Property Aug 17, 2015 Orig

PROPERTY AUGUST 17, 2015 1
G.R. No. 75884 September 24, 1987

JULITA GO ONG, FOR HERSELF AND AS JUDICIAL GUARDIAN OF
STEVEN
GO
ONG, petitioners,
vs.
THE HON. COURT OF APPEALS, ALLIED BANKING CORPORATION and
the CITY SHERIFF OF QUEZON CITY, respondents.
PARAS, J.:
This is a petition for review on certiorari of the March 21, 1986 Decision * of the
Court of Appeals in AC-G.R. CV No. 02635, "Julita Ong etc. vs. Allied Banking
Corp. et al." affirming, with modification, the January 5, 1984 Decision of the
Regional Trial Court of Quezon City in Civil Case No. Q-35230.
The uncontroverted facts of this case, as found by the Court of Appeals, are as
follows:
...: Two (2) parcels of land in Quezon City Identified as Lot No.
12, Block 407, Psd 37326 with an area of 1960.6 sq. m. and Lot
No. 1, Psd 15021, with an area of 3,660.8 sq. m. are covered by
Transfer Certificate of Title No. 188705 in the name of "Alfredo
Ong Bio Hong married to Julita Go Ong "(Exh. D). Alfredo Ong
Bio Hong died on January 18, 1975 and Julita Go Ong was
appointed administratrix of her husband's estate in Civil Case No.
107089. The letters of administration was registered on TCT No.
188705 on October 23, 1979. Thereafter, Julita Go Ong sold Lot
No. 12 to Lim Che Boon, and TCT No. 188705 was partially
cancelled and TCT No. 262852 was issued in favor of Lim Che
Boon covering Lot No. 12 (Exh. D-4). On June 8, 1981 Julita Go
Ong through her attorney-in-fact Jovita K. Yeo (Exh. 1) mortgaged
Lot No. 1 to the Allied Banking Corporation to secure a loan of
P900,000.00 obtained by JK Exports, Inc. The mortgage was
registered on TCT No. 188705 on the same date with the following
notation: "... mortgagee's consent necessary in case of subsequent
alienation or encumbrance of the property other conditions set
forth in Doc. No. 340, Page No. 69, Book No. XIX, of the
Not.Public of Felixberto Abad". On the loan there was due the sum
of P828,000.00 and Allied Banking Corporation tried to collect it
from Julita Go Ong, (Exh. E). Hence, the complaint alleging
nullity of the contract for lack of judicial approval which the bank
had allegedly promised to secure from the court. In response
thereto, the bank averred that it was plaintiff Julita Go Ong who
promised to secure the court's approval, adding that Julita Go Ong
informed the defendant that she was processed the sum of
P300,000.00 by the JK Exports, Inc. which will also take charge of
the interest of the loan.
Concluding, the trial court ruled:
Absent (of) any evidence that the property in
question is the capital of the deceased husband
brought into the marriage, said property should
be presumed as acquired during the marriage
and, therefore, conjugal property,
After the dissolution of the marriage with the
death of plaintiff's husband, the plaintiff
acquired, by law, her conjugal share, together
with the hereditary rights thereon. (Margate vs.
Rabacal,
L-14302,
April
30,
1963).
Consequently, the mortgage constituted on said
property, upon express authority of plaintiff,
notwithstanding the lack of judicial approval, is
valid, with respect to her conjugal share thereon,
together with her hereditary rights.
On appeal by petitioner, respondent Court of Appeals affirmed, with modification,
the appealed decision (Record, pp. 19-22). The dispositive portion of the appellate
court's decision reads:
WHEREFORE, with the modification that the extrajudicial
foreclosure proceedings instituted by defendant against plaintiff
shall be held in abeyance to await the final result of Civil Case No.

107089 of the Court of First Instance of Manila, 6th Judicial
District Branch XXXII, entitled "IN THE MATTER OF THE
INTESTATE ESTATE OF THE LATE ALFREDO ONG BIO:
JULITA GO ONG, ADMINISTRATRIX". In pursuance with
which the restraining order of the lower court in this case
restraining the sale of the properties levied upon is hereby ordered
to continue in full force and effect coterminous with the final result
of Civil Case No. 107089, the decision appealed from is hereby
affirmed. Costs against plaintiff-appellant.
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.
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. 617).
The Second Division of this Court, in a Resolution dated November 19, 1986 (Rollo,
p. 30), without giving due course to the petition, resolved to require private
respondent to comment thereon and it did on February 19, 1987 (Ibid., pp. 37-42).
Thereafter, in a Resolution dated April 6, 1987, the petition was given due course
and the parties were required to file their respective memoranda (Ibid., p. 43).
Petitioner filed her Memorandum on May 13, 1987 (Ibid., pp. 45-56), while private
respondent filed its Memorandum on May 20, 1987 (Ibid., pp. 62-68).
The sole issue in this case is
WHETHER OR NOT THE MORTGAGE CONSTITUTED OVER THE PARCEL
OF LAND UNDER PETITIONER'S ADMINISTRATION IS NULL AND VOID
FOR WANT OF JUDICIAL APPROVAL.
The instant petition is devoid of merit.
The well-settled rule that the findings of fact of the trial court are entitled to great
respect, carries even more weight when affirmed by the Court of Appeals as in the
case at bar.
While petitioner's assertion may have merit insofar as the rest of the estate of her
husband is concerned the same is not true as regards her conjugal share and her
hereditary rights in the estate. The records show that petitioner willingly and
voluntarily mortgaged the property in question because she was processed by JK
Exports, Inc. the sum of P300,000.00 from the proceeds of the loan; and that at the
time she executed the real estate mortgage, there was no court order authorizing the
mortgage, so she took it upon herself, to secure an order.
Thus, in confirming the findings of the lower court, as supported by law and the
evidence, the Court of Appeals aptly ruled that Section 7 of Rule 89 of the Rules of
Court is not applicable, since the mortgage was constituted in her personal capacity
and not in her capacity as administratrix of the estate of her husband.
Nevertheless, petitioner, citing the cases of Picardal, et al. vs. Lladas (21 SCRA
1483) and Fernandez, et al. vs. Maravilla (10 SCRA 589), further argues that in the
settlement proceedings of the estate of the deceased spouse, the entire conjugal
partnership property of the marriage is under administration. While such may be in a
sense true, that fact alone is not sufficient to invalidate the whole mortgage, willingly
and voluntarily entered into by the petitioner. An opposite view would result in an
injustice. Under similar circumstances, this Court applied the provisions of Article
493 of the Civil Code, where the heirs as co-owners shall each have the full
ownership of his part and the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even effect of the alienation or
mortgage, with respect to the co-owners, shall be limited to the portion which may
be allotted to him in the division upon the termination of the co-ownership
(Philippine National Bank vs. Court of Appeals, 98 SCRA 207 [1980]).

Consequently, in the case at bar, the trial court and the Court of Appeals cannot be
faulted in ruling that the questioned mortgage constituted on the property under
administration, by authority of the petitioner, is valid, notwithstanding the lack of
judicial approval, with respect to her conjugal share and to her hereditary rights. The
fact that what had been mortgaged was in custodia legis is immaterial, insofar as her
conjugal share and hereditary share in the property is concerned for after all, she was
the ABSOLUTE OWNER thereof. This ownership by hers is not disputed, nor is
there any claim that the rights of the government (with reference to taxes) nor the
rights of any heir or anybody else have been prejudiced for impaired. As stated by
Associate Justice (later Chief Justice) Manuel Moran in Jakosalem vs. Rafols, et
al., 73 Phil. 618
The land in question, described in the appealed decision, originally
belonged to Juan Melgar. The latter died and the judicial
administration of his estate was commenced in 1915 and came to a
close on December 2, 1924, only. During the pendency of the said
administration, that is, on July 5, 1917, Susana Melgar, daughter of
the deceased Juan Melgar, sold the land with the right of
repurchase to Pedro Cui, subject to the stipulation that during the
period for the repurchase she would continue in possession of the
land as lessee of the purchase. On December 12, 1920, the partition
of the estate left by the deceased Juan Melgar was made, and the
land in question was adjudicated to Susana Melgar. In 1921, she
conveyed, in payment of professional fees, one-half of the land in
favor of the defendant-appellee Nicolas Rafols, who entered upon
the portion thus conveyed and has been in possession thereof up to
the present. On July 23, 1921, Pedro Cui brought an action to
recover said half of the land from Nicolas Rafols and the other half
from the other defendants, and while that case was pending, or
about August 4, 1925, Pedro Cui donated the whole land in
question to Generosa Teves, the herein plaintiff-appellant, after
trial, the lower court rendered a decision absolving Nicolas Rafols
as to the one-half of the land conveyed to him by Susana Melgar,
and declaring the plaintiff owner of the other half by express
acknowledgment of the other defendants. The plaintiff appealed
from that part of the judgment which is favorable to Nicolas
Rafols.
The lower court absolved Nicolas Rafols upon the theory that
Susana Melgar could not have sold anything to Pedro Cui because
the land was then in custodia legis, that is, under judicial
administration. This is error. That the land could not ordinary be
levied upon while in custodia legis,does not mean that one of the
heirs may not sell the right, interest or participation which he has
or might have in the lands under administration. The ordinary
execution of property in custodia legis is prohibited in order to
avoid interference with the possession by the court. But the sale
made by an heir of his share in an inheritance, subject to the result
of the pending administration, in no wise stands in the way of such
administration.
The reference to judicial approval in Sec. 7, Rule 89 of the Rules of Court cannot
adversely affect the 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.

Romero A. Yu for respondent Yu Hua Ping.
CAMPOS, JR., J.:

The lower court's jurisdiction in approving a Deed of Conditional Sale executed by
respondents-heirs and ordering herein administrator-petitioner Herodotus Acebedo to
sell the remaining portions of said properties, despite the absence of its prior
approval as a probate court, is being challenged in the case at bar.
The late Felix Acebedo left an estate consisting of several real estate properties
located in Quezon City and Caloocan City, with a conservative estimated value of
about P30 million. Said estate allegedly has only the following unsettled claims:
a. P87,937.00 representing unpaid real estate taxes due Quezon
City;
b. P20,244.00 as unpaid real estate taxes due Caloocan City;
c. The unpaid salaries/allowances of former Administrator Miguel
Acebedo, and the incumbent Administrator Herodotus Acebedo;
and
d. Inheritance taxes that may be due on the net estate.
G.R. No. 102380 January 18, 1993
HERODOTUS P. ACEBEDO and DEMOSTHENES P. ACEBEDO, petitioners,
vs.
HON. BERNARDO P. ABESAMIS, MIGUEL ACEBEDO, ALEXANDER
ACEBEDO, NAPOLEON ACEBEDO, RIZALINO ACEBEDO, REPUBLICA
ACEBEDO, FILIPINAS ACEBEDO and YU HWA PING, respondents.
Heminio L. Ruiz for petitioners.
Vicente D. Millora for private respondents.
The decedent was succeeded by eight heirs, two of whom are the petitioners herein,
and the others are the private respondents.
Due to the prolonged pendency of the case before the respondent Court for sixteen
years, respondents-heirs filed a "Motion for Approval of Sale", on October 4, 1989.
The said sale involved the properties covered by Transfer Certificate of Title Nos.
155569, 120145, 9145, and 18709, all of which are registered in Quezon City, and
form part of the estate. The consideration for said lots was twelve (12) million pesos
and by that time, they already had a buyer. It was further stated in said Motion that
respondents-heirs have already received their proportionate share of the six (6)
million pesos paid by the buyer, Yu Hwa Ping, as earnest money; that the balance of
P6,000,000.00 is more than enough to pay the unsettled claims against the estate.

Thus, they prayed for the Court to direct the administrator, Herodotus Acebedo
(referred to as petitioner-administrator hereafter):
1. to sell the properties mentioned in the motion;
2. with the balance of P6 million, to pay all the claims against the
Estate; and
3. to distribute the residue among the Heirs in final settlement of
the Estate.
To the aforesaid Motion, herein petitioner-administrator interposed an "Opposition to
Approval of Sale", to wit:
1. That he has learned that some of the heirs herein have sold some
real estate property of the Estate located at Balintawak, Quezon
City, without the knowledge of the herein administrator, without
the approval of this Honorable Court and of some heirs, and at a
shockingly low price;
2. That he is accordingly hereby registering his vehement objection
to the approval of the sale, perpetrated in a manner which can even
render the proponents of the sale liable for punishment for
contempt of this Honorable Court;
3. The herein Administrator instead herein prays this Honorable
Court to authorize the sale of the above mentioned property of the
Estate to generate funds to pay certain liabilities of the Estate and
with the approval of this Honorable Court if warranted, to give the
heirs some advances chargeable against theirs (sic) respective
shares, and, for the purpose to authorize the herein Administrator,
and the other heirs to help the Administrator personally or through
a broker, to look for a buyer for the highest obtainable price,
subject always to the approval of this Honorable Court. 1
On October 30, 1989, herein petitioners moved to be given a period of forty-five (45)
days within which to look for a buyer who will be willing to buy the properties at a
price higher than P12,000,000.00.
The case was set for hearing on December 15, 1989. However, by said date,
petitioners have not found any buyer offering better terms. Thus, they asked the
Court, on February 8, 1990, for an in extendible period of thirty days to look for a
buyer.
Petitioner-administrator then filed a criminal complaint for falsification of a public
document against Yu Hwa Ping and notary public Eugenio Obon on February 26,
1990. He initiated this complaint upon learning that it was Yu Hwa Ping who caused
the notarization of the Deed of Conditional Sale wherein allegedly petitioneradministrator's signature was made to appear. He also learned that after he
confronted the notary public of the questioned document, the latter revoked his
notarial act on the same.
On April 2, 1990, petitioner-administrator filed the civil action to secure the
declaration by the Court of the nullity of the Deed of Conditional Sale and the Deed
of Absolute Sale.
The period granted herein petitioners having lapsed without having found a buyer,
petitioner Demosthenes Acebedo sought to nullify the Orders granting them several
periods within which to look for a better buyer. Respondents filed a comment
thereon.
Having miserably failed to find a better buyer, after seven long months, petitioneradministrator 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.
On June 21, 1990, petitioners filed a "Motion for Leave of Court to Mortgage and
Lease some of the Properties of the Estate". To this Motion, respondents filed an
Opposition on the following grounds : that the motion is not proper because of the
pending motion to approve the sale of the same properties; that said conditional sale
was initiated by petitioner-administrator who had earlier signed a receipt for
P500,000.00 as earnest money; that the approval of the sale would mean Yu Hwa
Ping's assumption of payment of the realty taxes; that the estate has no further debts
and thus, the intestate administrator may be terminated.
On August 17, 1990, respondent Court issued an Order, the dispositive portion of
which, stated, among others, to wit: 2

