeking for the declaration of the nullity of the deed of
sale of July 30, 1952 above-mentioned as regards one-
half of the property subject matter of said deed; to
declare the plaintiffs as the rightful owners of the other
half of said lot; to allow the plaintiffs to redeem the one-
half portion thereof sold to the defendants. "After
payment of the other half of the purchase price"; to order
the defendants to vacate the portions occupied by them;
to order the defendants to pay actual and moral damages
and attorney's fees to the plaintiffs; to order the
defendants to pay plaintiffs P120.00 a year from August
1958 until they have vacated the premises occupied by
them for the use and occupancy of the same.
The defendants claim that the sale made by Flaviano
Moreto in their favor is valid as the lot sold is registered
in the name of Flaviano Moreto and they are purchasers
believing in good faith that the vendor was the sole
owner of the lot sold.
After a relocation of lots 1495, 1496 and 4545 made by
agreement of the parties, it was found out that there was
mutual error between Flaviano Moreto and the
29
defendants in the execution of the deed of sale because
while the said deed recited that the lot sold is lot No.
1495, the real intention of the parties is that it was a
portion consisting of 781 square meters of lot No. 1496
which was the subject matter of their sale transaction.
After trial, the lower court rendered judgment, the
dispositive part thereof being as follows:
WHEREFORE, judgment is hereby rendered for the
plaintiffs declaring the deed of absolute sale dated
July 30, 1952 pertaining to the eastern portion of Lot
1496 covering an area of 781 square meters null and
void as regards the 390.5 square meters of which
plaintiffs are hereby declared the rightful owners
and entitled to its possession.
The sale is ordered valid with respect to the eastern
one-half (1/2) of 1781 square meters of Lot 1496
measuring 390.5 square meters of which defendants
are declared lawful owners and entitled to its
possession.
After proper survey segregating the eastern one-
half portion with an area of 390.5 square meters of
Lot 1496, the defendants shall be entitled to a
certificate of title covering said portion and Transfer
Certificate of Title No. 9843 of the office of the
Register of Deeds of Laguna shall be cancelled
accordingly and new titles issued to the plaintiffs
and to the defendants covering their respective
portions.
Transfer Certificate of Title No. 5671 of the office of
the Register of Deeds of Laguna covering Lot No.
1495 and registered in the name of Cornelio
Pamplona, married to Apolonia Onte, is by virtue of
this decision ordered cancelled. The defendants are
ordered to surrender to the office of the Register of
Deeds of Laguna the owner's duplicate of Transfer
Certificate of Title No. 5671 within thirty (30) days
after this decision shall have become final for
cancellation in accordance with this decision.
Let copy of this decision be furnished the Register of
Deeds for the province of Laguna for his information
and guidance.
With costs against the defendants. 2
The defendants-appellants, not being satisfied with said
judgment, appealed to the Court of Appeals, which
affirmed the judgment, hence they now come to this
Court.
The fundamental and crucial issue in the case at bar is
whether under the facts and circumstances duly
established by the evidence, petitioners are entitled to
the full ownership of the property in litigation, or only
one-half of the same.
There is no question that when the petitioners purchased
the property on July 30, 1952 from Flaviano Moreto for
the price of P900.00, his wife Monica Maniega had
already been dead six years before, Monica having died
on May 6, 1946. Hence, the conjugal partnership of the
spouses Flaviano Moreto and Monica Maniega had
already been dissolved. (Article 175, (1) New Civil Code;
Article 1417, Old Civil Code). The records show that the
conjugal estate had not been inventoried, liquidated,
settled and divided by the heirs thereto in accordance
with law. The necessary proceedings for the liquidation
of the conjugal partnership were not instituted by the
heirs either in the testate or intestate proceedings of the
deceased spouse pursuant to Act 3176 amending Section
685 of Act 190. Neither was there an extra-judicial
partition between the surviving spouse and the heirs of
the deceased spouse nor was an ordinary action for
partition brought for the purpose. Accordingly, the estate
became the property of a community between the
surviving husband, Flaviano Moreto, and his children
with the deceased Monica Maniega in the concept of a co-
ownership.
The community property of the marriage, at the
dissolution of this bond by the death of one of the
spouses, ceases to belong to the legal partnership and
