Republic

SUPREME
Manila

of

the

Philippines
COURT

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 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
theDireccion 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.

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 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 Supreme Court held that the appeal from the decision of the Audiencia
of Caceres was not well taken and expressed the following consideranda:

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 Doa 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 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

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 landEl 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 aposteriori 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 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.
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-3404

April 2, 1951

ANGELA
I.
TUASON, plaintiff-appellant,
vs.
ANTONIO TUASON, JR., and GREGORIO ARANETA, INC., defendantsappellees.
Alcuaz
&
Eiguren
Araneta & Araneta for appellees.

for

appellant.

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 coowners 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 subjectmatter 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 Pea in a long and considered
decision dismissed the complaint without pronouncement as to costs. The
plaintiff appealed from 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 coowners 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
imposed in the contract to preserve the co-ownership until all the lots shall
have been sold, is a mere incident to the main object of dissolving the coowners. By virtue of the document Exh. 6, the parties thereto practically
and substantially entered into a contract of partnership 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
attained.
This aspect of the contract is very similar to and was perhaps based on the
other agreement or contract (Exh. "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 community and co-ownership, in a manner most profitable to
the said parties.
In view of the foregoing, the decision appealed from is hereby affirmed.
There is no pronouncement as to costs.
So ordered.

Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. L-51283 June 7, 1989
LOURDES
MARIANO, petitioner,
vs.
COURT OF APPEALS, and DANIEL SANCHEZ, respondents.
Jose V. Natividad & Associates for petitioner .
Arturo S. Santos for respondents.

NARVASA, J.:
The proceedings at bar concern (1) an attempt by a married man to
prevent execution against conjugal property of a judgment rendered
against his wife, for obligations incurred by the latter while engaged in a
business that had admittedly redounded to the benefit of the family, and
(2) the interference by a court with the proceedings on execution of a coequal or coordinate court. Both acts being proscribed by law, correction is
called for and will hereby be effected.
The proceedings originated from a suit filed by Esther Sanchez against
Lourdes Mariano in the Court of First Instance at Caloocan City, 1 for
recovery of the value of ladies' ready made dresses allegedly purchased by
and delivered to the latter. 2
A writ of preliminary attachment issued at Esther Sanchez' instance, upon
a bond posted by Veritas Insurance Company in the amount of P
11,000.00, and resulted in the seizure of Lourdes Mariano's property worth
P 15,000.00 or so. 3 Her motion for the discharge of the attachment having
been denied, 4 Lourdes Mariano went up to the Court of Appeals on
certiorari. That Court ordered 5 the Trial Court to receive evidence on
whether or not the attachment had been improvidently or irregularly
issued. 6 The Trial Court did so, came to the conclusion that the attachment
had indeed been improperly issued, and consequently dissolved it. 7
Trial then ensued upon the issues arising from the complaint as well as
Lourdes Mariano's answer with counterclaim-which included a claim for
damages resulting from wrongful attachment. Thereafter judgment was

rendered in favor of defendant Lourdes Mariano and against plaintiff Esther

Sanchez containing the following dispositions, to wit: 8
1. On the complaint, defendant is ordered to pay unto the
plaintiff for the value of the dishonored check (Exhs. G-1, H
and I) in the total amount of P 1,512.00.
2. On the counterclaim, the plaintiff is ordered to pay unto
defendant the following, as follows:
a) P 7,500.00 for loss of income of the defendant for 75 days;
b) P 16,000.00 for the value of attached goods;
c) P 25,000.00 for moral and exemplary damages;
d) P 5,000.00 as attorney's fees plus costs of suit.
The Veritas Insurance Company which issued the attachment bond is
ordered to pay unto the defendant the full insurance coverage of P
11,000.00 to answer for the total liability of the plaintiff thereof
Esther Sanchez sought to perfect an appeal by filing a notice of appeal, an
appeal bond and a record on appeal.9
Pending approval of the record on appeal, Lourdes Mariano filed a motion
for the immediate execution of the judgment which the Court granted. 10 In
virtue of the writ of execution which afterwards issued in due course, the
sheriff garnished the sum of P 11,000.00 from Veritas Insurance Company,
and levied on real and personal property belonging to the conjugal
partnership of Esther Sanchez and her husband, Daniel Sanchez. Esther
Sanchez then filed a petition for certiorari with the Court of Appeals,
praying for the annulment of the execution pending appeal authorized by
the Trial Court; but her petition was adjudged to be without merit and was
accordingly dismissed. 11
Daniel Sanchez, Esther's husband, now made his move. He filed a
complaint for annulment of the execution in the Court of First Instance at
Quezon City in his capacity as administrator of the conjugal
partnership. 12 He alleged that the conjugal assets could not validly be
made to answer for obligations exclusively contracted by his wife, and that,
moreover, some of the personal property levied on, such as household
appliances and utensils necessarily used in the conjugal dwelling, were
exempt from execution. He also applied for a preliminary injunction
pending adjudication of the case on the merits. 13

The Quezon City Court issued an order setting the matter of the injunction
for hearing, and commanding the sheriff, in the meantime, to desist from
proceeding with the auction sale of the property subject of Daniel Sanchez'
claim. 14 Lourdes Mariano filed a motion to dismiss the action; this, the
Court denied. 15 She then instituted a special civil action of certiorari in the
Court of Appeals 16 where she initially enjoyed some measure of success:
her petition was given due course, and the Quezon City Court was
restrained by the Appellate Court's Seventh Division 17 from further
proceeding
with
the
case. 18 Eventually,
however,
the
Eighth
Division 19 came to the conclusion that there was no merit in her cause and
dismissed her petition. 20 It ruled that the Quezon City Court had not
interfered with the execution process of the Caloocan Court because Daniel
Sanchez's action in the former court raised an issue-the validity of the
sheriffs levy on the conjugal partnership assets of the Sanchez spouses
different from those adjudicated in the Caloocan Court, and Sanchez was
not a party to the case tried by the latter.
From this verdict Lourdes Mariano has appealed to this Court, contending
that the Appellate Court committed reversible error1) in ruling that the conjugal partnership of Daniel and
Esther Sanchez could not be made liable for Esther's
judgment obligation arising from the spouses' joint
business with Lourdes Mariano;
2) in ruling that the Quezon City Court of First Instance had
not interfered with the execution process of the Caloocan
Court of First Instance; and
3) when its Eighth Division decided the petition of Lourdes
Mariano although the case had been raffled to the Seventh
Division and the latter had in fact given due course to the
petition.
1. There is no dispute about the fact that Esther Sanchez
was engaged in business not only without objection on the
part of her husband, Daniel, but in truth with his consent
and approval. 21 It is also established that, as expressly
acknowledged by Esther herself and never denied by
Daniel, the profits from the business had been used to
meet, in part at least, expenses for the support of her
family, i.e., the schooling of the children, food and other
household expenses. 22 Under the circumstances, Lourdes
Mariano action against Esther Sanchez was justified, the
litigation being "incidental to the ... business in which she
is engaged 23 and consequently, the conjugal partnership
of Daniel and Esther Sanchez was liable for the debts and
obligations contracted by Esther in her business since the
income derived therefrom, having been used to defray

some of the expenses for the maintenance of the family

and the education of the children, had redounded to the
benefit of the partnership. 24 It was therefore error for the
Court of Appeals to have ruled otherwise.

hundred twenty (120) days from the date of the filing of

the bond. But nothing herein contained shall prevent such
claimant or any third person from vindicating his claim to
the property by any proper action.

2. It was also error for the Court of Appeals to have held

that there was no interference by the Quezon City Court of
First Instance with the execution process of the Caloocan
Court.

xxx xxx xxx

The rule, one of great importance in the administration of justice, is that a

Court of First Instance has no power to restrain by means of injunction the
execution of a judgment or decree of another judge of concurrent or
coordinate jurisdictions. 25 But this is precisely what was done by the
Quezon City Court of First Instance: it enjoined the execution of a judgment
authorized and directed by a co-equal and coordinate court, the Caloocan
City Court of First Instance. It did so on the claim of Daniel Sanchez that
the property being levied on belonged to the conjugal partnership and
could not be made liable for the wife's obligations.
The question that arises is whether such a claim that property levied on in
execution of a judgment is not property of the judgment debtor, Daniel
Sanchez's wife, but of the conjugal partnership of the Sanchez Spouses is
properly cognizable by a Court other than that which rendered judgment
adversely to the wife.
To be sure, Section 17, Rule 39 of the Rules of Court, authorizes a "third
person," i.e., "any other person than the judgment debtor or his agent," to
vindicate "his claim to the property by any proper action." The section
reads as follows: 26
SEC. 17. Proceedings where property claimed by third
person.-If property levied on be claimed by any other
person than the judgment debtor or his agent, and such
person make an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or
title, and serve the same upon the officer making the levy,
and a copy thereof upon the judgment creditor, the officer
shall not be bound to keep the property, unless such
judgment creditor or his agent, on demand of the officer,
indemnify the officer against such claim by a bond in a sum
not greater than the value of the property levied on. In
case of disagreement as to such value, the same shall be
determined by the court issuing the writ of execution.
The officer is not liable for damages, for the taking or
keeping of the property, to any third-party claimant, unless
a claim is made by the latter and unless an action for
damages is brought by him against the officer within one

The "proper action" referred to in the section "is and should be an entirely
separate and distinct action from that in which execution has issued, if
instituted by a stranger to the latter suit:" 27 and in "such separate action,
the court may issue a writ of preliminary injunction against the sheriff
enjoining him from proceeding with the execution sale." 28"Upon the other
hand, if the claim of impropriety on the part of the sheriff in the execution
proceedings is made by a party to the action, not a stranger thereto, any
relief therefrom may be applied for with, and obtained from, only the
executing court; and this is true even if a new party has been impleaded in
the suit." 29
In the case at bar, the husband of the judgment debtor cannot be deemed
a "stranger" to the case prosecuted and adjudged against his wife. A
strikingly similar situation was presented in a case decided by this Court as
early as 1976, Rejuso v. Estipona. 30 There, the sheriff tried to evict
petitioner Rejuso and his family from their house and lot which had been
sold in execution of a money judgment rendered by the Court of First
Instance of Davao against Rejuso. What Rejuso did was to institute,
together with his wife, Felisa, a separate suit in the same court against the
sheriff and the judgment creditor, Estipona, for the purpose of annulling
the levy, execution sale, and writ of possession issued in the first action in
respect of their residential house and lot, on the theory that that property
was conjugal in character and "hence, not subject to such proceedings
considering that Felisa was not a party to the previous case." The action
was however dismissed by the court on the ground that it had "no
jurisdiction over the subject matter of the action or the nature of the action
and of the relief sought." 31 The dismissal was had on motion of Estipona
who argued that the court had no jurisdiction to "vacate or annul and/or
enjoin the enforcement of the process issued by another branch in another
case," and since Rejuso had already raised the same issues in the first
case, without success, he should not be allowed to "get from another
branch ... what he failed to get ... (from) Branch l." This Court affirmed that
judgment of dismissal, 32 holding that Rejuso's action was barred by res
adjudicata; and "(a)s regards Felisa Rejuso, who is a new party in Civil Case
No. 5102" (the second action) it was ruled that... her remedy, if it has not yet been barred by the statute
of limitations or become stale in some other way, is within
Civil Case No. 4435 (the first suit). Indeed, it is superfluous
to start a new action on a matter which can be more simply
and conveniently litigated within a former proceeding of
which it is more logically and legally an integral part.
(Ipekdjian Merchandising Co., Inc, v. CTA, 8 SCRA 59

[1963]). Actually, the court in which the former proceeding

was pending has exclusive jurisdiction thereof (De Leon vs.
Salvador, 36 SCRA 567), the fact that the two cases are in
the same Branch of the same Court of First Instance and
presided over by the same Judge notwithstanding. After all,
it is simpler and more convenient to observe such practice,
which insures also consistency in the resolutions of related
questions because they are to be determined in most if not
all instances by the same judge.
In any case, whether by intervention in the court issuing the writ, or by
separate action, it is unavailing for either Esther Sanchez or her husband,
Daniel, to seek preclusion of the enforcement of the writ of possession
against their conjugal assets. For it being established, as aforestated, that
Esther had engaged in business with her husband's consent, and the
income derived therefrom had been expended, in part at least, for the
support of her family, the liability of the conjugal assets to respond for the
wife's obligations in the premises cannot be disputed.

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:

The petitioner's appeal must therefore be sustained.

However, the petitioner's theory that the Eighth Division of the Appellate
Court had improperly taken cognizance of the case which had been raffled
to the Seventh Division, must be rejected. It is without foundation, and was
evidently made without attempt to ascertain the relevant facts and
applicable rules. The case had originally been assigned to Mr. Justice Isidro
C. Borromeo for study and report while he was still a member of the
Seventh Division. The case was brought by him to the Eighth Division when
he was subsequently transferred thereto; and he had ultimately written the
opinion for the division after due deliberation with his colleagues. All of this
took place in accordance with the Rules of the Court of Appeals.
WHEREFORE, the Decision of the Court of Appeals subject of the petition is
REVERSED AND SET ASIDE, and the Regional Trial Court (formerly Court of
First Instance) at Quezon City is ORDERED to dismiss Civil Case No. 20415
entitled "Daniel P. Sanchez v. Deputy Sheriff Mariano V. Cachero, et
al.," with prejudice. Costs against private respondents.
SO ORDERED.
Republic
SUPREME
Manila

of

SECOND DIVISION
G.R. No. 75884 September 24, 1987

the

Philippines
COURT

...: 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,

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. 6268).
The sole issue in this case is

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).