b. the motion filed by the heirs-movants, dated October 4, 1989,
praying that the new administrator be directed to sell the properties
covered by TCT Nos. 155569, 120145, 9145 and 18709, in favor
of Yu Hwa Ping is hereby denied; and
c. the new administrator is hereby granted leave to mortgage some
properties of the estate at a just and reasonable amount, subject to
the approval of the Court.
On December 4, 1990, the respondent Judge issued an order resolving to call the
parties to a conference on December 17, 1990. The conference was held, but still the
parties were unable to arrive at an agreement. So, on January 4, 1991, it was
continued, wherein the parties actually agreed that the heirs be allowed to sell their
shares of the properties to Yu Hwa Ping for the price already agreed upon, while
herein petitioners negotiate for a higher price with Yu Hwa Ping.
Petitioners, then, instead filed a "Supplemental Opposition" to the approval of the
Deed of Conditional Sale.
On March 29, 1991, the respondent Court issued the challenged Order, the
dispositive portion of which states, to wit:
WHEREFORE, the Order dated August 7, 1990, is hereby lifted,
reconsidered and set aside, and another one is hereby issued as
follows:
1. Approving the conditional sale, dated September 10, 1989,
executed by the heirs-movants, in favor of Yu Hwa Ping,
pertaining to their respective shares in the properties covered by
TCT Nos. 155569, 120145, 1945 and 18709 of the Register of
Deeds of Quezon City;
2. Ordering the administrator Herodotus Acebedo to sell the
remaining portions of the said properties also in favor of Yu Hwa
Ping at the same price as the sale executed by the herein heirsmovants;
3. Ordering Yu Hwa Ping to deposit with the Court the total

remaining balance of the purchase price for the said lots within
TWENTY (20) DAYS from notice hereof;
4. The motion to cite former administrator Miguel Acebedo in
contempt of court, resulting from his failure to submit the owner's
copy of TCT Nos. 155569, and 120145 is hereby denied. 3
Yu Hwa Ping, on April 4, 1991, deposited the remaining balance of the purchase
price for the properties subject of the Deed of Conditional Sale in the amount of
P6,500,000.00.
Petitioners herein received the questioned Order on April 11, 1991. Twenty one (21)
days thereafter, they filed a Motion for Reconsideration, praying that the Court
reinstate its Order of August 17, 1990. To this, private respondents filed their
Opposition. 4
Instead of making a reply, petitioners herein filed a Supplemental Motion for
Reconsideration. The motions for reconsideration of herein petitioners were denied
by the respondent Court on August 23, 1991.
On September 23, 1991, herein petitioners filed a Motion for Partial
Reconsideration, hoping for the last time that they would be able to convince the
Court that its Order dated March 29, 1991 in effect approving the conditional sale is
erroneous and beyond its jurisdiction.
On October 17, 1991, the respondent Court denied the Motion for Partial
Reconsideration for "lack of merit".
On November 7, 1991, private respondents filed a Motion for Execution of the Order
dated March 29, 1991. This was pending resolution when the petitioners filed this
Petition for Certiorari.
The controversy in the case at bar revolves around one question: Is it within the
jurisdiction of the lower court, acting as a probate court, to issue an Order approving
the Deed of Conditional Sale executed by respondents-heirs without prior court
approval and to order herein Administrator to sell the remaining portion of said
properties?

We answer in the positive?
In the case of Dillena vs. Court of Appeals, 5 this Court made a pronouncement that it
is within the jurisdiction of the probate court to approve the sale of properties of a
deceased person by his prospective heirs before final adjudication. Hence, it is error
to say that this matter should be threshed out in a separate action.
The Court further elaborated that although the Rules of Court do not specifically
state that the sale of an immovable property belonging to an estate of a decedent, in a
special proceeding, should be made with the approval of the court, this authority is
necessarily included in its capacity as a probate court. Therefore, it is clear that the
probate court in the case at bar, acted within its jurisdiction in issuing the Order
approving the Deed of Conditional Sale.
We cannot countenance the position maintained by herein petitioners that said
conditional sale is null and void for lack of prior court approval. The sale precisely
was made conditional, the condition being that the same should first be approved by
the probate court.
Petitioners herein anchor their claim on Section 7, Rule 89 of the Rules of Court. 6 It
is settled that court approval is necessary for the validity of any disposition of the
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.
G.R. No. 61584 November 25, 1992

DONATO S. PAULMITAN, JULIANA P. FANESA and RODOLFO
FANESA, petitioners,
vs.
COURT OF APPEALS, ALICIO PAULMITAN, ELENA PAULMITAN,
ABELINO PAULMITAN, ANITA PAULMITAN, BAKING PAULMITAN,
ADELINA PAULMITAN and ANITO PAULMITAN, respondents.
ROMERO, J.:
This is a petition for review on certiorari seeking the reversal of the decision 1 of the
Court of Appeals, dated July 14, 1982 in CA-G.R. No. 62255-R entitled "Alicio
Paulmitan, et al. v. Donato Sagario Paulmitan, et al." which affirmed the decision 2 of
the then Court of First Instance (now RTC) of Negros Occidental, 12th Judicial
District, Branch IV, Bacolod City, in Civil Case No. 11770.
The antecedent facts are as follows:

Agatona Sagario Paulmitan, who died sometime in 1953, 3 left the two following
parcels of land located in the Province of Negros Occidental: (1) Lot No. 757 with an
area of 1,946 square meters covered by Original Certificate of Title (OCT) No. RO8376; and (2) Lot No. 1091 with an area of 69,080 square meters and covered by
OCT No. RO-11653. From her marriage with Ciriaco Paulmitan, who is also now
deceased, Agatona begot two legitimate children, namely: Pascual Paulmitan, who
also died in 1953, 4 apparently shortly after his mother passed away, and Donato
Paulmitan, who is one of the petitioners. Petitioner Juliana P. Fanesa is Donato's
daughter while the third petitioner, Rodolfo Fanes, is Juliana's husband. Pascual
Paulmitan, the other son of Agatona Sagario, is survived by the respondents, who are
his children, name: Alicio, Elena, Abelino, Adelina, Anita, Baking and Anito, all
surnamed Paulmitan.
Until 1963, the estate of Agatona Sagario Paulmitan remained unsettled and the titles
to the two lots mentioned above remained in the name of Agatona. However, on
August 11, 1963, petitioner Donato Paulmitan executed an Affidavit of Declaration
of Heirship, extrajudicially adjudicating unto himself Lot No. 757 based on the claim
that he is the only surviving heir of Agatona Sagario. The affidavit was filed with the
Register of Deeds of Negros Occidental on August 20, 1963, cancelled OCT No.
RO-8376 in the name of Agatona Sagario and issued Transfer Certificate of Title
(TCT) No. 35979 in Donato's name.
As regards Lot No. 1091, Donato executed on May 28, 1974 a Deed of Sale over the
same in favor of petitioner Juliana P. Fanesa, his daughter. 5
In the meantime, sometime in 1952, for non-payment of taxes, Lot No. 1091 was
forfeited and sold at a public auction, with the Provincial Government of Negros
Occidental being the buyer. A Certificate of Sale over the land was executed by the
Provincial Treasurer in favor of the Provincial Board of Negros Occidental. 6
On May 29, 1974, Juliana P. Fanesa redeemed the property from the Provincial
Government of Negros Occidental for the amount of P2,959.09. 7
On learning of these transactions, respondents children of the late Pascual Paulmitan
filed on January 18, 1975 with the Court of First Instance of Negros Occidental a
Complaint against petitioners to partition the properties plus damages.
Petitioners set up the defense of prescription with respect to Lot No. 757 as an
affirmative defense, contending that the Complaint was filed more than eleven years
after the issuance of a transfer certificate of title to Donato Paulmitan over the land
as consequence of the registration with the Register of Deeds, of Donato's affidavit
extrajudicially adjudicating unto himself Lot No. 757. As regards Lot No. 1091,
petitioner Juliana P. Fanesa claimed in her Answer to the Complaint that she acquired
exclusive ownership thereof not only by means of a deed of sale executed in her
favor by her father, petitioner Donato Paulmitan, but also by way of redemption from
the Provincial Government of Negros Occidental.
Acting on the petitioners' affirmative defense of prescription with respect to Lot No.
757, the trial court issued an order dated April 22, 1976 dismissing the complaint as
to the said property upon finding merit in petitioners' affirmative defense. This order,
which is not the object of the present petition, has become final after respondents'
failure to appeal therefrom.
Trial proceeded with respect to Lot No. 1091. In a decision dated May 20, 1977, the
trial court decided in favor of respondents as to Lot No. 1091. According to the trial
court, the respondents, as descendants of Agatona Sagario Paulmitan were entitled to
one-half (1/2) of Lot No. 1091, pro indiviso. The sale by petitioner Donato Paulmitan
to his daughter, petitioner Juliana P. Fanesa, did not prejudice their rights. And the
repurchase by Juliana P. Fanesa of the land from the Provincial Government of
Negros Occidental did not vest in Juliana exclusive ownership over the entire land
but only gave her the right to be reimbursed for the amount paid to redeem the
property. The trial court ordered the partition of the land and directed petitioners
Donato Paulmitan and Juliana P. Fanesa to pay private respondents certain amounts
representing the latter's share in the fruits of the land. On the other hand, respondents
were directed to pay P1,479.55 to Juliana P. Fanesa as their share in the redemption
price paid by Fanesa to the Provincial Government of Negros Occidental. The
dispositive portion of the trial court's decision reads:
WHEREFORE, judgment is hereby rendered on the second cause
of action pleaded in the complain as follows:
1. The deed of sale (Exh. "F") dated May 28, 1974 is valid insofar
as the one-half undivided portion of Lot 1091 is concerned as to
vest ownership over said half portion in favor of defendant Juliana

Fanesa and her husband Rodolfo Fanesa, while the remaining half
shall belong to plaintiffs, pro-indiviso;
children, the private respondents. On the other had, Donato's sole offspring was
petitioner Juliana P. Fanesa.
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;
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.
3. Pending the physical partition, the Register of Deeds of Negros

Occidental is ordered to cancel Original Certificate of Title No.
RO-11653 (N.A.) covering Lot 1091, Pontevedra Cadastre, and to
issue in lieu thereof a new certificate of title in the name of
plaintiffs and defendants, one-half portion each, pro-indiviso, as
indicated in paragraph 1 above;
4. Plaintiffs are ordered to pay, jointly and severally, defendant
Juliana Fanesa the amount of P1,479.55 with interest at the legal
rate from May 28, 1974 until paid;
5 Defendants Donato Sagario Paulmitan and Juliana Paulmitan
Fanesa are ordered to account to plaintiffs and to pay them, jointly
and severally, the value of the produce from Lot 1091 representing
plaintiffs' share in the amount of P5,000.00 per year from 1966 up
to the time of actual partition of the property, and to pay them the
sum of P2,000.00 as attorney's fees as well as the costs of the suit.
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.
On appeal, the Court of Appeals affirmed the trial court's decision. Hence this
petition.
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.
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
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.
xxx xxx xxx

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 coownership. 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 proindiviso 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:
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.]
As early as 1923, this Court has ruled that even if a co-owner sells
the whole property as his, the sale will affect only his own share
but not those of the other co-owners who did not consent to the
sale [Punsalan v. Boon Liat, 44 Phil. 320 (1923)]. This is because
under the aforementioned codal provision, the sale or other
disposition affects only his undivided share and the transferee gets
only what would correspond to his grantor in the partition of the
thing owned in common [Ramirez v. Bautista, 14 Phil. 528
(1909)]. Consequently, by virtue of the sales made by Rosalia and
Gaudencio Bailon which are valid with respect to their
proportionate shares, and the subsequent transfers which
culminated in the sale to private respondent Celestino Afable, the
said Afable thereby became a co-owner of the disputed parcel of
land as correctly held by the lower court since the sales produced
the effect of substituting the buyers in the enjoyment thereof

[Mainit v. Bandoy, 14 Phil. 730 (1910)].
From the foregoing, it may be deduced that since a co-owner is
entitled to sell his undivided share, a sale of the entire property by
one co-owner without the consent of the other co-owners is not
null and void. However, only the rights of the co-owner-seller are
transferred, thereby making the buyer a co-owner of the property.
Applying this principle to the case at bar, the sale by petitioner Donato Paulmitan of
the land to his daughter, petitioner Juliana P. Fanesa, did not give to the latter
ownership over the entire land but merely transferred to her the one half (1/2)
undivided share of her father, thus making her the co-owner of the land in question
with the respondents, her first cousins.
Petitioner Juliana P. Fanesa also claims ownership of the entire property by virtue of
the fact that when the Provincial Government of Negros Occidental bought the land
after it was forfeited for non-payment of taxes, she redeemed it.
The contention is without merit.
The redemption of the land made by Fanesa did not terminate the co-ownership nor
give her title to the entire land subject of the co-ownership. Speaking on the same
issue raised by petitioners, the Court, in Adille v. Court of Appeals, 16 resolved the
same with the following pronouncements:
The petition raises a purely legal issue: May a co-owner acquire
exclusive ownership over the property held in common?
Essentially, it is the petitioners' contention that the property subject
of dispute devolved upon him upon the failure of his co-heirs to
join him in its redemption within the period required by law. He
relies on the provisions of Article 1515 of the old Civil Code,
Article 1613 of the present Code, giving the vendee a retro the
right to demand redemption of the entire property.
There is no merit in this petition.