becomes the property of a community, by operation
of law, between the surviving spouse and the heirs of
the deceased spouse, or the exclusive property of the
widower or the widow, it he or she be the heir of the
deceased spouse. Every co-owner shall have full
ownership of his part and in the fruits and benefits
derived therefrom, and he therefore may alienate,
assign or mortgage it, and even substitute another
person in its enjoyment, unless personal rights are in
question. (Marigsa vs. Macabuntoc, 17 Phil. 107)
In Borja vs. Addision, 44 Phil. 895, 906, the Supreme
Court said that "(t)here is no reason in law why the heirs
of the deceased wife may not form a partnership with the
surviving husband for the management and control of
the community property of the marriage and conceivably
such a partnership, or rather community of property,
between the heirs and the surviving husband might be
formed without a written agreement." In Prades vs.
Tecson, 49 Phil. 230, the Supreme Court held that
"(a)lthough, when the wife dies, the surviving husband,
as administrator of the community property, has
authority to sell the property with•ut the concurrence of
the children of the marriage, nevertheless this power can
be waived in favor of the children, with the result of
bringing about a conventional ownership in common
between the father and children as to such property; and
any one purchasing with knowledge of the changed
status of the property will acquire only the undivided
interest of those members of the family who join in the
act of conveyance.
It is also not disputed that immediately after the
execution of the sale in 1952, the vendees constructed
their house on the eastern part of Lot 1496 which the
vendor pointed out to them as the area sold, and two
weeks thereafter, Rafael who is a son of the vendees, also
built his house within Lot 1496. Subsequently, a
cemented piggery coral was constructed by the vendees
at the back of their house about one and one-half meters
from the eastern boundary of Lot 1496. Both vendor and
vendees believed all the time that the area of 781 sq.
meters subject of the sale was Lot No. 1495 which
according to its title (T.C.T. No. 14570) contains an area
of 781 sq. meters so that the deed of sale between the
parties Identified and described the land sold as Lot
1495. But actually, as verified later by a surveyor upon
agreement of the parties during the proceedings of the
case below, the area sold was within Lot 1496.
Again, there is no dispute that the houses of the spouses
Cornelio Pamplona and Apolonia Onte as well as that of
their son Rafael Pamplona, including the concrete
piggery coral adjacent thereto, stood on the land from
1952 up to the filing of the complaint by the private
respondents on July 25, 1961, or a period of over nine (9)
years. And during said period, the private respondents
who are the heirs of Monica Maniega as well as of
30
Flaviano Moreto who also died intestate on August 12,
1956, lived as neighbors to the petitioner-vendees, yet
lifted no finger to question the occupation, possession
and ownership of the land purchased by the Pamplonas,
so that We are persuaded and convinced to rule that
private respondents are in estoppel by laches to claim
half of the property, in dispute as null and void. Estoppel
by laches is a rule of equity which bars a claimant from
presenting his claim when, by reason of abandonment
and negligence, he allowed a long time to elapse without
presenting the same. (International Banking Corporation
vs. Yared, 59 Phil. 92)
We have ruled that at the time of the sale in 1952, the
conjugal partnership was already dissolved six years
before and therefore, the estate became a co-ownership
between Flaviano Moreto, the surviving husband, and
the heirs of his deceased wife, Monica Maniega. Article
493 of the New Civil Code is applicable and it provides a
follows:
Art. 493. Each co-owner shall have the full
ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another
person in its enjoyment, except when personal
rights are involve. But the effect of the alienation or
the mortgage, with respect to the co-owners, shall
be limited to the portion which may be allotted to
him in the division upon the termination of the co-
ownership.
We agree with the petitioner that there was a partial
partition of the co-ownership when at the time of the sale
Flaviano Moreto pointed out the area and location of the
781 sq. meters sold by him to the petitioners-vendees on
which the latter built their house and also that whereon
Rafael, the son of petitioners likewise erected his house
and an adjacent coral for piggery.
Petitioners point to the fact that spouses Flaviano Moreto
and Monica Maniega owned three parcels of land
denominated as Lot 1495 having an area of 781 sq.
meters, Lot 1496 with an area of 1,021 sq. meters, and
