ARTICLE 1088

G.R. No. L-26855

April 17, 1989

FRANCISCO GARCIA, PAZ GARCIA, and MARIA GARCIA, petitioners,

vs.
JOSE CALALIMAN, PACIENCIA TRABADILLO & HON. COURT OF
APPEALS, Third Division, respondents.
Jose Gaton for petitioners.
Ricardo Q. Castro for respondents.

The last paragraph of the same document states:

That for and in consideration of the sum of FIVE HUNDRED PESOS (P500.00),
Philippine Currency, to us in hand paid by the spouses, JOSE CALALIMAN, and
PACIENCIA TRABADILLO, all of legal age, Filipinos and residents of the
municipality of Tubungan, province of Iloilo, Philippines, receipt of which we
hereby acknowledged and confessed to our entire satisfaction, do by these
presents, cede, sell, convey and transfer the above-described parcel of land
unto the said spouses, Jose Calaliman and Paciencia Trabadillo, their heirs,
successors and assigns free from all liens and encumbrances whatever. (p. 19,
Exhibits)

PARAS, J.:
This is a petition for review on certiorari of the decision * of the Court of Appeals
in CA-G.R. No. 22179-R, promulgated on August 31, 1966, reversing the
decision of the Court of First Instance of Iloilo ** in Civil Case No. 3489, and
rendering a new one dismissing the complaint of petitioner herein, the
dispositive portion of which reads as follows:
WHEREFORE, the judgment appealed from is hereby reversed and another
entered, dismissing plaintiff's complaint. No pronouncement as to costs. (p. 29
Rollo)

The document was inscribed in the Register of Deeds of Iloilo on February

24,1955, Inscription No. 20814, Page 270, Vol. 64 (Exhibits, p. 20).
On December 17, 1954 another group of heirs, Rosario Garcia, Margarita
Garcia, Dolores Rufino, Resurreccion Tagarao, Serafin Tagarao, Buenaventura
Tagarao, Fortunata Garcia and Simeon Garcia, all residents of Isabela, Negros
Occidental, also sold to the spouses Jose Calaliman and Paciencia Trabadillo
through their attorney-in-fact, Juanito Bertomo, their shares, rights, interest and
participation in the same parcel of land. The Deed of Sale was registered in the
Register of Deeds of Iloilo also on December 22, 1954, Inscription No. 20640, p.
88, Vol. 64 (Exhibits, p. 2122).

The facts of the case are as follows:

On February 11, 1946, one Gelacio Garcia died intestate, leaving a parcel of
unregistered land about 372 sq. meters, situated in the Municipality of
Tubungan, Province of Iloilo (Exhibits, p. 19). On his death the property was
inherited by his nephews, nieces, grandnephews who are the descendants of
his late brothers, Pedro, Simeon, Buenaventura and Marcos (TSN, Sept.
6,1956, p. 3).

On May 7, 1955 the heirs Francisco Garcia, Paz Garcia, and Maria Garcia,
petitioners herein, filed against the spouses Jose Calaliman and Paciencia
Trabadillo, private respondents herein, Civil Case No. 3489 with the Court of
First Instance of Iloilo, for legal redemption of the 3/4 portion of the parcel of
land inherited by the heirs from the late Gelacio Garcia, which portion was sold
by their co-heirs to the defendants. In the complaint (Record on Appeal, p. 4)
plaintiffs alleged, among others:

On December 3, 1954, the heirs, Juanita Bertomo, Joaquin Garcia, Porfirio

Garcia, Dioscoro Garcia, Flora Garcia, Consolacion Garcia, Remedios Garcia,
Trinidad Garcia, Baltazar Garcia signed a document entitled, "Extra-judicial
Partition and Deed of Sale" (Exhibits, p. 19). The parcel of land subject of the
document was described as follows:

5.
That, plaintiffs' co-owners had never offered for sale their interest and
shares over the said land to the plaintiffs prior to the sale in favor of the
defendants, nor given notice of such intention on their part; and that, no notice in
writing has been given by said co-owners to the plaintiffs of the said sale, such
that, plaintiffs came to learn of it only from other source;

A parcel of residential land, about 372 square meters, lst class, Identified as
Assessor's Lot No. 107, Block No. 8, bounded on the north by Paz and Federal
Streets; on the south by Tabaosares and Antonia Tacalinar; on the East by
Piedad Street; and on the West by Paz Street. This parcel of land has no
concrete monuments to indicate its boundaries but there are dikes, stones and
temporary fences used as landmarks and boundary signals. This parcel of land
is covered by Tax Declaration No. 1149, S. of 1947, in the name of Gelacio
Garcia, and its assessed value of P110.00. (p. 19, Exhibits)

