ANDREA CORDOVA VDA. DE MAALAC, ETC.

, petitioner,
vs.
BUENAVENTURA OCAMPO, ETC., ANA MAALAC, and LAUREANO MAALAC,
respondents.
Camus, Zavalla and Bautista for petitioner.
Antonio T. Carrascoso, Jr. for respondent.
MORAN, J.:
Petitioner, Andrea Cordova Vda. de Maalac, in her capacity as heir of her deceased husband,
Laureano Maalac, and administratrix of his estate, filed on September 10, 1940, a petition in the
probate court, praying that the properties "La Joyeria El Diamante" and "La Agencia El
Diamante" be, among the others enumerated therein, included in the inventory of his estate.
Respondents Ana Maalac and Laureano Maalac, Jr., heirs of the deceased, opposed the
petition, and on September 2, 1941, the probate court, after hearing, issued its resolution
declaring, among others, that the properties aforementioned do not pertain to the conjugal
partnership of the deceased and the petitioner. Notice of this resolution was served upon the
parties on the following day, September 3, 1941. Ana Maalac moved on September 11, 1941,
for reconsideration praying that said declaration be included in the dispositive part of the
resolution, but on September 23, 1941, the court denied the motion on the ground that the
declaration may in itself be considered as part of the dispositive portion of the resolution. Parties
were notified of t his order of denial on September 24, 1941. On October 8, 1941, petitioner
moved for reconsideration of the resolution of September 2, 1941, and the order of September
23, 1941 praying that the finding of the probate court as to the ownership of "La Joyeria El
Diamante and "La Agencia El Diamante" be omitted, as any finding to such effect was beyond its
probate jurisdiction. On October 18, 1941, respondent court denied this motion for
reconsideration upon the ground that, as petitioner's first motion for reconsideration did not
partake of the nature of a motion for new trial, it did not suspend the running of the period for the
perfection of an appeal and that, the resolution of the court of September 2, 1941, had already
become final and could not thus be modified. Parties were notified of this denial on October 21,
1941. Petitioner thereupon instituted the present certiorari proceeding, praying that the finding
of the probate court in its resolution of September 2, and September 23, 1941, regarding the
ownership of the properties "La Joyeria El Diamante" and "La Agencia El Diamante," be
declared null and void because in excess of its jurisdiction; otherwise, that said resolution of
September 2, 1941, be declared not final.
We hold that the resolution of September 2, 1941, is valid, the probate court having jurisdiction
to render the same. As a general rule, a question as to title to property cannot be passed upon in
testate or intestate proceedings (Bauermann vs. Casas, 10 Phil., 386; Devesa vs. Arbes, 13 Phil.,
273; Franco vs. O'Brien, 13 Phil., 359; De los Santos vs. Jarra, 15 Phil., 147; Guzman vs. Anog,
37 Phil., 61, Lunsod vs. Ortega, 46 Phil., 664; Santiago vs. Court of First Instance, 55 Phil., 62;
Adapon vs. Maralit, 40 Off. Gaz., 6th Sup., 84; Pascual vs. Pascual, G.R. No. 48140, May 4,

1942), except where one of the parties prays merely for the inclusion in or exclusion from the
inventory of the property , in which case the probate court may pass provisionally upon the
question without prejudice to its final determination in a separate action (Garcia vs. Garcia, 40
Off. Gaz., 1st Sup., 65; Marcelino vs. Antonio, 40 Off. Gaz., 8th Sup., 221; Guingguing vs.
Abuton, 48 Phil., 144, 147). When, however, the interested parties are all heirs, it is optional to
them to submit to the probate court a question as to title to property, and when so submitted, said
probate court may definitely pass judgment thereon, the reason being that questions of collation
or of advancement are generally inevitably involved therein which are proper matters to be
passed upon in the due course of administration (Pascual vs. Pascual, G. R. No. 48140, May 4,
1942, Guingguing vs. Abuton, 48 Phil., 144, 147; Rule 91, section 2, Rules of Court).
In the instant case, the interested parties are all heirs of the deceased. Since the question of
ownership of "La Joyeria El Diamante "and "La Agencia El Diamante" has, by motion, been
submitted by the widow herself, she cannot thereafter be permitted to complain if the court, after
examination of the evidence presented by both parties, adjudges the question against her.
Petitioner prays that the resolution of the probate court if adjudged to be valid be declared not to
be final so that an appeal may still be imposed therefrom. In the ordinary procedure, a prayer of
this kind is not proper in a certiorari proceeding before this Court. Notwithstanding the order of
the probate court of October 18, 1941, declaring its resolution aforementioned to have become
final, petitioner should have perfected her appeal within the time provided by the Rules of Court,
and if her appeal be dismissed she may apply here for a writ of mandamus. We are not inclined,
however, to require her to follow this procedure under the circumstances of the case since she is
here on a like proceeding and we may very well pass upon the question by her raised to avoid
further litigation and in the interest of prompt administration of justice.
It should be observed that notice of the resolution of September 2, 1941, was served upon the
parties on September 3, 1941. In the dispositive part of this resolution ordering certain properties
to be included in the inventory, there was absolutely no declaration in connection with "La
Joyeria El Diamante" and "La Agencia El Diamante." For this reason, on September 11, 1941,
Ana Maalac filed her motion for reconsideration, which was denied on the ground that in the
resolution, in a paragraph immediately preceding the dispositive part, there is an express
statement to the effect that "La Joyeria El Diamante" and "La Agencia El Diamante "did not
belong to the conjugal partnership of the deceased and the petitioner, which statement could be
considered as a sufficient disposition of the question regarding said properties. Practically, by
this order, the paragraph therein mentioned was made a portion of the dispositive part contained
in the resolution, and, therefore, it was only after this order was issued that there was a judgment
regarding the two properties, from which the petitioner could appeal. The parties were notified of
such order of September 24, 1941. From this date to October 8, 1941, when the petitioner filed a
motion for reconsideration, 14 days had elapsed. When, therefore, the probate court on October
18, 1941 denied the motion filed by the petitioner declaring that its resolution of September 2,
1941, had become final, only 14 days of the 30-day period for perfecting an appeal had elapsed.
The days following the order of October 18, 1941 cannot be counted against petitioners right to

appeal since such order may be treated as a virtual refusal to allow her appeal. Consequently
petitioner had still 16 days within which to perfect her appeal.
The resolution of the probate court of September 2, 1941, is accordingly hereby held to be valid
but has not yet become final thereby permitting petitioner, if she so desires, to appeal therefrom
within 16 days after this judgment has become final. Without costs.
ANGELITA G. VDA. DE VALERA, AMANDA G. VALERA, OSCAR G. VALERA,
DIONISIO G. VALERA, FELIXBERTO G. VALERA, BENITO G. VALERA, EVA G.
VALERA, LITA G. VALERA, TONIETTE VALERA, ANGEL V. COLET, NORMAN PE
BENITO and ROMEO PE BENITO, petitioners,
vs.
HON. MACARIO M. OFILADA, as Probate Judge, Court of First Instance of Abra;
ADORACION VALERA-BRINGAS, as Administratrix of the Intestate Estate of
Francisco Valera; PROVINCIAL SHERIFF of Abra; DOMINGO V. BANEZ as Deputy
Provincial Sheriff of Abra, and CELSO VALERA, respondents.
Leandro C. Sevilla for petitioners.
Romeo R. Bringas for respondents.