Lot 4545 with an area of 544 sq. meters. The three lots
have a total area of 2,346 sq. meters. These three parcels
of lots are contiguous with one another as each is
bounded on one side by the other, thus: Lot 4545 is
bounded on the northeast by Lot 1495 and on the
southeast by Lot 1496. Lot 1495 is bounded on the west
by Lot 4545. Lot 1496 is bounded on the west by Lot
4545. It is therefore, clear that the three lots constitute
one big land. They are not separate properties located in
different places but they abut each other. This is not
disputed by private respondents. Hence, at the time of
the sale, the co-ownership constituted or covered these
three lots adjacent to each other. And since Flaviano
Moreto was entitled to one-half pro-indiviso of the entire
land area or 1,173 sq. meters as his share, he had a
perfect legal and lawful right to dispose of 781 sq. meters
of his share to the Pamplona spouses. Indeed, there was
still a remainder of some 392 sq. meters belonging to him
at the time of the sale.
We reject respondent Court's ruling that the sale was
valid as to one-half and invalid as to the other half for the
very simple reason that Flaviano Moreto, the vendor, had
the legal right to more than 781 sq. meters of the
communal estate, a title which he could dispose, alienate
in favor of the vendees-petitioners. The title may be pro-
indiviso or inchoate but the moment the co-owner as
vendor pointed out its location and even indicated the
boundaries over which the fences were to be erectd
without objection, protest or complaint by the other co-
owners, on the contrary they acquiesced and tolerated
such alienation, occupation and possession, We rule that
a factual partition or termination of the co-ownership,
although partial, was created, and barred not only the
vendor, Flaviano Moreto, but also his heirs, the private
respondents herein from asserting as against the
vendees-petitioners any right or title in derogation of the
deed of sale executed by said vendor Flaiano Moreto.
Equity commands that the private respondents, the
successors of both the deceased spouses, Flaviano
Moreto and Monica Maniega be not allowed to impugn
the sale executed by Flaviano Moreto who indisputably
received the consideration of P900.00 and which he,
including his children, benefitted from the same.
Moreover, as the heirs of both Monica Maniega and
Flaviano Moreto, private respondents are duty-bound to
comply with the provisions of Articles 1458 and 1495,
Civil Code, which is the obligation of the vendor of the
property of delivering and transfering the ownership of
the whole property sold, which is transmitted on his
death to his heirs, the herein private respondents. The
articles cited provide, thus:
Art. 1458. By the contract of sale one of the
contracting parties obligates himself to transfer the
ownership of and to deliver a determinate thing, and
the other part to pay therefore a price certain in
money or its equivalent.
A contract of sale may be absolute or conditionial.
Art. 1495. The vendor is bound to transfer the
ownership of and deliver, as well as warrant the thing
which is the object of the sale.
Under Article 776, New Civil Code, the inheritance which
private respondents received from their deceased
parents and/or predecessors-in-interest included all the
property rights and obligations which were not
extinguished by their parents' death. And under Art.
1311, paragraph 1, New Civil Code, the contract of sale
executed by the deceased Flaviano Moreto took effect
between the parties, their assigns and heirs, who are the
private respondents herein. Accordingly, to the private
respondents is transmitted the obligation to deliver in
full ownership the whole area of 781 sq. meters to the
petitioners (which was the original obligation of their
predecessor Flaviano Moreto) and not only one-half
thereof. Private respondents must comply with said
obligation.
The records reveal that the area of 781 sq. meters sold to
and occupied by petitioners for more than 9 years
already as of the filing of the complaint in 1961 had been
re-surveyed by private land surveyor Daniel Aranas.
Petitioners are entitled to a segregation of the area from
Transfer Certificate of Title No. T-9843 covering Lot
1496 and they are also entitled to the issuance of a new
Transfer Certificate of Title in their name based on the
relocation survey.
WHEREFORE, IN VIEW OF THE FOREGOING, the
judgment appealed from is hereby AFFIRMED with
modification in the sense that the sale made and
executed by Flaviano Moreto in favor of the petitioners-
vendees is hereby declared legal and valid in its entirely.
Petitioners are hereby declared owners in full ownership
of the 781 sq. meters at the eastern portion of Lot 1496
31
now occupied by said petitioners and whereon their
houses and piggery coral stand.