WHETHER OR NOT THE MORTGAGE CONSTITUTED OVER THE PARCEL OF

LAND UNDER PETITIONER'S ADMINISTRATION IS NULL AND VOID FOR WANT
OF JUDICIAL APPROVAL.
The instant petition is devoid of merit.
The well-settled rule that the findings of fact of the trial court are entitled
to great respect, carries even more weight when affirmed by the Court of
Appeals as in the case at bar.
In brief, the lower court found: (1) that the property under the
administration of petitioner the wife of the deceased, is a community
property and not the separate property of the latter; (2) that the mortgage
was constituted in the wife's personal capacity and not in her capacity as
administratrix; and (3) that the mortgage affects the wife's share in the
community property and her inheritance in the estate of her husband.
Petitioner, asserting that the mortgage is void for want of judicial approval,
quoted Section 7 of Rule 89 of the Rules of Court and cited several cases
wherein this Court ruled that the regulations provided in the said section
are mandatory.
While petitioner's assertion may have merit insofar as the rest of the
estate of her husband is concerned the same is not true as regards her
conjugal share and her hereditary rights in the estate. The records show
that petitioner willingly and voluntarily mortgaged the property in question
because she was processed by JK Exports, Inc. the sum of P300,000.00
from the proceeds of the loan; and that at the time she executed the real
estate mortgage, there was no court order authorizing the mortgage, so
she took it upon herself, to secure an order.
Thus, in confirming the findings of the lower court, as supported by law
and the evidence, the Court of Appeals aptly ruled that Section 7 of Rule
89 of the Rules of Court is not applicable, since the mortgage was

constituted in her personal capacity and not in her capacity as

administratrix of the estate of her husband.
Nevertheless, petitioner, citing the cases of Picardal, et al. vs. Lladas (21
SCRA 1483) and Fernandez, et al. vs. Maravilla (10 SCRA 589), further
argues that in the settlement proceedings of the estate of the deceased
spouse, the entire conjugal partnership property of the marriage is under
administration. While such may be in a sense true, that fact alone is not
sufficient to invalidate the whole mortgage, willingly and voluntarily
entered into by the petitioner. An opposite view would result in an injustice.
Under similar circumstances, this Court applied the provisions of Article
493 of the Civil Code, where the heirs as co-owners shall each have the full
ownership of his part and the fruits and benefits pertaining thereto, and he
may therefore alienate, assign or mortgage it, and even effect of the
alienation or mortgage, with respect to the co-owners, shall be limited to
the portion which may be allotted to him in the division upon the
termination of the co-ownership (Philippine National Bank vs. Court of
Appeals, 98 SCRA 207 [1980]).
Consequently, in the case at bar, the trial court and the Court of Appeals
cannot be faulted in ruling that the questioned mortgage constituted on
the property under administration, by authority of the petitioner, is valid,
notwithstanding the lack of judicial approval, with respect to her conjugal
share and to her hereditary rights. The fact that what had been mortgaged
was in custodia legis is immaterial, insofar as her conjugal share and
hereditary share in the property is concerned for after all, she was the
ABSOLUTE OWNER thereof. This ownership by hers is not disputed, nor is
there any claim that the rights of the government (with reference to taxes)
nor the rights of any heir or anybody else have been prejudiced for
impaired. As stated by Associate Justice (later Chief Justice) Manuel Moran
in Jakosalem vs. Rafols, et al., 73 Phil. 618
The land in question, described in the appealed decision,
originally belonged to Juan Melgar. The latter died and the
judicial administration of his estate was commenced in
1915 and came to a close on December 2, 1924, only.
During the pendency of the said administration, that is, on
July 5, 1917, Susana Melgar, daughter of the deceased
Juan Melgar, sold the land with the right of repurchase to
Pedro Cui, subject to the stipulation that during the period
for the repurchase she would continue in possession of the
land as lessee of the purchase. On December 12, 1920, the
partition of the estate left by the deceased Juan Melgar
was made, and the land in question was adjudicated to
Susana Melgar. In 1921, she conveyed, in payment of
professional fees, one-half of the land in favor of the
defendant-appellee Nicolas Rafols, who entered upon the
portion thus conveyed and has been in possession thereof
up to the present. On July 23, 1921, Pedro Cui brought an
action to recover said half of the land from Nicolas Rafols

and the other half from the other defendants, and while
that case was pending, or about August 4, 1925, Pedro Cui
donated the whole land in question to Generosa Teves, the
herein plaintiff-appellant, after trial, the lower court
rendered a decision absolving Nicolas Rafols as to the onehalf 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 substantiverights 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.
Republic
SUPREME
Manila

of

the

Philippines
COURT

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.

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.

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):

Vicente D. Millora for private respondents.

1. to sell the properties mentioned in the motion;

Romero A. Yu for respondent Yu Hua Ping.

2. with the balance of P6 million, to pay all the claims

against the Estate; and

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;

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.

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:

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.

WHEREFORE, the Order dated August 7, 1990, is hereby

lifted, reconsidered and set aside, and another one is
hereby issued as follows:

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

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;

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 petitioneradministrator 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

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 respondentsheirs without prior court approval and to order herein Administrator to sell
the remaining portion of said properties?
We answer in the positive?
In the case of Dillena vs. Court of Appeals, 5 this Court made a
pronouncement that it is within the jurisdiction of the probate court to
approve the sale of properties of a deceased person by his prospective
heirs before final adjudication. Hence, it is error to say that this matter
should be threshed out in a separate action.
The Court further elaborated that although the Rules of Court do not
specifically state that the sale of an immovable property belonging to an
estate of a decedent, in a special proceeding, should be made with the
approval of the court, this authority is necessarily included in its capacity

as a probate court. Therefore, it is clear that the probate court in the case
at bar, acted within its jurisdiction in issuing the Order approving the Deed
of Conditional Sale.
We cannot countenance the position maintained by herein petitioners that
said conditional sale is null and void for lack of prior court approval. The
sale precisely was made conditional, the condition being that the same
should first be approved by the probate court.
Petitioners herein anchor their claim on Section 7, Rule 89 of the Rules of
Court. 6 It is settled that court approval is necessary for the validity of any
disposition of the decedent's estate. However, reference to judicial
approval cannot adversely affect the substantive rights of the heirs to
dispose of their ideal share in the co-heirship and/or co-ownership among
the heirs. 7
This Court had the occasion to rule that there is no doubt that an heir can
sell whatever right, interest, or participation he may have in the property
under administration. This is a matter which comes under the jurisdiction
of the probate court. 8
The right of an heir to dispose of the decedent's property, even if the same
is under administration, is based on the Civil Code provision 9 stating that
the possession of hereditary property is deemed transmitted to the heir
without interruption and from the moment of the death of the decedent, in
case the inheritance is accepted. Where there are however, two or more
heirs, the whole estate of the decedent is, before its partition, owned in
common by such heirs. 10
The Civil Code, under the provisions on co-ownership, further qualifies this
right. 11 Although it is mandated that each co-owner shall have the full
ownership of his part and of the fruits and benefits pertaining thereto, and
thus may alienate, assign or mortgage it, and even substitute another
person in its enjoyment, the effect of the alienation or the mortgage, with
respect
to
the
co-owners, shall be limited to the portion which may be allotted to him in
the division upon the termination of the co-ownership. 12 In other words,
the law does not prohibit a co-owner from selling, alienating or mortgaging
his ideal share in the property held in common. 13
As early as 1942, this Court has recognized said right of an heir to dispose
of property under administration. In the case of Teves de Jakosalem vs.
Rafols, et al., 14 it was said that the sale made by an heir of his share in an
inheritance, subject to the result of the pending administration, in no wise,
stands in the way of such administration. The Court then relied on the
provision of the Old Civil Code, Article 440 and Article 339 which are still in
force as Article 533 and Article 493, respectively, in the new Civil Code.
The Court also cited the words of a noted civilist, Manresa: "Upon the death
of a person, each of his heirs 'becomes the undivided owner of the whole

estate left with respect to the part or portion which might be adjudicated to
him, a community of ownership being thus formed among the co-owners of
the estate which remains undivided'."
Private respondents having secured the approval of the probate court, a
matter which is unquestionably within its jurisdiction, and having
established private respondents' right to alienate the decedent's property
subject of administration, this Petition should be dismissed for lack of
merit.
PREMISES considered, Petition is hereby DISMISSED. With Costs.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION

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

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

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.

portion each, pro-indiviso, as indicated in paragraph 1

above;

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:

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.

WHEREFORE, judgment is hereby rendered on the second

cause of action pleaded in the complain as follows:
1. The deed of sale (Exh. "F") dated May 28, 1974 is valid
insofar as the one-half undivided portion of Lot 1091 is
concerned as to vest ownership over said half portion in
favor of defendant Juliana Fanesa and her husband Rodolfo
Fanesa, while the remaining half shall belong to
plaintiffs, pro-indiviso;
2. Lot 1091, Cadastral Survey of Pontevedra, Province of
Negros Occidental, now covered by TCT No. RO-11653
(N.A.), is ordered partitioned. The parties must proceed to
an actual partition by property instrument of partition,
submitting the corresponding subdivision within sixty (60)
days from finality of this decision, and should they fail to
agree, commissioners of partition may be appointed by the
Court;
3. Pending the physical partition, the Register of Deeds of
Negros Occidental is ordered to cancel Original Certificate
of Title No. RO-11653 (N.A.) covering Lot 1091, Pontevedra
Cadastre, and to issue in lieu thereof a new certificate of
title in the name of plaintiffs and defendants, one-half

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;

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.
InBailon-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:

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 coowner is entitled to sell his undivided share, a sale of the
entire property by one co-owner without the consent of the
other co-owners is not null and void. However, only the
rights of the co-owner-seller are transferred, thereby
making the buyer a co-owner of the property.
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.

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 coownership. [Emphasis supplied.]

The redemption of the land made by Fanesa did not terminate the coownership 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:

As early as 1923, this Court has ruled that even if a coowner 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

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

The petition raises a purely legal issue: May a co-owner

acquire exclusive ownership over the property held in
common?

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.

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

There is no merit in this petition.

The right of repurchase may be exercised by co-owner with
respect to his share alone (CIVIL CODE, art. 1612, CIVIL
CODE (1889), art. (1514.). While the records show that
petitioner redeemed the property in its entirety,
shouldering the expenses therefor, that did not make him
the owner of all of it. In other words, it did not put to end
the existing state of co-ownership (Supra, Art. 489). There
is no doubt that redemption of property entails a necessary
expense. Under the Civil Code:
Art. 488. Each co-owner shall have a right to compel the
other co-owners to contribute to the expenses of
preservation of the thing or right owned in common and to
the taxes. Any one of the latter may exempt himself from
this obligation by renouncing so much of his undivided
interest as may be equivalent to his share of the expenses
and taxes. No such waiver shall be made if it is prejudicial
to the co-ownership.
The result is that the property remains to be in a condition
of co-ownership. While a vendee a retro, under Article 1613
of the Code, "may not be compelled to consent to a partial
redemption," the redemption by one co-heir or co-owner of
the property in its totality does not vest in him ownership
over it. Failure on the part of all the co-owners to redeem it
entitles the vendee a retro to retain the property and
consolidate title thereto in his name (Supra, art. 1607). But
the provision does not give to the redeeming co-owner the
right to the entire property. It does not provide for a mode
of terminating a co-ownership.
Although petitioner Fanesa did not acquire ownership over the entire lot by
virtue of the redemption she made, nevertheless, she did acquire the right
to reimbursed for half of the redemption price she paid to the Provincial
Government of Negros Occidental on behalf of her co-owners. Until
reimbursed, Fanesa hold a lien upon the subject property for the amount
due her. 17
Finally, petitioners dispute the order of the trial court, which the Court of
Appeals affirmed, for them to pay private respondents P5,000.00 per year
from 1966 until the partition of the estate which represents the share of
private respondents in the fruits of the land. According to petitioners, the
land is being leased for P2,000.00 per year only. This assigned error,

WHEREFORE, the petition is DENIED and the decision of the Court of

Appeals AFFIRMED.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION

G.R. No. 76351 October 29, 1993

VIRGILIO
B.
AGUILAR, petitioner,
vs.
COURT OF APPEALS and SENEN B. AGUILAR, respondents.
Jose F. Manacop for petitioner.
Siruello, Muyco & Associates Law Office for private respondent.

BELLOSILLO, J.:
This is a petition for review on certiorari seeking to reverse and set aside
the Decision of the Court of Appeals in CA-GR CV No. 03933 declaring null
and void the orders of 23 and 26 April, 1979, the judgment by default of 26
July 1979, and the order of 22 October 1979 of the then Court of First
Instance of Rizal, Pasay City, Branch 30, and directing the trial court to set
the case for pre-trial conference.
Petitioner Virgilio and respondent Senen are brothers; Virgilio is the
youngest of seven (7) children of the late Maximiano Aguilar, while Senen
is the fifth. On 28 October 1969, the two brothers purchased a house and
lot in Paraaque where their father could spend and enjoy his remaining
years in a peaceful neighborhood. Initially, the brothers agreed that
Virgilio's share in the co-ownership was two-thirds while that of Senen was
one-third. By virtue of a written memorandum dated 23 February 1970,
Virgilio and Senen agreed that henceforth their interests in the house and

lot should be equal, with Senen assuming the remaining mortgage

obligation of the original owners with the Social Security System (SSS) in
exchange for his possession and enjoyment of the house together with
their father.
Since Virgilio was then disqualified from obtaining a loan from SSS, the
brothers agreed that the deed of sale would be executed and the title
registered in the meantime in the name of Senen. It was further agreed
that Senen would take care of their father and his needs since Virgilio and
his family were staying in Cebu.
After Maximiano Aguilar died in 1974, petitioner demanded from private
respondent that the latter vacate the house and that the property be sold
and proceeds thereof divided among them.
Because of the refusal of respondent to give in to petitioner's demands, the
latter filed on 12 January 1979 an action to compel the sale of the house
and lot so that the they could divide the proceeds between them.
In his complaint, petitioner prayed that the proceeds of the sale, be divided
on the basis of two-thirds (2/3) in his favor and one-third (1/3) to
respondent. Petitioner also prayed for monthly rentals for the use of the
house by respondent after their father died.
In his answer with counterclaim, respondent alleged that he had no
objection to the sale as long as the best selling price could be obtained;
that if the sale would be effected, the proceeds thereof should be divided
equally; and, that being a 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 rentals 2 from January 1975 up to the date of decision
plus interest from the time the action was filed.
On 17 September 1979, defendant filed an omnibus motion for new trial
but on 22 October 1979 the trial court denied the motion.
Defendant sought relief from the Court of Appeals praying that the
following orders and decision of the trial court be set aside: (a) the order of
23 April 1970 denying defendants motion for postponement of the pre-trial
set on 26 April 1979; (b) the order of 26 April 1979 declaring him in default
and authorizing plaintiff to present his evidenceex-parte; (e) the default
judgment of 26 July 1979; and, (d) the order dated 22 October 1979
denying his omnibus motion for new trial.
On 16 October 1986, the Court of Appeals set aside the order of the trial
court of 26 April 1979 as well as the assailed judgment rendered by
default., The appellate court found the explanation of counsel for
defendant in his motion to cancel pre-trial as satisfactory and devoid of a
manifest intention to delay the disposition of the case. It also ruled that the
trial court should have granted the motion for postponement filed by
counsel for defendant who should not have been declared as in default for
the absence of his counsel.
Petitioner now comes to us alleging that the Court of Appeals erred (1) in
not holding that the motion of defendant through counsel to cancel the
pre-trial was dilatory in character and (2) in remanding the case to the trial
court for pre-trial and trial.