The right of repurchase may be exercised by co-owner with respect
to his share alone (CIVIL CODE, art. 1612, CIVIL CODE (1889),
art. (1514.). While the records show that petitioner redeemed the
property in its entirety, shouldering the expenses therefor, that did
not make him the owner of all of it. In other words, it did not put to
end the existing state of co-ownership (Supra, Art. 489). There is
no doubt that redemption of property entails a necessary expense.
Under the Civil Code:
only. This assigned error, however raises a factual question. The settled rule is that
only questions of law may be raised in a petition for review. As a general rule,
findings of fact made by the trial court and the Court of Appeals are final and
conclusive and cannot be reviewed on appeal. 18
WHEREFORE, the petition is DENIED and the decision of the Court of Appeals
AFFIRMED.
SO ORDERED.
Art. 488. Each co-owner shall have a right to compel the other coowners 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 coownership. 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

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.
G.R. No. 76351 October 29, 1993
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.
VIRGILIO
B.
AGUILAR, petitioner,
vs.
COURT OF APPEALS and SENEN B. AGUILAR, respondents.
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.
Jose F. Manacop for petitioner.
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.
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
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 pretrial is mandatory. 3 A party who fails to appear at a pre-trial conference may be nonsuited 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 pretrial on the scheduled date, respondent at least should have personally appeared in
order not to be declared as in default. But, since nobody appeared for him, the order
of the trial court declaring him as in default and directing the presentation of
petitioner's evidence ex parte was proper. 7
With regard to the merits of the judgment of the trial court by default, which
respondent appellate court did not touch upon in resolving the appeal, the Court
holds that on the basis of the pleadings of the parties and the evidence presented ex
parte, petitioner and respondents are co-owners of subject house and lot in equal
shares; either one of them may demand the sale of the house and lot at any time and
the other cannot object to such demand; thereafter the proceeds of the sale shall be
divided equally according to their respective interests.
Private respondent and his family refuse to pay monthly rentals to petitioner from the
time their father died in 1975 and to vacate the house so that it can be sold to third
persons. Petitioner alleges that respondent's continued stay in the property hinders its
disposal to the prejudice of petitioner. On the part of petitioner, he claims that he
should be paid two-thirds (2/3) of a monthly rental of P2,400.00 or the sum of
P1,600.00.
In resolving the dispute, the trial court ordered respondent to vacate the property so
that it could be sold to third persons and the proceeds divided between them equally,
and for respondent to pay petitioner one-half (1/2) of P2,400.00 or the sum of
P1,200.00 as monthly rental, conformably with their stipulated sharing reflected in
their written agreement.
We uphold the trial court in ruling in favor of petitioner, except as to the effectivity
of the payment of monthly rentals by respondent as co-owner which we here declare
to commence only after the trial court ordered respondent to vacate in accordance
with its order of 26 July 1979.
Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in
the co-ownership, and that each co-owner may demand at any time partition of the
thing owned in common insofar as his share is concerned. Corollary to this rule, Art.
498 of the Code states that whenever the thing is essentially, indivisible and the coowners cannot agree that it be, allotted to one of them who shall indemnify the
others, it shall be sold and its proceeds accordingly distributed. This is resorted to (1)
when the right to partition the property is invoked by any of the co-owners but
because of the nature of the property it cannot be subdivided or its subdivision would
prejudice the interests of the co-owners, and (b) the co-owners are not in agreement
as to who among them shall be allotted or assigned the entire property upon proper
reimbursement of the co-owners. In one case, 8 this Court upheld the order of the trial
court directing the holding of a public sale of the properties owned in common
pursuant to Art. 498 of the Civil Code.
However, being a co-owner respondent has the right to use the house and lot without
paying any compensation to petitioner, as he may use the property owned in common
long as it is in accordance with the purpose for which it is intended and in a manner
not injurious to the interest of the other co-owners. 9 Each co-owner of property
heldpro indiviso exercises his rights over the whole property and may use and enjoy
the same with no other limitation than that he shall not injure the interests of his coowners, the reason being that until a division is made, the respective share of each
cannot be determined and every co-owner exercises, together with his co-participants
joint ownership over the pro indivisoproperty, in addition to his use and enjoyment of
the
same. 10
Since petitioner has decided to enforce his right in court to end the co-ownership of
the house and lot and respondent has not refuted the allegation that he has been
preventing the sale of the property by his continued occupancy of the premises,
justice and equity demand that respondent and his family vacate the property so that
the sale can be effected immediately. In fairness to petitioner, respondent should pay
a rental of P1,200.00 per month, with legal interest; from the time the trial court

ordered him to vacate, for the use and enjoyment of the other half of the property
appertaining to petitioner.
When petitioner filed an action to compel the sale of the property and the trial court
granted the petition and ordered the ejectment of respondent, the co-ownership was
deemed terminated and the right to enjoy the possession jointly also ceased.
Thereafter, the continued stay of respondent and his family in the house prejudiced
the interest of petitioner as the property should have been sold and the proceeds
divided equally between them. To this extent and from then on, respondent should be
held liable for monthly rentals until he and his family vacate.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of
Appeals dated 16 October 1986 is REVERSED and SET ASIDE. The decision of the
trial court in Civil Case No. 69.12-P dated 16 July 1979 is REINSTATED, with the
modification that respondent Senen B. Aguilar is ordered to vacate the premises in
question within ninety (90) days from receipt of this and to pay petitioner Virgilio B.
Aguilar a monthly rental of P1,200.00 with interest at the legal rate from the time he
received the decision of the trial court directing him to vacate until he effectively
leaves the premises.
The trial court is further directed to take immediate steps to implement this decision
conformably with Art. 498 of the Civil Code and the Rules of Court. This decision is
final and executory.
SO ORDERED.
G.R. No. L-33187 March 31, 1980

CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and APOLONIA
ONTE, petitioners,
vs.
VIVENCIO MORETO, VICTOR MORETO, ELIGIO MORETO, MARCELO
MORETO, PAULINA MORETO, ROSARIO MORETO, MARTA MORETO,
SEVERINA MENDOZA, PABLO MENDOZA, LAZARO MENDOZA,
VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO MORETO and
LORENZO MENDOZA, respondents.
E.P. Caguioa for petitioners.
Benjamin C. Yatco for respondents.
GUERRERO, J.:
This is a petition for certiorari by way of appeal from the decision of the Court of
Appeals 1 in CA-G.R. No. 35962-R, entitled "Vivencio Moreto, et al., PlaintiffAppellees 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 781-544 and 1,021
square meters respectively and covered by certificates of title issued in the name of
"Flaviano Moreto, married to Monica Maniega."

The spouses Flaviano Moreto and Monica Maniega begot during their marriage six
(6) children, namely, Ursulo, Marta, La Paz, Alipio, Pablo, and Leandro, all
surnamed Moreto.
Ursulo Moreto died intestate on May 24, 1959 leaving as his heirs herein plaintiffs
Vivencio, Marcelo, Rosario, Victor, Paulina, Marta and Eligio, all surnamed Moreto.
Marta Moreto died also intestate on April 30, 1938 leaving as her heir plaintiff
Victoria Tuiza.
La Paz Moreto died intestate on July 17, 1954 leaving the following heirs, namely,
herein plaintiffs Pablo, Severina, Lazaro, and Lorenzo, all surnamed Mendoza.
Alipio Moreto died intestate on June 30, 1943 leaving as his heir herein plaintiff
Josefina Moreto.
Pablo Moreto died intestate on April 25, 1942 leaving no issue and as his heirs his
brother plaintiff Leandro Moreto and the other plaintiffs herein.
On May 6, 1946, Monica Maniega died intestate in Calamba, Laguna.
On July 30, 1952, or more than six (6) years after the death of his wife Monica
Maniega, Flaviano Moreto, without the consent of the heirs of his said deceased wife
Monica, and before any liquidation of the conjugal partnership of Monica and
Flaviano could be effected, executed in favor of Geminiano Pamplona, married to
defendant Apolonia Onte, the deed of absolute sale (Exh. "1") covering lot No. 1495
for P900.00. The deed of sale (Exh. "1") contained a description of lot No. 1495 as
having an area of 781 square meters and covered by transfer certificate of title No.
14570 issued in the name of Flaviano Moreto, married to Monica Maniega, although
the lot was acquired during their marriage. As a result of the sale, the said certificate
of title was cancelled and a new transfer certificate of title No. T-5671 was issued in
the name of Geminiano Pamplona married to Apolonia Onte (Exh. "A").
After the execution of the above-mentioned deed of sale (Exh. "1"), the spouses
Geminiano Pamplona and Apolonia Onte constructed their house on the eastern part
of lot 1496 as Flaviano Moreto, at the time of the sale, pointed to it as the land which
he sold to Geminiano Pamplona. Shortly thereafter, Rafael Pamplona, son of the
spouses Geminiano Pamplona and Apolonia Onte, also built his house within lot
1496 about one meter from its boundary with the adjoining lot. The vendor Flaviano
Moreto and the vendee Geminiano Pamplona thought all the time that the portion of
781 square meters which was the subject matter of their sale transaction was No.
1495 and so lot No. 1495 appears to be the subject matter in the deed of sale (Exh.
"1") although the fact is that the said portion sold thought of by the parties to be lot
No. 1495 is a part of lot No. 1496.
From 1956 to 1960, the spouses Geminiano Pamplona and Apolonio Onte enlarged
their house and they even constructed a piggery corral at the back of their said house
about one and one-half meters from the eastern boundary of lot 1496.
On August 12, 1956, Flaviano Moreto died intestate. In 1961, the plaintiffs
demanded on the defendants to vacate the premises where they had their house and
piggery on the ground that Flaviano Moreto had no right to sell the lot which he sold
to Geminiano Pamplona as the same belongs to the conjugal partnership of Flaviano
and his deceased wife and the latter was already dead when the sale was executed
without the consent of the plaintiffs who are the heirs of Monica. The spouses
Geminiano Pamplona and Apolonia Onte refused to vacate the premises occupied by
them and hence, this suit was instituted by the heirs of Monica Maniega seeking for
the declaration of the nullity of the deed of sale of July 30, 1952 above-mentioned as
regards one-half of the property subject matter of said deed; to declare the plaintiffs
as the rightful owners of the other half of said lot; to allow the plaintiffs to redeem
the one-half portion thereof sold to the defendants. "After payment of the other half
of the purchase price"; to order the defendants to vacate the portions occupied by
them; to order the defendants to pay actual and moral damages and attorney's fees to
the plaintiffs; to order the defendants to pay plaintiffs P120.00 a year from August
1958 until they have vacated the premises occupied by them for the use and
occupancy of the same.
The defendants claim that the sale made by Flaviano Moreto in their favor is valid as
the lot sold is registered in the name of Flaviano Moreto and they are purchasers
believing in good faith that the vendor was the sole owner of the lot sold.
After a relocation of lots 1495, 1496 and 4545 made by agreement of the parties, it
was found out that there was mutual error between Flaviano Moreto and the
defendants in the execution of the deed of sale because while the said deed recited
that the lot sold is lot No. 1495, the real intention of the parties is that it was a

portion consisting of 781 square meters of lot No. 1496 which was the subject matter
of their sale transaction.
After trial, the lower court rendered judgment, the dispositive part thereof being as
follows:
WHEREFORE, judgment is hereby rendered for the plaintiffs
declaring the deed of absolute sale dated July 30, 1952 pertaining
to the eastern portion of Lot 1496 covering an area of 781 square
meters null and void as regards the 390.5 square meters of which
plaintiffs are hereby declared the rightful owners and entitled to its
possession.
The sale is ordered valid with respect to the eastern one-half (1/2)
of 1781 square meters of Lot 1496 measuring 390.5 square meters
of which defendants are declared lawful owners and entitled to its
possession.
After proper survey segregating the eastern one-half portion with
an area of 390.5 square meters of Lot 1496, the defendants shall be
entitled to a certificate of title covering said portion and Transfer
Certificate of Title No. 9843 of the office of the Register of Deeds
of Laguna shall be cancelled accordingly and new titles issued to
the plaintiffs and to the defendants covering their respective
portions.
Transfer Certificate of Title No. 5671 of the office of the Register
of Deeds of Laguna covering Lot No. 1495 and registered in the
name of Cornelio Pamplona, married to Apolonia Onte, is by virtue
of this decision ordered cancelled. The defendants are ordered to
surrender to the office of the Register of Deeds of Laguna the
owner's duplicate of Transfer Certificate of Title No. 5671 within
thirty (30) days after this decision shall have become final for
cancellation in accordance with this decision.
Let copy of this decision be furnished the Register of Deeds for the
province of Laguna for his information and guidance.
With costs against the defendants. 2

The defendants-appellants, not being satisfied with said judgment, appealed to the
Court of Appeals, which affirmed the judgment, hence they now come to this Court.
The fundamental and crucial issue in the case at bar is whether under the facts and
circumstances duly established by the evidence, petitioners are entitled to the full
ownership of the property in litigation, or only one-half of the same.
There is no question that when the petitioners purchased the property on July 30,
1952 from Flaviano Moreto for the price of P900.00, his wife Monica Maniega had
already been dead six years before, Monica having died on May 6, 1946. Hence, the
conjugal partnership of the spouses Flaviano Moreto and Monica Maniega had
already been dissolved. (Article 175, (1) New Civil Code; Article 1417, Old Civil
Code). The records show that the conjugal estate had not been inventoried,
liquidated, settled and divided by the heirs thereto in accordance with law. The
necessary proceedings for the liquidation of the conjugal partnership were not
instituted by the heirs either in the testate or intestate proceedings of the deceased
spouse pursuant to Act 3176 amending Section 685 of Act 190. Neither was there an
extra-judicial partition between the surviving spouse and the heirs of the deceased
spouse nor was an ordinary action for partition brought for the purpose. Accordingly,
the estate became the property of a community between the surviving husband,
Flaviano Moreto, and his children with the deceased Monica Maniega in the concept
of a co-ownership.
The community property of the marriage, at the dissolution of this
bond by the death of one of the spouses, ceases to belong to the
legal partnership and becomes the property of a community, by
operation of law, between the surviving spouse and the heirs of the
deceased spouse, or the exclusive property of the widower or the
widow, it he or she be the heir of the deceased spouse. Every coowner 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 onehalf 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:
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 coownership.
We agree with the petitioner that there was a partial partition of the co-ownership
when at the time of the sale Flaviano Moreto pointed out the area and location of the
781 sq. meters sold by him to the petitioners-vendees on which the latter built their
house and also that whereon Rafael, the son of petitioners likewise erected his house
and an adjacent coral for piggery.
Petitioners point to the fact that spouses Flaviano Moreto and Monica Maniega
owned three parcels of land denominated as Lot 1495 having an area of 781 sq.
meters, Lot 1496 with an area of 1,021 sq. meters, and Lot 4545 with an area of 544
sq. meters. The three lots have a total area of 2,346 sq. meters. These three parcels of
lots are contiguous with one another as each is bounded on one side by the other,
thus: Lot 4545 is bounded on the northeast by Lot 1495 and on the southeast by Lot
1496. Lot 1495 is bounded on the west by Lot 4545. Lot 1496 is bounded on the
west by Lot 4545. It is therefore, clear that the three lots constitute one big land.
They are not separate properties located in different places but they abut each other.
This is not disputed by private respondents. Hence, at the time of the sale, the coownership 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 proindiviso or inchoate but the moment the co-owner as vendor pointed out its location
and even indicated the boundaries over which the fences were to be erectd without
objection, protest or complaint by the other co-owners, on the contrary they
acquiesced and tolerated such alienation, occupation and possession, We rule that a
factual partition or termination of the co-ownership, although partial, was created,
and barred not only the vendor, Flaviano Moreto, but also his heirs, the private
respondents herein from asserting as against the vendees-petitioners any right or title
in derogation of the deed of sale executed by said vendor Flaiano Moreto.
Equity commands that the private respondents, the successors of both the deceased
spouses, Flaviano Moreto and Monica Maniega be not allowed to impugn the sale
executed by Flaviano Moreto who indisputably received the consideration of
P900.00 and which he, including his children, benefitted from the same. Moreover,
as the heirs of both Monica Maniega and Flaviano Moreto, private respondents are
duty-bound to comply with the provisions of Articles 1458 and 1495, Civil Code,
which is the obligation of the vendor of the property of delivering and transfering the
ownership of the whole property sold, which is transmitted on his death to his heirs,
the herein private respondents. The articles cited provide, thus:
Art. 1458. By the contract of sale one of the contracting parties
obligates himself to transfer the ownership of and to deliver a
determinate thing, and the other part to pay therefore a price
certain in money or its equivalent.
A contract of sale may be absolute or conditionial.
Art. 1495. The vendor is bound to transfer the ownership of and
deliver, as well as warrant the thing which is the object of the sale.
Under Article 776, New Civil Code, the inheritance which private respondents
received from their deceased parents and/or predecessors-in-interest included all the
property rights and obligations which were not extinguished by their parents' death.
And under Art. 1311, paragraph 1, New Civil Code, the contract of sale executed by
the deceased Flaviano Moreto took effect between the parties, their assigns and heirs,
who are the private respondents herein. Accordingly, to the private respondents is
transmitted the obligation to deliver in full ownership the whole area of 781 sq.
meters to the petitioners (which was the original obligation of their predecessor
Flaviano Moreto) and not only one-half thereof. Private respondents must comply
with said obligation.
The records reveal that the area of 781 sq. meters sold to and occupied by petitioners
for more than 9 years already as of the filing of the complaint in 1961 had been resurveyed 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.