FERNANDEZ, J.:p
Had the Court of First Instance of Abra been more cognizant of the limitations on its prerogative as a probate court, it would not have
committed the jurisdictional and procedural errors pointed out in this certiorari case by the petitioners, the heirs of the late Virgilio Valera.
The record discloses that the lower court exceeded its jurisdiction in issuing its orders of July 10, 1964, April 15, 1966 and January 4, 1967
as well as the writ of execution against the assets of the deceased Virgilio Valera. The jurisdictional and procedural errors committed by the
lower court justify the writ of certiorari. Hence, We find the petition to be meritorious. We have to set aside the said orders and writ of
execution insofar as the heirs or estate of Virgilio Valera are concerned.
Civil Case No. 64, R-1 of the Court of First Instance of Abra is a special proceeding for the settlement of the intestate estate of Francisco
Valera. Virgilio Valera was the administrator of the estate, He died on March 21, 1961. He was survived by his widow, Angelita Garduque
Vda. de Valera and their ten (10) children, named Amanda, Oscar, Dionisio, Benito, Felixberto, Eva, Lita, Toniette, Vicenta and Teresita, all
petitioners herein, except Vicenta and Teresita, who were abroad.
Later (the exact date is not shown in the record), Adoracion Valera Bringas, who claims to be an acknowledged natural child of Francisco
Valera, was appointed administratrix. She filed on April 16, 1964 in the intestate proceeding a petition to require "Celso Valera and family and
Angelita de Valera and family to pay P100.00" as monthly rental for the one-third pro-indiviso portion of the Valera residence located in
Bangued, Abra.

That residence is item 3 of the original inventory dated April 10, 1964 submitted by Mrs. Bringas. It is
described as follows:
Residential land & Improvements. Covered by Tax Declaration No. 16922, declared in
1948 in the names of Virgilio & Celso Valera; cancelled by Tax Declaration No. 21571 in
the name of Virgilio Valera; cancelled by Tax Declaration No. 29338, in 1962, in the name
of Virgilio Valera, located in Partelo Street, Bangued, Abra, bounded as follows: N.

Alejandro Lizards; E. Partelo Street (now Virgilio Valera Street); S. Taft Street;
W'Consiliman Brook, with an area of 1,775 square meters, and assessed at P1,420.00
for the residential lot, and P9,500.00 for the improvements.
Appraised value P45,600.00, 1/3 of which is P15,200.00. (p. 5 of Respondents'
Memorandum)
The petition was not served on the widow and ten children of Virgilio Valera. Celso Valera interposed an
opposition to it on the ground that Francisco Valera had no interest in the Valera residence, that the
property was never leased and that the remedy of Mrs. Bringas was "in a appropriate remedy and/or
procedure" and not in the intestate proceeding. 2
The lower court granted the petition in an order dated July 10, 1964 which reads: 3
ORDER
The administratrix, through counsel, has petitioned for an order to pay rental on the
property (Item 1-B, 23 of the Inventory submitted i)v the administratrix, pp. 415-416, rec.)
owned in common by the estate of the deceased Francisco Valera y Versoza and the late
Virgilio Valera and Celso Valera, corresponding to one-third (1/3) interest pertaining to the
estate of the deceased Francisco Valera to be paid by the family of Virgilio Valera and
Celso Valera and family who have been occupying the property since April, 1945 in the
amount of P100.00 a month, plus legal interest, the same to be paid to the Administratrix.
WHEREFORE, finding the said motion to be well-founded and meritorious, the same is
hereby granted. It is further ordered that the Clerk of Court shall furnish Angelita
Garduque Vda. de Valera with a copy of this order by registered mail.
SO ORDERED.
Done at Bangued, Abra, this 10th day of July, 1964.
(Sgd.) ALFONSO P. DONESA J u d g e
The directive of Judge Donesa to the Clerk of Court to serve a copy of the order by registered mail on
Mrs. Valera implies that the heirs of Virgilio Valera were not served with a copy of the petition. The said
heirs, through Atty. Angel V. Colet, a son-in-law of Mrs. Valera, filed a motion for the reconsideration of
that order. They contended that the Valera residence "should be excluded from the inventory," because
that was their "absolute property of which they have been in complete possession and occupation". 4 Mrs.
Bringas replied that Francisco Valera's estate had "already consolidated" its ownership over that one-third
partition "through the submission of the inventory and its approval" by the probate court. 5
It was only nearly two years later that respondent Judge Macario Ofilada in his order of April 15, 1966
denied the motion for reconsideration filed by the heirs of Virgilio Valera. 6
On February 17, 1965 (before the motion for reconsideration was resolved) Mrs. Bringas filed in the
intestate proceeding a pleading known as "Motion for Execution and for an Order Directing Delivery of the
Fruits of the Properties or Value and Monies of the Estate to the Administratrix." 7

She prayed in that motion that Judge Donesa's order for the payment of rentals be executed against the
heirs of Virgilio Valera; that the heirs be ordered to deliver to her the fruits of the properties of the estate of
Francisco Valera, which, according to her calculation, amounted to P100,000 for twenty years, plus legal
interest supposedly amounting to P5,000; that the heirs be ordered to deliver the sum of P4,684.98
representing the insurance and war damage monies collected by Virgilio Valera; and that the Sheriff be
ordered to "to seize such properties of Virgilio Valera and his heirs" "to be sold according to law for the
payment of double the value of the fruits and the amount of monies alienated and embezzled".
As already stated, in an order dated April 15, 1966, respondent Judge Macario M. Ofilada denied the
motion for reconsideration filed by the heirs of Virgilio Valera and granted the motion of Mrs. Bringas for
execution and for the delivery of certain funds and properties. (Note that the execution was granted
although the order was not yet final). That order, which is being assailed in this case, is quoted as follows
(pp. 7-9 of the Petition):
Pending resolution before the court are the following motions:
1. Unsigned 'Motion for leave of Court to Intervene and Motion for Reconsideration of the
Order dated July 10, 1964', filed by counsel for the heirs of Virgilio Valera;
2. 'Motion' without any notice of hearing filed by counsel for the heirs of Virgilio Valera;
3. 'Motion for Reconsideration of the Order dated July 10, 1965,' filed by counsel for
petitioner Celso Valera; and
4. 'Motion for Execution and for an Order Directing Delivery of the Fruits of the Properties
or Value thereof and Monies of the Estate to the Administratrix', filed by counsel for the
administratrix.
Also pending is the examination of persons regarding the properties of the estate as
ordered by the court also on July 10, 1964.
On January 27, 1966, the court directed the movants seeking a reconsideration of the
order directing the payment of rentals to the estate to submit their respective memoranda
within 15 days from receipt of the order and the administratrix 5 days from receipt of
adverse parties memoranda to submit her reply if she so desires. Despite the fact that the
parties had received copies of the order of January 27, 1966, none complied.
Considering that this case is already more than 20 years old, the Court can not, in the
interest of justice, further hold or suspend the resolutions on these incidents. They must
as they should now, be resolved.
The motion for reconsideration filed by counsel for the heirs of Virgilio Valera and his
subsequent 'Motion'. appearing to be unfounded, is hereby denied.
The motion for reconsideration filed by counsel for Celso Valera is a mere repetition of
the 'Opposition to Petition for an Order to Pay Rental dated May 8, 1964. This motion is
merely intended to delay the proceedings and it is hereby denied for lack of merit.
Finding the 'Motion for Execution and for an Order Directing the Delivery of Fruits of the
Properties or Value thereof and Monies of the Estate to the Administratrix' well-founded
and meritorious, it is hereby directed:

1. That a writ of execution issue against the heirs of Virgilio Valera and Celso Valera
insofar as the collectible rents pertaining t the estate are concerned;
2. That the heirs of Virgilio Valera and Celso Valera deliver to the administratrix properties
still in their possession which are among those listed in the 'Incomplete Inventory and
Appraisal of the Real and Personal Estate of the Deceased, Francisco Valera y Versoza'
filed by the administratrix on September 17, 1965;
3. That the heirs of Virgilio Valera and Celso Valera and family account to the
Administratrix the fruits of the properties of the estate listed in the said amended
inventory;
4. That the heirs of Virgilio Valera deliver to the administratrix the sum of P4,784.98
representing the insurance and war damage monies collected by Virgilio Valera;
5. That Celso Valera account to the administratrix the war damage monies received by
him for the destroyed Valera family residence and deliver 1/3 of the same to the
administratrix; and
6. That failure to render a satisfactory account as hereby required within 15 days from
receipt of this order shall, conformably with See. 8 of Rule 87 of the Rules of Court, make
the heirs of Virgilio Valera and Celso Valera liable to double the value of the fruits and
monies unaccounted for.
It is further ordered that the Clerk of Court immediately set 2 days for the examination of
the persons required to appear in the order dated July 10, 1964.
SO ORDERED.
Bangued, Abra, this 15th day of April, 1966.
(Sgd.) MACARIO M. OFILADA
Judge
On January 5. 1967 Judge Ofilada directed the execution of his aforequoted order of April 15, 1966. That
directive reads as follows: 8
ORDER
Pending resolution before this Court are: (1) Omnibus Motion filed by the Administratrix
dated September 15, 1966; and, (2) Omnibus Motion filed by the heirs of Virgilio Valera
dated October 13, 1966.
The parties, by the order of this Court dated December 12, 1966 after the hearing on said
date at which counsel discussed their respective motions, were given three days time
within which to submit their written memoranda. No such memoranda have been filed by
any of the parties, and the Court took time and efforts in considering the said motions,
oppositions, affidavit and counter-affidavits.

The Omnibus Motion of the heirs of Virgilio Valera dated October 13, 1966 seeks to stay
the writ of execution issued by this Court pursuant to the order dated April 15, 1966 and
relies upon an alleged compromise agreement entered into between said heirs and the
administratrix on May 21, 1966.
The Court is aware of attempts to a compromise agreement between the aforementioned
parties. There is nothing however in the record of any amicable settlement such as that
required by the Court in its order dated June 26, 1965, which required the parties 'to
inform the court as soon as possible what arrangement or settlement have been taken
and arrived at by them.' The Court has given the parties long time to agree and settle
their differences, even taking time on Sundays to meet with them for this purpose and,
until the present time, no such agreement by all the parties has been presented for the
approval of the Court. Certainly the alleged compromise agreement is not such
agreement especially when the administratrix takes vigorous exception citing facts of
record and valid points of law which have not been sufficiently answered and explained.
To allow the alleged oral compromise agreement in violation of fundamental principles of
law such as the time limit within which to file a petition for relief and unsupported by the
facts on record as cited by counsel for and administratrix would be to trifle with the
administration of justice especially in this case which is the oldest in this court and which
has been pending for more than twenty years now. For these basic reasons, the Omnibus
Motion of the heirs of Virgilio Valera dated October 13, 1966 must be, as it is hereby,
DENIED.
And considering the motion of the administratrix dated September 15, 1966 to be
meritorious, the same, as prayed for, is hereby GRANTED.
WHEREFORE, it is hereby directed that:
(1) The orders of November 14 and 25, 1966 staying the execution of the order of April
15, 1966 are hereby lifted and let another writ of execution immediately issue to effect the
order of April 15, 1966.
(2) A writ of execution issue against said heirs of Virgilio Valera for the satisfaction of the
amounts due the estate;
(3) A writ of execution issue against the properties of Celso Valera for the satisfaction of
the amount due to estate; and,
(4) The heirs of Virgilio Valera deliver to the administratrix the possession of the
properties listed in paragraph 6 and 7 of her Omnibus Motion dated September 15, 1966
and the fruits or value thereof from April, 1945 until time of delivery, and, pursuant to
Section 8, Rule 87, of the New Rules of Court, to pay double the value of said fruits upon
failure to account and deliver same within thirty days from receipt of this order.
SO ORDERED.
Bangued, Abra, January 4, 1967.
(Sgd.) MACARIO M. OFILADA Judge

The heirs of Virgilio Valera filed a motion dated February 6, 1967 for the reconsideration of Judge
Ofilada's order of January 4, 1967. 9 The motion was denied in the order dated February 13, 1967.
judge Ofilada in his order dated February 27, 1967 ordered another execution. 11

10

The Deputy Provincial Sheriff levied upon the properties of the deceased Virgilio Valera and caused to be
published a notice of auction sale also dated February 27, 1967 which reads in part as follows: 12
1. Of the goods and chattels of Celso Valera and the heirs of Virgilio Valera the sum of
Forty Thousand Three Hundred Twenty (P40,320.00) Pesos for rent due the estate
together with interest thereon from April, 1945 (P25,200.00) for the principal at P1,200.00
per annum from April, 1945 to March, 1966, and P15,120.00 for interest due at six (6) per
centum per annum), plus P100.00 a month from April, 1966 with interest at six (6) per
centum until date of payment and delivery of the interest, of the estate in the property to
the administratrix;
2. Of the goods and chattels of the heirs of Virgilio Valera the sum of Sixty Thousand
(P60,000.00) Pesos representing double the value of undelivered fruits of the properties
of the estate for 20 years from April, 1945 to October, 1965 or One Thousand Five
Hundred (P1,500.00) Pesos per year, and the sum of Nine Thousand Five Hundred Sixty
Nine Pesos and Ninety Six Centavos (P9,569.96), respresenting double the value of the
undelivered insurance and war damage monies collected by Virgilio Valera.
The petitioners filed a motion dated March 15, 1967 to quash the writ of execution and for the suspension
of the auction sale. 13 Judge Ofilada denied it in his order of April 1967. 14 The petitioners filed a motion
dated March 31, 1967 to set aside the lower court's orders of April 15, 1966 and February 27, 1967 on the
grounds of lack of jurisdiction and lack of due process. 15
On April 3, 1967, the dated when Judge Ofilada denied petitioners' motion to quash the writ of execution,
respondent Deputy Sheriff proceeded with the auction sale and sold to the estate of Francisco Valera
eighteen (18) parcels of land supposedly belonging to the deceased Virgilio Valera. The price was
P92,337.00. 16
The petitioners filed a motion dated April 11, 1967 for the reconsideration of the order of April 3, 1967.
Judge Ofilada denied it in his order of April 21, 1967. 18