The Register of Deeds of Laguna is hereby ordered to

segregate the area of 781 sq. meters from Certificate of
Title No. 9843 and to issue a new Transfer Certificate of
Title to the petitioners covering the segregated area of
781 sq. meters.

No costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Fernandez, De Castro

and Melencio-Herrera, JJ., concur.

32
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25014 October 17, 1973
DOLORES LAHORA VDA. DE CASTRO, ARSENIO DE
CASTRO, JR., WILFREDO DE CASTRO, IRINEO DE
CASTRO and VIRGINIA DE CASTRO ALEJANDRO, (in
substitution for the deceased defendant-appellant
ARSENIO DE CASTRO, SR.)., petitioners,
vs.
GREGORIO ATIENZA, respondent.
Arsenio de Castro, Jr. and F.T. Papa for petitioners.
Dakila Castro and Z.D. de Mesa for respondent.
TEEHANKEE, J.:
The Court rejects petitioners' appeal as without merit
and affirms the judgment of the appellate court.
Petitioners' predecessor-in-interest as co-owner of an
undivided one-half interest in the fishpond could validly
lease his interest to a third party, respondent Atienza,
independently of his co-owner (although said co-owner
had also leased his other undivided one-half interest to
the same third party) and could likewise by mutual
agreement independently cancel his lease agreement
with said third party. Said predecessor-in-interest (and
petitioners who have substituted him as his heirs)
therefore stands liable on his express undertaking to
refund the advance rental paid to him by the lessee on
the cancelled lease and cannot invoke the non-
cancellation of the co-owner's lease to elude such
liability.
The Court of Appeals, in its decision affirming in toto the
judgment of the Manila court of first instance ordering
therein defendant-appellant Arsenio de Castro, Sr. (now
deceased and substituted by above-named petitioners as
his heirs) "to return to the plaintiff (respondent)
Gregorio Atienza the sum P2,500.00 with legal interest
from the date of the filing of complaint until fully paid
plus the sum of P250.00 as attorney's fees and the costs
of the suit", found the following facts to undisputed:
On January 24, 1956 the brothers Tomas de Castro
and Arsenio de Castro, Sr. leased to plaintiff a
fishpond containing an area of 26 hectares situated
in Polo, Bulacan and forming part of a bigger parcel
of land covered by Transfer Certificate of Title No.
196450 of the registry of the property of Bulacan.
The lessors are co-owners in equal shares of the
leased property.
According to the contract of lease (Exh. 1) the term
of the lease was for five years from January 24, 1956
at a rental of P5,000 a year, the first year's rental to
be paid on February 1, 1956, the second on February
1, 1957 and the rental for the last three years on
February 1, 1958. The first year's rental was paid on
time.
In the meantime, Tomas de Castro died.
In the month of November, 1956, plaintiff as lessee
and defendant Arsenio de Castro, Sr. as one of the
lessors, agreed to set aside and annul the contract of
lease and for this purpose an agreement (Exh. A)
was signed by them, Exhibit A as signed by plaintiff
and defendant shows that Felisa Cruz Vda. de Castro,
widow of Tomas de Castro, was intended to be made
a party thereof in her capacity as representative of
the heirs of Tomas Castro.
Condition No. 2 of Exhibit A reads as follows:
"2. Na sa pamamagitan nito ay pinawawalang
kabuluhan namin ang nasabing kasulatan at
nagkasundo kami na ang bawat isa sa amin ni
Arsenio de Castro at Felisa Cruz Vda. de Castro ay
isauli kay GREGORIO ATIENZA ang tig P2,500.00 o
kabuuang halagang P5,000.00 na paunang naibigay
nito alinsunod sa nasabing kasulatan; na ang
nasabing tig P2,500.00 ay isasauli ng bawat isa sa
amin sa o bago dumating ang Dec. 30, 1956."
Felisa Cruz Vda. de Castro refused to sign Exhibit A.
Defendant did not pay the P2,500.00 which under
the above-quoted paragraph of Exhibit A, he should
have paid on December 30, 1956. Demand for
payment was made by plaintiff's counsel on January
7, 1957 but to no avail, hence the present action.
On the conflicting contentions between the parties as to
who between them would attend to securing the
signature of Mrs. Felisa Cruz Vda. de Castro (widow of
Tomas de Castro) to the agreement of cancellation of the
lease with respondent Atienza, the appellate court found
that "the testimony of the defendant (Arsenio de Castro,
Sr.) ... supports the contention of the plaintiff (Atienza)
"that it was the defendant Arsenio who was interested
and undertook to do so, citing Arsenio's own declaration
that "I agreed to sign this document (referring to the
cancellation) because of my desire to cancel our original
agreement" and that his purpose in obtaining the
cancellation of said lease agreement with plaintiff
Atienza was "(B)ecause I had the intention of having said
fishpond leased to other persons and I cannot lease it to
third parties unless I can secure the signature of Felisa
Vda. de Castro."
The appellate court thus held in effect that as Arsenio
"was the one interested in cancelling the lease (Exh. 1), it
stands to reason that he most probably undertook to
obtain the signature of Mrs. Castro [widow and
successor-in-interest of his brother Tomas]" and that he
could not invoke his own failure to obtain such signature
to elude his own undertaking and liability to refund
respondent (plaintiff) his share of the rental paid in
advance by respondent on the cancelled lease in the sum
of P2,500.00.
The appellate court furthermore correctly held that the
consent or concurrence of Felisa Vda. de Castro (as co-
owner in succession of Tomas) was not an essential
condition to the validity and effectivity of the agreement
of cancellation of the lease (Exhibit A) as between
Arsenio and respondent-lessee, contrary to petitioners'
claim, holding that "(S)ince there is no specific provision
in Exhibit A supporting defendant's claim, we are not
prepared to supply such condition unless the same can
be deduced from other evidence or unless the terms of
Exhibit A cannot be performed by plaintiff and defendant
without Mrs. Castro being bound as a party thereto."
The issue is simply reduced to whether Arsenio as co-
owner of the fishpond owned pro-indiviso by him with
his brother Tomas (succeeded by Felisa Vda. de Castro)
could validly lease his half-interest to a third party
33
(respondent Atienza) independently of his
co-owner, and in case his co-owner also leased his other
half interest to the same third party, whether Arsenio
could cancel his own lease agreement with said third
party?

The appellate court correctly resolved the issue thus:

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

The appellate court's judgment is fully supported by the

Civil Code provisions on the rights and prerogatives of
co-owners, and specifically by Article 493 which
expressly provides that

Art. 493. Each co-owner shall have the full

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

ACCORDINGLY, the appealed judgment is hereby

affirmed with costs against petitioners.

Makalintal, Actg. C.J., Zaldivar, Castro, Fernando, Barredo,

Makasiar, Antonio and Esguerra, JJ., concur.