(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:
G.R. No. L-25014 October 17, 1973

DOLORES LAHORA VDA. DE CASTRO, ARSENIO DE CASTRO, JR.,
WILFREDO DE CASTRO, IRINEO DE CASTRO and VIRGINIA DE
CASTRO ALEJANDRO, (in substitution for the deceased defendant-appellant
ARSENIO
DE
CASTRO,
SR.)., petitioners,
vs.
GREGORIO ATIENZA, respondent.
Arsenio de Castro, Jr. and F.T. Papa for petitioners.
Dakila Castro and Z.D. de Mesa for respondent.
TEEHANKEE, J.:
The Court rejects petitioners' appeal as without merit and affirms the judgment of the
appellate court. Petitioners' predecessor-in-interest as co-owner of an undivided onehalf interest in the fishpond could validly lease his interest to a third party,
respondent Atienza, independently of his co-owner (although said co-owner had also
leased his other undivided one-half interest to the same third party) and could
likewise by mutual agreement independently cancel his lease agreement with said
third party. Said predecessor-in-interest (and petitioners who have substituted him as
his heirs) therefore stands liable on his express undertaking to refund the advance
rental paid to him by the lessee on the cancelled lease and cannot invoke the noncancellation 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.
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 coowners in equal shares of the leased property.
According to the contract of lease (Exh. 1) the term of the lease
was for five years from January 24, 1956 at a rental of P5,000 a
year, the first year's rental to be paid on February 1, 1956, the
second on February 1, 1957 and the rental for the last three years
on February 1, 1958. The first year's rental was paid on time.
In the meantime, Tomas de Castro died.
In the month of November, 1956, plaintiff as lessee and defendant
Arsenio de Castro, Sr. as one of the lessors, agreed to set aside and
annul the contract of lease and for this purpose an agreement (Exh.
A) was signed by them, Exhibit A as signed by plaintiff and
defendant shows that Felisa Cruz Vda. de Castro, widow of Tomas
de Castro, was intended to be made a party thereof in her capacity
as representative of the heirs of Tomas Castro.
Condition No. 2 of Exhibit A reads as follows:
"2. Na sa pamamagitan nito ay pinawawalang kabuluhan namin
ang nasabing kasulatan at nagkasundo kami na ang bawat isa sa
amin ni Arsenio de Castro at Felisa Cruz Vda. de Castro ay isauli
kay GREGORIO ATIENZA ang tig P2,500.00 o kabuuang
halagang P5,000.00 na paunang naibigay nito alinsunod sa
nasabing kasulatan; na ang nasabing tig P2,500.00 ay isasauli ng
bawat isa sa amin sa o bago dumating ang Dec. 30, 1956."

Felisa Cruz Vda. de Castro refused to sign Exhibit A. Defendant
did not pay the P2,500.00 which under the above-quoted paragraph
of Exhibit A, he should have paid on December 30, 1956. Demand
for payment was made by plaintiff's counsel on January 7, 1957
but to no avail, hence the present action.
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 same
third party, whether Arsenio could cancel his own lease agreement with said third
party?
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 correctly resolved the issue thus: "Our view of the contract of
lease Exhibit 1 is that each of the Castro brothers, leased his undivided one-half
interest in the fishpond they owned in common to the plaintiff. Could one of them
have validly leased his interest without the other co-owner leasing his own? The
answer to this is given by appellant in his own brief (p. 14) when he said that it
would result in a partnership between the lessee and the owner of the other undivided
half. If the lease could be entered into partially by one of the co-owners, insofar as
his interest is concerned, then the lease, Exhibit 1, can also be cancelled partially as
between plaintiff and defendant. Therefore, we conclude that the consent of Mrs.
Felisa Cruz Vda. de Castro is not essential for the cancellation of the lease of
defendant's one-half undivided share in the fishpond to plaintiff."
The appellate court 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'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
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
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 coownership. *
ACCORDINGLY, the appealed judgment is hereby affirmed with costs against
petitioners.

168, Pasig City1 dismissing the petitioner's Amended Complaint in SCA No. 1427 for
expropriation of two (2) parcels of land in Mandaluyong City. 1wphi1.nt
G.R. No. 137152
January 29, 2001
CITY
OF
MANDALUYONG, petitioner,
vs.
ANTONIO N., FRANCISCO N., THELMA N., EUSEBIO N., RODOLFO N.,
all surnamed AGUILAR, respondents.
PUNO, J.:
This is a petition for review under Rule 45 of the Rules of Court of the Orders dated
September 17, 1998 and December 29, 1998 of the Regional Trial Court, Branch
On August 4, 1997, petitioner filed with the Regional Trial Court, Branch 168, Pasig
City a complaint for expropriation entitled "City of Mandaluyong, plaintiff v. Antonio
N., Francisco N, Thelma N, Eusebio N, Rodolfo N., all surnamed Aguilar,
defendants." Petitioner sought to expropriate three (3) adjoining parcels of land with
an aggregate area of 1,847 square meters registered under Transfer Certificates of
Title Nos. 59780, 63766 and 63767 in the names of the defendants, herein
respondents, located at 9 de Febrero Street, Barangay Mauwag, City of
Mandaluyong; on a portion of the 3 lots, respondents constructed residential houses
several decades ago which they had since leased out to tenants until the present; on
the vacant portion of the lots, other families constructed residential structures which
they likewise occupied; in 1983, the lots were classified by Resolution No. 125 of
the Board of the Housing and Urban Development Coordinating Council as an Area
for Priority Development for urban land reform under Proclamation Nos. 1967 and
2284 of then President Marcos; as a result of this classification, the tenants and
occupants of the lots offered to purchase the land from respondents, but the latter
refused to sell; on November 7, 1996, the Sangguniang Panlungsod of petitioner,
upon petition of the Kapitbisig, an association of tenants and occupants of the subject
land, adopted Resolution No. 516, Series of 1996 authorizing Mayor Benjamin
Abalos of the City of Mandaluyong to initiate action for the expropriation of the
subject lots and construction of a medium-rise condominium for qualified occupants
of the land; on January 10, 1996, Mayor Abalos sent a letter to respondents offering
to purchase the said property at P3,000.00 per square meter; respondents did not
answer the letter. Petitioner thus prayed for the expropriation of the said lots and the
fixing of just compensation at the fair market value of P3,000.00 per square meter.2
In their answer, respondents, except Eusebio N. Aguilar who died in 1995, denied
having received a copy of Mayor Abalos' offer to purchase their lots. They alleged
that the expropriation of their land is arbitrary and capricious, and is not for a public
purpose; the subject lots are their only real property and are too small for
expropriation, while petitioner has several properties inventoried for socialized
housing; the fair market value of P3,000.00 per square meter is arbitrary because the
zonal valuation set by the Bureau of Internal Revenue is P7,000.00 per square meter.
As counterclaim, respondents prayed for damages of P21 million.3

Respondents filed a "Motion for Preliminary Hearing" claiming that the defenses
alleged in their Answer are valid grounds for dismissal of the complaint for lack of
jurisdiction over the person of the defendants and lack of cause of action.
Respondents prayed that the affirmative defenses be set for preliminary hearing and
that the complaint be dismissed.4 Petitioner replied.
Petitioner claims that the trial court erred
On November 5, 1997, petitioner filed an Amended Complaint and named as an

additional defendant Virginia N. Aguilar and, at the same time, substituted Eusebio
Aguilar with his heirs. Petitioner also excluded from expropriation TCT No. 59870
and thereby reduced the area sought to be expropriated from three (3) parcels of land
to two (2) parcels totalling 1,636 square meters under TCT Nos. 63766 and 63767.5
Petitioner mainly claims that the size of the lots in litigation does not exempt the
same from expropriation in view of the fact that the said lots have been declared to
be within the Area for Priority Development (APD) No. 5 of Mandaluyong by virtue
of Proclamation No. 1967, as amended by Proclamation No. 2284 in relation to
Presidential Decree No. 1517.10 This declaration allegedly authorizes petitioner to
expropriate the property, ipso facto, regardless of the area of the land.
The Amended Complaint was admitted by the trial court on December 18, 1997.
Respondents, who, with the exception of Virginia Aguilar and the Heirs of Eusebio
Aguilar had yet to be served with summons and copies of the Amended Complaint,
filed a "Manifestation and Motion" adopting their "Answer with Counterclaim" and
"Motion for Preliminary Hearing" as their answer to the Amended Complaint.6
The motion was granted. At the hearing of February 25, 1998, respondents presented
Antonio Aguilar who testified and identified several documentary evidence.
Petitioner did not present any evidence. Thereafter, both parties filed their respective
memoranda.7
On September 17, 1998, the trial court issued an order dismissing the Amended
Complaint after declaring respondents as "small property owners" whose land is
exempt from expropriation under Republic Act No. 7279. The court also found that
the expropriation was not for a public purpose for petitioner's failure to present any
evidence that the intended beneficiaries of the expropriation are landless and
homeless residents of Mandaluyong. The court thus disposed of as follows:
"WHEREFORE, the Amended Complaint is hereby ordered dismissed
without pronouncement as to cost.
SO ORDERED."8
Petitioner moved for reconsideration. On December 29, 1998, the court denied the
motion. Hence this petition.
"IN UPHOLDING RESPONDENT'S CONTENTION THAT THEY

QUALIFY AS SMALL PROPERTY OWNERS AND ARE THUS
EXEMPT FROM EXPROPRIATION."9
Presidential Decree (P.D.) No. 1517, the Urban Land Reform Act, was issued by then
President Marcos in 1978. The decree adopted as a State policy the liberation of
human communities from blight, congestion and hazard, and promotion of their
development and modernization, the optimum use of land as a national resource for
public welfare.11 Pursuant to this law, Proclamation No. 1893 was issued in 1979
declaring the entire Metro Manila as Urban Land Reform Zone for purposes of urban
land reform. This was amended in 1980 by Proclamation No. 1967 and in 1983 by
Proclamation No. 2284 which identified and specified 245 sites in Metro Manila as
Areas for Priority Development and Urban Land Reform Zones.
In 1992, the Congress of the Philippines passed Republic Act No. 7279, the "Urban
Development and Housing Act of 1992." The law lays down as a policy that the
state, in cooperation with the private sector, undertake a comprehensive and
continuing Urban Development and Housing Program; uplift the conditions of the
underprivileged and homeless citizens in urban, areas and resettlement areas by
making available to them decent housing at affordable cost, basic services and
employment opportunities and provide for the rational use and development of urban
land to bring about, among others, equitable utilization of residential lands;
encourage more effective people's participation in the urban development process
and improve the capability of local government units in undertaking urban
development and housing programs and projects. 12 Towards this end, all city and
municipal governments are mandated to conduct an inventory of all lands and
improvements within their respective localities, and in coordination with the
National Housing Authority, the Housing and Land Use Regulatory Board, the
National Mapping Resource Information Authority, and the Land Management

Bureau,identify lands for socialized housing and resettlement areas for the
immediate and future needs of the underprivileged and homeless in the urban
areas, acquire the lands, and dispose of said lands to the beneficiaries of the
program.13
The acquisition of lands for socialized housing is governed by several provisions in
the law. Section 9 of R.A. 7279 provides:
"Sec. 9. Priorities in the Acquisition of Land. Lands for socialized
housing shall be acquired in the following order:
(a) Those owned by the Government or any of its subdivisions,
instrumentalities, or agencies, including government-owned or
controlled corporations and their subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas for Priority Development,
Zonal Improvement Program sites, and Slum Improvement and
Resettlement Program sites which have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and Services or BLISS
Sites which have not yet been acquired;
(f) Privately-owned lands.
Where on-site development is found more practicable and advantageous to
the beneficiaries, the priorities mentioned in this section shall not apply. The
local government units shall give budgetary priority to on-site development
of government lands."
Lands for socialized housing are to be acquired in the following order: (1)
government lands; (2) alienable lands of the public domain; (3) unregistered or
abandoned or idle lands; (4) lands within the declared Areas for Priority
Development (APD), Zonal Improvement Program (ZIP) sites, Slum Improvement
and Resettlement (SIR) sites which have not yet been acquired; (5) BLISS sites
which have not yet been acquired; and (6) privately-owned lands.
There is no dispute that the two lots in litigation are privately-owned and therefore
last in the order of priority acquisition. However, the law also provides that lands
within the declared APD's which have not yet been acquired by the government are
fourth in the order of priority. According to petitioner, since the subject lots lie within
the declared APD, this fact mandates that the lots be given priority in acquisition. 14
Section 9, however, is not a single provision that can be read separate from the other
provisions of the law. It must be read together with Section 10 of R.A. 7279 which
also provides:
"Section 10. Modes of Land Acquisition. The modes of acquiring lands
for purposes of this Act shall include, among others, community mortgage,
land swapping, land assembly or consolidation, land banking, donation to
the Government, joint-venture agreement, negotiated purchase, and
expropriation: Provided, however, That expropriation shall be resorted to
only when other modes of acquisition have been exhausted: Provided,
further, That where expropriation is resorted to, parcels of land owned
by small property owners shall be exempted for purposes of this
Act: Provided, finally, That abandoned property, as herein defined, shall be
reverted and escheated to the State in a proceeding analogous to the
procedure laid down in Rule 91 of the Rules of Court.15
For the purposes of socialized housing, government-owned and foreclosed
properties shall be acquired by the local government units, or by the
National
Housing
Authority
primarily
through
negotiated
purchase:Provided, That qualified beneficiaries who are actual occupants of
the land shall be given the right of first refusal."
Lands for socialized housing under R.A. 7279 are to be acquired in several modes.
Among these modes are the following: (1) community mortgage; (2) land swapping,
(3) land assembly or consolidation; (4) land banking; (5) donation to the
government; (6) joint venture agreement; (7) negotiated purchase; and (8)
expropriation. The mode of expropriation is subject to two conditions: (a) it shall be
resorted to only when the other modes of acquisition have been exhausted; (b)
parcels of land owned by small property owners are exempt from such acquisition.