The issues to be resolved are whether the trial court correctly declared
respondent as in default for his failure to appear at the pre-trial and in
allowing petitioner to present his evidence ex-parte, and whether the trial
court correctly rendered the default judgment against respondent.
We find merit in the petition.
As regards the first issue, the law is clear that the appearance of parties at
the pre-trial is mandatory. 3 A party who fails to appear at a pre-trial
conference may be non-suited or considered as in default. 4 In the case at
bar, where private respondent and counsel failed to appear at the
scheduled pre-trial, the trial, court has authority to declare respondent in
default. 5
Although respondent's counsel filed a motion to postpone pre-trial hearing,
the grant or denial thereof is within the sound discretion of the trial court,
which should take into account two factors in the grant or denial of motions
for postponement, namely: (a) the reason for the postponement and (b)
the merits of the case of movant. 6
In the instant case, the trial court found the reason stated in the motion of
counsel for respondent to cancel the pre-trial to be without merit.
Counsel's explanation that he had to go to by boat as early as 25 March
1979 to fetch his wife and accompany her to a wedding in Dumaguete City
on 27 April 1979 where she was one of the principal sponsors, cannot be
accepted. We find it insufficient to justify postponement of the pre-trial,
and the Court of Appeals did not act wisely in overruling the denial. We
sustain the trial court and rule that it did not abuse its discretion in
denying the postponement for lack of merit. Certainly, to warrant a
postponement of a mandatory process as pre-trial would require much
more than mere attendance in a social function. It is time indeed we
emphasize that there should be much more than mere perfunctory
treatment of the pre-trial procedure. Its observance must be taken
seriously if it is to attain its objective, i.e., the speedy and inexpensive
disposition of cases.
Moreover, the trial court denied the motion for postponement three (3)
days before the scheduled pre-trial. If indeed, counsel for respondent could
not attend the pre-trial on the scheduled date, respondent at least should
have personally appeared in order not to be declared as in default. But,
since nobody appeared for him, the order of the trial court declaring him as
in default and directing the presentation of petitioner's evidence ex
parte was proper. 7
With regard to the merits of the judgment of the trial court by default,
which respondent appellate court did not touch upon in resolving the
appeal, the Court holds that on the basis of the pleadings of the parties
and the evidence presented ex parte, petitioner and respondents are coowners 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 twothirds (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 coowners are not in agreement as to who among them shall be allotted or
assigned the entire property upon proper reimbursement of the co-owners.
In one case, 8 this Court upheld the order of the trial court directing the
holding of a public sale of the properties owned in common pursuant to
Art. 498 of the Civil Code.
However, being a co-owner respondent has the right to use the house and
lot without paying any compensation to petitioner, as he may use the
property owned in common long as it is in accordance with the purpose for
which it is intended and in a manner not injurious to the interest of the
other co-owners. 9 Each co-owner of property heldpro indiviso exercises his
rights over the whole property and may use and enjoy the same with no
other limitation than that he shall not injure the interests of his co-owners,
the reason being that until a division is made, the respective share of each
cannot be determined and every co-owner exercises, together with his coparticipants joint ownership over the pro indivisoproperty, in addition to his

use
same.

and

enjoyment

of

the

10

Since petitioner has decided to enforce his right in court to end the coownership of the house and lot and respondent has not refuted the
allegation that he has been preventing the sale of the property by his
continued occupancy of the premises, justice and equity demand that
respondent and his family vacate the property so that the sale can be
effected immediately. In fairness to petitioner, respondent should pay a
rental of P1,200.00 per month, with legal interest; from the time the trial
court ordered him to vacate, for the use and enjoyment of the other half of
the property appertaining to petitioner.
When petitioner filed an action to compel the sale of the property and the
trial court granted the petition and ordered the ejectment of respondent,
the co-ownership was deemed terminated and the right to enjoy the
possession jointly also ceased. Thereafter, the continued stay of
respondent and his family in the house prejudiced the interest of petitioner
as the property should have been sold and the proceeds divided equally
between them. To this extent and from then on, respondent should be held
liable for monthly rentals until he and his family vacate.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court
of Appeals dated 16 October 1986 is REVERSED and SET ASIDE. The
decision of the trial court in Civil Case No. 69.12-P dated 16 July 1979 is
REINSTATED, with the modification that respondent Senen B. Aguilar is
ordered to vacate the premises in question within ninety (90) days from
receipt of this and to pay petitioner Virgilio B. Aguilar a monthly rental of
P1,200.00 with interest at the legal rate from the time he received the
decision of the trial court directing him to vacate until he effectively leaves
the premises.
The trial court is further directed to take immediate steps to implement
this decision conformably with Art. 498 of the Civil Code and the Rules of
Court. This decision is final and executory.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION

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
Bian.
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 781544 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.

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

CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and APOLONIA
ONTE, petitioners,

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. T5671 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 abovementioned as regards one-half of the property subject matter of said deed;
to declare the plaintiffs as the rightful owners of the other half of said lot;

to allow the plaintiffs to redeem the one-half portion thereof sold to the
defendants. "After payment of the other half of the purchase price"; to
order the defendants to vacate the portions occupied by them; to order the
defendants to pay actual and moral damages and attorney's fees to the
plaintiffs; to order the defendants to pay plaintiffs P120.00 a year from
August 1958 until they have vacated the premises occupied by them for
the use and occupancy of the same.
The defendants claim that the sale made by Flaviano Moreto in their favor
is valid as the lot sold is registered in the name of Flaviano Moreto and
they are purchasers believing in good faith that the vendor was the sole
owner of the lot sold.
After a relocation of lots 1495, 1496 and 4545 made by agreement of the
parties, it was found out that there was mutual error between Flaviano
Moreto and the defendants in the execution of the deed of sale because
while the said deed recited that the lot sold is lot No. 1495, the real
intention of the parties is that it was a portion consisting of 781 square
meters of lot No. 1496 which was the subject matter of their sale
transaction.
After trial, the lower court rendered judgment, the dispositive part thereof
being as follows:
WHEREFORE, judgment is hereby rendered for the plaintiffs
declaring the deed of absolute sale dated July 30, 1952
pertaining to the eastern portion of Lot 1496 covering an
area of 781 square meters null and void as regards the
390.5 square meters of which plaintiffs are hereby declared
the rightful owners and entitled to its possession.
The sale is ordered valid with respect to the eastern onehalf (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.

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 withut the
concurrence of the children of the marriage, nevertheless this power can
be waived in favor of the children, with the result of bringing about a
conventional ownership in common between the father and children as to
such property; and any one purchasing with knowledge of the changed
status of the property will acquire only the undivided interest of those
members of the family who join in the act of conveyance.
It is also not disputed that immediately after the execution of the sale in
1952, the vendees constructed their house on the eastern part of Lot 1496
which the vendor pointed out to them as the area sold, and two weeks
thereafter, Rafael who is a son of the vendees, also built his house within
Lot 1496. Subsequently, a cemented piggery coral was constructed by the
vendees at the back of their house about one and one-half meters from the
eastern boundary of Lot 1496. Both vendor and vendees believed all the
time that the area of 781 sq. meters subject of the sale was Lot No. 1495
which according to its title (T.C.T. No. 14570) contains an area of 781 sq.
meters so that the deed of sale between the parties Identified and
described the land sold as Lot 1495. But actually, as verified later by a
surveyor upon agreement of the parties during the proceedings of the case
below, the area sold was within Lot 1496.
Again, there is no dispute that the houses of the spouses Cornelio
Pamplona and Apolonia Onte as well as that of their son Rafael Pamplona,
including the concrete piggery coral adjacent thereto, stood on the land
from 1952 up to the filing of the complaint by the private respondents on
July 25, 1961, or a period of over nine (9) years. And during said period,
the private respondents who are the heirs of Monica Maniega as well as of
Flaviano Moreto who also died intestate on August 12, 1956, lived as
neighbors to the petitioner-vendees, yet lifted no finger to question the
occupation, possession and ownership of the land purchased by the
Pamplonas, so that We are persuaded and convinced to rule that private
respondents are in estoppel by laches to claim half of the property, in
dispute as null and void. Estoppel by laches is a rule of equity which bars a
claimant from presenting his claim when, by reason of abandonment and
negligence, he allowed a long time to elapse without presenting the same.
(International Banking Corporation vs. Yared, 59 Phil. 92)

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

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.

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.

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:

We agree with the petitioner that there was a partial partition of the coownership 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 petitionersvendees 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.

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.

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,

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-ininterest included all the property rights and obligations which were not
extinguished by their parents' death. And under Art. 1311, paragraph 1,
New Civil Code, the contract of sale executed by the deceased Flaviano
Moreto took effect between the parties, their assigns and heirs, who are
the private respondents herein. Accordingly, to the private respondents is
transmitted the obligation to deliver in full ownership the whole area of
781 sq. meters to the petitioners (which was the original obligation of their
predecessor Flaviano Moreto) and not only one-half thereof. Private
respondents must comply with said obligation.
The records reveal that the area of 781 sq. meters sold to and occupied by
petitioners for more than 9 years already as of the filing of the complaint in
1961 had been re-surveyed by private land surveyor Daniel Aranas.
Petitioners are entitled to a segregation of the area from Transfer
Certificate of Title No. T-9843 covering Lot 1496 and they are also entitled
to the issuance of a new Transfer Certificate of Title in their name based on
the relocation survey.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is
hereby AFFIRMED with modification in the sense that the sale made and

executed by Flaviano Moreto in favor of the petitioners-vendees is hereby

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

of

the

Philippines
COURT

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 defendantappellant
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.

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.

TEEHANKEE, J.:

Condition No. 2 of Exhibit A reads as follows:

The Court rejects petitioners' appeal as without merit and affirms the
judgment of the appellate court. Petitioners' predecessor-in-interest as coowner of an undivided one-half interest in the fishpond could validly lease
his interest to a third party, respondent Atienza, independently of his coowner (although said co-owner had also leased his other undivided one-

"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."

the same third party, whether Arsenio could cancel his own lease
agreement with said third party?

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.

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."

On the conflicting contentions between the parties as to who between

them would attend to securing the signature of Mrs. Felisa Cruz Vda. de
Castro (widow of Tomas de Castro) to the agreement of cancellation of the
lease with respondent Atienza, the appellate court found that "the
testimony of the defendant (Arsenio de Castro, Sr.) ... supports the
contention of the plaintiff (Atienza) "that it was the defendant Arsenio who
was interested and undertook to do so, citing Arsenio's own declaration
that "I agreed to sign this document (referring to the cancellation) because
of my desire to cancel our original agreement" and that his purpose in
obtaining the cancellation of said lease agreement with plaintiff Atienza
was "(B)ecause I had the intention of having said fishpond leased to other
persons and I cannot lease it to third parties unless I can secure the
signature of Felisa Vda. de Castro."
The appellate court thus held in effect that as Arsenio "was the one
interested in cancelling the lease (Exh. 1), it stands to reason that he most
probably undertook to obtain the signature of Mrs. Castro [widow and
successor-in-interest of his brother Tomas]" and that he could not invoke
his own failure to obtain such signature to elude his own undertaking and
liability to refund respondent (plaintiff) his share of the rental paid in
advance by respondent on the cancelled lease in the sum of P2,500.00.
The appellate court furthermore correctly held that the consent or
concurrence of Felisa Vda. de Castro (as co-owner in succession of Tomas)
was not an essential condition to the validity and effectivity of the
agreement of cancellation of the lease (Exhibit A) as between Arsenio and
respondent-lessee, contrary to petitioners' claim, holding that "(S)ince
there is no specific provision in Exhibit A supporting defendant's claim, we
are not prepared to supply such condition unless the same can be deduced
from other evidence or unless the terms of Exhibit A cannot be performed
by plaintiff and defendant without Mrs. Castro being bound as a party
thereto."
The issue is simply reduced to whether Arsenio as co-owner of the fishpond
owned pro-indiviso by him with his brother Tomas (succeeded by Felisa
Vda. de Castro) could validly lease his half-interest to a third party
(respondent
Atienza) independently of
his
co-owner, and in case his co-owner also leased his other half interest to

The 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 benefitspertaining 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.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. 75349 October 13, 1986
ROSALINA BUAN, RODOLFO TOLENTINO, TOMAS MERCADO, CECILIA
MORALES, LIZA OCAMPO, Quiapo Church Vendors, for themselves
and all others similarly situated as themselves, petitioners,
vs.
OFFICER-IN-CHARGE GEMILIANO C. LOPEZ, JR., OFFICE OF THE
MAYOR OF MANILA, respondent.

NARVASA, J.:
On August 5, 1986 petitioners instituted in this Court a special civil action
for prohibition to the end that respondent Gemiliano C. Lopez, Jr., acting as
Mayor of the City of Manila, be "perpetually prohibited from arbitrarily,
whimsically and capriciously revoking or cancelling ... their licenses or
permits (as hawkers or street vendors) and threatening the physical
demolition of their respective business stalls in the places specified in such
licenses or permits. 1 They also sought a temporary restraining order in
view of Mayor Lopez' actual threats of physical demolition of their
respective small business establishment at 12:00 noon today." This the
Court granted on the same day. 2
Petitioners claim to be five of about 130 "licensed and duly authorized
vendors of ... religious articles, medicine herbs and plants around the
Quiapo Church, ... Manila," bringing suit 'for themselves and all others
similarly situated as themselves." 3 They allege that their licenses "were
revoked or cancelled (by respondent Mayor) for reasons unknown to them
which is tantamount to deprivation of property without due process of
laws," written notice of such cancellation having been served on them on
or about May 30 (actually May 3), 1986; that the revocation of their
licenses was beyond respondent Mayor's competence, since Section 171
(n) of the Local Government Code (B.P. Blg. 337) authorizes the same only
"for violation of the law or ordinances or conditions upon which they have
been granted " and no such violation had been committed by them; 4 but
this notwithstanding, respondent Mayor "had given (them) an ultimatum of
7:00 up to 12:00 o'clock in the afternoon" (of August 5, 1986) to vacate the
premises where their respective stalls are situated or suffer physical
demolition thereof. 5
In the light of the facts disclosed by the pleadings 6 and at the hearing of
the case on August 13, 1986, the petition must be given short shrift.
The action must in the first place be abated on the ground of lis
pendens, or more correctly, auter action pendant pendency Of another
action between the same parties for the same cause. 7
It appears that on July 7, 1986 there was filed in the Regional Trial Court of
Manila, docketed as Civil Case No. 8636563, a special civil action of
"prohibition with preliminary injunction" against Acting Manila City Mayor
Gemiliano Lopez, Jr. 8 It was filed by Samahang Kapatiran Sa Hanapbuhay
Ng Bagong Lipunan, Inc." (hereafter, simply "Samahan") composed,
according to the petition, of "some 300 individual owners and operators of
separate business stalls ... mostly at the periphery immediately 0beyond
the fence of the Quiapo Church." The president of the Samahan is Rosalina
Buan and its Press Relations Officer, Liza Ocampo. 9 Rosalina Buan and Liza
Ocampo are two of the five petitioners in the case at bar, 10 described in