34

FIRST DIVISION
G.R. No. 137152 January 29, 2001
CITY OF MANDALUYONG, petitioner,
vs.
ANTONIO N., FRANCISCO N., THELMA N., EUSEBIO N.,
RODOLFO N., all surnamed AGUILAR, respondents.
PUNO, J.:
This is a petition for review under Rule 45 of the Rules of
Court of the Orders dated September 17, 1998 and
December 29, 1998 of the Regional Trial Court, Branch
168, Pasig City1 dismissing the petitioner's Amended
Complaint in SCA No. 1427 for expropriation of two (2)
parcels of land in Mandaluyong City. 1âwphi1.nêt
The antecedent facts are as follows:
On August 4, 1997, petitioner filed with the Regional
Trial Court, Branch 168, Pasig City a complaint for
expropriation entitled "City of Mandaluyong, plaintiff v.
Antonio N., Francisco N, Thelma N, Eusebio N, Rodolfo N.,
all surnamed Aguilar, defendants." Petitioner sought to
expropriate three (3) adjoining parcels of land with an
aggregate area of 1,847 square meters registered under
Transfer Certificates of Title Nos. 59780, 63766 and
63767 in the names of the defendants, herein
respondents, located at 9 de Febrero Street, Barangay
Mauwag, City of Mandaluyong; on a portion of the 3 lots,
respondents constructed residential houses several
decades ago which they had since leased out to tenants
until the present; on the vacant portion of the lots, other
families constructed residential structures which they
likewise occupied; in 1983, the lots were classified by
Resolution No. 125 of the Board of the Housing and
Urban Development Coordinating Council as an Area for
Priority Development for urban land reform under
Proclamation Nos. 1967 and 2284 of then President
Marcos; as a result of this classification, the tenants and
occupants of the lots offered to purchase the land from
respondents, but the latter refused to sell; on November
7, 1996, the Sangguniang Panlungsod of petitioner, upon
petition of the Kapitbisig, an association of tenants and
occupants of the subject land, adopted Resolution No.
516, Series of 1996 authorizing Mayor Benjamin Abalos
of the City of Mandaluyong to initiate action for the
expropriation of the subject lots and construction of a
medium-rise condominium for qualified occupants of the
land; on January 10, 1996, Mayor Abalos sent a letter to
respondents offering to purchase the said property at
P3,000.00 per square meter; respondents did not answer
the letter. Petitioner thus prayed for the expropriation of
the said lots and the fixing of just compensation at the fair
market value of P3,000.00 per square meter.2
In their answer, respondents, except Eusebio N. Aguilar
who died in 1995, denied having received a copy of
Mayor Abalos' offer to purchase their lots. They alleged
that the expropriation of their land is arbitrary and
capricious, and is not for a public purpose; the subject
lots are their only real property and are too small for
expropriation, while petitioner has several properties
inventoried for socialized housing; the fair market value
of P3,000.00 per square meter is arbitrary because the
zonal valuation set by the Bureau of Internal Revenue is
P7,000.00 per square meter. As counterclaim,
respondents prayed for damages of P21 million.3
Respondents filed a "Motion for Preliminary Hearing"
claiming that the defenses alleged in their Answer are
valid grounds for dismissal of the complaint for lack of
jurisdiction over the person of the defendants and lack of
cause of action. Respondents prayed that the affirmative
defenses be set for preliminary hearing and that the
complaint be dismissed.4 Petitioner replied.
On November 5, 1997, petitioner filed an Amended
Complaint and named as an additional defendant
Virginia N. Aguilar and, at the same time, substituted
Eusebio Aguilar with his heirs. Petitioner also excluded
from expropriation TCT No. 59870 and thereby reduced
the area sought to be expropriated from three (3) parcels
of land to two (2) parcels totalling 1,636 square meters
under TCT Nos. 63766 and 63767.5
The Amended Complaint was admitted by the trial court
on December 18, 1997. Respondents, who, with the
exception of Virginia Aguilar and the Heirs of Eusebio
Aguilar had yet to be served with summons and copies of
the Amended Complaint, filed a "Manifestation and
Motion" adopting their "Answer with Counterclaim" and
"Motion for Preliminary Hearing" as their answer to the
Amended Complaint.6
The motion was granted. At the hearing of February 25,
1998, respondents presented Antonio Aguilar who
testified and identified several documentary evidence.
Petitioner did not present any evidence. Thereafter, both
parties filed their respective memoranda.7
On September 17, 1998, the trial court issued an order
dismissing the Amended Complaint after declaring
respondents as "small property owners" whose land is
exempt from expropriation under Republic Act No. 7279.
The court also found that the expropriation was not for a
public purpose for petitioner's failure to present any
evidence that the intended beneficiaries of the
expropriation are landless and homeless residents of
Mandaluyong. The court thus disposed of as follows:
"WHEREFORE, the Amended Complaint is hereby
ordered dismissed without pronouncement as to
cost.
SO ORDERED."8
Petitioner moved for reconsideration. On December 29,
1998, the court denied the motion. Hence this petition.
Petitioner claims that the trial court erred
"IN UPHOLDING RESPONDENT'S CONTENTION
THAT THEY QUALIFY AS SMALL PROPERTY
OWNERS AND ARE THUS EXEMPT FROM
EXPROPRIATION."9
Petitioner mainly claims that the size of the lots in
litigation does not exempt the same from expropriation
in view of the fact that the said lots have been declared to
be within the Area for Priority Development (APD) No. 5
of Mandaluyong by virtue of Proclamation No. 1967, as
amended by Proclamation No. 2284 in relation to
Presidential Decree No. 1517.10 This declaration
allegedly authorizes petitioner to expropriate the
property, ipso facto, regardless of the area of the land.
Presidential Decree (P.D.) No. 1517, the Urban Land
Reform Act, was issued by then President Marcos in
1978. The decree adopted as a State policy the liberation
of human communities from blight, congestion and
hazard, and promotion of their development and
modernization, the optimum use of land as a national
35
resource for public welfare.11 Pursuant to this law,
Proclamation No. 1893 was issued in 1979 declaring the
entire Metro Manila as Urban Land Reform Zone for