Section 9 of R.A. 7279 speaks of priorities in the acquisition of lands. It enumerates
the type of lands to be acquired and the heirarchy in their acquisition. Section 10
deals with the modes of land acquisition or the process of acquiring lands for
socialized housing. These are two different things. They mean that the type of
lands that may be acquired in the order of priority in Section 9 are to be
acquired only in the modes authorized under Section 10. The acquisition of the
lands in the priority list must be made subject to the modes and conditions set forth
in the next provision. In other words, land that lies within the APD, such as in the
instant case, may be acquired only in the modes under, and subject to the conditions
of, Section 10.
Petitioner claims that it had faithfully observed the different modes of land
acquisition for socialized housing under R.A. 7279 and adhered to the priorities in
the acquisition for socialized housing under said law.16 It, however, did not state with
particularity whether it exhausted the other modes of acquisition in Section 9 of the
law before it decided to expropriate the subject lots. The law states "expropriation
shall be resorted to when other modes of acquisition have been exhausted."
Petitioner alleged only one mode of acquisition, i.e., by negotiated purchase.
Petitioner, through the City Mayor, tried to purchase the lots from respondents but
the latter refused to sell.17 As to the other modes of acquisition, no mention has been
made. Not even Resolution No. 516, Series of 1996 of the Sangguniang Panlungsod
authorizing the Mayor of Mandaluyong to effect the expropriation of the subject
property states whether the city government tried to acquire the same by community
mortgage, land swapping, land assembly or consolidation, land banking, donation to
the government, or joint venture agreement under Section 9 of the law.
Section 9 also exempts from expropriation parcels of land owned by small property
owners.18 Petitioner argues that the exercise of the power of eminent domain is not
anymore conditioned on the size of the land sought to be expropriated. 19 By the
expanded notion of public use, present jurisprudence has established the concept that
expropriation is not anymore confined to the vast tracts of land and landed estates,
but also covers small parcels of land. 20 That only a few could actually benefit from
the expropriation of the property does not diminish its public use character. 21 It
simply is not possible to provide, in one instance, land and shelter for all who need
them.22
While we adhere to the expanded notion of public use, the passage of R.A. No. 7279,
the "Urban Development and Housing Act of 1992" introduced a limitation on the
size of the land sought to be expropriated for socialized housing. The law expressly
exempted "small property owners" from expropriation of their land for urban land
reform. R.A. No. 7279 originated as Senate Bill No. 234 authored by Senator Joey
Lina23 and House Bill No. 34310. Senate Bill No. 234 then provided that one of those
lands not covered by the urban land reform and housing program was "land actually
used by small property owners within the just and equitable retention limit as
provided under this Act."24 "Small property owners" were defined in Senate Bill No.
234 as:
"4. Small Property Owners are those whose rights are protected under
Section 9, Article XIII of the Constitution of the Philippines, who own
small parcels of land within the fair and just retention limit provided under
this Act and which are adequate to meet the reasonable needs of the small
property owner's family and their means of livelihood.25
The exemption from expropriation of lands of small-property owners was never
questioned on the Senate floor.26This exemption, although with a modified definition,
was actually retained in the consolidation of Senate Bill No. 234 and House Bill No.
34310 which became R.A. No. 7279.27
The question now is whether respondents qualify as "small property owners" as
defined in Section 3 (q) of R.A. 7279. Section 3 (q) provides:
"Section 3 x x x (q). "Small property owners" refers to those whose only real
property consists of residential lands not exceeding three hundred square
meters (300 sq.m.) in highly urbanized cities and eight hundred square
meters (800 sq.m.) in other urban areas."
"Small-property owners" are defined by two elements: (1) those owners of real
property whose property consists of residential lands with an area of not more than
300 square meters in highly urbanized cities and 800 square meters in other urban
areas; and (2) that they do not own real property other than the same.
The case at bar involves two (2) residential lots in Mandaluyong City, a highly
urbanized city. The lot under TCT No. 63766 is 687 square meters in area and the
second under TCT No. 63767 is 949 square meters, both totalling 1,636 square
meters in area. TCT No. 63766 was issued in the names of herein five (5)
respondents, viz:

"FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR, single;
EUSEBIO N. AGUILAR, JR., widower; RODOLFO N. AGUILAR, single
and ANTONIO N. AGUILAR, married to Teresita Puig; all of legal age,
Filipinos."28
TCT No. 63767 was issued in the names of the five (5) respondents plus Virginia
Aguilar, thus:
"FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR, single;
EUSEBIO N. AGUILAR, JR., widower; RODOLFO N. AGUILAR, single
and ANTONIO N. AGUILAR, married to Teresita Puig; and VIRGINIA N.
AGUILAR, single, all of legal age, Filipinos."29
Respondent Antonio Aguilar testified that he and the other registered owners are all
siblings who inherited the subject property by intestate succession from their
parents.30 Their father died in 1945 and their mother in 1976. 31 Both TCT's were
issued in the siblings' names on September 2, 1987. 31 In 1986, however, the siblings
agreed to extrajudicially partition the lots among themselves, but no action was taken
by them to this end. It was only eleven (11) years later, on November 28, 1997 that a
survey of the two lots was made 33 and on February 10, 1998, a consolidation
subdivision plan was approved by the Lands Management Service of the Department
of Environment and Natural Resources.34 The co-owners signed a Partition
Agreement on February 24, 199835 and on May 21, 1998, TCT Nos. 63766 and
63767 were cancelled and new titles issued in the names of the individual owners
pursuant to the Partition Agreement.
Petitioner argues that the consolidation of the subject lots and their partition was
made more than six (6) months after the complaint for expropriation was filed on
August 4, 1997, hence, the partition was made in bad faith, for the purpose of
circumventing the provisions of R.A. 7279.36
At the time of filing of the complaint for expropriation, the lots subject of this case
were owned in common by respondents; Under a co-ownership, the ownership of an
undivided thing or right belongs to different persons.37During the existence of the coownership, no individual can claim title to any definite portion of the community
property until the partition thereof; and prior to the partition, all that the co-owner
has is an ideal or abstract quota or proportionate share in the entire land or
thing.38 Article 493 of the Civil Code however provides that:
"Art. 493. Each co-owner shall have the full ownership of his part and of the
fruits and benefits pertaining thereto, and he may therefore alienate, assign
or mortgage it, and even substitute another person in its enjoyment, except
when personal rights are involved. But the effect of the alienation or the
mortgage, with respect to the co-owners shall be limited to the portion
which may be allotted to him in the division upon termination of the coownership.39
Before partition in a co-ownership, every co-owner has the absolute ownership of his
undivided interest in the common property. The co-owner is free to alienate, assign
or mortgage his interest, except as to purely personal rights. 40 He may also validly
lease his undivided interest to a third party independently of the other coowners.41The effect of any such transfer is limited to the portion which may be
awarded to him upon the partition of the property.42
Article 493 therefore gives the owner of an undivided interest in the property the
right to freely sell and dispose of his undivided interest. 43 The co-owner, however,
has no right to sell or alienate a concrete specific or determinate part of the thing
owned in common, because his right over the thing is represented by a quota or ideal
portion without any physical adjudication. 44 If the co-owner sells a concrete portion,
this, nonetheless, does not render the sale void. Such a sale affects only his
ownshare, subject to the results of the partition but not those of the other co-owners
who did not consent to the sale.45
In the instant case, the titles to the subject lots were issued in respondents' names as
co-owners in 1987ten (10) years before the expropriation case was filed in 1997.
As co-owners, all that the respondents had was an ideal or abstract quota or
proportionate share in the lots. This, however, did not mean that they could not
separately exercise any rights over the lots. Each respondent had the full ownership
of his undivided interest in the property. He could freely sell or dispose of his interest
independently of the other co-owners. And this interest could have even been
attached by his creditors.46 The partition in 1998, six (6) months after the filing of the
expropriation case, terminated the co-ownership by converting into certain and
definite parts the respective undivided shares of the co-owners. 47 The subject
property is not a thing essentially indivisible. The rights of the co-owners to have the
property partitioned and their share in the same delivered to them cannot be
questioned for "[n]o co-owner shall be obliged to remain in the co-ownership." 48 The

partition was merely a necessary incident of the co-ownership; 49 and absent any
evidence to the contrary, this partition is presumed to have been done in good faith.
which it stands are owned by respondents or anyone of them. Petitioner did not
present any title or proof of this fact despite Antonio Aguilar's testimony.
Upon partition, four (4) co-owners, namely, Francisco, Thelma, Rodolfo and Antonio
Aguilar each had a share of 300 square meters under TCT Nos. 13849, 13852,
13850, 13851.50 Eusebio Aguilar's share was 347 square meters under TCT No.
1385351 while Virginia Aguilar's was 89 square meters under TCT No. 13854.52
On the other hand, respondents claim that the subject lots are their only real
property58 and that they, particularly two of the five heirs of Eusebio Aguilar, are
merely renting their houses and therefore do not own any other real property in
Metro Manila.59 To prove this, they submitted certifications from the offices of the
City and Municipal Assessors in Metro Manila attesting to the fact that they have no
registered real property declared for taxation purposes in the respective cities.
Respondents were certified by the City Assessor of Manila; 60 Quezon City;61Makati
City;62 Pasay
City;63 Paranaque;64 Caloocan
City;65 Pasig
City;66 Muntinlupa;67 Marikina;68 and the then municipality of Las Pias 69 and the
municipality of San Juan del Monte 70 as having no real property registered for
taxation in their individual names.1wphi1.nt
It is noted that Virginia Aguilar, although granted 89 square meters only of the
subject lots, is, at the same time, the sole registered owner of TCT No. 59780, one of
the three (3) titles initially sought to be expropriated in the original complaint. TCT
No. 59780, with a land area of 211 square meters, was dropped in the amended
complaint. Eusebio Aguilar was granted 347 square meters, which is 47 square
meters more than the maximum of 300 square meters set by R.A. 7279 for small
property owners. In TCT No. 13853, Eusebio's title, however, appears the following
annotation:
"... subject to x x x, and to the prov. of Sec. 4 Rule 74 of the Rules of Court
with respect to the inheritance left by the deceased Eusebio N. Aguilar."53
Eusebio died on March 23, 1995,54 and, according to Antonio's testimony, the former
was survived by five (5) children.55 Where there are several co-owners, and some of
them die, the heirs of those who die, with respect to that part belonging to the
deceased, become also co-owners of the property together with those who
survive.56After Eusebio died, his five heirs became co-owners of his 347 squaremeter portion. Dividing the 347 square meters among the five entitled each heir to
69.4 square meters of the land subject of litigation.
Finally, this court notes that the subject lots are now in the possession of
respondents. Antonio Aguilar testified that he and the other co-owners filed
ejectment cases against the occupants of the land before the Metropolitan Trial
Court, Mandaluyong, Branches 59 and 60. Orders of eviction were issued and
executed on September 17, 1997 which resulted in the eviction of the tenants and
other occupants from the land in question.71
IN VIEW WHEREOF, the petition is DENIED and the orders dated September 17.
1998 and December 29, 1998 of the Regional Trial Court, Branch 168, Pasig City in
SCA No. 1427 are AFFIRMED.
Consequently, the share of each co-owner did not exceed the 300 square meter limit
set in R.A. 7279. The second question, however, is whether the subject property is
the only real property of respondents for them to comply with the second requisite
for small property owners.
Antonio Aguilar testified that he and most of the original co-owners do not reside on
the subject property but in their ancestral home in Paco, Manila. 57 Respondents
therefore appear to own real property other than the lots in litigation. Nonetheless,
the records do not show that the ancestral home in Paco, Manila and the land on
SO ORDERED.
G.R. No. L-29727 December 14, 1988

