NILO MERCADO vs.

CA and AUREA
MERCADO
G.R. No. 108952 January 26, 1995
___________________________
FACTS
Aurea seeks partition and
reconveyance to her of one-half of a real
property in QC, registered in the name of
Nilo. Aurea is legitimate sister. Before she
left for US in 1964 she gave her brother
money to buy this lot but she was not
given any receipt.
Nilo testified that the lot was bought
out of his money and a portion borrowed
from Aurea which he used to pay the
downpayment. The rest was through SSS.
It was however foreclosed by SSS. Then
he redeemed the property, got a certificate
of redemption after the cancellation of the
mortgage with SSS.
As proof of his ownership, he has
the tax declaration, TCT and real property
tax bill receipts.
ISSUES
Who owns the property?
Whether the mortgage of the
subject property to the SSS, its foreclosure
and subsequent redemption by the
petitioner extinguished private
respondent's co-ownership.
HELD
The subject property is co-owned by
Nilo and Aurea. This finding is based on
the admission made by petitioner himself
in his Affidavit: xxx That I am the co-owner
of the land, with my sister Aurea. This
affidavit is high quality evidence.
Second ISSUE: Pursuant to Art.
493, a co-owner has the right to alienate
his pro-indiviso share in the co-owned
property even without the consent of the
other co-owners. Nevertheless, as a mere
part owner, he cannot alienate the shares
of the other co-owners. The prohibition is
premised on the elementary rule that "no
one can give what he does not have.
(Nemo dat quod non habet).
Thus, in Bailon-Casilao vs. CA:

. . . since a co-owner is entitled to

sell his undivided share, a sale of the
entire property by one-co-owner without
the consent of the other co-owners is not
null and void. However, only the rights of
the co-owner-seller are transferred,
thereby making the buyer a co-owner of
the property.
The proper action in cases like this
is not for the nullification of the sale or for
the recovery of possession of the thing
owned in common from the third person
who substituted the co-owner or co-owners
who alienated their shares, but the
DIVISION of the common property of the
co-owners who possessed and
administered it.
In the case at bench, the petitioner
borrowed money from SSS and mortgaged
the subject property without the knowledge
and consent of his co-owner. Necessarily,
Aurea could not have helped in the
payment of loan nor could she have
redeemed it. In other words, Aurea did not
voluntary relinquish at any period of time
her pro-indiviso share in the subject
property.
Petition denied.

RESTITUTO and Jesus CENIZA and

JESUS CENIZA vs. CA
G.R. No. L-46345 January 30, 1990
______________________________
FACTS
Review of CA order in "Restituto
Ceniza, et al. vs. Magno Dabon, et al.,"
dismissing the petitioners' complaint for
reconveyance of their shares in coownership property and reversing the
decision of the trial court in their favor.
Petitioners filed against private
respondents, an action in CFI for recovery
of their title, which originally formed part of
"Hacienda de Mandaue" of the Seminario
de San Carlos de Cebu, covered by
reconstituted OCT in the name of "Vicente
Dabon married to Marcela [or Marcelina]
Ceniza."
Petitioners are descendants of
Manuel Ceniza while the private
respondents are the descendants of his
sister, Sofia Ceniza. Sofia Ceniza was
childless but had an adopted daughter
Flaviana Ceniza, who begot a daughter
named Marced Ceniza and who in turn
had a daughter named Marcelina (or
Marcela) Ceniza who married Vicente
Dabon.
Private respondents are the children
of this marriage and they are the greatgreat-grandchildren of Sofia Ceniza.
On the other hand, Manuel Ceniza had an
only son, Pablo, who had two sons,
Santiago and Jose Ceniza. Petitioners
Restituto and Jesus Ceniza and a certain
Nemesia Ceniza-Albina are their children
and the great-grandchildren of Manuel
Ceniza.
When Hacienda de Mandaue was
subdivided for resale to the occupants in
1929, Jose Ceniza and Vicente Dabon
jointly purchased the lot and agreed, for
convenience, to have the land registered in
the name of Dabon. Since then, Jose
Ceniza, Vicente Dabon, and their heirs
have possessed their respective portions
of the land, declared the same for taxation,
paid real estate taxes on their respective
shares, and made their respective
installment payments to the Seminario.

After Dabon died, his 7 children

succeeded to his possession of a portion
of the land. On the request of Jacinta
Dabon and Restituto Ceniza, the lot was
divided into 3 parts: that for Marcela
Ceniza; that for Restituto Ceniza; and
that for Nemesia Ceniza-Albina, who later
bequeathed her share to her brother,
Jesus Ceniza.
The present controversy arose
because the private respondents refused
to convey the last two lots to the
petitioners. They claimed that their
predecessor-in-interest, Vicente Dabon,
was the sole and exclusive owner of the
lot, by purchase from the Seminario. In
their answer to the petitioners' complaint
for reconveyance, they alleged that the
petitioners' right of action had already
prescribed.
Petitioners replied that Vicente
Dabon held the land in trust for them, as
co-owners, hence, their action for
reconveyance was imprescriptible.
CFI rendered judgment for the
petitioners finding that there existed a coownership among the parties. It ordered
the private respondents to execute deeds
of conveyance of the two lots in favor of
Restituto and Jesus Ceniza.
On appeal, CA reversed CFI saying
that petitioners' right of action had
prescribed after the lapse of 20 years from
the date of registration of the land in
Vicente Dabon's name.
Hence, this petition.
ISSUE
Whether or not the registration of
the title of the land in the name of one of
the co-owners, constituted a repudiation of
the co-ownership for purposes of
acquisitive prescription.
HELD
Yes.
CFI correctly ruled that since a trust
relation and co-ownership were proven to
exist between the predecessors- in-interest
of petitioners and private respondents,
prescription did not run in favor of Dabon's
heirs except from the time that they

repudiated the co-ownership and made the

repudiation known to the other co-owners,
Restituto and Jesus Ceniza.
Article 494: No prescription shall run
in favor of a co-owner or co-heir against
his co-owners or co-heirs so long as he
expressly or impliedly recognizes the coownership.
The registration in the name of Vicente
Dabon created a trust in favor of his coowner Jose Ceniza, and the latter's heirs.
Article 1452: If two or more persons agree
to purchase property and common consent
the legal title is taken in the name of one of
them for the benefit of all, a trust is created
by force of law in favor of the others in
proportion to the interest of each.
The trustee's possession is not
adverse and therefore cannot ripen into a
title by prescription. Adverse possession
requires the concurrence of the following
circumstances:
a) that the trustee has performed
unequivocal acts of repudiation amounting
to the ouster of the cestui que trust;
b) that such positive acts of repudiation
have been made known to the cestui que
trust; and
c) that the evidence thereon should be
clear and conclusive.
The above elements are not present
here. In Custodio v. Casiano:
Where title to land was issued in the
name of a co-heir merely with the
understanding that he would act as a
trustee of his sisters, and there is no
evidence that this trust relation had ever
been repudiated by said trustee, it is held
that a reaction of co-ownership existed
between such trustee and his sisters and
the right of the successors-in-interest of
said sisters to bring the present action for
recovery of their shares therein against the
successors-in-interest of said trustee
cannot be barred by prescription.