purposes of urban land reform. This was amended in
1980 by Proclamation No. 1967 and in 1983 by
Proclamation No. 2284 which identified and specified
245 sites in Metro Manila as Areas for Priority
Development and Urban Land Reform Zones.
In 1992, the Congress of the Philippines passed Republic
Act No. 7279, the "Urban Development and Housing Act
of 1992." The law lays down as a policy that the state, in
cooperation with the private sector, undertake a
comprehensive and continuing Urban Development and
Housing Program; uplift the conditions of the
underprivileged and homeless citizens in urban, areas
and resettlement areas by making available to them
decent housing at affordable cost, basic services and
employment opportunities and provide for the rational
use and development of urban land to bring about,
among others, equitable utilization of residential lands;
encourage more effective people's participation in the
urban development process and improve the capability
of local government units in undertaking urban
development and housing programs and
projects.12 Towards this end, all city and municipal
governments are mandated to conduct an inventory of
all lands and improvements within their respective
localities, and in coordination with the National Housing
Authority, the Housing and Land Use Regulatory Board,
the National Mapping Resource Information Authority,
and the Land Management Bureau, identify lands for
socialized housing and resettlement areas for the
immediate and future needs of the underprivileged and
homeless in the urban areas, acquire the lands,
and dispose of said lands to the beneficiaries of the
program.13
The acquisition of lands for socialized housing is
governed by several provisions in the law. Section 9 of
R.A. 7279 provides:
"Sec. 9. Priorities in the Acquisition of Land. — Lands
for socialized housing shall be acquired in the
following order:
(a) Those owned by the Government or any of its
subdivisions, instrumentalities, or agencies,
including government-owned or controlled
corporations and their subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas for Priority
Development, Zonal Improvement Program sites,
and Slum Improvement and Resettlement Program
sites which have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and
Services or BLISS Sites which have not yet been
acquired;
(f) Privately-owned lands.
Where on-site development is found more
practicable and advantageous to the beneficiaries,
the priorities mentioned in this section shall not
apply. The local government units shall give
budgetary priority to on-site development of
government lands."
Lands for socialized housing are to be acquired in the
following order: (1) government lands; (2) alienable
lands of the public domain; (3) unregistered or
abandoned or idle lands; (4) lands within the declared
Areas for Priority Development (APD), Zonal
Improvement Program (ZIP) sites, Slum Improvement
and Resettlement (SIR) sites which have not yet been
acquired; (5) BLISS sites which have not yet been
acquired; and (6) privately-owned lands.
There is no dispute that the two lots in litigation are
privately-owned and therefore last in the order of
priority acquisition. However, the law also provides that
lands within the declared APD's which have not yet been
acquired by the government are fourth in the order of
priority. According to petitioner, since the subject lots lie
within the declared APD, this fact mandates that the lots
be given priority in acquisition.14
Section 9, however, is not a single provision that can be
read separate from the other provisions of the law. It
must be read together with Section 10 of R.A. 7279 which
also provides:
"Section 10. Modes of Land Acquisition. — The
modes of acquiring lands for purposes of this Act
shall include, among others, community mortgage,
land swapping, land assembly or consolidation, land
banking, donation to the Government, joint-venture
agreement, negotiated purchase, and
expropriation: Provided, however, That
expropriation shall be resorted to only when
other modes of acquisition have been
exhausted: Provided, further, That where
expropriation is resorted to, parcels of land
owned by small property owners shall be
exempted for purposes of this Act: Provided,
finally, That abandoned property, as herein defined,
shall be reverted and escheated to the State in a
proceeding analogous to the procedure laid down in
Rule 91 of the Rules of Court.15
For the purposes of socialized housing, government-
owned and foreclosed properties shall be acquired
by the local government units, or by the National
Housing Authority primarily through negotiated
purchase: Provided, That qualified beneficiaries
who are actual occupants of the land shall be given
the right of first refusal."
Lands for socialized housing under R.A. 7279 are to be
acquired in several modes. Among these modes are the
following: (1) community mortgage; (2) land swapping,
(3) land assembly or consolidation; (4) land banking; (5)
donation to the government; (6) joint venture
agreement; (7) negotiated purchase; and (8)
expropriation. The mode of expropriation is subject to
two conditions: (a) it shall be resorted to only when the
other modes of acquisition have been exhausted; (b)
parcels of land owned by small property owners are
exempt from such acquisition.
Section 9 of R.A. 7279 speaks of priorities in the
acquisition of lands. It enumerates the type of lands to be
acquired and the heirarchy in their acquisition. Section
10 deals with the modes of land acquisition or the
process of acquiring lands for socialized housing. These
are two different things. They mean that the type of
lands that may be acquired in the order of priority in
Section 9 are to be acquired only in the modes
36
authorized under Section 10. The acquisition of the
lands in the priority list must be made subject to the
modes and conditions set forth in the next provision. In
other words, land that lies within the APD, such as in the
instant case, may be acquired only in the modes under,
and subject to the conditions of, Section 10.
Petitioner claims that it had faithfully observed the
different modes of land acquisition for socialized housing
under R.A. 7279 and adhered to the priorities in the
acquisition for socialized housing under said law.16 It,
however, did not state with particularity whether
it exhausted the other modes of acquisition in Section 9