the petition before this Court as suing "for themselves and all others
similarly situated as themselves": i.e., vendors "around the Quiapo
Church." 11 The
three
other
petitioners
also
appear
to
be Samahan members. 12
The petition in Case No. 86-36563 is grounded on the same facts as those
in the case at bar: the members of theSamahan had been legitimately
engaged "in their respective business of selling sundry merchandise, more
particularly religious articles, flowers and ornamental plants, and medicinal
herbs;" they had been religiously paying "the corresponding license and
permit fees imposed by prevailing ordinances of the City of Manila," but
this notwithstanding they had been given written notice dated May 3, 1986
emanating from the Mayor's Office, advising of the cancellation of their
permits and their possible relocation to another site; and these acts "are
unjust, illegal arbitrary, oppressive and constitute grave abuse of discretion
on the part of the respondent.
There thus exists between the action before this Court and RTC Case No.
86-36563 Identity of parties, or at least such parties as represent the same
interests in both actions, as well as Identity of rights asserted and relief
prayed for, the relief being founded on the same facts, and the Identity on
the two preceding particulars is such that any judgment rendered in the
other action, will regardless of which party is successful, amount to res
adjudicata in the action under consideration: all the requisites, in fine,
of auter action pendant. 13
Indeed, the petitioners in both actions, described in their petitions as
vendors of religious articles, herbs and plants, and sundry merchandise
around the Quiapo Church or its "periphery," have incurred not only the
sanction of dismissal of their case before this Court in accordance with Rule
16 of the Rules of Court, but also the punitive measure of dismissal of both
their actions, that in this Court and that in the Regional Trial Court as well
Quite recently, upon substantially Identical factual premises, the Court en
banc had occasion to condemn and penalize the act of litigants of hearing
the same suit in different courts, aptly described as "forum-shopping," viz:
The acts of petitioners constitute a clear case of forum
shopping, an act of malpractice that is proscribed and
condemned as trifling with the courts and abusing their
processes. It is improperconduct that tends to degrade the
administration of justice. The rule has been formalized in
Section 17 of the Interim Rules and Guidelines issued by
this Court on January 11, 1983 in connection with the
implementation of the Judiciary Reorganization Act,
specifically with the grant in Section 9 of B.P. Blg. 129 of
equal original jurisdiction to the Intermediate Appellate
Court to issue writs of mandamus, prohibition, etc., and
auxiliary writs or processes, whether or not in aid Of its
appellate jurisdiction. Thus, the cited Rule provides that no
such petition may be filed in the Intermediate Appellate

Court 'if another similar petition has been filed or is still

pending in the Supreme Court' and vice-versa. The Rule
orders that "A violation of the rule shall constitute
contempt of court and shall be a cause for the summary
dismissal of both petitions, without prejudice to the taking
of appropriate action against the counsel or party
concerned." The rule applies with equal force where the
party having filed an action in the Supreme Court shops for
the same remedy of prohibition and a restraining order or
injunction in the regional trial court (or vice-versa). ... 14
As already observed, there is between the action at bar and RTC Case No.
86-36563, an Identity as regards parties, or interests represented, rights
asserted and relief sought, as well as basis thereof, to a degree sufficient
to give rise to the ground for dismissal known as auter action pendant or
lis pendens 15 That same Identity puts into operation the sanction Of twin
dismissals just mentioned. The application of this sanction will prevent any
further delay in the settlement of the controversy which might ensue from
attempts to seek reconsideration of or to appeal from the Order of the
Regional Trial Court in Civil Case No. 86-36563 promulgated on July 15,
1986, which dismissed the petition upon grounds which appear
persuasive. 16
It would seem that after the filing by Rosalina Buan and Liza Ocampo
(president and press relations officer, respectively, of the Quiapo Church
vendors' association known as the Samahan) of the petition in this case,
"for themselves and all others similarly situated as themselves" (i.e., the
members of the Samahan; who are vendors in the area of Quiapo Church)
they came to the belated that in view of the pendency of the Identical
action filed by them in the Regional Trial Court (Case No. 86-36563), they
were vulnerable to the accusation of "forum shopping," and thus amenable
to its dire consequences. This explains the filing in this Court by their
lawyers of a "MANIFESTATION WITH AFFIDAVIT OF WITHDRAWAL" on August
11, 1986, 17 another "MANIFESTATION AND MOTION" on August 29, 1986,
and an "URGENT MANIFESTATION AND MOTION TO STRIKE-OUT THE NAME
ROSALINA BUAN AND LIZA OCAMPO" on September 13, 1986. In these
manifestations the case is made that the five (5) petitioners in the action
before this Court who are members of the Samahan"were forcibly
brainwashed and guarded by ... (Atty. Reynaldo Aralar) and his associates
to accede to the invitation of the said counsel ... to appear for them and
file the case before the Honorable Court knowingly (sic) that he was
furnished the status quo-order of the same case pending before the
Regional Trial Court Branch 45 of Manila," and/or said Atty. Aralar and his
associates had perpetrated "piracy" of clients and "should be condemned
and suspended for committing act of shopping for courts." The claim does
not inspire belief. It is so out of the ordinary as to require clear and
convincing evidence of its actuality, which is lacking in this case. It is also
belied by the fact that Rosalina Buan and Liza Ocampo themselves were
among those who verified the petition at bar before a notary public. 18 And
the claim is undermined by the misrepresentation in Buan's and Ocampo's

"Joint Affidavit of Withdrawal" that the status quo order in RTC Case No.
8636563 was still subsisting and the case still pending trial 19 when in
truth, the case had already been dismissed and the restraining order lifted
by Order of July 27, 1986.
Yet another reason exists for the denial of the petition. Not one of the
petitioners or the "others similarly situated as themselves" had a valid and
subsisting license or permit as of the date of the filing of their petition in
this Court, August 5, 1986, all licenses and permits having expired prior
thereto. 20 This is confirmed by the few receipts submitted by
petitioners 21 which all set out expiry dates before August 5, 1986. The
petitioners thus have no basis whatever to postulate a right to ply their
trade in the Quiapo area or elsewhere. The argument that the non-renewal
by the municipal authorities of their licenses was in effect a cancellation or
revocation thereof without cause is puerile.
Finally, the action for prohibition has become moot and academic by the
occurrence of the acts sought to be inhibited. The petitioners' permits and
licenses have all expired; hence, there can be no occasion whatsoever to
speak of the inhibition of any revocation or cancellation thereof. And the
"physical demolition of their respective business stalls" has already been
consummated.
WHEREFORE, the petition is denied for lack of merit, and the Regional Trial
Court is commanded to dismiss Civil Case No. 86-36563 and to conduct no
further proceedings in connection therewith save in accordance with and in
implementation of this Decision. Costs against petitioners.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

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

Gabriel J. Canete for petitioners.

Emilio Lumontad, Jr. for private respondents.

Talisay-Minglanilla Friar Lands Estate presently covered by

transfer Certificate of Title No. 3009, each sharing a proindiviso share of one-fourth;
1) Vicente Delima (one-fourth)

MEDIALDEA, J.:p

2) Heirs of Juanita Delima, namely: Bibiano Bacus, Olimpio

Bacus and Purificacion Bacus (on-fourth);

This is a petition for review on certiorari of the decision of the Court of

Appeals reversing the trial court's judgment which declared as null and
void the certificate of title in the name of respondents' predecessor and
which ordered the partition of the disputed lot among the parties as coowners.

3) Heirs of Eulalio Delima, namely Epitacio, Pagano, Fidel,

Virgilio and Galileo Jr., all surnamed Delima (one-fourth);
and

The antecedent facts of the case as found both by the respondent

appellate court and by the trial court are as follows:
During his lifetime, Lino Delima acquired Lot No. 7758 of the TalisayMinglanilla Friar Lands Estate in Cebu by sale on installments from the
government. Lino Delima later died in 1921 leaving as his only heirs three
brothers and a sister namely: Eulalio Delima, Juanita Delima, Galileo
Delima and Vicente Delima. After his death, TCT No. 2744 of the property
in question was issued on August 3, 1953 in the name of the Legal Heirs of
Lino Delima, deceased, represented by Galileo Delima.
On September 22, 1953, Galileo Delima, now substituted by respondents,
executed an affidavit of "Extra-judicial Declaration of Heirs." Based on this
affidavit, TCT No. 2744 was cancelled and TCT No. 3009 was issued on
February 4,1954 in the name of Galileo Delima alone to the exclusion of
the other heirs.
Galileo Delima declared the lot in his name for taxation purposes and paid
the taxes thereon from 1954 to 1965.
On February 29, 1968, petitioners, who are the surviving heirs of Eulalio
and Juanita Delima, filed with the Court of First Instance of Cebu (now
Regional Trial Court) an action for reconveyance and/or partition of
property and for the annulment of TCT No. 3009 with damages against
their uncles Galileo Delima and Vicente Delima,. Vicente Delima was joined
as party defendant by the petitioners for his refusal to join the latter in
their action.
On January 16, 1970, the trial court rendered a decision in favor of
petitioners, the dispositive portion of which states:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the
following are the declared owners of Lot No. 7758 of the

4) The Heirs of Galileo Delima, namely Flaviana Vda. de

Delima, Lily D. Arias, Helen Niadas and Dionisio, Antonio,
Eotu Irenea, and Fely, all surnamed Delima (one-fourth).
Transfer Certificate of Title No. 3009 is declared null and
void and the Register of Deeds of Cebu is ordered to cancel
the same and issue in lieu thereof another title with the
above heirs as pro-indiviso owners.
After the payment of taxes paid by Galileo Delima since
1958, the heirs of Galileo Delima are ordered to turn a over
to the other heirs their respective shares of the fruits of the
lot in question computed at P170.00 per year up to the
present time with legal (interest).
Within sixty (60) days from receipt of this decision the
parties are ordered to petition the lot in question and the
defendants are directed to immediately turn over
possession of the shares here awarded to the respective
heirs.
Defendants are condemned to pay the costs of the suit.
The counterclaim is dismissed.
SO ORDERED. (pp. 54-55, Rollo)
Not satisfied with the decision, respondents appealed to the Court of
Appeals. On May 19, 1977, respondent appellate court reversed the trial
court's decision and upheld the claim of Galileo Delima that all the other
brothers and sister of Lino Delima, namely Eulalio, Juanita and Vicente, had
already relinquished and waived their rights to the property in his favor,
considering that he (Galileo Delima) alone paid the remaining balance of
the purchase price of the lot and the realty taxes thereon (p. 26, Rollo).

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

Intermediate Appellate Court, No. 72694, December 1, 1987, 156 SCRA

55).

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

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

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

2) In disregarding
(p.13, Rollo)

the

evidence

of

the

petitioners.

The issue to be resolved in the instant case is whether or not petitioners'

action for partition is already barred by the statutory period provided by
law which shall enable Galileo Delima to perfect his claim of ownership by
acquisitive prescription to the exclusion of petitioners from their shares in
the disputed property. Article 494 of the Civil Code expressly provides:
Art. 494. No co-owner shall be obliged to remain in the coownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his
share is concerned.
Nevertheless, an agreement to keep the thing undivided
for a certain period of time, not exceeding ten years, shall
be valid. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period
which shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by
law.
No prescription shall run in favor of a co-owner or co-heir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.
As a rule, possession by a co-owner will not be presumed to be adverse to
the others, but will be held to benefit all. It is understood that the co-owner
or co-heir who is in possession of an inheritance pro-indiviso for himself
and in representation of his co-owners or co-heirs, if, as such owner, he
administers or takes care of the rest thereof with the obligation of
delivering it to his co-owners or co-heirs, is under the same situation as a
depository, a lessee or a trustee (Bargayo v. Camumot, 40 Phil, 857;
Segura v. Segura, No. L-29320, September 19, 1988, 165 SCRA 368). Thus,
an action to compel partition may be filed at any time by any of the coowners against the actual possessor. In other words, no prescription shall
run in favor of a co-owner against his co-owners or co-heirs so long as he
expressly or impliedly recognizes the co-ownership (Del Blanco v.

It is settled that possession by a co-owner or co-heir is that of a trustee. In

order that such possession is considered adverse to the cestui que
trust amounting to a repudiation of the co-ownership, the following
elements must concur: 1) that the trustee has performed unequivocal acts
amounting to an ouster of the cestui que trust; 2) that such positive acts of
repudiation had been made known to the cestui que trust; and 3) that the
evidence thereon should be clear and conclusive (Valdez v. Olorga, No. L22571, May 25, 1973, 51 SCRA 71; Pangan v. Court of Appeals, No. L39299, October 18, 1988, 166 SCRA 375).
We have held that when a co-owner of the property in question executed a
deed of partition and on the strength thereof obtained the cancellation of
the title in the name of their predecessor and the issuance of a new one
wherein he appears as the new owner of the property, thereby in effect
denying or repudiating the ownership of the other co-owners over their
shares, the statute of limitations started to run for the purposes of the
action instituted by the latter seeking a declaration of the existence of the
co-ownership and of their rights thereunder (Castillo v. Court of Appeals,
No. L-18046, March 31, 1964, 10 SCRA 549). Since an action for
reconveyance of land based on implied or constructive trust prescribes
after ten (10) years, it is from the date of the issuance of such title that the
effective assertion of adverse title for purposes of the statute of limitations
is counted (Jaramil v. Court of Appeals, No. L-31858, August 31, 1977, 78
SCRA 420).
Evidence shows that TCT No. 2744 in the name of the legal heirs of Lino
Delima, represented by Galileo Delima, was cancelled by virtue of an
affidavit executed by Galileo Delima and that on February 4, 1954, Galileo
Delima obtained the issuance of a new title in Ms name numbered TCT No.
3009 to the exclusion of his co-heirs. The issuance of this new title
constituted an open and clear repudiation of the trust or co-ownership, and
the lapse of ten (10) years of adverse possession by Galileo Delima from
February 4, 1954 was sufficient to vest title in him by prescription. As the
certificate of title was notice to the whole world of his exclusive title to the
land, such rejection was binding on the other heirs and started as against
them the period of prescription. Hence, when petitioners filed their action
for reconveyance and/or to compel partition on February 29, 1968, such
action was already barred by prescription. Whatever claims the other co-

heirs could have validly asserted before can no longer be invoked by them
at this time.
ACCORDINGLY, the petition is hereby DENIED and the assailed decision of
the Court of Appeals dated May 19, 1977 is AFFIRMED.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION

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

MARIA
DEL
ROSARIO
MARIATEGUI,
ET
AL., petitioners,
vs.
HON. COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN
MARIATEGUI and PAULINA MARIATEGUI,respondents.
Montesa, Albon & Associates for petitioners.
Parmenio B. Patacsil, Patacsil Twins Law Office for the heirs of the late
Maria del Rosario Mariategui.