17

On May 8, 1967 the petitioners, the heirs of Virgilio Valera (except two children who were abroad) filed the
instant petition for certiorari with preliminary injunction against Judge Ofilada, Mrs. Bringas, the Provincial
Sheriff and the Deputy Provincial Sheriff. Celso Valera was joined as a nominal party. The respondents
were required to answer the petition. The Court directed that a writ of preliminary injunction should issue
upon petitioners' posting a bond of P5,000.00.
The petitioners assail the brief, three-sentence order of July 10, 1964 on the following grounds: (a) that it
decided the issue of ownership as to the one-third pro-indiviso share of Francisco Valera in the Valera
residence, an issue, which according to them, is beyond the court's probate jurisdiction; (b) that it was
issued without the benefit of a trial on the merits and without hearing all the parties involved; (c) that it
does not contain findings of fact and law; (d) that it is a judgment for a money claim which should have
been filed in the proceedings for the settlement of the estate of the deceased debtor, Virgilio Valera, and
(e) that the order has no basis in substantive law.
The petitioners attack Judge Ofilada's order of April 15, 1966 on the following grounds: (a) that, as a
probate judge, he had no jurisdiction to require the heirs of Virgilio Valera to account for the fruits of the

six parcels of land administered by him and that a separate action should be filed or the proper claim
should be made against his estate; (b) that he had no jurisdiction to order the heirs of Virgilio Valera to
deliver to Mrs. Bringas the sum of P4,784.98 as "insurance and war damage monies collected by Virgilio
Valera"; (c) that Section 8, Rule 87 of the Rules of Court contemplates that "double the value of the fruits
and monies" should be recovered in an "action" and not in an intestate proceeding, and (d) that the order
was issued without any trial on the merits and it does not contain findings of fact and law.
The petitioners further contend that the orders of July 10, 1964 and April 15, 1966 are not enforceable by
execution because they are incomplete and not precise as to the amounts supposedly due from the
judgment debtors.
As to the execution sale, the petitioners contend: (a) that the orders sought to be executed are void; (b)
that the probate court ordinarily has no jurisdiction to issue a writ of execution and that the instant case is
not among the exceptional cases wherein the probate court can authorize an execution, and (c) that
execution for a money claim cannot be had against a decedent's estate.
After a careful study of the arguments of the parties in their memoranda, reply, rejoinder and surrejoinder,
We find that, for the resolution of the case, it is not necessary to pass upon all those issues. The crucial
issue in the last analysis is whether the lower court, sitting as a probate court in the intestate proceeding
for the estate of Francisco Valera, could hold the heirs of Virgilio Valera answerable for certain supposed
monetary liabilities of the latter to the estate and enforce said liabilities against the properties of the
deceased Virgilio Valera.
We hold that the trial court, as a probate court, erred in adjudging in the said intestate proceeding the
monetary liabilities of the late Virgilio Valera to the estate of Francisco Valera and in issuing a writ of
execution against his properties to enforce the supposed liabilities.
The controlling principle, which should govern this case, was announced by Justice Torres in 1907 in
Pavia vs. De la Rosa, 8 Phil. 70, a case which is on all fours with the instant case. This Court ruled in that
case:
Administrators or executors; Code of Civil Procedure; Heirs. The heir legally succeeds
the deceased from whom he derives his right and title but only after the liquidation of the
estate, the payment of the debts of same, and the adjudication of the residue of the
estate of the deceased, and in the meantime the only person in charge by law to attend
to all claims against the estate of the deceased debtor is the executor or administrator
appointed by a competent court. (Syllabus based on page 77).
In the Pavia case, an action for damages was brought by Rafaela Pavia against Bibiana de la Rosa and
Salud de la Rosa, as the only heirs of the deceased Jose de la Rosa. Rafaela Pavia claimed that she
empowered Jose de la Rosa to administer the estate of Pablo Linart and that, as administrator, De la
Rosa caused damages to the estate through his negligence. The De la Rosa sisters contended that they
could not be held liable for the negligent acts of their brother, Jose de la Rosa.
This Court held that the action was not maintainable against the De la Rosa sisters and that it should be
prosecuted against the executor or administrator of the estate of Jose de la Rosa. Hence, the action was
dismissed, reserving to Rafaela Pavia "the right to institute proper action against the executor or
administrator of the properties of the estate of the deceased Jose de la Rosa".
In the instant case, Mrs. Bringas sought to hold the heirs of the deceased Virgilio Valera liable for his
obligations to pay rentals and to account for the fruits of the properties forming part of the estate of

Francisco Valera and the war damage and insurance monies collected by Virgilio Valera. The heirs of
Virgilio Valera were dragged into the intestate proceeding for the purpose of holding them liable for the
amounts supposedly due from the deceased. As already noted, Mrs. Bringas prayed for "an order
directing the Sheriff to seize such properties of Virgilio Valera and his heirs ... as may be sufficient, to be
sold according to law for the payment of double the value of the fruits and the amount of monies alienated
and embezzled" (Annex "E" of Petition). Judge Ofilada specifically directed that the execution be issued
"against the heirs of Virgilio Valera". The Deputy Sheriff literally followed that directive by levying upon
"the goods and chattels of the heirs of Virgilio Valera".
The procedure followed by the Sheriff was erroneous. The decedent's heirs are not liable personally for
the debts of his debts. Thus, it was held:
It happens, however, that the plaintiffs are not under obligation to pay the debts of their
late father, such as items (a), (f) and (h) of the counterclaim. It does not appear that they
personally bound themselves to pay them, and the mere fact that they are the deceased's
heirs does not make them answerable for such credits against their predecessor in
interest, inasmuch as article 1003 of the Civil Code is no longer in force, having been
abrogated by certain provisions of the Code of Civil Procedure (Pavia vs. De la Rosa, 8
Phil. 70, cited in Calma vs. Calma, 56 Phil. 102, 105).
The error becomes more glaring in the light of Section 7, Rule 39 of the Rules of Court which allows
execution in case of the death of a party only "where a party dies after the entry of the judgment or order".
The implication is that if a person, before his death, or the legal representative of his estate was never a
party to a case, no execution can be issued against his properties after his death. In this case, the Sheriff
seems to have proceeded on the assumption that the properties levied upon belonged to the deceased
Virgilio Valera and that the said properties were in the possession of his heirs.
Furthermore, there is merit in the petitioners' contention that the probate court generally cannot issue a
writ of execution. It is not supposed to issue a writ of execution because its orders usually refer to the
adjudication of claims against the estate which the executor or administrator may satisfy without the
necessity of resorting to a writ of execution. The probate court, as such, does not render any judgment
enforceable by execution.
The circumstance that the Rules of Court expressly specifies that the probate court may issue execution
(a) to satisfy the contributive shares of devisees, legatees and heirs in possession of the decedent's
assets (Sec. 6, Rule 88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (e) to
satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142) may
mean, under the rule of inclusion unius est exclusion alterius, that those are the only instances when it
can issue a writ of execution.
With particular reference to the sum of P4,784.96, which represents the insurance and war damage
monies allegedly embezzled by Virgilio Valera, the lower court, sitting as a probate court, had no
jurisdiction to enforce, by execution, the payment of double the value of that amount. The alleged
embezzler was dead. Execution was not warranted under Sections 7 and 8, Rule 87 of the Rules of
Court, which both refer, to a living person, meaning a person entrusted with a part of the decedent's
estate "by an executor or administrator", and to a person who committed "embezzlement before letters
(were) issued". Section 8 explicitly provides that the embezzler's liability shall be determined in "an
action", and not in the intestate proceeding. 19
The record reveals that there is a dispute between Mrs. Bringas and the heirs of Virgilio Valera as to
whether one-third of the Valera residence and the six parcels of land listed in the "Amended Incomplete