of the law before it decided to expropriate the subject
lots. The law states "expropriation shall be resorted to
when other modes of acquisition have been exhausted."
Petitioner alleged only one mode of acquisition, i.e., by
negotiated purchase. Petitioner, through the City Mayor,
tried to purchase the lots from respondents but the latter
refused to sell.17 As to the other modes of acquisition, no
mention has been made. Not even Resolution No. 516,
Series of 1996 of the Sangguniang Panlungsod
authorizing the Mayor of Mandaluyong to effect the
expropriation of the subject property states whether the
city government tried to acquire the same by community
mortgage, land swapping, land assembly or
consolidation, land banking, donation to the government,
or joint venture agreement under Section 9 of the law.
Section 9 also exempts from expropriation parcels of
land owned by small property owners.18 Petitioner
argues that the exercise of the power of eminent domain
is not anymore conditioned on the size of the land sought
to be expropriated.19 By the expanded notion of public
use, present jurisprudence has established the concept
that expropriation is not anymore confined to the vast
tracts of land and landed estates, but also covers small
parcels of land.20 That only a few could actually benefit
from the expropriation of the property does not diminish
its public use character.21 It simply is not possible to
provide, in one instance, land and shelter for all who
need them.22
While we adhere to the expanded notion of public use,
the passage of R.A. No. 7279, the "Urban Development
and Housing Act of 1992" introduced a limitation on the
size of the land sought to be expropriated for socialized
housing. The law expressly exempted "small property
owners" from expropriation of their land for urban land
reform. R.A. No. 7279 originated as Senate Bill No. 234
authored by Senator Joey Lina23 and House Bill No.
34310. Senate Bill No. 234 then provided that one of
those lands not covered by the urban land reform and
housing program was "land actually used by small
property owners within the just and equitable retention
limit as provided under this Act."24 "Small property
owners" were defined in Senate Bill No. 234 as:
"4. Small Property Owners — are those whose
rights are protected under Section 9, Article XIII
of the Constitution of the Philippines, who own
small parcels of land within the fair and just
retention limit provided under this Act and which
are adequate to meet the reasonable needs of the
small property owner's family and their means of
livelihood.25
The exemption from expropriation of lands of small-
property owners was never questioned on the Senate
floor.26 This exemption, although with a modified
definition, was actually retained in the consolidation of
Senate Bill No. 234 and House Bill No. 34310 which
became R.A. No. 7279.27
The question now is whether respondents qualify as
"small property owners" as defined in Section 3 (q) of
R.A. 7279. Section 3 (q) provides:
"Section 3 x x x (q). "Small property owners" refers
to those whose only real property consists of
residential lands not exceeding three hundred
square meters (300 sq.m.) in highly urbanized
cities and eight hundred square meters (800
sq.m.) in other urban areas."
"Small-property owners" are defined by two elements:
(1) those owners of real property whose property
consists of residential lands with an area of not more
than 300 square meters in highly urbanized cities and
800 square meters in other urban areas; and (2) that they
do not own real property other than the same.
The case at bar involves two (2) residential lots in
Mandaluyong City, a highly urbanized city. The lot under
TCT No. 63766 is 687 square meters in area and the
second under TCT No. 63767 is 949 square meters, both
totalling 1,636 square meters in area. TCT No. 63766 was
issued in the names of herein five (5) respondents, viz:
"FRANCISCO N. AGUILAR, widower; THELMA
N. AGUILAR, single; EUSEBIO N. AGUILAR, JR.,
widower; RODOLFO N. AGUILAR, single and
ANTONIO N. AGUILAR, married to Teresita
Puig; all of legal age, Filipinos."28
TCT No. 63767 was issued in the names of the five (5)
respondents plus Virginia Aguilar, thus:
"FRANCISCO N. AGUILAR, widower; THELMA
N. AGUILAR, single; EUSEBIO N. AGUILAR, JR.,
widower; RODOLFO N. AGUILAR, single and
ANTONIO N. AGUILAR, married to Teresita
Puig; and VIRGINIA N. AGUILAR, single, all of
legal age, Filipinos."29
Respondent Antonio Aguilar testified that he and the
other registered owners are all siblings who inherited
the subject property by intestate succession from their
parents.30 Their father died in 1945 and their mother in
1976.31 Both TCT's were issued in the siblings' names on
September 2, 1987.31 In 1986, however, the siblings
agreed to extrajudicially partition the lots among
themselves, but no action was taken by them to this end.
It was only eleven (11) years later, on November 28,
1997 that a survey of the two lots was made33 and on
February 10, 1998, a consolidation subdivision plan was
approved by the Lands Management Service of the
Department of Environment and Natural
Resources.34 The co-owners signed a Partition
Agreement on February 24, 199835 and on May 21, 1998,
TCT Nos. 63766 and 63767 were cancelled and new titles
issued in the names of the individual owners pursuant to
the Partition Agreement.
Petitioner argues that the consolidation of the subject
lots and their partition was made more than six (6)
months after the complaint for expropriation was filed
on August 4, 1997, hence, the partition was made in bad
faith, for the purpose of circumventing the provisions of
R.A. 7279.36
At the time of filing of the complaint for expropriation,
the lots subject of this case were owned in common by
respondents; Under a co-ownership, the ownership of an
undivided thing or right belongs to different
37
persons.37 During the existence of the co-ownership, no
individual can claim title to any definite portion of the
community property until the partition thereof; and
prior to the partition, all that the co-owner has is an ideal
or abstract quota or proportionate share in the entire
land or thing.38 Article 493 of the Civil Code however
provides that:
"Art. 493. Each co-owner shall have the full
ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another
person in its enjoyment, except when personal
rights are involved. But the effect of the alienation or