Maria del Rosario, Urbana and Ireneo. Baldomera died and was survived by
her children named Antero, Rufina, Catalino, Maria, Gerardo, Virginia and
Federico, all surnamed Espina. Ireneo also died and left a son named
Ruperto. With his second wife, Flaviana Montellano, he begot a daughter
named Cresenciana who was born on May 8, 1910 (Rollo, Annex "A", p.
36).
Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married
sometime in 1930. They had three children, namely: Jacinto, born on July 3,
1929, Julian, born on February 16, 1931 and Paulina, born on April 19,
1938. Felipa Velasco Mariategui died in 1941 (Rollo, Ibid).
At the time of his death, Lupo Mariategui left certain properties which he
acquired when he was still unmarried (Brief for respondents, Rollo, pp. 116;
4). These properties are described in the complaint as Lots Nos. 163, 66,
1346 and 156 of the Muntinglupa Estate (Rollo, Annex "A", p. 39).
On December 2, 1967, Lupo's descendants by his first and second
marriages, namely, Maria del Rosario, Urbana, Ruperto, Cresencia, all
surnamed Mariategui and Antero, Rufina, Catalino, Maria, Gerardo, Virginia
and Federico, all surnamed Espina, executed a deed of extrajudicial
partition whereby they adjudicated unto themselves Lot No. 163 of the
Muntinglupa Estate. Thereafter, Lot No. 163 was the subject of a voluntary
registration proceedings filed by the adjudicatees under Act No. 496, and
the land registration court issued a decree ordering the registration of the
lot. Thus, on April 1, 1971, OCT No. 8828 was issued in the name of the
above-mentioned heirs. Subsequently, the registered owners caused the
subdivision of the said lot into Lots Nos. 163-A to 163-H, for which separate
transfer certificates of title were issued to the respective parties
(Rollo, ibid).

Tinga, Fuentes & Tagle Firm for private respondents.

BIDIN, J.:
This is a petition for review on certiorari of the decision * of the Court of
Appeals dated December 24, 1980 in CA-G.R. No. 61841, entitled "Jacinto
Mariategui, et al. v. Maria del Rosario Mariategui, et al.," reversing the
judgment of the then Court of First Instance of Rizal, Branch VIII ** at Pasig,
Metro Manila.
The undisputed facts are as follows:
Lupo Mariategui died without a will on June 26, 1953 (Brief for
respondents, Rollo, pp. 116; 8). During his lifetime, Lupo Mariategui
contracted three (3) marriages. With his first wife, Eusebia Montellano, who
died on November 8, 1904, he begot four (4) children, namely: Baldomera,

On April 23, 1973, Lupo's children by his third marriage with Felipa Velasco
(Jacinto, Julian and Paulina) filed with the lower court an amended
complaint claiming that Lot No. 163 together with Lots Nos. 669, 1346 and
154 were owned by their common father, Lupo Mariategui, and that, with
the adjudication of Lot No. 163 to their co-heirs, they (children of the third
marriage) were deprived of their respective shares in the lots. Plaintiffs
pray for partition of the estate of their deceased father and annulment of
the deed of extrajudicial partition dated December 2, 1967 (Petition, Rollo,
p. 10). Cresencia Mariategui Abas, Flaviana Mariategui Cabrera and Isabel
Santos were impleaded in the complaint as unwilling defendants as they
would not like to join the suit as plaintiffs although they acknowledged the
status and rights of the plaintiffs and agreed to the partition of the parcels
of land as well as the accounting of their fruits (Ibid., Rollo, p. 8; Record on
Appeal, p. 4).
The defendants (now petitioners) filed an answer with counterclaim
(Amended Record on Appeal, p. 13). Thereafter, they filed a motion to
dismiss on the grounds of lack of cause of action and prescription. They

specifically contended that the complaint was one for recognition of

natural children. On August 14, 1974, the motion to dismiss was denied by
the trial court, in an order the dispositive portion of which reads:
It is therefore the opinion of the Court that Articles 278 and
285 of the Civil Code cited by counsel for the defendants
are of erroneous application to this case. The motion to
dismiss is therefore denied for lack of merit.
SO ORDERED. (Ibid, p. 37).
However, on February 16, 1977, the complaint as well as petitioners'
counterclaim were dismissed by the trial court, in its decision stating thus:
The plaintiffs' right to inherit depends upon the
acknowledgment or recognition of their continuous
enjoyment and possession of status of children of their
supposed father. The evidence fails to sustain either
premise, and it is clear that this action cannot be
sustained. (Ibid, Rollo, pp. 67-68)
The plaintiffs elevated the case to the Court of Appeals on the ground that
the trial court committed an error ". . . in not finding that the parents of the
appellants, Lupo Mariategui and Felipa Velasco (were) lawfully married, and
in holding (that) they (appellants) are not legitimate children of their said
parents, thereby divesting them of their inheritance . . . " (Rollo, pp. 1415).
On December 24, 1980, the Court of Appeals rendered a decision declaring
all the children and descendants of Lupo Mariategui, including appellants
Jacinto, Julian and Paulina (children of the third marriage) as entitled to
equal shares in the estate of Lupo Mariategui; directing the adjudicatees in
the extrajudicial partition of real properties who eventually acquired
transfer certificates of title thereto, to execute deeds of reconveyance in
favor, and for the shares, of Jacinto, Julian and Paulina provided rights of
innocent third persons are not prejudiced otherwise the said adjudicatees
shall reimburse the said heirs the fair market value of their shares; and
directing all the parties to submit to the lower court a project of partition in
the net estate of Lupo Mariategui after payment of taxes, other
government charges and outstanding legal obligations.
The defendants-appellees filed a motion for reconsideration of said
decision but it was denied for lack of merit. Hence, this petition which was
given due course by the court on December 7, 1981.
The petitioners submit to the Court the following issues: (a) whether or not
prescription barred private respondents' right to demand the partition of
the estate of Lupo Mariategui, and (b) whether or not the private

respondents, who belatedly filed the action for recognition, were able to
prove their successional rights over said estate. The resolution of these
issues hinges, however, on the resolution of the preliminary matter, i.e.,
the nature of the complaint filed by the private respondents.
The complaint alleged, among other things, that "plaintiffs are the children
of the deceased spouses Lupo Mariategui . . . and Felipa Velasco"; that
"during his lifetime, Lupo Mariategui had repeatedly acknowledged and
confirmed plaintiffs as his children and the latter, in turn, have
continuously enjoyed such status since their birth"; and "on the basis of
their relationship to the deceased Lupo Mariategui and in accordance with
the law on intestate succession, plaintiffs are entitled to inherit shares in
the foregoing estate (Record on Appeal, pp. 5 & 6). It prayed, among
others, that plaintiffs be declared as children and heirs of Lupo Mariategui
and adjudication in favor of plaintiffs their lawful shares in the estate of the
decedent (Ibid, p. 10).
A perusal of the entire allegations of the complaint, however, shows that
the action is principally one of partition. The allegation with respect to the
status of the private respondents was raised only collaterally to assert their
rights in the estate of the deceased. Hence, the Court of Appeals correctly
adopted the settled rule that the nature of an action filed in court is
determined by the facts alleged in the complaint constituting the cause of
action (Republic vs. Estenzo, 158 SCRA 282 [1988]).
It has been held that, if the relief demanded is not the proper one which
may be granted under the law, it does not characterize or determine the
nature of plaintiffs' action, and the relief to which plaintiff is entitled based
on the facts alleged by him in his complaint, although it is not the relief
demanded, is what determines the nature of the action (1 Moran, p. 127,
1979 ed., citing Baguioro vs. Barrios, et al., 77 Phil. 120).
With respect to the legal basis of private respondents' demand for partition
of the estate of Lupo Mariategui, the Court of Appeals aptly held that the
private respondents are legitimate children of the deceased.
Lupo Mariategui and Felipa Velasco were alleged to have been lawfully
married in or about 1930. This fact is based on the declaration
communicated by Lupo Mariategui to Jacinto who testified that "when (his)
father was still living, he was able to mention to (him) that he and (his)
mother were able to get married before a Justice of the Peace of Taguig,
Rizal." The spouses deported themselves as husband and wife, and were
known in the community to be such. Although no marriage certificate was
introduced to this effect, no evidence was likewise offered to controvert
these facts. Moreover, the mere fact that no record of the marriage exists
does not invalidate the marriage, provided all requisites for its validity are
present (People vs. Borromeo, 133 SCRA 106 [1984]).

Under these circumstances, a marriage may be presumed to have taken

place between Lupo and Felipa. The laws presume that a man and a
woman, deporting themselves as husband and wife, have entered into a
lawful contract of marriage; that a child born in lawful wedlock, there being
no divorce, absolute or from bed and board is legitimate; and that things
have happened according to the ordinary course of nature and the ordinary
habits of life (Section 5 (z), (bb), (cc), Rule 131, Rules of Court; Corpus v.
Corpus, 85 SCRA 567 [1978]; Saurnaba v. Workmen's Compensation, 85
SCRA 502 [1978]; Alavado v. City Gov't. of Tacloban, 139 SCRA 230 [1985];
Reyes v. Court of Appeals, 135 SCRA 439 [1985]).
Courts look upon the presumption of marriage with great favor as it is
founded on the following rationale:
The basis of human society throughout the civilized world
is that of marriage. Marriage in this jurisdiction is not only a
civil contract, but it is a new relation, an institution in the
maintenance of which the public is deeply interested.
Consequently, every intendment of the law leans toward
legalizing matrimony. Persons dwelling together in
apparent matrimony are presumed, in the absence of any
counterpresumption or evidence special to that case, to be
in fact married. The reason is that such is the common
order of society and if the parties were not what they thus
hold themselves out as being, they would be living in the
constant
violation
of
decency
and
of
law . . . (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56
[1922] quoted in Alavado vs. City Government of Tacloban,
139 SCRA 230 [1985]).
So much so that once a man and a woman have lived as husband and wife
and such relationship is not denied nor contradicted, the presumption of
their being married must be admitted as a fact (Alavado v. City Gov't. of
Tacloban, supra).
The Civil Code provides for the manner under which legitimate filiation
may be proven. However, considering the effectivity of the Family Code of
the Philippines, the case at bar must be decided under a new if not entirely
dissimilar set of rules because the parties have been overtaken by events,
to use the popular phrase (Uyguangco vs. Court of Appeals, G.R. No.
76873, October 26, 1989). Thus, under Title VI of the Family Code, there
are only two classes of children legitimate and illegitimate. The fine
distinctions among various types of illegitimate children have been
eliminated (Castro vs. Court of Appeals, 173 SCRA 656 [1989]).
Article 172 of the said Code provides that the filiation of legitimate children
may be established by the record of birth appearing in the civil register or
a final judgment or by the open and continuous possession of the status of
a legitimate child.

Evidence on record proves the legitimate filiation of the private

respondents. Jacinto's birth certificate is a record of birth referred to in the
said article. Again, no evidence which tends to disprove facts contained
therein was adduced before the lower court. In the case of the two other
private respondents, Julian and Paulina, they may not have presented in
evidence any of the documents required by Article 172 but they
continuously enjoyed the status of children of Lupo Mariategui in the same
manner as their brother Jacinto.
While the trial court found Jacinto's testimonies to be inconsequential and
lacking in substance as to certain dates and names of relatives with whom
their family resided, these are but minor details. The nagging fact is that
for a considerable length of time and despite the death of Felipa in 1941,
the private respondents and Lupo lived together until Lupo's death in 1953.
It should be noted that even the trial court mentioned in its decision the
admission made in the affidavit of Cresenciana Mariategui Abas, one of the
petitioners herein, that " . . . Jacinto, Julian and Paulina Mariategui ay
pawang
mga
kapatid
ko
sa
ama . . ." (Exh. M, Record on Appeal, pp. 65-66).
In view of the foregoing, there can be no other conclusion than that private
respondents are legitimate children and heirs of Lupo Mariategui and
therefore, the time limitation prescribed in Article 285 for filing an action
for recognition is inapplicable to this case. Corollarily, prescription does not
run against private respondents with respect to the filing of the action for
partition so long as the heirs for whose benefit prescription is invoked,
have not expressly or impliedly repudiated the co-ownership. In other
words, prescription of an action for partition does not lie except when the
co-ownership is properly repudiated by the co-owner (Del Banco vs.
Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs.
Hollasco, 117 SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the share of
the other co-owners absent a clear repudiation of co-ownership duly
communicated to the other co-owners (Mariano vs. De Vega, 148 SCRA 342
[1987]). Furthermore, an action to demand partition is imprescriptible and
cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 [1987]). On
the other hand, an action for partition may be seen to be at once an action
for declaration of co-ownership and for segregation and conveyance of a
determinate portion of the property involved (Roque vs. IAC, 165 SCRA 118
[1988]).
Petitioners contend that they have repudiated the co-ownership when they
executed the extrajudicial partition excluding the private respondents and
registered the properties in their own names (Petition, p. 16; Rollo, p. 20).
However, no valid repudiation was made by petitioners to the prejudice of
private respondents. Assuming petitioners' registration of the subject lot in
1971 was an act of repudiation of the co-ownership, prescription had not
yet set in when private respondents filed in 1973 the present action for
partition (Ceniza vs. C.A., 181 SCRA 552 [1990]).

In their complaint, private respondents averred that in spite of their

demands, petitioners, except the unwilling defendants in the lower court,
failed and refused to acknowledge and convey their lawful shares in the
estate of their father (Record on Appeal, p. 6). This allegation, though
denied by the petitioners in their answer (Ibid, p. 14), was never
successfully refuted by them. Put differently, in spite of petitioners'
undisputed knowledge of their relationship to private respondents who are
therefore their co-heirs, petitioners fraudulently withheld private
respondent's share in the estate of Lupo Mariategui. According to
respondent Jacinto, since 1962, he had been inquiring from petitioner
Maria del Rosario about their (respondents) share in the property left by
their deceased father and had been assured by the latter (Maria del
Rosario) not to worry because they will get some shares. As a matter of
fact, sometime in 1969, Jacinto constructed a house where he now resides
on Lot No. 163 without any complaint from petitioners.
Petitioners' registration of the properties in their names in 1971 did not
operate as a valid repudiation of the co-ownership. In Adille vs. Court of
Appeals (157 SCRA 455, 461-462 [1988]), the Court held:
Prescription, as a mode of terminating a relation of coownership, must have been preceded by repudiation (of
the co-ownership). The act of repudiation, in turn, is
subject to certain conditions: (1) a co-owner repudiates the
co-ownership; (2) such an act of repudiation is clearly
made known to the other co-owners; (3) the evidence
thereon is clear and conclusive; and (4) he has been in
possession through open, continuous, exclusive, and
notorious possession of the property for the period required
by law.