Inventory, etc." dated August 31, 1965 20 belong to the estate of Francisco Valera. The tax declarations for
those properties are in the name of the deceased Virgilio Valera.
Their inclusion in the inventory is not conclusive as to the ownership. "Questions on title to real property
cannot be determined in testate or intestate proceedings. It has, however, been held that for the purpose
of determining whether a certain property should or should not be included in the inventory, the probate
court may pass upon the title thereto, but such determination is not conclusive and is subject to the final
decision in a separate action to he instituted between the parties." 21 As stressed by Mr. Justice Zaldivar
in Mangaliman vs. Gonzales, L-21033, December 28, 1970, 36 SCRA 462, the probate court is a court of
special and limited jurisdiction.
We have studied carefully respondents' memorandum and rejoinder. We have not found therein any
citation of a rule or precedent which would justify the arbitrary and irregular procedure followed by the
lower court in determining the liability of a dead person without hearing the legal representative of his
estate and in holding his heirs answerable for his supposed liabilities and then enforcing those liabilities
against his estate. Section 6(b), Rule 78 and Section 2, Rule 79 of the Rules of Court assume that a
creditor, as an interested person, may cause a debtor's estate to be placed under administration.
The cases of Cunanan vs. Amparo, 80 Phil. 227 and Bernardo vs. Court of Appeals, 62 O.G. 2621 cited
by the respondents in page 19 of their rejoinder, refer to a living party, not to a decedent.
Without going into a more extensive and detailed discussion of the other irregularities committed by the
lower court, We believe that the jurisdictional errors already pointed out suffice to show that it acted in
excess of jurisdiction and with grave abuse of discretion. Hence, the issuance of the writ of certiorari is
warranted.
WHEREFORE, the writ of execution and the Sheriff's execution sale on April 3, 1967 and all proceedings
relative thereto as well as the orders of July 10, 1964, April 15, 1966, January 4, April 3 and May 2, 1967
of the lower court, are declared void and are set aside, insofar as the heirs of Virgilio Valera or his estate
are concerned, without prejudice to the right of Adoracion Valera Bringas to institute the proper action
against the administrator of the estate of the estate of the late Virgilio Valera and to file the appropriate
claims in the proceeding for the settlement of his estate. No pronouncement as to costs.
SO ORDERED.

LITONJUA
GR
No.L-4170,
90 PHIL 757

v.
January

31,

1952,

MONTILLA
90PHIL757

FACTS: Pedro Litonjua obtained a judgment against Claudio Montilla for the payment of a sum
of P4,039. Failing to find or identify a property of Claudio to be levied, petitioner then proceeded
to file a claim in the intestate proceeding of the estate of Agustin Montilla Sr, father of the
deceased. The estate has not yet been properly probated.
ISSUE: Could the petitioner succeed in collecting the debt as against the estate of the debtor's
deceased parent?
HELD: No. In the case of Ortiga Brothers and Co. vs. Enage and Yap Tico, 18 Phil. 345, it was
held that the creditor of the heirs of a deceased person is entitled to collect his claim out of the

property which pertains by inheritance to said heirs, only after the debts of the testate or intestate
have been paid and when the net assets that are divisible among the heirs are known, because the
debts of the deceased must first be paid before his heirs can inherit. It was therein also held that a
person who is not a creditor of a deceased, testate or intestate, has no right to intervene either in
the proceedings brought in connection with the estate or in the settlement of the succession. The
foregoing pronouncements are perfectly applicable to the case at bar, because the appellant is not
a creditor of the deceased Agustin Montilla, Sr. and he seeks to collect his claim out of the
inheritance of Claudio Montilla, an heir, before the net assets of the intestate estate have been
determined.
RABADILLA vs. CA
June 29, 2000
FACTS:
In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge
Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as
a devisee of parcel of land. The Codicil provides that Jorge Rabadilla shall have the obligation
until he dies, every year to give Maria Marlina Coscolluela y Belleza, (75) (sic) piculs of Export
sugar and (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza
dies.
Dr. Jorge Rabadilla died. Private respondent brought a complaint, to enforce the
provisions of subject Codicil.
ISSUE:
WON the obligations of Jorge Rabadilla under the Codicil are inherited by his heirs.
HELD:
Under Article 776 of the NCC, inheritance includes all the property, rights and
obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge
Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his
death. And since obligations not extinguished by death also form part of the estate of the

decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge
Rabadilla, were likewise transmitted to his compulsory heirs upon his death.
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR.,
EVELYN SUAREZ-DE LEON and REGINIO I. SUAREZ, Petitioners, v. THE COURT OF
APPEALS, VALENTE RAYMUNDO, VIOLETA RAYMUNDO, MA. CONCEPCION
VITO and VIRGINIA BANTA, Respondents.
Villareal Law Offices, for Petitioners.
Nelson Loyola for Private Respondent.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME; PROPRIETARY INTEREST OF
THE CHILDREN, DIFFERENT AND ADVERSE FROM THEIR MOTHER. The legitime of
the surviving spouse is equal to the legitime of each child. The proprietary interest of petitioners
in the levied and auctioned property is different from and adverse to that of their mother.
Petitioners became co-owners of the property not because of their mother but through their own
right as children of their deceased father. Therefore, petitioners are not barred in any way from
instituting the action to annul the auction sale to protect their own interest.
DECISION
NOCON, J.:
The ultimate issue before Us is whether or not private respondents can validly acquire all the five
(5) parcels of land co-owned by petitioners and registered in the name of petitioners deceased
father. Marcelo Suarez, whose estate has not been partitioned or liquidated, after the said
properties were levied and publicly sold en masse to private respondents to satisfy the personal
judgment debt of Teofista Suarez, the surviving spouse of Marcelo Suarez, mother of herein
petitioners.
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The undisputed facts of the case are as follows:

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Herein petitioners are brothers and sisters. Their father died in 1955 and since then his estate
consisting of several valuable parcels of land in Pasig, Metro Manila has lot been liquidated or
partitioned. In 1977, petitioners widowed mother and Rizal Realty Corporation lost in the
consolidated cases for rescission of contract and for damages, and were ordered by Branch 1 of
the then Court of First Instance of Rizal (now Branch 151, RTC of Pasig) to pay, jointly and
severally, herein respondents the aggregate principal amount of about P70,000 as damages. 1

The judgment against petitioners mother and Rizal Realty Corporation having become final and
executory, five (5) valuable parcel of land in Pasig, Metro Manila, (worth to be millions then)
were levied and sold on execution on June 24, 1983 in favor of the private respondents as the
highest bidder for the amount of P94,170.000. Private respondents were then issued a certificate
of sale which was subsequently registered or August 1, 1983.
On June 21, 1984 before the expiration of the redemption period, petitioners filed a
reinvindicatory action 2 against private respondents and the Provincial Sheriff of Rizal, thereafter
docketed as Civil Case No. 51203, for the annulment of the auction sale and the recovery of the
ownership of the levied pieces of property. Therein, they alleged, among others, that being
strangers to the case decided against their mother, they cannot be held liable therefor and that the
five (5) parcels of land, of which they are co-owners, can neither be levied nor sold on execution.
On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a final deed of
sale 3 over the properties.
On October 22, 1984, Teofista Suarez joined by herein petitioners filed with Branch 151 a
Motion for Reconsideration 4 of the Order dated October 10, 1984, claiming that the parcels of
land are co-owned by them and further informing the Court the filing and pendency of an action
to annul the auction sale (Civil Case No. 51203), which motion however, was denied.
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On February 25, 1985, a writ of preliminary injunction was issued enjoining private respondents
from transferring to third parties the levied parcels of land based on the finding that the auctioned
lands are co-owned by petitioners.
On March 1, 1985, private respondent Valente Raymundo filed in Civil Case No. 51203 a
Motion to Dismiss for failure on the part of the petitioners to prosecute, however, such motion
was later denied by Branch 155, Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte Motion to Dismiss
complaint for failure to prosecute. This was granted by Branch 155 through an Order dated May
29, 1986, notwithstanding petitioners pending motion for the issuance of alias summons to be
served upon the other defendants in the said case. A motion for reconsideration was filed but was
later denied.
On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-21739 an Order
directing Teofista Suarez and all persons claiming right under her to vacate the lots subject of the
judicial sale; to desist from removing or alienating improvements thereon; and to surrender to
private respondents the owners duplicate copy of the torrens title and other pertinent documents.
Teofista Suarez then filed with the then Court of Appeals a petition for certiorari to annul the
Orders of Branch 151 dated October 10, 1984 and October 14, 1986 issued in Civil Case Nos.
21736-21739.
On December 4, 1986 petitioners filed with Branch 155 a Motion for reconsideration of the
Order 5 dated September 24, 1986. In an Order dated June 10, 1987, 6 Branch 155 lifted its

previous order of dismissal and directed the issuance of alias summons.

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Respondents then appealed to the Court of Appeals seeking to annul the orders dated February
25, 1985, 7 May 19, 1989 8 and February 26, 1990 9 issued in Civil Case No. 51203 and further
ordering respondent Judge to dismiss Civil Case No. 51203. The appellate court rendered its
decision on July 27, 1990, 10 the dispositive portion of which reads:
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"WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated
February 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are
hereby annulled, further respondent Judge is ordered to dismiss Civil Case No. 51203." 11
Hence, this appeal.
Even without touching on the incidents and issues raised by both petitioner and private
respondents and the developments subsequent to the filing of the complaint, We cannot but
notice the glaring error committed by the trial court.
It would be useless to discuss the procedural issue on the validity of the execution and the
manner of publicly selling en masse the subject properties for auction. To start with, only onehalf of the 5 parcels of land should have been the subject of the auction sale.
The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution
of the case.
"The rights to the succession are transmitted from the moment of the death of the decedent."
Article 888 further provides:

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chanrobl es.com.ph : virtual law library

"The legitime of the legitimate children and descendants consists of one-half of the hereditary
estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children
and of the surviving spouse as hereinafter provided."
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Article 892 par. 2 likewise provides:

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"If there are two or more legitimate children or descendants, the surviving spouse shall be
entitled to a portion equal to the legitime of each of the legitimate children or descendants."

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Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each
child.
The proprietary interest of petitioners in the levied and auctioned property is different from and
adverse to that of their mother. Petitioners became co-owners of the property not because of their
mother but through their own right as children of their deceased father. Therefore, petitioners are
not barred in any way from instituting the action to annul the auction sale to protect their own

interest.
WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its
Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203
is reinstated only to determine that portion which belongs to petitioners and to annul the sale
with regard to said portion.
chanrobles law library

SO ORDERED.
NELSON NUFABLE, SILMOR NUFABLE and AQUILINA NUFABLE, petitioners,
vs.
GENEROSA NUFABLE, VILFOR NUFABLE, MARCELO NUFABLE, and the COURT OF APPEALS, respondents.

GONZAGA-REYES, J.:
This petition for review on certiorari seeks to reverse and set aside the Decision dated November 25, 1995 of the Fifth Division

of the

Court of Appeals for allegedly being contrary to law.

The following facts as found by the Court of Appeals are undisputed:
Edras Nufable owned at Poblacion, Manjuyod, Negros Oriental, consisting of 948 square
meters, more or less. He died on August 9, 1965 and was survived by his children,
namely: Angel Custodio, Generosa, Vilfor and Marcelo, all surnamed Nufable. Upon
petition for probate filed by said heirs and after due publication and hearing, the then
Court of First Instance of Negros Oriental (Branch II) issued an Order dated March 30,
1966 admitting to probate the last will and testament executed by the deceased Edras
Nufable (Exhs. B, C and C-1).
On June 6, 1966 the same court issued an Order approving the Settlement of Estate
submitted by the heirs of the late ESdras Nufable, portions of which read:
KNOW ALL MEN BY THESE PRESENTS:
We, ANGEL CUSTODIO NUFABLE, GENEROSA NUFABLE, VILFOR
NUFABLE and MARCELO NUFABLE, all of legal ages (sic), Filipinos,
and with residence and postal address at Manjuyod, Negros Oriental,
Philippines,
HEREBY DECLARE AND MAKE MANIFEST
1. That on August 9, 1965, Rev. Fr. Esdras Nufable died leaving (a) Last
Will and Testament (marked Exh. G) disposing (of) his properties or
estate in favor of his four legitimate children, namely: Angel Custodio
Nufable, Generosa Nufable, Vilfor Nufable and Marcelo Nufable;
2. That on March 30, 1966 the said Last Will and Testament was
probated by the Honorable Court, Court of First Instance of Negros
Oriental, and is embodied in the same order appointing an Administratrix,
Generosa Nufable, but to qualify only if she put up a necessary bond of
P1,000.00;