the mortgage, with respect to the co-owners shall be
limited to the portion which may be allotted to him
in the division upon termination of the co-
ownership.39
Before partition in a co-ownership, every co-owner has
the absolute ownership of his undivided interest in the
common property. The co-owner is free to alienate,
assign or mortgage his interest, except as to purely
personal rights.40 He may also validly lease his undivided
interest to a third party independently of the other co-
owners.41 The effect of any such transfer is limited to the
portion which may be awarded to him upon the partition
of the property.42
Article 493 therefore gives the owner of an undivided
interest in the property the right to freely sell and
dispose of his undivided interest.43 The co-owner,
however, has no right to sell or alienate a concrete
specific or determinate part of the thing owned in
common, because his right over the thing is represented
by a quota or ideal portion without any physical
adjudication.44 If the co-owner sells a concrete portion,
this, nonetheless, does not render the sale void. Such a
sale affects only his own share, subject to the results of
the partition but not those of the other co-owners who
did not consent to the sale.45
In the instant case, the titles to the subject lots were
issued in respondents' names as co-owners in 1987—ten
(10) years before the expropriation case was filed in
1997. As co-owners, all that the respondents had was an
ideal or abstract quota or proportionate share in the lots.
This, however, did not mean that they could not
separately exercise any rights over the lots. Each
respondent had the full ownership of his undivided
interest in the property. He could freely sell or dispose of
his interest independently of the other co-owners. And
this interest could have even been attached by his
creditors.46 The partition in 1998, six (6) months after
the filing of the expropriation case, terminated the co-
ownership by converting into certain and definite parts
the respective undivided shares of the co-owners.47 The
subject property is not a thing essentially indivisible. The
rights of the co-owners to have the property partitioned
and their share in the same delivered to them cannot be
questioned for "[n]o co-owner shall be obliged to remain
in the co-ownership."48 The partition was merely a
necessary incident of the co-ownership;49 and absent any
evidence to the contrary, this partition is presumed to
have been done in good faith.
Upon partition, four (4) co-owners, namely, Francisco,
Thelma, Rodolfo and Antonio Aguilar each had a share of
300 square meters under TCT Nos. 13849, 13852, 13850,
13851.50 Eusebio Aguilar's share was 347 square meters
under TCT No. 1385351 while Virginia Aguilar's was 89
square meters under TCT No. 13854.52
It is noted that Virginia Aguilar, although granted 89
square meters only of the subject lots, is, at the same
time, the sole registered owner of TCT No. 59780, one of
the three (3) titles initially sought to be expropriated in
the original complaint. TCT No. 59780, with a land area
of 211 square meters, was dropped in the amended
complaint. Eusebio Aguilar was granted 347 square
meters, which is 47 square meters more than the
maximum of 300 square meters set by R.A. 7279 for
small property owners. In TCT No. 13853, Eusebio's title,
however, appears the following annotation:
"... subject to x x x, and to the prov. of Sec. 4 Rule 74
of the Rules of Court with respect to the inheritance
left by the deceased Eusebio N. Aguilar."53
Eusebio died on March 23, 1995,54 and, according to
Antonio's testimony, the former was survived by five (5)
children.55 Where there are several co-owners, and some
of them die, the heirs of those who die, with respect to
that part belonging to the deceased, become also co-
owners of the property together with those who
survive.56 After Eusebio died, his five heirs became co-
owners of his 347 square-meter portion. Dividing the
347 square meters among the five entitled each heir to
69.4 square meters of the land subject of litigation.
Consequently, the share of each co-owner did not exceed
the 300 square meter limit set in R.A. 7279. The second
question, however, is whether the subject property is the
only real property of respondents for them to comply
with the second requisite for small property owners.
Antonio Aguilar testified that he and most of the original
co-owners do not reside on the subject property but in
their ancestral home in Paco, Manila.57 Respondents
therefore appear to own real property other than the lots
in litigation. Nonetheless, the records do not show that
the ancestral home in Paco, Manila and the land on which
it stands are owned by respondents or anyone of them.
Petitioner did not present any title or proof of this fact
despite Antonio Aguilar's testimony.
On the other hand, respondents claim that the subject
lots are their only real property58 and that they,
particularly two of the five heirs of Eusebio Aguilar, are
merely renting their houses and therefore do not own
any other real property in Metro Manila.59 To prove this,
they submitted certifications from the offices of the City
and Municipal Assessors in Metro Manila attesting to the
fact that they have no registered real property declared
for taxation purposes in the respective cities.
Respondents were certified by the City Assessor of
Manila;60 Quezon City;61 Makati City;62 Pasay
City;63 Paranaque;64 Caloocan City;65 Pasig
City;66 Muntinlupa;67 Marikina;68 and the then
municipality of Las Piñas69 and the municipality of San
Juan del Monte70 as having no real property registered
for taxation in their individual names.1âwphi1.nêt
Finally, this court notes that the subject lots are now in
the possession of respondents. Antonio Aguilar testified
that he and the other co-owners filed ejectment cases
against the occupants of the land before the Metropolitan
Trial Court, Mandaluyong, Branches 59 and 60. Orders of
eviction were issued and executed on September 17,
1997 which resulted in the eviction of the tenants and
other occupants from the land in question.71
IN VIEW WHEREOF, the petition is DENIED and the
orders dated September 17. 1998 and December 29,
38
1998 of the Regional Trial Court, Branch 168, Pasig City
in SCA No. 1427 are AFFIRMED.

SO ORDERED.

Davide, Jr., Kapunan, Pardo, and Ynares-Santiago,

JJ., concur.

39