WHEREFORE, the petition is DENIED and the assailed decision of the Court
of Appeals dated December 24, 1980 is Affirmed.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION

G.R. No. 109910 April 5, 1995

REMEDIOS G. SALVADOR and GRACIA G. SALVADOR, petitioners,
vs.
COURT OF APPEALS, ALBERTO and ELPIA YABO, FRANCISCA YABO,
et al., respondents.

DAVIDE, JR., J.:

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

xxx xxx xxx

It is true that registration under the Torrens system is
constructive notice of title, but it has likewise been our
holding that the Torrens title does not furnish shield for
fraud. It is therefore no argument to say that the act of
registration is equivalent to notice of repudiation, assuming
there was one, notwithstanding the long-standing rule that
registration operates as a universal notice of title.
Inasmuch as petitioners registered the properties in their names in fraud of
their co-heirs prescription can only be deemed to have commenced from
the time private respondents discovered the petitioners' act of
defraudation (Adille vs. Court of Appeals, supra). Hence, prescription
definitely may not be invoked by petitioners because private respondents
commenced the instant action barely two months after learning that
petitioners had registered in their names the lots involved.

Alipio Yabo was the owner of Lot No. 6080 and Lot No. 6180 situated in
Barrio Bulua, Cagayan de Oro City, containing an area of 1,267 and 3,816
square meters, respectively. Title thereto devolved upon his nine children,
namely, Victoriano, Procopio, Lope, Jose, Pelagia, Baseliza, Francisca,
Maria, and Gaudencia, upon his death sometime before or during the
second world war.
On 28 April 1976, Pastor Makibalo, who is the husband of Maria Yabo, one
of Alipio's children, filed with the then Court of First Instance of Misamis
Oriental a complaint, docketed as Civil Case No. 5000, against the spouses
Alberto and Elpia Yabo for "Quieting of Title, Annulment of Documents, and
Damages." In the complaint, he alleged that he owned a total of eight
shares of the subject lots, having purchased the shares of seven of Alipio's
children and inherited the share of his wife, Maria, and that except for the
portion corresponding to Gaudencia's share which he did not buy, he
occupied, cultivated, and possessed continuously, openly, peacefully, and

exclusively the two parcels of land. He then prayed that he be declared the
absolute owner of 8/9 of the lots in question. 1

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

On 8 October 1976, the grandchildren and great-grandchildren of the late

Alipio Yabo 2 lodged with the same court a complaint for partition and
quieting of title with damages, 3 docketed as Civil Case No. 5174, against
Pastor Makibalo, Enecia Cristal, and the spouses Eulogio and Remedies
Salvador. They alleged that Lot No. 6080 and Lot No. 6180 are the common
property of the heirs of Alipio Yabo, namely, the plaintiffs, defendant Enecia
Cristal, Maria Yabo and Jose Yabo, whose share had been sold to Alberto
Yabo; that after Alipio's death, the spouses Pastor and Maria Makibalo,
Enecia Cristal and Jose Yabo became the de facto administrators of the said
properties; and that much to their surprise, they discovered that the
Salvador spouses, who were strangers to the family, have been harvesting
coconuts from the lots, which act as a cloud on the plaintiffs' title over the
lots.

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

The plaintiffs then prayed that (a) they, as well as defendant Pastor
Makibalo, in representation of his wife, and Enecia Cristal, in representation
of Gaudencia, be declared as the owners of the lots; (b) the Salvador
spouses be declared as having no rights thereto except as possible
assignees of their co-defendants, Pastor Makibalo and Enecia Cristal; (c)
the lots be partitioned according to law among the aforementioned coowners; and (d) the defendants be made to pay for the value of the fruits
they harvested from the lots and for moral and exemplary damages,
attorney's fees, expenses of the litigation, and costs of the suit.
The two cases were consolidated and jointly heard by Branch 5 of the
Court of First Instance of Cagayan de Oro City.
By evidence, Pastor, Makibalo sought to prove the following allegations:
He was married to Maria Yabo who died on 17 March 1962. 4 In August
1949, Jose and Victoriano, both surnamed Yabo, sold their respective
shares in the disputed lots to one Pedro Ebarat, and in 1952 the latter sold
both shares to Pastor Makibalo. 5 Ebarat formalized this conveyance by
executing an Affidavit of Waiver and Quitclaim dated 30 May 1969 in favor
of Pastor. 6
On 16 January 1951, the heirs of the late Lope Yabo sold Lope's shares in
the litigated properties to one Dominador Canomon, 7 who, in turn, sold the
same to Pastor. 8 Canomon afterwards executed an Affidavit of Waiver and
Quitclaim in favor of the latter. 9
Pastor Makibalo likewise purchased the shares of Baseliza in the two lots in
1942, of Procopio in 1957, of Francisca in 1958, and of Pelagia in 1967. The
only share he did not buy was that of Gaudencia. After every purchase, he
took possession of the portions bought and harvested the products
thereof. 10

On the other hand, by their evidence, l4 the spouses Alberto and Elpia
Yabo tried to prove that they had repurchased from Pastor Makibalo the
share of Procopio, which was previously sold to Pastor, and had bought the
shares of Jose and Maria. 15
Filoteo Yabo denied having sold the share of his father, Lope Yabo, in the
contested lots and disowned his signature and those of his mother,
brothers, and sisters appearing at the back of Exhibit "C". 16
Ignacio Yabo testified that his father, Victoriano Yabo, did not know how to
write and sign his name. He further declared that he had no knowledge
that his father affixed his thumbmark in the document marked as Exhibit
"A" purporting to alienate his father's share in the disputed lots. l7
On 15 January 1983, the trial court rendered its decision
follows:

18

holding as

Assuming that the thumbmark on the typewritten name

"Jose Yabo" in Exh. 3 was that of Jose Yabo, Alberto Yabo
and Elpia R. Yabo purchased the share of Jose Yabo in bad
faith because they knew before and up to the execution of
Exh. 3 on October 24, 1972 that Jose Yabo was no longer
the owner of that area because from the documents she
borrowed from Mrs. Salvador they came to know that Jose
Yabo had sold his shares to Pedro Ebarat, and they have
seen that Pastor Makibalo has been in possession of those
shares together with the seven others exclusively as
owner, he having mortgaged them to Mrs. Salvador.
As Jose Yabo was no longer the owner of the one-ninth (1/9)
shares which he sold to Alberto Yabo and Elpia Yabo under
Exh. 3, the sale is null and void, and Alberto and Elpia
acquired nothing because Jose Yabo had no more title, right
or interest to dispose of.
...
Pastor Makibalo had been in possession of Jose Yabo's
share since 1949 after purchasing it from Ebarat, and has

been in possession thereof up to September 26, 1978 when

he sold it to the spouses Eulogio Salvador and Remedios
Salvador, who are now in possession of the same.
Exh. A, evidencing the sale of Victoriano Yabo's share to
Pedro Ebarat was identified by the latter who testified that
he sold it to Pastor Makibalo in 1951. Exh. A is an ancient
document 1949 when the document came to existence
up to now is more than 30 years, and the document had
been in the possession of Pastor Makibalo, then Remedios
Salvador who had interest in its preservation.
As regards the shares of Lope Yabo, the same had been
sold by his surviving spouse Juana Legaspi, and his children
Filoteo, Andresa, Jovita, Bonifacio, and Rundino for P105.00
on January 16, 1951 to Dominador Conomon (Exh. C and C1), who in turn sold it to Pastor Makibalo in 1952, executing
a formal Deed of Waiver and Quitclaim on May 30, 1969
(Exh. D).
Exh. C is an ancient document, being more than 30 years
old and has been in the possession of Pastor Makibalo and
then the spouses Eulogio and Remedios Salvador who
had an interest in its preservation. The claim of Filoteo
Yabo that the signatures appearing in Exh. C are not his
and those of his brothers and sisters are of no avail, for if
they were not the ones who affixed those signatures and so
they did not sell the shares of their father Lope Yabo, why
did they not then take possession of said shares they
remained silent from 1951 to September 16, 1976 a period
of 25 years. They are now [e]stopped by laches.
And as regards the shares of Baseliza, Francisca and
Pelagia, there is no evidence presented to effectively rebut
the testimony of Pastor Makibalo that he acquired the
shares of Baseliza Yabo in 1942 by changing it with a
buffalo; that he bought the shares of Francisca Yabo in
1958 and that he bought the shares of Pelagia Yabo in
1967; Pastor Makibalo had been in possession of these
shares from the time he acquired them, continuously,
adversely, openly, and peacefully, as owner up to the time
he sold his rights and interest therein to the spouses
Eulogio and Remedies Salvador. The heirs of Baseliza,
Francisca and Pelagia have not taken any step to protect
their rights over those shares for over 40 years in the case
of Baseliza's share, for about 20 years in the case of
Francisca's share, and for more than 10 years in the case
of Pelagia's share. Laches, likewise has rendered their
rights stale.

On March 10, 1966 Pastor Makibalo sold back to Alberto

Yabo the share of Procopio Yabo in Lot 6180 (Exh. 1 and 2),
but there is nothing to show that. Pastor Makibalo also sold
back Procopio's share in Lot 6080.
So then, by purchase, Pastor Makibalo and Maria Yabo
acquired the shares of Baseliza, Victoriano, Jose, Lope,
Procopio and Francisca, or six (6) shares from Lots 6080
and 6180. These belonged to the conjugal partnership of
Pastor Makibalo and Maria Yabo. Maria Yabo had also a
share from Lots 6080 and 6180, and Pastor Makibalo
acquired the shares of Pelagia Yabo in both Lots 6080 and
6180. All in all; Pastor Makibalo acquired eight shares in
both Lot 6080 and 6180.
While Maria Yabo died on March 17, 1962, and so onefourth (1/4) of the shares of Baseliza, Victoriano, Jose,
Lope, and Francisca, or one-fourth of five-ninth (5/9) of
both lots and one-fourth (1/4) of Lot 6080 should go to the
children of the brothers and sisters of Maria Yabo by virtue
of the provisions of Article 1001 of the New Civil Code, the
latter have lost their rights thereto by laches for their
inaction for a very long period and their rights have
become stale. On the other hand, Pastor Makibalo who had
been in possession of the whole of the eight shares in both
Lots 6080 and 6180, enjoying the fruits thereof exclusively,
uninterruptedly, publicly, peacefully, and continuously from
the death of Maria Yabo up to the filing of the complaint in
Civil Case No. 5174 on October 8, 1976, or a period of 14
years, had acquired title to the whole of the eight shares in
Lot 6080 and seven shares in Lot 6180 (the share of
Procopio in Lot 6180 had been sold back to Alberto Yabo).
IN VIEW OF ALL THE FOREGOING, judgment is hereby
rendered finding Pastor Makibalo, now Eulogio Salvador
and Remedios Salvador the owner of eight (8) shares,
equivalent to eight-ninth (8/9) of Lot No. 6080, and of
seven (7) shares, equivalent to seven-ninth (7/9) of Lot No.
6180, and therefore, ordering the partition of Lot 6080 so
that the one-ninth (1/9) alloted to Gaudencia Yabo will go
to her heirs or their assigns, and the remaining eight-ninth
(8/9) will go to the spouses Eulogio Salvador and Remedios
Salvador, as successor of Pastor Makibalo, and the partition
of Lot 6180 so that the seven-ninth (7/9) portion which
formerly belonged to Baseliza, Victoriano, Jose, Lope,
Maria, Francisca, and Pelagia will go to the spouses Eulogio
and Remedios Salvador, the one-ninth (1/9) which formerly
belonged to Procopio, will go to Alberto Yabo, and the
remaining one-ninth (1/9) which formerly belonged to
Gaudencia, will go to Gaudencia's heirs or their assigns.

Doc. No. 720, recorded on page 28 of Notarial Register No.

VII, and acknowledged before Notary Public Isidro S.
Baculio (Exh. E) [purportedly executed by Maria Yabo and
Pastor Makibalo] is hereby declared null and void, and so
the Office of the City Fiscal is directed to cause an
investigation of this matter to find out the person or
persons responsible for the falsification of the said
document, and if the evidence warrants, to file the
corresponding criminal action in court. The Office of the
City Assessor of Cagayan de Oro City is, likewise, directed
to cause the cancellation of Tax Declarations Nos. 33553,
marked as Exh. H-3, 33557, marked as Exh. H-2, both in
the name of Alberto Yabo, for having been issued on the
basis of a falsified document. Let copies of this decision be
furnished the Offices of the City Fiscal and City Assessor,
both of Cagayan de Oro City.
No pronouncement as to damages, attorney's fees and
costs.
SO ORDERED.

19

The defendants in Civil Case No. 5000 and the plaintiffs in Civil Case No.
5174 appealed from the decision to the Court of Appeals on 19 August
1983. 20
In its decision of 3 February 1993, 21 the Court of Appeals held that (a)
Maria Yabo did not sell her share to Alberto and Elpia Yabo; (b) prescription
and laches have not run against the private respondents with respect to
the 1/9 share of Maria Yabo in the estate of her father and to her conjugal
share in the portions acquired from her brothers and sisters; and (c)
Procopio never sold his share in Lot No. 6080 to Pastor Makibalo. More
specifically it stated:
Exh. E is the document found by the lower court to be a
falsification. This finding appellants do not dispute and
have not raised an error.
...
While acknowledging. that upon the death of Maria Yabo on
March 17, 1962, one-half (1/2) of the share of Maria Yabo in
Lots 6080 and 6180 and one-half (1/2) of Maria Yabo's
conjugal share in the portions bought from Basiliza,
Victoriano, Jose, Lope, Pelagia and Francisca should go to
the children of the brothers and sisters of Maria in
accordance with Article 1001 of the Civil Code, the lower
court rule that said children have lost their rights by laches
"for their inaction for a very long period and their rights

have become stale" (Decision, p. 16; Record, Vol. 2, p.