3. That herein legitimate children prefer not to appoint an Administratrix,

as agreed upon (by) all the heirs, because they have no objection as to
the manner of disposition of their share made by the testator, the
expenses of the proceedings and that they have already taken
possession of their respective shares in accordance with the will;
4. That the herein heirs agreed, as they hereby agree to settle the estate
in accordance with the terms and condition of the will in the following
manner, to wit:
a) That the parcel of land situated in Poblacion Manjuyod, Negros
Oriental remains undivided for community ownership but respecting
conditions imposed therein (sic) in the will;
xxx xxx xxx
(Exhs. "E" and "E-1")
Two months earlier, or on March 15, 1966, spouses Angel Custodio and Aquilina Nufable
mortgaged the entire property located at Manjuyod to the Development Bank of the
Philippines [DBP] (Pre-trial Order, dated January 7, 1992, p. 103, Original Records). Said
mortgagors became delinquent for which reason the mortgaged property was foreclosed
by DBP on February 26, 1973 (id.).
On January 11, 1980, Nelson Nufable, the son of Angel Custodio Nufable (who died on
August 29, 1978 [TSN, Testimony of Nelson Nufable, Hearing of August 18, 1992, p. 17]),
purchased said property from DBP (Exh. "1").
Generosa, Vilfor and Marcelo, all surnamed Nufable filed with the lower court a complaint
dated July 25, 1985 "To Annul Fraudulent Transactions, to Quiet Title and To Recover
Damages' against Nelson Nufable, and wife, Silmor Nufable and his mother Aquilina
Nufable. Plaintiffs pray:
WHEREFORE, plaintiffs pray this Honorable Court that after trial
judgment be rendered ordering:
(a) That the said Deed of Sale (Annex "C") executed by the Development
Bank of the Philippines in favor of the defendants be declared null and
void as far as the three fourths (3/4) rights which belongs (sic) to the
plaintiffs are concerned;
(b) That the said three fourths (3/4) rights over the above parcel in
question be declared as belonging to the plaintiffs at one fourth right to
each of them;
(c) To order the defendants to pay jointly and severally to the plaintiffs by
way of actual and moral damages the amount of P10,000.00 and another
P5,000.00 as Attorney's fees, and to pay the costs.

(d) Plus any other amount which this Court may deem just and equitable.
(p. 6, Original Records)
In their Answer, defendants contend:
4. Paragraph 4 is denied, the truth being that the late Angel Nufable was
the exclusive owner of said property, that as such owner he mortgaged
the same to the Development Bank of the Philippines on March 15, 1966,
that said mortgage was foreclosed and the DBP became the successful
bidder at the auction sale, that ownership was consolidated in the name
of the DBP, and that defendant Nelson Nufable bought said property from
the DBP thereafter. During this period, the plaintiffs never questioned the
transactions which were public, never filed any third party claim nor
attempted to redeem said property as redemptioners, and that said Deed
of Sale, Annex "B" to the complaint, is fictitious, not being supported by
any consideration; (pp. 20-21, id.)
The Deed of Sale (Annex "B"), referred to by the parties is a notarized Deed of Sale,
dated July 12, 1966 (marked as Exhibit "H") by virtue of which, spouses Angel and
Aquilina Nufable, as vendors, sold 3/4 portion of the subject property to herein plaintiffs
for and in consideration of P1,000.00 (Exh. "5"). 2
On November 29, 1995, the Court of Appeals rendered judgment, the dispositive portion 3 of which reads:
WHEREFORE, the appealed decision of the lower court is REVERSED and SET ASIDE.
A new judgment is hereby entered declaring plaintiffs-appellants as the rightful co-owners
of the subject property and entitled to possession of 3/4 southern portion thereof; and
defendant-appellee Nelson Nufable to 1/4 portion.
No award on damages.
No costs.
Defendants-appellees' Motion for Reconsideration was denied for lack of merit in the Resolution of the
Court of Appeals 4 dated October 2, 1996.
Hence, the present petition. Petitioners raise the following grounds for the petition:
1. Honorable Court of Appeals erred in considering as controlling the probate of the Last
Will and Testament of Esdras Nufable, the probate thereof not being an issue in this case;
2. The Honorable Court of Appeals erred in not considering the fact that the Development
Bank of the Philippines became absolute, exclusive, legal and rightful owner of the land
in question, from whom petitioner Nelson Nufable acquired the same by purchase and
that, therefore, no award can be made in favor of private respondent unless and until the
Development Bank of the Philippines' title thereto is first declared null and void by the
court.
The Court of Appeals, in its decision, stated that the trial court failed to take into consideration the
probated will of the late Esdras Nufable bequeathing the subject property to all his four children. 5 In the

present petition, petitioner present the issue of whether or not the Last Will and Testament of Esdras
Nufable and its subsequent probate are pertinent and material to the question of the right of ownership of
petitioner Nelson Nufable who purchased the land in question from, and as acquired property of, the
Development Bank of the Philippines (DBP, for short). They contend that the probate of the Last Will
Testament and of Esdras Nufable did not determine the ownership of the land in question as against third
parties.1wphi1.nt
As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic validity of
the will sought to be probated, the due execution thereof, the testator's testamentary capacity and the
compliance with the requisites or solemnities prescribes by law. Said court at this stage of the
proceedings is not called to rule on the rule on the intrinsic validity or efficacy of the will. 6 The question of
the intrinsic validity of a will normally comes only after the court has declared that the will has been duly
authenticated.
The records show that upon petition for probate filed by the heirs of the late Esdras Nufable, an Order
dated March 30, 1966 was issued by then Court of First Instance of Negros Oriental, Branch II, admitting
to probate the last will and testament executed by the decedent. 7 Thereafter, on June 6, 1966, the same
court approved the Settlement of Estate submitted by the heirs of the late Esdras Nufable wherein they
agreed "(T)hat the parcel land situated in Poblacion Manjuyod, Negros Oriental remains undivided for
community ownership but respecting conditions imposed therein (sic) in the will." 8 In paragraph 3 thereof,
they stated that "they have no objection as to the manner of disposition of their share made by the
testator, the expenses of the proceeding and that they have already taken possession of their respective
shares in accordance with the will." Verily, it was the heirs of the late Esdras Nufable who agreed among
themselves on the disposition of their shares. The probate court simply approved the agreement among
the heirs which approval was necessary for the validity of any disposition of the decedent's estate. 9
It should likewise be noted that the late Esdras Nufable died on August 9, 1965. When the entire property
located at Manjuyod was mortgaged on March 15, 1966 by his son Angel Custodio with DBP, the other
heirs of Esdras namely: Generosa, Vilfor and Marcelo had already acquired successional rights
over the said property. This is so because of the principle contained in Article 777 of the Civil Code to the
effect that the rights to the succession are transmitted from the moment of death of the decedent.
Accordingly, for the purpose of transmission of rights, it does not matter whether the Last Will and
Testament of the late Esdras Nufable was admitted on March 30, 1966 or thereafter or that the Settlement
of Estate was approved on June 6, 1966 or months later. It is to be noted that the probated will of the late
Esdras Nufable specifically referred to the subject property in stating that "the land situated in the
Poblacion, Manjuyod, Negros Oriental, should not be divided because this must remain in common for
them, but it is necessary to allow anyone of them brothers and sisters to construct a house therein." 10 It
was therefor the will of the decedent that the subject property should undivided, although the restriction
should not exceed twenty (20) years pursuant to Article 870 11 of the Civil Code.
Thus, when Angel Nufable and his spouses mortgaged the subject property to DBP on March 15, 1966,
they had no right to mortgage the entire property. Angel's right over the subject property was limited only
to 1/4 pro indiviso share. As co-owner of the subject property, Angel's right to sell, assign or mortgage is
limited to that portion that may be allotted to him upon termination of the co-ownership. Well-entrenched
is the rule that a co-owner can only alienate his pro indiviso share in the co-owned property. 12
The Court of Appeals did not err in ruling that Angel Custodio Nufable "had no right to mortgage the
subject property in its entirety. His right to encumber said property was limited only to 1/4 pro indiviso
share of the property in question." 13 Article 493 of the Civil Code spells out the rights or co-owners over a
co-owned property. Pursuant to said Article, a co-owner shall have full ownership of his part and of the
fruits and benefits pertaining thereto. He has the right to alienate, assign or mortgage it, and even