PEDRO OLIVERAS, TEODORA GASPAR, MELECIO OLIVERAS and
ANICETA
MINOR, plaintiffs-appellees,
vs.
CANDIDO LOPEZ, SEVERO LOPEZ, HIPOLITO LOPEZ, EUGENIA
LOPEZ, PRIMITIVO GASPAR, CORAZON LOPEZ, ALEJANDRO
CACAYURIN, FAUSTINA BOTUYAN, MODESTO SALAZAR, ADORACION
BOTUYAN, CLAUDIO GANOTICE and ENONG BOTUYAN, defendantsappellants.
Venancio B. Fernando for defendants-appellants.
FERNAN, C.J.:
This case exemplifies the Filipino custom of keeping inherited property in a
prolonged juridical condition of co-owner ship.
Lorenzo Lopez owned Lot 4685 of the Cadastral survey of Villasis, Pangasinan with
an area of 69,687 square meters as evidenced by Original Certificate of Title No.
15262. 1 In December, 1931, Lorenzo Lopez died, 2 leaving said property to his wife,
Tomasa Ramos and six (6) children. From that time on, the heirs of Lorenzo Lopez
did not initiate any moves to legally partition the property.
More than twenty-one years later, or on February 11, 1953, Tomasa Ramos and her
eldest son, Candido Lopez, executed a deed of absolute sale of the "eastern
undivided four thousand two hundred and fifty seven-square meters (4,257) more or
less, of the undivided portion of (their) interests, rights and participation" over Lot
4685, in favor of the spouses Melecio Oliveras and Aniceta Minor, in consideration
of the amount of one thousand pesos (P1,000). 3
On the same day, Tomasa and Candido executed another deed of absolute sale of the
"undivided" four thousand two hundred and fifty-seven (4,257) square meters of the
"eastern part" of Lot 4685 in favor of the spouses Pedro Oliveras and Teodora
Gaspar, also in consideration of P1,000. 4 Each of the said documents bear the
thumbmark of Tomasa and the signature of Candido.
In his affidavit also executed on February 11, 1953, Candido stated that a month
prior to the execution of the deed of sale in favor of Melecio Oliveras, he offered his:
"undivided portion" of Lot 4685 to his "adjacent owners" but none of them was "in a
position to purchase" said property. 5
Since the execution of the two deeds of absolute sale, the vendees, brothers Melecio
and Pedro, had been paying the real property taxes for their respectively purchased
properties. 6 They also had been in possession of their purchased properties which,
being planted to palay and peanuts, were segregated from the rest of Lot 4685 by
dikes. 7
More than thirteen years later or on November 21, 1966, the counsel of the Oliveras
brothers wrote the heirs of Lorenzo Lopez reminding them of the Oliverases'
demands to partition the property so that they could acquire their respective titles
thereto without resorting to court action, and that, should they fail to respond, he
would be forced to file a case in court. 8 Apparently, the Lopezes did not answer said
letter since on December 15, 1966, the Oliveras brothers and their wives filed a
complaint for partition and damages 9 in the Court of First Instance of Pangasinan.10
The Oliverases stated in their complaint that possession of the disputed properties
was delivered to them with the knowledge and consent of the defendants; that they
had been paying the real estate taxes thereon; that prior to the sale, said properties
were offered to the other co-owners for sale but they refused to buy them; that on
February 18, 1953, the transactions were duly annotated and entered in the
Memorandum of encumbrances of OCT No. 15262 as adverse claims; and that their
desire to segregate the portions of Lot 4685 sold to them was frustrated by
defendants' adamant refusal to lend them the owner's duplicate of OCT No. 15262
and to execute a deed of partition of the whole lot.
In claiming moral damages in the amount of P2,000.00 plaintiffs alleged that
defendants also refused to allow them to survey and segregate the portions bought by
them. Plaintiffs prayed that the court order the defendants to partition Lot 4685 and
to allow them to survey and segregate the portions they had purchased. They also
demanded payment of P800.00 as attorney's fees and cost of the suit.
In their answer, the defendants alleged that no sale ever transpired as the alleged
vendors could not have sold specific portions of the property; that plaintiffs'
possession and occupation of specific portions of the properties being illegal, they

could not ripen into ownership; and that they were not under any obligation to lend
their copy of the certificate of title or to accede to plaintiffs' request for the partition
or settlement of the property. As special and affirmative defenses, the defendants
contended that the deeds of sale were null and void and hence, unenforceable against
them; that the complaint did not state a cause of action and that the cause or causes
of action if any, had prescribed.
Defendants averred in their counterclaim that despite repeated demands, plaintiffs
refused and failed to vacate the premises; that the properties occupied by the
plaintiffs yielded an average net produce in palay and peanuts in the amount of
P1,600.00 annually, and that the complaint was filed to harass them. They prayed for
the dismissal of the complaint and the payment of P1,600.00 per year from 1953
until plaintiffs shall have vacated the premises and P1,000.00 for attorney's fees.
Plaintiffs filed an answer to defendants' counterclaim, denying all the allegations
therein and stating that defendants never demanded that plaintiffs vacate the portions
of Lot 4685 they had bought.
The lower court explored the possibility of an amicable settlement between the
parties without success. Hence, it set the case for trial and thereafter, it rendered a
decision 11 declaring valid the deeds of absolute sale 12 and ordering the defendants to
allow the segregation of the sold portions of Lot 4685 by a licensed surveyor in order
that the plaintiffs could obtain their respective certificates of title over their portions
of said lot.
In resolving the case, the lower court passed upon the issue of whether the two deeds
of absolute sale were what they purported to be or merely mortgage documents. It
considered as indicia of plaintiffs' absolute dominion over the portions sold to them
their actual possession thereof without any opposition from the defendants until the
filing of the complaint, their payment of taxes thereon and their having benefited
from the produce of the land. The court ruled that the defendants' testimonial
evidence that the deeds in question were merely mortgage documents cannot
overcome the evidentiary value of the public instruments presented by the plaintiffs.
On the issue of whether the two deeds of absolute sale were null and void
considering that the land subject thereof had not yet been partitioned, the court
observed that the total area of 8,514 square meters sold to plaintiffs by Candido was
less than his share should Lot 4685 with an area of 69,687 square meters be divided
among the six children of Lorenzo Lopez and their mother. In this connection, the
lower court also found that during his lifetime, and before Candido got married,
Lorenzo Lopez had divided Lot 4685 among his children who then took possession
of their respective shares. *
The defendants appealed said decision to this Court contending that the lower court
erred in declaring the two deeds of absolute sale as valid, in ordering the segregation
of the sold portions of Lot 4685 to enable the plaintiffs to obtain their respective
certificates of title, and in not considering their defense of prescription.
The extrinsic validity of the two deeds of absolute sale is not in issue in this case in
view of the finding of the trial court that the defendants admittedly do not question
their due execution. 13 What should pre-occupy the Court is the intrinsic validity of
said deeds insofar as they pertain to sales of designated portions of an undivided, coowned property.
In a long line of decisions, this Court has held that before the partition of a land or
thing held in common, no individual co-owner can claim title to any definite portion
thereof. All that the co-owner has is an Ideal or abstract quota or proportionate share
in the entire land or thing. 14
However, the duration of the juridical condition of co-ownership is not limitless.
Under Article 494 and 1083 of the Civil Code, co-ownership of an estate should not
exceed the period of twenty (20) years. And, under the former article, any agreement
to keep a thing or property undivided should be for a ten-year period only. Where the
parties stipulate a definite period of in division which exceeds the maximum allowed
by law, said stipulation shall be void only as to the period beyond such maximum. 15
Although the Civil Code is silent as to the effect of the in division of a property for
more than twenty years, it would be contrary to public policy to sanction coownership beyond the period set by the law. Otherwise, the 20-year limitation
expressly mandated by the Civil Code would be rendered meaningless.
In the instant case, the heirs of Lorenzo Lopez maintained the co-ownership for more
than twenty years. We hold that when Candido and his mother (who died before the
filing of the complaint for partition) sold definite portions of Lot 4685, they validly
exercised dominion over them because, by operation of law, the co-ownership had
ceased. The filing of the complaint for partition by the Oliverases who, as vendees,

are legally considered as subrogated to the rights of Candido over portions of Lot
4685 in their possession, 16 merely served to put a stamp of formality on Candido's
otherwise accomplished act of terminating the co-ownership.
partition which it should thereafter approve. This decision is immediately executory.

No costs.
SO ORDERED.
The action for partition has not prescribed. Although the complaint was filed thirteen
years from the execution of the deeds of sale and hence, as contended by the
defendants-appellants, prescription might have barred its filing under the general
provision of Article 1144 (a) of the Civil Code, Article 494 specifically mandates that
each
co-owner may demand at any time the partition of the thing owned in common
insofar as his share is concerned. Hence, considering the validity of the conveyances
of portions of Lot 4685 in their favor and as subrogees of Candido Lopez, the
Oliverases' action for partition was timely and properly filed. 17
We cannot write finis to this decision without commenting on the compliance with
the resolution of September 1, 1986 of counsel for defendants-appellants. In said
resolution, the court required the parties to move in the premises "considering the
length of time that this case has remained pending in this Court and to determine
whether or not there might be supervening events which may render the case moot
and academic. 18 In his manifestation and motion dated August 12, 1987, said counsel
informed the Court that he had contacted the defendants-appellants whom he advised
"to move in the premises which is the land in question and to maintain the status quo
with respect to their actual possession thereon" and that he had left a copy of said
resolution with the defendants-appellants" for their guidance in the compliance of
their
obligations
(sic)
as
specified
in
said
resolution." 19
Obviously, said counsel interpreted literally the Court's directive "to move in the
premises." For the enlightenment of said counsel and all others of similar perception,
a "move in the premises" resolution is not a license to occupy or enter the premises
subject of litigation especially in cases involving real property. A "move in the
premises" resolution simply means what is stated therein: the parties are obliged to
inform the Court of developments pertinent to the case which may be of help to the
Court in its immediate disposition.
WHEREFORE, the decision of the lower court insofar as it declares the validity of
the two deeds of sale and directs the partition of Lot 4685, is AFFIRMED. The lower
court is hereby ordered to facilitate with dispatch the preparation of a project of

This is a petition for review on certiorari of the decision of the Court of Appeals
reversing the trial court's judgment which declared as null and void the certificate of
title in the name of respondents' predecessor and which ordered the partition of the
disputed lot among the parties as co-owners.
The antecedent facts of the case as found both by the respondent appellate court and
by the trial court are as follows:
During his lifetime, Lino Delima acquired Lot No. 7758 of the Talisay-Minglanilla
Friar Lands Estate in Cebu by sale on installments from the government. Lino
Delima later died in 1921 leaving as his only heirs three brothers and a sister namely:
Eulalio Delima, Juanita Delima, Galileo Delima and Vicente Delima. After his death,
TCT No. 2744 of the property in question was issued on August 3, 1953 in the name
of the Legal Heirs of Lino Delima, deceased, represented by Galileo Delima.
On September 22, 1953, Galileo Delima, now substituted by respondents, executed
an affidavit of "Extra-judicial Declaration of Heirs." Based on this affidavit, TCT
No. 2744 was cancelled and TCT No. 3009 was issued on February 4,1954 in the
name of Galileo Delima alone to the exclusion of the other heirs.
G.R. No. L-46296 September 24, 1991
Galileo Delima declared the lot in his name for taxation purposes and paid the taxes
thereon from 1954 to 1965.
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.
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.
Gabriel J. Canete for petitioners.

Emilio Lumontad, Jr. for private respondents.
MEDIALDEA, J.:p
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 TalisayMinglanilla Friar Lands Estate presently covered by transfer
Certificate of Title No. 3009, each sharing a pro-indiviso share of
one-fourth;

1) Vicente Delima (one-fourth)
2) Heirs of Juanita Delima, namely: Bibiano Bacus, Olimpio Bacus
and Purificacion Bacus (on-fourth);
3) Heirs of Eulalio Delima, namely Epitacio, Pagano, Fidel,
Virgilio and Galileo Jr., all surnamed Delima (one-fourth); and
4) The Heirs of Galileo Delima, namely Flaviana Vda. de Delima,
Lily D. Arias, Helen Niadas and Dionisio, Antonio, Eotu Irenea,
and Fely, all surnamed Delima (one-fourth).
Transfer Certificate of Title No. 3009 is declared null and void and
the Register of Deeds of Cebu is ordered to cancel the same and
issue in lieu thereof another title with the above heirs as proindiviso 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.
paid the remaining balance of the purchase price of the lot and the realty taxes
thereon (p. 26, Rollo).
Hence, this petition was filed with the petitioners alleging that the Court of Appeals
erred:
1) In not holding that the right of a co-heir to demand partition of
inheritance is imprescriptible. If it does, the defenses of
prescription and laches have already been waived.
2) In disregarding the evidence of the petitioners.(p.13, Rollo)
The issue to be resolved in the instant case is whether or not petitioners' action for
partition is already barred by the statutory period provided by law which shall enable
Galileo Delima to perfect his claim of ownership by acquisitive prescription to the
exclusion of petitioners from their shares in the disputed property. Article 494 of the
Civil Code expressly provides:
Art. 494. No co-owner shall be obliged to remain in the 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.
Defendants are condemned to pay the costs of the suit.
A donor or testator may prohibit partition for a period which shall

not exceed twenty years.
The counterclaim is dismissed.
Neither shall there be any partition when it is prohibited by law.
SO ORDERED. (pp. 54-55, Rollo)
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.
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
As a rule, possession by a co-owner will not be presumed to be adverse to the others,

but will be held to benefit all. It is understood that the co-owner or co-heir who is in
possession of an inheritance pro-indiviso for himself and in representation of his co-

owners or co-heirs, if, as such owner, he administers or takes care of the rest thereof
with the obligation of delivering it to his co-owners or co-heirs, is under the same
situation as a depository, a lessee or a trustee (Bargayo v. Camumot, 40 Phil, 857;
Segura v. Segura, No. L-29320, September 19, 1988, 165 SCRA 368). Thus, an
action to compel partition may be filed at any time by any of the co-owners against
the actual possessor. In other words, no prescription shall run in favor of a co-owner
against his co-owners or co-heirs so long as he expressly or impliedly recognizes the
co-ownership (Del Blanco v. Intermediate Appellate Court, No. 72694, December 1,
1987, 156 SCRA 55).
However, from the moment one of the co-owners claims that he is the absolute and
exclusive owner of the properties and denies the others any share therein, the
question involved is no longer one of partition but of ownership (De Castro v.
Echarri, 20 Phil. 23; Bargayo v. Camumot, supra; De los Santos v. Santa Teresa, 44
Phil. 811). In such case, the imprescriptibility of the action for partition can no
longer be invoked or applied when one of the co-owners has adversely possessed the
property as exclusive owner for a period sufficient to vest ownership by prescription.
It is settled that possession by a co-owner or co-heir is that of a trustee. In order that
such possession is considered adverse to the cestui que trust amounting to a
repudiation of the co-ownership, the following elements must concur: 1) that the
trustee has performed unequivocal acts amounting to an ouster of the cestui que
trust; 2) that such positive acts of repudiation had been made known to the cestui que
trust; and 3) that the evidence thereon should be clear and conclusive (Valdez v.
Olorga, No. L-22571, May 25, 1973, 51 SCRA 71; Pangan v. Court of Appeals,
No.L-39299, October 18, 1988, 166 SCRA 375).
We have held that when a co-owner of the property in question executed a deed of
partition and on the strength thereof obtained the cancellation of the title in the name
of their predecessor and the issuance of a new one wherein he appears as the new
owner of the property, thereby in effect denying or repudiating the ownership of the
other co-owners over their shares, the statute of limitations started to run for the
purposes of the action instituted by the latter seeking a declaration of the existence of
the co-ownership and of their rights thereunder (Castillo v. Court of Appeals, No. L18046, 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. L31858, 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.
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.
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, 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).
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).
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).
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
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. 14-15).
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.
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.
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.
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]).
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).
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
ama . . ." (Exh. M, Record on Appeal, pp. 65-66).
kapatid
ko
sa
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 co-ownership,
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.
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 longstanding rule that registration operates as a universal notice of title.
Inasmuch as petitioners registered the properties in their names in fraud of their coheirs 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.
WHEREFORE, the petition is DENIED and the assailed decision of the Court of
Appeals dated December 24, 1980 is Affirmed.
SO ORDERED.
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.
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
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.
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 co-owners; 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
In 1966, Pastor sold back to Alberto a portion of Lot No. 6180 which was formerly
the share of Alberto's father, Procopio. 11
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.
...
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
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 18 holding as follows:
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.
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 C-1), 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 one-fourth (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.
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).
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:
(1) 1/9 of Lots 6080 end 6180 should be given to
the heirs of Gaudencia Yabo or their successors
and assigns;
(2) 1/9 of Lot 6180 should go to Alberto Yabo
and his wife Elpia Yabo;
(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: One-half (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 threefourths (3/4) for Pastor Makibalo (now the
spouses Eulogio Salvador and Remedios
Salvador) and one-fourth (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 successors-in-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 coheirs 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 coowners 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?
Q Yes. Did you grant that?
A It is there in their house at Bulua.
A Yes.
ATTY. JARAULA: (Continuing.)
Q That is the area you sold to Alberto Yabo,

pursuant to his request?
Q In whose land?
A Alipio Yabo's land.
A Because that was the land they inherited from

their father that was what they requested.
Q What relation has that land to the two (2)

parcels of land under litigation?
Q All right.So that, the area now being occupied

by Alberto Yabo?
A I bought already.
A Yes. That land in the Centro.
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.
Q This is now identified as Lot No. 6180?
A So, I sold back a portion to them because they

requested me.
ATTY. JARAULA: (Continuing.)