158).
Appellants in their second assignment of error aver that
this is an error.
We agree that the lower court erred.
While between March 17, 1962 when Maria Yabo died and
October 8, 1976, when Civil Case No. 5174 for partition
was filed, was a period of more than fourteen (14) years,
that alone to our mind would not suffice to establish laches
or prescription. Upon the death of Maria Yabo, appellee
Pastor Makibalo and appellants and the other children of
the brothers and sisters of Maria, by operation of law
become co-owners of the one-ninth (1/9) share of Maria as
heir of her father Alipio and the conjugal share of Maria in
the portions acquired from Basiliza, Victoriano, Jose, Lope,
Pelagia and Francisca. Time alone is not a decisive factor.
Appellee Pastor Makibalo, it must be remembered, is the
husband of Maria and, therefore, an uncle in-law of
appellants. In our culture, a demand by an heir or heirs for
partition immediately upon the death of a relative is more
often taken not as a legitimate assertion of a right but of
something else, like greed. It must also be noted that the
spouses, the appellee Pastor Makibalo and his deceased
wife Maria, were childless and, therefore, appellants and
the other children of the brothers and sisters of Maria must
have felt that at any rate the property would go to them in
the course of time. This probably explains why appellants
started asserting their right over the property only after
appellee Pastor Makibalo sold the same to the spouses
Eulogio and Remedios Salvador. Besides, Lots 6080 and
6180 have a combined area only of 5,083 square meters
and before the development of Northern Mindanao, and
even in 1962 when Maria Yabo died, were not that
valuable. This is shown by the fact that each heir sold his
other share only for P110.00.
As we have said not time alone. In the early case of Cortes
v. Oliva, 33 Phil. 480, it was held that"(o)rdinarily,
possession by one joint owner will not be presumed to be
adverse to the others, but will, as a rule, be held to be for
the benefit of all. Much stronger evidence is required to
show an adverse holding by one of several joint owners
than by a stranger; and in such cases, to sustain a plea of
prescription, it must always clearly appear that one who
was originally a joint owner has repudiated the claims of
his co-owners, and that his co-owners were apprised or
should have been apprised of his claim of adverse and

exclusive ownership before the alleged prescription began

to run (at page 484). This ruling on prescription should
apply with equal force to laches.

(1) 1/9 of Lots 6080 end 6180 should be

given to the heirs of Gaudencia Yabo or
their successors and assigns;

The third assignment of error challenges the finding of the

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

(2) 1/9 of Lot 6180 should go to Alberto

Yabo and his wife Elpia Yabo;

Exhibits 1 and 2 cover only Procopio's share in Lot 6180. In

other words, Exhibits 1 and. 2 conveyed back to Alberto
Yabo only his father, Procopio's share in Lot 6180.
There is indeed no evidence that Pastor Makibalo also sold
back to Alberto, his father Procopio's share in Lot 6080.
But from the evidence it appears that Procopio Yabo never
sold his share in Lot 6080 to Pastor Makibalo. So there was
no need to convey back Procopio's share in Lot 6080.
This fact is evident from the Affidavit of Confirmation of
Sale (Exh. M) dated April 22, 1970, executed by Alberto
Yabo, which is the very document relied upon by the lower
court (Decision, p. 11; Record, Vol. 2, p. 153) in finding that
"Alberto Yabo admitted that the share of his father Procopio
Yabo was previously bought by Pastor Makibalo." A look at
Exh. M, particularly par. 3 thereof, reveals that AlbertoYabo
merely acknowledged or confirmed the sale of his father's
share to Pastor Makibalo in Lot 6180. In effect, it at the
same time proves that Lot 6080 was never sold by
Procopio to appellee Pastor Makibalo; otherwise, it would
have been included in the said Affidavit of Confirmation of
Sale. The Deed of Absolute Sale (Exh. 2) subsequently
executed by Pastor Makibalo in favor of Alberto Yabo on
April 23, 1970, further proves this point, since the latter
merely bought back what was previously sold, his father's
share in Lot 6180. 22
The respondent court then concluded and held as follows:
In summary, appellee Pastor Makibalo and his assigns, the
spouses Eulogio and Remedios Salvador, are entitled only
to one-half () of the one-ninth (1/9) share of Maria and
three-fourths (3/4) of the six-ninth (6/9) shares acquired
from Basiliza, Victoriano, Jose, Lope, Pelagia and Francisca.
Accordingly, the partition should be done as follows:

(3) 1/9 of Lot 6080 should be given to the

heirs of Procopio Yabo and their successors
end assigns, including Alberto Yabo;
(4) The 1/9 share of Maria Yabo in Lots
6080 and 6180 should be partitioned: Onehalf (1/2) for the surviving spouse Pastor
Makibalo (now the spouses Eulogio
Salvador and Remedios Salvador) and the
other half for the children of the brothers
and sisters of Maria Yabo in equal shares.
(5) The remaining 6/9, one-half (1/2) of
which is conjugal between Maria Yabo and
appellee Pastor Makibalo should be
partitioned three-fourths (3/4) for Pastor
Makibalo (now the spouses Eulogio
Salvador and Remedios Salvador) and onefourth (1/4) for the children of the brothers
and sisters of Maria Yabo in equal shares.
(6) Jose Yabo if he is still alive should
participate in the partition as heir of Maria
otherwise he shall be represented by his
children.
WHEREFORE, premises considered, subject to the
modification in the partition, as indicated above, the
decision
appealed
from
is
AFFIRMED,
without
pronouncement as to costs. The lower court is directed if
necessary to fully effect the partition, to conduct further
hearings and determine whether Jose Yabo is still alive and
who are the children of the brothers and sisters of Maria
Yabo. 23
Unable to obtain a reconsideration of the said-decision, Remedios Salvador,
together with her daughter, Ma. Gracia Salvador, as one of the successorsin-interest of Eulogio M. Salvador who died during the pendency of the
appeal, 24 elevated the case to this Court contending that the respondent
court erred in ruling that: (1) the shares of Pelagia Yabo should be included
in the partition; (2) prescription and laches have not run against the
private respondents in relation to the 1/9 share of Maria Yabo in the estate

of her father and to her conjugal share in those acquired by purchase;

(3) Procopio Yabo never sold to Pastor Makibalo his share in Lot No. 6080;
and(4) Jose Yabo should be allowed to participate as heir of Maria even as
he had openly rejected this option by refusing to participate in both civil
cases. 25
Article 160 of the Civil Code provides that all property of the marriage is
presumed to belong to the conjugal partnership, unless it be proved that it
pertains .exclusively to the husband or to the wife. Since the shares of
Jose, Victoriano, Lope, Baseliza, Procopio, and Francisca in Lot No. 6180
and Lot No. 6080 had been purchased by Pastor during his marriage with
Maria, and there is no proof that these were acquired with his exclusive
money, the same are deemed conjugal properties. Not forming part of the
conjugal partnership are: (1) the 1/9 share inherited by Maria which
remained as her exclusive property pursuant to Article 146 (2) of the Civil
Code; (2) the 1/9 share of Gaudencia which was not sold to Pastor; and (3)
the 1/9 share of Pelagia which was acquired by Pastor in 1967 or five years
after the death of his wife and which was therefore his exclusive property.
There is, thus; merit in the petitioners' first assigned error. The Court of
.Appeals should have excluded from the conjugal partnership the share of
Pelagia which Pastor had acquired after his wife's death.
Upon Maria's death in 1962, the conjugal partnership of gains was
dissolved. 26 Half of the conjugal properties, together with Maria's l/9
hereditary share in the disputed lots, constituted Maria's estate and should
thus go to her surviving heirs. 27 Under Article 1001 of the Civil Code, her
heirs are her spouse, Pastor Makibalo, who shall be entitled to-one-half
(1/2) of her estate, her brother, Jose, and the children of her other brothers
and sisters, who shall inherit the other half. There having been no actual
partition of the estate yet, the said heirs became co-owners thereof by
operation of law. 28
We now determine whether prescription and laches can be applied against
the co-heirs of Pastor Makibalo.
It has been said that Article 494 of the Civil Code which provides that each
co-owner may demand at any time the partition of the common property
implies that an action to demand partition is imprescriptible or cannot be
barred by laches. 29 The imprescriptibility of the action cannot, however, be
invoked when one of the co-owners has possessed the property as
exclusive owner and for a period sufficient to acquire it by prescription. 30
What needs to be addressed first is whether or not Pastor Makibalo has
acquired by prescription the shares of his other co-heirs or co-owners.
Prescription as a mode of acquiring ownership requires a continuous, open,
peaceful, public, and adverse possession for a period of time fixed by law.

This Court has held that the possession of a co-owner is like that of a
trustee and shall not be regarded as adverse to the other co-owners but in
fact as beneficial to all of them. 31 Acts which may be considered adverse
to strangers may not be considered adverse insofar as co-owners are
concerned. A mere silent possession by a co-owner, his receipt of rents,
fruits or profits from the property, the erection of buildings and fences and
the planting of trees thereon, and the payment of land taxes, cannot serve
as proof of exclusive ownership, if it is not borne out by clear and
convincing evidence that he exercised acts of possession which
unequivocably constituted an ouster or deprivation of the rights of the
other co-owners. 32
Thus, in order that a co-owner's possession may be deemed adverse to
the cestui que trust or the other co-owners, the following elements must
concur: (1) that he has performed unequivocal acts of repudiation
amounting to an ouster of the cestui que trust or the other co-owners; (2)
that such positive acts of repudiation have been made known to the cestui
que trust or the other co-owners; and (3) that the evidence thereon must
be clear and convincing. 33
In Pangan vs. Court of Appeals, 34 this Court had occasion to lay down
specific acts which are considered as acts of repudiation:
Filing by a trustee of an action in court against the trustor
to quiet title to property, or for recovery of ownership
thereof, held in possession by the former, may constitute
an act of repudiation of the trust reposed on him by the
latter.
The issuance of the certificate of title would constitute an
open and clear repudiation of any trust, and the lapse of
more than 20 years, open and adverse possession as
owner would certainly suffice to vest title by prescription.
An action for the reconveyance of land based on implied or
constructive trust prescribes within 10 years. And it is from
the date of the issuance of such title that the effective
assertion of adverse title for purposes of the statute of
limitation is counted.
The prescriptive period may only be counted from the time
petitioners repudiated the trust relation in 1955 upon
the filing
of
the
complaint
for
recovery
of
possession against private respondents so that the
counterclaim of the private respondents contained in their
amended answer wherein they asserted absolute
ownership of the disputed realty by reason of the
continuous and adverse possession of the same is well
within the l0-year prescriptive period.

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

apparent administrator of property causes the cancellation
of the title thereto in the name of the apparent
beneficiaries and gets a new certificate of title in his own
name.
It is only when the defendants, alleged co-owners of the
property in question, executed a deed of partition and on
the strength thereof obtained the cancellation of the title in
the name of their predecessor and the issuance of a new
one wherein they appear as the new owners of a definite
area each, thereby in effect denying or repudiating the
ownership of one of the plaintiffs over his alleged share in
the entire lot, that the statute of limitations started to run
for the purposes of the action instituted by the latter
seeking a declaration of the existence of the co-ownership
and of their rights thereunder.
The records do not show that Pastor Makibalo adjudicated to himself the
whole estate of his wife by means of an affidavit filed with the Office of the
Register of Deeds as allowed under Section 1 Rule 74 of the Rules of Court,
or that he caused the issuance of a certificate of title in his name or the
cancellation of the tax declaration in Alipio's name and the issuance of a
new one in his own name. The only act which may be deemed as a
repudiation by Pastor of the co-ownership over the lots is his filing on 28
April 1976 of an action to quiet title (Civil Case No. 5000). The period of
prescription started to run only from this repudiation. However, this was
tolled when his co-heirs, the private respondents herein, instituted on 8
October 1976 an action for partition (Civil Case No. 5174) of the lots.
Hence, the adverse possession by Pastor being for only about six months
would not vest in him exclusive ownership of his wife's estate, and absent
acquisitive prescription of ownership, laches and prescription of the action
for partition will not lie in favor of Pastor. 35
The issue presented by the petitioners in their third assigned error involves
a question of fact. This Court is not ordinarily a trier of facts, its jurisdiction
being limited to errors of law. Thus; the findings of facts of the Court of
Appeals are as a rule deemed conclusive. However, when the findings of
facts of the appellate court vary with those of the trial court, this Court has
to review the evidence in order to arrive at the correct findings. 36
In the instant case, a conflict in the findings of facts of the lower courts
exists. The trial court found that Pastor was the owner of Procopio's share
in Lot No. 6080, as there was nothing to show that he sold it back to
Alberto Yabo. The respondent court on the other hand, held that Procopio
Yabo never sold his share in Lot No. 6080 to pastor, thus, there was no
need to convey it back to Procopio's son, Alberto.

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

Pastor Makibalo:
COURT: (To the witness.)
Q Where is AlbertoYabo living?
A It is there in their house at Bulua.
ATTY. JARAULA: (Continuing.)
Q In whose land?
A Alipio Yabo's land.
Q What relation has that land to the two (2)
parcels of land under litigation?
A I bought already.
Q So, will you please tell the Honorable
Court, why Alberto Yabo is staying on that
land when you said you have bought that
land already.
A So, I sold back a portion to them because
they requested me.
COURT: (To the witness.)
Q When was that when you said that
Alberto Yabo requested a portion?
A In 1967.
COURT:
Q Did you give that portion which they
requested?
A Their share being inherited from their
father Procopio was the portion they
requested.
COURT

Q Yes. Did you grant that?

A Yes.
Q That is the area you sold to Alberto Yabo,
pursuant to his request?
A Because that was the land they inherited
from their father that was what they
requested.
Q All right. So that, the area now being
occupied by Alberto Yabo?
A Yes. That land in the Centro.
Q This is now identified as Lot No. 6180?
A Yes, Your Honor.
ATTY. JARAULA: (Continuing.)
Q Where did you sign a document ceding
that portion requested by Alberto Yabo?
A We did not make any receipt in favor of
AlbertoYabo because they got only the
receipt of that of his father.

Q Now, for how much did you buy. the

shares of each of the brothers and sisters
of your wife?
A One Hundred Ten (P110.00) Pesos.
Q When you sold back to Alberto Yabo, the
portion corresponding to the share of his
father Procopio in the Poblacion, how much
did he pay you?
A The same.
Q By the same, you are referring by the
same amount of One Hundred Ten
(P110.00) Pesos?
A Yes, Sir. The same amount.

37

The petitioners contend that the sales or conveyances made by Alipio's

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

Q You mean to say, that the receipt which

Procopio signed when he sold his share for
[sic] the document which Alberto got?

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

A Yes.

Now on the fourth assigned error.

COURT:

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

COURT: (To the witness.)

All right.
ATTY. JARAULA (Continuing.)