substitute another person in its enjoyment. As a mere part owner, he cannot alienate the shares of the
other co-owners. The prohibition is premised on the elementary rule that "no one can give what he does
not have." 14
Moreover, respondents stipulated that they were not aware of the mortgage by petitioners of the subject
property. 15 This being the case, a co-owner does not lose his part ownership of a co-owned property
when his share is mortgaged by another co-owner without the former's knowledge and consent 16 as in
the case at bar. It has likewise been ruled that the mortgage of the inherited property is not binding
against co-heirs who never benefitted. 17
Furthermore, the Deed of Sale dated June 17, 1966 marked as Exhibit "H" executed by spouses Angel
and Aquilina Nufable in favor of respondents Generosa, Vilfor and Marcelo wherein the former sold,
ceded and transferred back to the latter the 3/4 portion of the subject property bolsters respondents' claim
that there was co-ownership. Petitioner Nelson himself claimed that he was aware of the aforesaid Deed
of Sale. 18
Anent the second ground of the petition, petitioners allege that the Development Bank of the Philippines
acquired ownership of the land in question through foreclosure, purchase and consolidation of ownership.
Petitioners argue that if petitioner Nelson Nufable had not bought said land from the DBP, private
respondents, in order to acquire said property, must sue said bank for the recovery thereof, and in so
doing, must allege grounds for the annulment of documents evidencing the bank's ownership thereof.
Petitioners contend that since petitioner Nelson Nufable simply bought the whole land from the bank, they
cannot be deprived of the ownership of 3/4 without making any pronouncement as to the legality or
illegality of the bank's ownership of said land. It is argued that there was no evidence to warrant
declaration of nullity of the bank's acquisition of said land; and that neither was there a finding by the
court that the bank illegally acquired the said property.
As adverted to above, when the subject property was mortgaged by Angel Custodio, he had no right to
mortgage the entire property but only with respect to his 1/4 pro indiviso share as the property was
subject to the successional rights of the other heirs of the late Esdras. Moreover, in case of foreclosure; a
sale would result in the transmission of title to the buyer which is feasible only if the seller can be in a
position to convey ownership of the things sold. 19 And in one case, 20 it was held that a foreclosure would
be ineffective unless the mortgagor has title to the property to be foreclosed. Therefore, as regards the
remaining 3/4 pro indiviso share, the same was held in trust for the party rightfully entitled thereto, 21 who
are the private respondents herein.
Pursuant to Article 1451 of the Civil Code, when land passes by succession to any person and he causes
the legal title to be put in the name of another, a trust is established by implication of law for the benefit of
the true owner. Likewise, under Article 1456 of the same Code, if property is acquired through mistake or
fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of
the person from whom the property comes. In the case of Noel vs. Court of Appeals, 22 this Court held that
"a buyer of a parcel of land at a public auction to satisfy a judgment against a widow acquired only onehalf interest on the land corresponding to the share of the widow and the other half belonging to the heirs
of her husband became impressed with a constructive trust in behalf of said heirs."
Neither does the fact that DBP succeeded in consolidating ownership over the subject property in its
name terminate the existing co-ownership. Registration of property is not a means of acquiring ownership.
23
When the subject property was sold to and consolidated in the name of DBP, it being the winning bidder
in the public auction, DBP merely held the 3/4 portion in trust for the private respondents. When petitioner
Nelson purchased the said property, he merely stepped into the shoes of DBP and acquired whatever
rights and obligations appertain thereto.

This brings us to the issue of whether or not the DBP should have been impleaded as party-defendant in
the case at bar. Petitioners contend that DBP was never impleaded and that due process requires that
DBP be impleaded so that it can defend its sale to petitioner Nelson Nufable; and that it was the duty of
private respondents, and not of petitioner Nelson, to implead the bank and ask for the annulment of
documents evidencing the bank's ownership of the disputed land.
In the Rejoinder to the Reply, private respondents that the non-inclusion of DBP as a "necessary party"
was not questioned by petitioners from the time the Complaint was filed until the case was "finished." It
was only after the adverse decision by the respondent Court of Appeals that petitioners raised the issue.
At the outset, it should be stated petitioners never raised this issue in their Answers and pursuant to
Section 2, Rule 9 of the Rules of Court, defenses and objections not pleaded either in a motion to dismiss
or in the answer are deemed waived.
Nonetheless, the rule is that indispensable parties, i.e., parties in interest without whom no final
determination can be had of an action, shall be joined either as plaintiffs or defendants; the inclusion as a
party, i.e., persons who are not indispensable but ought to be parties if complete relief is to be accorded
as between those already parties, the court may, in its discretion, proceed in the action without making
such persons parties, and the judgment rendered therein shall be without prejudice to the rights of such
persons. 25 Proper parties, therefore, have been described as parties whose presence in necessary in
order to adjudicate the whole controversy, but whose interests are so far separable that a final decree can
be made in their absence without affecting them. 26 Any claim against a party may be severed and
proceeded with separately. 27
The pivotal issue to be determined is whether DBP is an indispensable party in this case.
Private respondents do not question the legality of the foreclosure of the mortgaged property and the
subsequent sale of the same to DBP. The subject property was already purchased by petitioner Nelson
from DBP and latter, by such sale, transferred its rights and obligations to the former. Clearly, petitioners'
interest in the controversy is distinct and separable from the interest of DBP and a final determination can
be had of the action despite the non-inclusion of DBP as party-defendant. Hence, DBP, not being an
indispensable party, did not have to be impleaded in this case.
WHEREFORE, there being no reversible error in the decision appealed from, the petition for review on
certiorari is hereby DENIED.1wphi1.nt
SO ORDERED.