Q When was that when you said that Alberto
Yabo requested a portion?
A Yes, Your Honor.
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.
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.
Q You mean to say, that the receipt which

Procopio signed when he sold his share for [sic]
the document which Alberto got?
A Yes.
COURT:
COURT

All right.
Now on the fourth assigned error.
ATTY. JARAULA (Continuing.)
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 coowners 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
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 abovequoted 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.
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.
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:
(2) 1/9 share formerly belonging to Pelagia Yabo to the

petitioners as successors-in-interest of Pastor Makibalo;
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)
(a) 1/2 for the petitioners (as successors-ininterest of Pastor Makibalo), and
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;
(3) 1/9 hereditary share of Maria Yabo to be divided as follows:
(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-in-interest;
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.
of real property4 dated November 1, 1948, Macario claimed that Dionisia had
donated her share to him in May 1945.
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.
Thereafter, on August 9, 1977, Macario and his daughters Betty Gullaba and Saida
Gabelo sold5 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 sold6 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
SO ORDERED.
The Case For Petitioner
VILLARAMA, JR., J.:
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
The Case For Respondents
Petitioner Celerino E. Mercado appeals the Decision 1 dated April 28, 2008 and
Resolution2 dated July 22, 2008 of the Court of Appeals (CA) in CA-G.R. CV No.
87480. The CA dismissed petitioners complaint3 for recovery of possession, quieting
of title, partial declaration of nullity of deeds and documents, and damages, on the
ground of prescription.
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
G.R. No. 184109
February 1, 2012
CELERINO
E.
MERCADO, Petitioner,
vs.
BELEN* ESPINOCILLA** AND FERDINAND ESPINOCILLA, Respondents.
DECISION
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
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 -
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
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.
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.
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 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.1wphi1
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
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.
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
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.
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 co-owners, 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.
G.R. No. L-22621
Moreover, the CA correctly dismissed petitioners complaint as an action for

reconveyance based on an implied or constructive trust prescribes in 10 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
No pronouncement as to costs.
SO ORDERED.
September 29, 1967
JOSE MARIA RAMIREZ, plaintiff-appellee,

vs.
JOSE EUGENIO RAMIREZ, RITA D. RAMIREZ, BELEN T. RAMIREZ,
DAVID MARGOLIES, MANUEL UY and SONS, INC., BANK OF THE
PHILIPPINE ISLANDS, in its capacity as judicial administrator of the Testate
Estate of the late Jose Vivencio Ramirez, defendants-appellants,
ANGELA M. BUTTE, defendant-appellee.
Sycip,
Salazar,
Luna
and
Associates
Ramirez and Ortigas for defendants-appellants.
for
plaintiff-appellee.
CONCEPCION, C.J.:
Appeal by the defendants from a decision of the Court of First Instance of Manila.
Plaintiff, Jose Maria Ramirez, brought this action [[1]] against defendants Jose
Eugenio Ramirez, Rita D. Ramirez, Belen T. Ramirez, David Margolies, Manuel Uy
& Sons, Inc., the Estate of the late Jose Vivencio Ramirez represented by its judicial
administrator, the Bank of the Philippine Islands, and Angela M. Butte hereinafter

referred to collectively as defendants for the partition of a parcel of land situated
at the Northwestern corner of Escolta street and Plaza Sta. Cruz, Manila otherwise
known as Lot 1 of Block 2120 of the Cadastral Survey of Manila and more
particularly described in Transfer Certificate of Title No. 53946 of the Register of
Deeds for said City and belonging pro indiviso to both parties, one-sixth (1/6) to
the plaintiff and five-sixths (5/6) to the defendants.
Manuel Uy & Sons expressed its conformity to the partition, "if the same can be
done without great prejudice to the interests of the parties." Defendant Butte agreed
to the partition prayed for. The other defendants objected to the physical partition of
the property in question, upon the theory that said partition is "materially and
legally" impossible and "would work great harm and prejudice to the co-owners." By
agreement of the parties the lower Court referred the matter to a Commission
composed of:
We find no merit in the appeal.

With respect to the first alleged error, it is urged that a physical division of the
property will cause "inestimable damage" to the interest of the co-owners. No
evidence, however, has been introduced, or sought to be introduced, in support of
this allegation. Moreover, the same is predicated upon the assumption that a real
estate suitable for commercial purposes such as the one herein sought to be
partitioned is likely to suffer a proportionately great diminution in value when its
area becomes too small. But, then, if plaintiff's share of 260.26 square meters were
segregated from the property in question, there would still remain a lot of 1,301.34
square meters for appellants herein and Mrs. Butte. A real estate of this size, in the
very heart of Manila, is not, however, inconsequential, in comparison to that of the
present property of the community. In other words, we do not believe that its value
would be impaired, on account of the segregation of plaintiff's share, to such an
extent as to warrant the conclusion that the property is indivisible.
(1) Delfin Gawaran, Deputy Clerk of said court, as Chairman,

(2) Artemio U. Valencia, President of the Manila Board of Realtors, as commissioner
for plaintiff, and
(3) Ramon F. Cuervo, President of the Perpetual Investment Corporation, Inc., as
commissioner for defendants,
to determine whether the property is susceptible of partition, and submit a plan
therefor, if feasible, as well as to report thereon. Subsequently, the commissioners
submitted their individual reports with their respective plans for the segregation of
plaintiff's share.
After due hearing, the Court rendered a decision declaring that plaintiff is entitled to
the segregation of his share, and directing that the property be partitioned in
accordance with the plan submitted by commissioner Valencia, and that the expenses
incident thereto be paid by both parties proportionately. Hence, this appeal by, the
defendants, except Mrs. Butte. Appellants maintain that the lower court has erred: 1)
in holding that said property is legally susceptible of physical division; 2) in
accepting the recommendation of commissioner Valencia, instead of that of
commissioner Cuervo, or a proposal made by the very plaintiff; and 3) in not
ordering that the incidental expenses be borne exclusively by him.
Appellants argue that, instead of making the aforementioned segregation, plaintiff's

share should be sold to them. In support of this pretense, they cite the provision of
Article 495 of our Civil Code, to the effect that:
. . . Notwithstanding the provisions of the preceding article, the co-owners cannot
demand a physical division of the thing owned in common, when to do so would
render it unserviceable for the use for which it is intended. But the co-ownership may
be terminated in accordance with article 498.
They apparently assume, once again, that the alleged "inestimable damage" to be
suffered by the property, if plaintiff's share were segregated, is equivalent to
rendering it "unserviceable for the use for which it is intended." Independently of the
fact that the minor premise of this syllogism the alleged "inestimable damage"
has not been established, the conclusion drawn by appellants does not follow
necessarily. Indeed, the record shows that there are two (2) buildings on the land in
question, namely: 1) a two-storey commercial building known as "Sta. Cruz
Building" abutting on the one (1) side,[[2]] on the Escolta, and, on the other[[3]] on
Plaza Santa Cruz; and 2) a small two-storey residential building, on the Northwestern
end of the lot, and behind the first building, adjoining the Estero de la Reina, which
constitutes the Southwestern boundary of the property. There is nothing to show that,
after segregating plaintiff's share, the buildings left on the remaining 1,301.34 square
meters, representing defendants' share, would be unserviceable, either for

commercial or for residential purposes. On the contrary, it seems obvious that
plaintiff would not insist upon the partition prayed for, if his share [[4]] were
unserviceable for either particularly the commercial purpose. In fact, every one
of the aforementioned commissioners, including the one representing defendants
herein, recommended the segregation of plaintiff's share. The commissioners merely
failed to agree on the precise configuration thereof.
As regards the last alleged error, it is obvious that the segregation of plaintiff's share
inures to the benefit not only of the plaintiff, but, also, of the defendants, and that
both should, consequently, defray the incidental expenses.
This brings us to the second issue raised by appellants: whether the lower court
should have adopted the plan submitted by their own commissioner, or "in not taking
into consideration," at least, a proposal made by plaintiff herein. In this connection, it
appears that said commissioner [[5]] recommended that plaintiff's share be given a
frontage of 6.14 lineal meters at Plaza Sta. Cruz, whereas the commissioner for the
Court [[6]] favored a frontage of 12.66 square meters at said Plaza; that defendants'
main objection to the plan recommended by commissioner Valencia [[7]] and adopted
by the lower court, is that it left behind the portion awarded to plaintiff, a lot of 169
square meters, which would have to be divided among the defendants, should they
later wish to have their individual shares segregated; and that, in order to offset this
objection, plaintiff expressed in one of the pre-trials held in the lower court and in
order to "facilitate early termination" of the case the willingness "to buy from the
other co-owners the remaining portion of the land behind his lot at P1,000 per square
meter."
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando,
JJ.,
concur.
Bengzon, J.P., J., is on leave.
The record does not show that this offer of the plaintiff had not been "taken into
consideration" by the lower court. Moreover, defendants had not accepted it.
Andneither do they accept it now, for they would want the plaintiff to pay a price
higher than that offered by him. Upon the other hand, the disadvantage resulting to
the defendants from the existence of said lot of 169 square meters, behind that
awarded to the plaintiff, is offset by the fact that the remaining portion of the land in
question representing defendants' collective share has, in addition to a frontage
of around 40 meters on Plaza Santa Cruz, a frontage of 24.13 meters on Escolta
Street, which apart from being, admittedly, the most valuable one, is totally denied to
the plaintiff. Then, again the Cuervo plan giving plaintiff a 6.14 meters frontage of
Plaza Sta. Cruz, goes all the way down to the Western end of the property, the Estero
de la Reina, and would require a partition of the residential building, on that part of
the property in question, which the very plaintiff says is indivisible, because it would
render said building "unserviceable for the purpose for which it is intended." [[8]]
WHEREFORE, the decision appealed from is hereby the costs of this instance
against herein defendants-appellants. It is so ordered.
G.R. No. L-45142
April 26, 1991
SIMPROSA VDA. DE ESPINA, RECAREDO ESPINA, TIMOTEO ESPINA,

CELIA ESPINA, GAUDIOSA ESPINA and NECIFORA ESPINA, petitioners,
vs.
THE HON. OTILIO ABAYA and SOFIA ESPINA and JOSE
ESPINA, respondents.
Cipriano C. Alvizo, Sr. for private respondents.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the issuance of a writ of preliminary
injunction seeking the nullification of the orders issued by the respondent Judge
Otilio Abaya, in his capacity as the presiding judge of the Court of First Instance of
Surigao del Sur, Branch II, Lianga, Surigao del Sur in Civil Case No. L-108, entitled
"Simprosa Vda. de Espina, et. al. v. Sofia Espina, et. al." dated May 9, 1975
dismissing the complaint for partition; July 25, 1975 denying the motion for
reconsideration; August 13, 1975 denying the second motion for reconsideration and
March 15, 1976 denying plaintiffs' notice of appeal.
Marcos Espina died on February 14, 1953 and was survived by his spouses,
Simprosa Vda. de Espina and their children namely, Recaredo, Timoteo, Celia,

Gaudiosa, Necifora, Sora and Jose, all surnamed Espina. Decedent's estate comprises
of four (4) parcels of land located at the Municipality of Barobo Province of Surigao
del Sur.
(a) To the surviving spouses, (sic) Simprosa Vda. de Espina, herein plaintiffs, onehalf (1/2) of the parcel of land adjudicated to each of said plaintiffs-heirs and
defendants;
On August 23, 1973 an action for partition of the aforementioned parcels of land was
filed by petitioners Simprosa and her children Recaredo, Timoteo, Celia, Gaudencia
and Necifora.
(b) To each of the following compulsory heirs, to wit:
The complaint alleges that parcel No. 1 is the exclusive property of the deceased,
hence the same is owned in common by petitioners and private respondents in eight
(8) equal parts, while the other three (3) parcels of land being conjugal properties,
are also owned in common, one-half (1/2) belongs to the widow Simprosa and the
other half is owned by her and her children in eight (8) equal parts.
It also alleges that parcel No. 1 has been subdivided into two lots. Lot No. 994 PL844 is covered by Original Certificate of Title No. 5570 in the name of one of the
heirs, Sofia Espina, who acquired the title as a trustee for the beneficiaries or heirs of
Marcos Espina, while lot No. 1329 PCS-44 is covered by Original Certificate of Title
No. 3732 issued in the name of one of the heirs, Jose Espina as trustee for the heirs
of Marcos Espina. Said parcel of land is in the possession of petitioners and private
respondents who have their respective houses thereon.
Simprosa presently occupies parcel No. 2 while parcel No. 3 is occupied by Timoteo,
although the same is actually titled in the name of Sofia. Parcel No. 4 is occupied by
Recaredo.
Petitioners have several times demanded the partition of the aforementioned
properties, but notwithstanding such demands private respondents refused to accede.
Private respondents alleged in their answer that in or about April, 1951, the late
Marcos Espina and his widow, Simprosa, together with their children made a
temporary verbal division and assignment of shares among their children. After the
death of Marcos, the temporary division was finalized by the heirs. Thereafter the
heirs took immediate possession of their respective shares on April 20, 1952. Private
respondents took actual physical possession of their respective shares including the
portions ceded to them by Simprosa upon their payment of P50.00 each per quarter
starting April, 1952 until the latter's death pursuant to their contract of procession
The assignment of shares was as follows:
1. To Recaredo (sic) Espina, one-half (1/2) portion which contains an area of one and
three-fourths (1 3/4) hectares and which forms part of Parcel 4 whose description is
given in paragraph III of the complaint, the said Parcel IV has been in the possession
of both Recaredo Espina and plaintiff Simprosa Vda. de Espina from April 20, 1952
until the present time;
2. To Timoteo Espina, one half (1/2) portion which contains an area of not less than
one-half (1/2) hectare and which forms part of Parcel 3 whose description is given in
paragraph III of the complaint, the said Parcel III was originally assigned by Marcos
Espina who thereupon obtained an Original Certificate of Title in her (sic) name but
was finally adjudicated to said Timoteo Espina in April, 1952, the other half (1/2)
portion of which parcel III was the share of the surviving spouses (sic), Simprosa
Vda. de Espina, and said Parcel III has been in the possession of said Timoteo Espina
and Simprosa Vda. de Espina from April, 1952 until the present time as their share;
3. To Cecilia (sic) Espina, Gaudiosa Espina and Necifora Espina, one-half (1/2)
portion, share and share alike which contains two (2) hectares and which forms part
of Parcel II whose description is given in paragraph III of the complaint, the other
half (1/2) of said Parcel III (sic) is the share of the surviving spouses (sic) Simprosa
Vda. de Espina, and said Parcel III (sic) has been in the possession of said Cecilia.
(sic) Espina, Gaudiosa Espina and Necifora Espina and Simprosa Vda. de Espina
from April, 1952 until the present time;
4. To Sofia Espina, one-half (1/2) portion of the parcel of land included in the
deception of Parcel 1 in paragraph III of the complaint, the other half (1/2) of said
parcel being the share of the surviving spouses (sic) Simprosa Vda. de Espina and
having been ceded by said Simprosa Vda. de Espina to said Sofia Espina for a
valuable consideration payable quarterly at the rate of P50.00 beginning April, 1952
until her death, and said Sofia Espina has been regularly paying to said Simprosa
Vda. de Espina quarterly from April, 1952 the said amount of P50.00 until the
present time, and by virtue of said agreement, Sofia Espina obtained Original