It must be recalled that in Civil Case No. 5174 the private respondents
sought the partition of the two lots based on the co-ownership which arose
from the right of succession to Alipio's estate. Since Jose Yabo confirmed,
through his thumbmark in the verification of the complaint, that he had
already parted with his share in Alipio's estate, he in effect admitted that
he had ceased to be a co-owner of the two lots which comprised his
father's estate. Thus, his non-joinder as a party-plaintiff in the complaint
would appear to be proper. He does not, as well, appear to be an
indispensable party in Civil Case No. 5000.
As it turned out, however, the evidence and the issues which cropped up
rendered imperative the determination of the conjugal assets of Pastor
Makibalo and Maria Yabo and the partition of the latter's estate among her
heirs. Her estate consists of one-half() of the conjugal properties, which
should then be divided pursuant to Article 1001 of the Civil Code since the
marriage produced no child; thus: one-half () to Pastor, and the other half
to her brother Jose, and to her nephews and nieces.
Insofar as the partition of Maria Yabo's estate is concerned, Jose is an
indispensable party. Strictly, the rule on indispensable parties may bar a
partition of Maria's estate. Considering, however, that such estate or its
partition are but incidents in Civil Case No. 5000 and Civil Case No. 5174,
and the parties have not offered any objection to the propriety of the
determination and partition of her estate, then in the light of Section 11 of
Rule 3 41 and Sections 1 and 5, Rule 10 42 of the Rules of Court, and
following the rulings of this Court in the 1910 case of Alonso vs.
Villamor 43 and the 1947 case of Cuyugan vs. Dizon, 44 an amendment of
the complaint in Civil Case No. 5174 to implead Jose Yabo as party plaintiff
would be in order.
In Alonso, it was held that under Section 110 of the Code of Civil Procedure
whose first paragraph is substantially the same as the aforesaid Section
1 of Rule 10 and Section 503 thereof, this Court "has full power, apart
from that power and authority which is inherent, to amend the process,
pleadings, proceedings, and decision in this case by substituting, as party
plaintiff, the real party in interest." Our ruling in Cuyugan states:
We, however, do not believe that the case should be
dismissed for plaintiff's failure to join her husband. (Sec.
11, Rule 2, Rules of Court). Nor should the case be
remanded to the court below and a new trial ordered on
this account. The complaint may and should be amended
here, to cure the defect of party plaintiffs, after final
decision is rendered. Section 11, Rule 2, and Section 2,
Rule 17, explicitly authorize such procedure. As this Court
had occasion to say in Quison vs. Salud, (12 Phil., 109,
116), "a second action would be but a repetition of the first
and would involve both parties, plaintiffs and defendant, in
much additional expense and would cause much delay, in
that way defeating the purpose of the section, which is

expressly stated to be "that the actual merits of the

controversy may speedily be determined without regard to
technicalities and in the most expeditious and inexpensive
manner." (See also Diaz vs. De la Rama, 73 Phil., 104)
To avoid further delay in the disposition of this case, we declare Civil Case
No. 5174 as thus duly amended. Consequently, Jose Yabo may participate
in the partition of the estate of Maria Yabo. The fourth assigned error must
then be rejected.
In view of the foregoing disquisitions, the appealed judgment should be
modified as follows: (a) the former 1/9 share of Pelagia Yabo in Lots No.
6180 and 6080 which she sold to Pastor should be treated as the latter's
exclusive property which should now pertain to the petitioners, his
successors-in-interest; and (b) the former 1/9 share of Procopio Yabo in
both lots should be divided as follows: 3/4 (respondent Pastor's 1/2
conjugal share and 1/4 representing his share therein as Maria's heir) for
the spouses Alberto and Elpia Yabo, and 1/4 (representing the share therein
of Maria's collateral relatives as Maria's heirs) for the private respondents,
including Alberto and Jose Yabo. The partition of the two lots in controversy
should therefore be made in this wise:
(1) 1/9 share of Gaudencia Yabo should be allotted to her
heirs or successors-in-interest;
(2) 1/9 share formerly belonging to Pelagia Yabo to the
petitioners as successors-in-interest of Pastor Makibalo;
(3) 1/9 hereditary share of Maria Yabo to be divided as
follows:
(a) 1/2 for the petitioners (as successors-ininterest of Pastor Makibalo), and
(b) 1/2 for the private respondents,
including Jose Yabo or his heirs;
(4) 1/9 share formerly belonging to Procopio Yabo to be
divided thus:
(a) 3/4 for Spouses Alberto and Elpia Yabo,
and
(b) 1/4 for the other private respondents,
including Jose Yabo or his heirs;

(5) 5/9 shares which became the conjugal properties of

Pastor Makibalo and Maria Yabo to be divided thus:
(a) 3/4 for the petitioners (as successors-ininterest of Pastor Makibalo), and
(b) for the private respondents, including
Jose Yabo or his heirs.
In sum, Lots Nos. 6180 anid 6080 should be partitioned as follows:
1/9 or 4/36 to Guadencia Yabo's heirs or successors-ininterest;
3/4 of 1/9 or 3/36 to the spouses Alberto and Elpina
Yabo;
8/36 to the private respondents, including Jose Yabu or
his heirs;
21/36 to the petitioners as successors-in-interest of
Pastor Makibalo.
WHEREFORE, the challenged decision of the Court of Appeals of 8 February
1993 in CA-G.R. CV No. 12839 is AFFIRMED, subject to the modifications
indicated above. Upon the finality of this decision, let this case be forthwith
remanded to the court a quo for further proceedings on the partition of
Lots Nos. 6180 and 6080 in conformity with this decision.
No pronouncement as to costs.
SO ORDERED.
FIRST DIVISION
CELERINO E. MERCADO,
Petitioner,

G.R. No. 184109

Present:

- versus -

BELEN* ESPINOCILLA* AND

CORONA, C.J.,
Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.
Promulgated:

February 1, 2012
FERDINAND ESPINOCILLA,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x
DECISION
VILLARAMA, JR., J.:
The case
Petitioner Celerino E. Mercado appeals the Decision [1] dated April 28, 2008
and Resolution[2] dated July 22, 2008 of the Court of Appeals (CA) in CAG.R. CV No. 87480. The CA dismissed petitioners complaint [3] for recovery
of possession, quieting of title, partial declaration of nullity of deeds and
documents, and damages, on the ground of prescription.
The antecedent facts
Doroteo Espinocilla owned a parcel of land, Lot No. 552, with an area of
570 sq. m., located at Magsaysay Avenue, Zone 5, Bulan, Sorsogon. After
he died, his five children, Salvacion, Aspren, Isabel, Macario, and Dionisia
divided Lot No. 552 equally among themselves. Later, Dionisia died without
issue ahead of her four siblings, and Macario took possession of Dionisias
share. In an affidavit of transfer of real property [4] dated November 1,
1948, Macario claimed that Dionisia had donated her share to him in May
1945.
Thereafter, on August 9, 1977, Macario and his daughters Betty Gullaba
and Saida Gabelo sold[5] 225 sq. m. to his son Roger Espinocilla, husband of
respondent Belen Espinocilla and father of respondent Ferdinand
Espinocilla. On March 8, 1985, Roger Espinocilla sold [6] 114 sq. m. to
Caridad Atienza. Per actual survey of Lot No. 552, respondent Belen
Espinocilla occupies 109 sq. m., Caridad Atienza occupies 120 sq. m.,
Caroline Yu occupies 209 sq. m., and petitioner, Salvacion's son, occupies
132 sq. m.[7]
The case for petitioner
Petitioner sued the respondents to recover two portions: an area of
28.5[8] sq. m. which he bought from Aspren and another 28.5 sq. m. which
allegedly belonged to him but was occupied by Macarios house. [9] His claim
has since been modified to an alleged encroachment of only 39 sq. m. that
he claims must be returned to him. He avers that he is entitled to own and
possess 171 sq. m. of Lot No. 552, having inherited 142.5 sq. m. from his
mother Salvacion and bought 28.5 sq. m. from his aunt Aspren. According
to him, his mothers inheritance is 142.5 sq. m., that is, 114 sq. m. from
Doroteo plus 28.5 sq. m. from Dionisia. Since the area he occupies is only
132 sq. m.,[10] he claims that respondents encroach on his share by 39 sq.
m.[11]

The case for respondents

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

c) To effect an effective and real partition among the

heirs for purposes of determining the exact
location of the share (114 sq. m.) of the late
Dionisia Espinocilla together with the 28.5 sq.
m. belonging to [petitioners] mother Salvacion, as
well as, the exact location of the 39 sq. m. portion
belonging to the [petitioner] being encroached by
the [respondents], with the assistance of the
Commissioner (Engr. Fundano) appointed by this
court.

The trial courts decision

On May 15, 2006, the Regional Trial Court (RTC) ruled in favor of petitioner
and held that he is entitled to 171 sq. m. The RTC found that petitioner
inherited 142.5 sq. m. from his mother Salvacion and bought 28.5 sq. m.
from his aunt Aspren. The RTC computed that Salvacion, Aspren, Isabel and
Macario each inherited 142.5 sq. m. of Lot No. 552.Each inherited 114 sq.
m. from Doroteo and 28.5 sq. m. from Dionisia. The RTC further ruled that
Macario was not entitled to 228 sq. m. Thus, respondents must return 39
sq. m. to petitioner who occupies only 132 sq. m. [13]
There being no public document to prove Dionisias donation, the RTC also
held that Macarios 1948 affidavit is void and is an invalid repudiation of the
shares of his sisters Salvacion, Aspren, and Isabel in Dionisias
share. Accordingly, Macario cannot acquire said shares by prescription. The
RTC further held that the oral partition of Lot No. 552 by Doroteos heirs did
not include Dionisias share and that partition should have been the main
action. Thus, the RTC ordered partition and deferred the transfer of
possession of the 39 sq. m. pending partition. [14] The dispositive portion of
the RTC decision reads:
WHEREFORE, in view of the foregoing premises, the
court issues the following ORDER, thus a) Partially declaring the nullity of the Deed of Absolute
Sale of Property dated August 9, 1977 x x x
executed by Macario Espinocilla, Betty E. Gullaba
and Saida E. Gabelo in favor of Roger Espinocilla,
insofar as it affects the portion or the share
belonging to Salvacion Espinocilla, mother of
[petitioner,] relative to the property left by Dionisia
Espinocilla, including [Tax Declaration] No. 13667
and other documents of the same nature and
character which emanated from the said sale;
b) To leave as is the Deeds of Absolute Sale of May 11,
1983 and March 8, 1985, it having been
determined that they did not involve the portion
belonging to [petitioner] x x x.

d) To hold in abeyance the transfer of possession of

the 39 sq. m. portion to the [petitioner] pending
the completion of the real partition abovementioned.[15]
The CA decision
On appeal, the CA reversed the RTC decision and dismissed petitioners
complaint on the ground that extraordinary acquisitive prescription has
already set in in favor of respondents. The CA found that Doroteos four
remaining children made an oral partition of Lot No. 552 after Dionisias
death in 1945 and occupied specific portions. The oral partition terminated
the co-ownership of Lot No. 552 in 1945. Said partition also included
Dionisias share because the lot was divided into four parts only. And since
petitioners complaint was filed only on July 13, 2000, the CA concluded
that prescription has set in.[16] The CA disposed the appeal as follows:
WHEREFORE, the appeal is GRANTED. The assailed May 15,
2006 Decision of the Regional Trial Court (RTC) of Bulan,
Sorsogon is hereby REVERSED and SET ASIDE. The
Complaint of the [petitioner] is hereby DISMISSED. No
costs.[17]
The instant petition
The core issue to be resolved is whether petitioners action to recover the
subject portion is barred by prescription.
Petitioner confirms oral partition of Lot No. 552 by Doroteo's heirs, but
claims that his share increased from 114 sq. m. to 171 sq. m. and that
respondents encroached on his share by 39 sq. m. Since an oral partition is
valid, the corresponding survey ordered by the RTC to identify the 39 sq.
m. that must be returned to him could be made. [18] Petitioner also alleges
that Macario committed fraud in acquiring his share; hence, any evidence
adduced by him to justify such acquisition is inadmissible. Petitioner
concludes that if a person obtains legal title to property by fraud or
concealment, courts of equity will impress upon the title a so-called
constructive trust in favor of the defrauded party.[19]
The Courts ruling

We affirm the CA ruling dismissing petitioners complaint on the ground of

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

years from the time the right of action accrues. [24] This is the other kind of
prescription under the Civil Code, called extinctive prescription, where
rights and actions are lost by the lapse of time. [25]Petitioners action for
recovery of possession having been filed 55 years after Macario occupied
Dionisias share, it is also barred by extinctive prescription. The CA while
condemning Macarios fraudulent act of depriving his three sisters of their
shares in Dionisias share, equally emphasized the fact that Macarios sisters
wasted their opportunity to question his acts.
WHEREFORE, we DENY the petition for review on certiorari for lack of
merit and AFFIRM the assailed Decision dated April 28, 2008 and
Resolution dated July 22, 2008 of the Court of Appeals in CA-G.R. CV No.
87480.
No pronouncement as to costs.

Here, petitioner himself admits the adverse nature of respondents

possession with his assertion that Macarios fraudulent acquisition of
Dionisias share created a constructive trust.In a constructive trust, there is
neither a promise nor any fiduciary relation to speak of and the so-called
trustee (Macario) neither accepts any trust nor intends holding the
property for the beneficiary (Salvacion, Aspren, Isabel). The relation of
trustee and cestui que trust does not in fact exist, and the holding of a
constructive trust is for the trustee himself, and therefore, at all times
adverse.[21] Prescription may supervene even if the trustee does not
repudiate the relationship.[22]
Then, too, respondents uninterrupted adverse possession for 55 years of
109 sq. m. of Lot No. 552 was established. Macario occupied Dionisias
share in 1945 although his claim that Dionisia donated it to him in 1945
was only made in a 1948 affidavit. We also agree with the CA that Macarios
possession of Dionisias share was public and adverse since his other coowners, his three other sisters, also occupied portions of Lot No.
552. Indeed, the 1977 sale made by Macario and his two daughters in
favor of his son Roger confirms the adverse nature of Macarios possession
because said sale of 225 sq. m.[23] was an act of ownership over Macarios
original share and Dionisias share. In 1985, Roger also exercised an act of
ownership when he sold 114 sq. m. to Caridad Atienza. It was only in the
year 2000, upon receipt of the summons to answer petitioners complaint,
that respondents peaceful possession of the remaining portion (109 sq. m.)
was interrupted. By then, however, extraordinary acquisitive prescription
has already set in in favor of respondents. That the RTC found Macarios
1948 affidavit void is of no moment. Extraordinary prescription is
unconcerned with Macarios title or good faith. Accordingly, the RTC erred in
ruling that Macario cannot acquire by prescription the shares of Salvacion,
Aspren, and Isabel, in Dionisias 114-sq. m. share from Lot No. 552.
Moreover, the CA correctly dismissed petitioners complaint as an action for
reconveyance based on an implied or constructive trust prescribes in 10

SO ORDERED.