Certificate of Title in her name of said parcel of land which is included in the
description of said parcel 1, as her exclusive property;
5. To Jose Espina, one-half (1/2) portion of the other parcel of land included in the
description of Parcel 1 in paragraph 1 of the complaint, the other half (1/2) of said
parcel being the share of the surviving spouses (sic) Simprosa Vda. de Espina and
having been coded (sic) by said Simprosa Vda. de Espina to said Jose Espina for a
valuable consideration payable quarterly at the rate of P50.00 beginning April, 1952
until her death, and said Jose Espina has been regularly quarterly paying to said
Simprosa Vda. de Espina from April, 1952 until the present time, the said amount of
P50.00, and by virtue of said agreement, Jose Espina obtained Original Certificate of
Title in his name of said parcel of land which is included in the description of said
Parcel 1 as his exclusive property. (Rollo, pp. 27-28)
On February 13, 1974 private respondents filed a motion to dismiss the complaint
alleging the following grounds, to wit:
I
xxx
xxx
xxx
On May 9, 1975 the trial court granted the motion and thereafter dismissed the
complaint. On May 23, 1975 petitioners filed a motion for reconsideration on the
following grounds, to wit:
1. THAT THE ORDER OF DISMISSAL HAS NO LEGAL BASIS IN FACT AND
IN LAW.
2. THAT THE STATUTE OF LIMITATIONS IS NOT APPLICABLE IN THE CASE
AT BAR. (Rollo, p. 50)
However, petitioners' motion was denied in an order dated July 23, 1975. On August
11, 1975 petitioners filed another motion for reconsideration stressing that they were
denied due process when their motion was not heard. Again said motion was denied
on August 13, 1975.
Thereafter, petitioners filed their notice of appeal on September 11, 1975 and a
motion for extension of time to file their Record on Appeal on September 18, 1975.
THAT THE FACTS ALLEGED IN THE COMPLAINT FAIL TO CONFER UPON

THE COURT COMPLETE AND LAWFUL JURISDICTION OVER THE CASE
FOR NON-COMPLIANCE WITH THE CONDITION SINE QUA NON
CONCERNING SUIT BETWEEN MEMBERS OF THE SAME FAMILY.
On March 15, 1976, the respondent judge disapproved petitioners' Record on Appeal
and appeal bond on the ground that the notice of appeal was filed out of time. Hence,
this petition. The petitioners raised four (,41) assignment of errors:
xxx
1. Whether or not an action for partition among co-heirs prescribes.
xxx
xxx
II
2. Whether or not an oral partition among co-heirs is valid.
THAT THE CAUSE OF ACTION IS BARRED BY . . . . STATUTE OF

LIMITATIONS.
3. Whether or not a hearing on a motion for reconsideration is indispensable the lack

of which is a deal of due process.
xxx
4. Whether or not the second motion for reconsideration is pro forma Rollo, p. 10)
xxx
xxx
III
THAT THE PLAINTIFFS HAS NO LEGAL CAPACITY TO SUE, (Motion to
Dismiss Complaint, pp. 1-5; Rollo, pp. 34-38)
Petitioners maintain that the present action is not for reconveyance but one for
partition. Hence, the rule insisted by the private respondents on prescriptibility of an
action for reconcile conveyance of real property based on an implied trust is not
applicable in the case at bar. In addition, petitioners, argue that private respondents
cannot set up the defense of prescription or laches because their possession of the

property no matter how long cannot ripen into ownership. (Memorandum for
Petitioners, p. 7)
However, the private respondents stress that 'any supposed right of the petitioners to
demand a new division or partition of said estate of Marcos Espina has long been
barred by the Statute of Limitations and has long prescribed." (Memorandum for
Private Respondents, p. 5)
The petitioners claim that the alleged oral partition is invalid and strictly under the
coverage of the statute of Frauds on two grounds, to wit:
Firstly, parcel No. 1 being an exclusive property of the deceased should have been
divided into eight (8) equal parts. Therefore, Simprosa . could only cede her share of
the land which is 1/8 portion thereof and cannot validly cede the shares of her then
minor children without being duly appointed as guardian.
Secondly, under Article 1358 of the New Civil Code, Simprosa could not have ceded
her right and that of her other children except by a public document. (Memorandum
of Petitioners, pp. 8-9)
On the other hand, private respondents insist that the oral partition is valid and
binding and does not fall under the coverage of the Statute of Frauds.
Petitioners claim that they were denied due process when the motion for
reconsideration was denied without any hearing.
However, private respondents maintain that the hearing of a motion for
reconsideration in oral argument is a matter which rest upon the sound discretion of
the Court.
Finally, petitioners stress that the second motion for reconsideration is not pro forma,
thus, it suspends the running of the period of appeal. Hence, the notice of appeal was
timely filed.
On this point, private respondent maintain that the order of respondent judge dated
March 1 5, 1976 disapproving petitioners' Record on Appeal and appeal bond may
not properly be a subject of a petition for certiorari. (Memorandum of Private
Respondents, p. 13)
We find the petition devoid of merit.

We already ruled in Lebrilla, et al. v. Intermediate Appellate Court (G.R. No. 72623,
December 18, 1989, 180 SCRA 188; 192) that an action for partition is
imprescriptible. However, an action for partition among co-heirs ceases to be such,
and becomes one for title where the defendants allege exclusive ownership.
In the case at bar, the imprescriptibility of the action for partition cannot be invoked
because two of the co-heirs, namely private respondents Sora and Jose Espina
possessed the property as exclusive owners and their possession for a period of
twenty one (21) years is sufficient to acquire it by prescription. Hence, from the
moment these co-heirs claim that they are the absolute and exclusive owners of the
properties and deny the others any share therein, the question involved is no longer
one of partition but of ownership.
Anent the issue of oral partition, We sustain the validity of said
partition.1wphi1 "An agreement of partition may be made orally or in writing. An
oral agreement for the partition of the property owned in common is valid and
enforceable upon the parties. The Statute of Frauds has no operation in this kind of
agreements, for partition is not a conveyance of property but simply a segregation
and designation of the part of the property which belong to the co-owners."
(Tolentino, Commentaries and Jurisprudence on the Civil Code of the
Philippines, Vol. II, 1983 Edition, 182-183 citing Hernandez v. Andal, et. al., G.R.
No. L275, March 29, 1957)
Time and again, the Court stresses that the hearing of a motion for reconsideration in
oral argument is a matter which rests upon the sound discretion of the Court. Its
refusal does not constitute a denial of due process in the absence of a showing of
abuse of discretion. (see Philippine Manufacturing Co. v. Ang Bisig ng PMC et. al.,
118 Phil. 431, 434)
The absence of a formal hearing on the petitioners' motion for reconsideration is
thoroughly explained in the order of the respondent judge dated August 13, 1975,
which is hereunder quoted as follows:
When the court issued its order of June 5, 1975 requiring counsel for defendants to
answer plaintiffs' motion for reconsideration, the court opted to resolve plaintiffs'
motion based on the pleadings of the parties, without further oral arguments. The

court considered the arguments of the parties stated in their pleadings as already
sufficient to apprise the court of the issues involved in said motion.
Plaintiffs' allegation that the Clerk of Court failed to calendar their motion for
reconsideration for oral argument has not deprived the plaintiffs of any substantial
right or his right to due process.
SO ORDERED. (Memorandum of Private Respondents, pp. 1213)
A cursory reading of the aforequoted order will show that there was indeed no formal
hearing on the motion for reconsideration. There is no question however, that the
motion is grounded on the lack of basis in fact and in law of the order of dismissal
and the existence or lack of it is determined by a reference to the facts alleged in the
challenged pleading. The issue raised in the motion was fully discussed therein and
in the opposition thereto. Under such circumstances, oral argument on the motion is
reduced to an unnecessary ceremony and should be overlooked (see Ethel Case, et al.
v. Jugo, 77 Phil. 517, 522).
Therefore, it is very evident that the second motion for reconsideration being proforma did not suspend the running of the period of appeal. Thus, the lower court
committed no error when it held that the notice of appeal was filed after the lapse of
thirty five (35) days, which is clearly beyond the period of thirty (30) days allowed
by the rules.
Finally, it has been a basic rule that certiorari is not a substitute for appeal which had
been lost. (see Edra v. Intermediate Appellate Court, G.R. No. 75041, November 13,
1989, 179 SCRA 344) A special civil action under Rule 65 of the Rules of Court will
not be a substitute or cure for failure to file a timely petition for review
oncertiorari (appeal) under Rule 45 of the Rules of Court. (Escudero v. Dulay, G.R.
No. 60578, February 23, 1988, 158 SCRA 69, 77)
The application of the abovecited rule should be relaxed where it is shown that it will
result in a manifest failure or miscarriage of justice. (Ibid, p. 77) However, as
emphasized earlier, the case at bar is totally devoid of merit, thus, the strict
application of the said file will not in any way override sub-substantial justice.
We adhere to the findings of the trial court that the second motion for reconsideration
dated August 11, 1975 ispro forma, to it
Therefore, the delay of five (5) days in filing a notice of appeal and a motion for
extension to file a record on appeal cannot be excused on the basis of equity.
The grounds stated in said motion being in reiteration of the same grounds alleged in
his first motion, the same is pro-forma. (Order dated March 15, 1976, p. 2, Rollo, p.
74)
All premises considered, the Court is convinced that the acts of respondent judge, in
dismissing the action for partition and in subsequently denying the motions for
reconsideration of the petitioners, does not amount to grave abuse of discretion.
xxx
ACCORDINGLY, the petition is DISMISSED.
xxx
xxx
Furthermore, the second motion for reconsideration has not stated new grounds
considering that the alleged failure of the Clerk of Court to set plaintiffs' motion for
reconsideration, although seemingly a different ground than those alleged in their
first motion for reconsideration, is only incidental to the issues raised in their first
motion for reconsideration, as it only refers to the right of plaintiffs' counsel to argue
his motion in court just to amplify the same grounds already deed by the court. (Ibid,
p. 3, Rollo, p. 75)
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

Property Aug 17, 2015 Orig

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Property Aug 17, 2015 Orig

Uploaded by

Copyright:

Available Formats

PROPERTY AUGUST 17, 2015 1

G.R. No. 75884 September 24, 1987

PROPERTY AUGUST 17, 2015 2

PROPERTY AUGUST 17, 2015 3

PROPERTY AUGUST 17, 2015 4

CAMPOS, JR., J.:

PROPERTY AUGUST 17, 2015 5

PROPERTY AUGUST 17, 2015 6

3. Ordering Yu Hwa Ping to deposit with the Court the total

PROPERTY AUGUST 17, 2015 7

PROPERTY AUGUST 17, 2015 8

G.R. No. 61584 November 25, 1992

PROPERTY AUGUST 17, 2015 9

PROPERTY AUGUST 17, 2015 10

2. Lot 1091, Cadastral Survey of Pontevedra, Province of Negros

3. Pending the physical partition, the Register of Deeds of Negros

xxx xxx xxx

PROPERTY AUGUST 17, 2015 11

the effect of substituting the buyers in the enjoyment thereof

PROPERTY AUGUST 17, 2015 12

PROPERTY AUGUST 17, 2015 13

G.R. No. 76351 October 29, 1993

Jose F. Manacop for petitioner.

Siruello, Muyco & Associates Law Office for private respondent.

PROPERTY AUGUST 17, 2015 14

PROPERTY AUGUST 17, 2015 15

PROPERTY AUGUST 17, 2015 16

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

PROPERTY AUGUST 17, 2015 17

PROPERTY AUGUST 17, 2015 18

With costs against the defendants. 2

PROPERTY AUGUST 17, 2015 19

reason of abandonment and negligence, he allowed a long time to elapse without

PROPERTY AUGUST 17, 2015 20

PROPERTY AUGUST 17, 2015 21

G.R. No. L-25014 October 17, 1973

On January 24, 1956 the brothers Tomas de Castro and Arsenio de

PROPERTY AUGUST 17, 2015 22

Castro) could validly lease his half-interest to a third party (respondent

PROPERTY AUGUST 17, 2015 23

G.R. No. 137152

January 29, 2001

PROPERTY AUGUST 17, 2015 24

Petitioner claims that the trial court erred

On November 5, 1997, petitioner filed an Amended Complaint and named as an

"IN UPHOLDING RESPONDENT'S CONTENTION THAT THEY

PROPERTY AUGUST 17, 2015 25

PROPERTY AUGUST 17, 2015 26

PROPERTY AUGUST 17, 2015 27

PROPERTY AUGUST 17, 2015 28

PROPERTY AUGUST 17, 2015 29

PROPERTY AUGUST 17, 2015 30

PROPERTY AUGUST 17, 2015 31

partition which it should thereafter approve. This decision is immediately executory.

PROPERTY AUGUST 17, 2015 32

EPITACIO DELIMA, PACLANO DELIMA, FIDEL DELIMA, VIRGILIO

Gabriel J. Canete for petitioners.

PROPERTY AUGUST 17, 2015 33

Defendants are condemned to pay the costs of the suit.

A donor or testator may prohibit partition for a period which shall

The counterclaim is dismissed.

Neither shall there be any partition when it is prohibited by law.

SO ORDERED. (pp. 54-55, Rollo)