6.
That, plaintiffs would have purchased the interest and shares of their coowners had the latter offered the same to them prior to the sale thereof to the
defendants; and that, within 30 days after learning of the sale made to the
defendants under annexes 'A', 'B' and 'B-l', plaintiffs made repeated offer to the
defendants to allow them to redeem said interest and shares acquired by the
defendants in accordance with the right granted to the plaintiffs by law in such a
case, offering a reasonable price thereof of P300 taking into consideration the
fact that the defendants had acquired only 3/4 of the land of 372 square meters

ARTICLE 1088

more or less, in area with assessed value of P110 and a fair market value of 372
at Pl per square meter, the price actually obtaining in the locality at the time of
the sale thereof under Annexes 'A', 'B' and 'B-l'; however, the defendants
refused and have until the present refused to grant redemption thereof giving no
reason why other than challenging the plaintiffs to bring their case in court:
7.
That, the circumstances surrounding the transaction between the
defendants and plaintiffs' co-owners, the vendors, were such that defendants
could not have actually paid nor the vendors actually received the total price of
P800 as stipulated in the deeds Annexes 'A', 'B' and 'B-l' while the said price
fixed is grossly excessive and highly exaggerated and prohibitive for evidently
ulterior motive:

2.
That due notices in writing have been sent to plaintiff Francisco Garcia
at his residence at 2875 Felix Huertas St., Sta. Cruz, Manila, sometime last
June 1953, in which plaintiff Francisco Garcia was informed of his co-owners
signified intention to sell their shares, and likewise, the other plaintiffs Paz and
Maria Garcia were personally notified of the same hence, for that reason, they
are now barred to claim legal redemption of the land in question, having filed
their belated claim too late."
The trial court rendered judgment on September 12, 1957 in favor of the
plaintiffs (Record on Appeal, p. 15), the dispositive portion of which reads as
follows:
WHEREFORE, judgment is hereby rendered:

8.
That, the land herein described is an ancestral property and plaintiffs
have actually a house standing thereon and having lived thereon ever since,
such that, the defendants' refusal to allow redemption thereof has caused the
plaintiffs mental torture, worry and anxiety, forcing them to litigate and retain
services of counsel, therefore, plaintiffs demand against the defendants P500 for
moral damage, P500 for exemplary damage, P300 for attorney's fees, aside
from actual expenses incurred; and, furthermore, P5 monthly as reasonable
value of defendants' occupation of a portion of the premises counting from the
filing of this complaint.

(a) Sentencing the defendants to resell the property to the plaintiffs for P800.00
which is the total consideration of the two deeds of sale Exhibits A and B;
(b) In the event that the defendants fail to execute the deed of resale within ten
days from the date this decision becomes final, the Clerk of Court is hereby
ordered to execute the corresponding deed pursuant to the provisions of Section
10 of Rule 39 of the Rules of Court;
(c) Without pronouncement as to costs.

They prayed that the trial court render judgment:

1. Declaring the plaintiffs to be entitled to redeem from the defendants for the
price of P300 or for such reasonable price as may be determined by this
Honorable Court the interest and shares over the land described in this
complaint of plaintiffs' co-owners, Joaquin, Porfirio, Flora, Dioscoro,
Consolacion, Remedios, Trinidad, Baltazar, Rosario, Margarita, Dolores,
Fortunata and Simon, all surnamed Garcia, and Resurreccion, Serafin and
Buenaventura, all surnamed Tagarao, sold by them to the defendants under the
deeds of sale Annexes 'A', 'B' and 'B-l' of this complaint; and ordering the
defendants to execute the proper instrument of reconveyance or redemption
thereof in favor of the plaintiffs; and, ordering them to vacate the premises;
2.
Condemning the defendants to pay to the plaintiffs P500 for moral
damage; P500 for exemplary damage; P300 for attorney's fees and actual
expenses incurred; P5 monthly from the filing of this complaint as reasonable
value of defendants' occupation of a portion of the land; the costs of this action;
and, for such other relief and remedy as may be legal, just and equitable."
On the other hand, the defendants, private respondents herein, alleged in their
answer the following special affirmative defenses (Record on Appeal, p. 14):
1.

That plaintiffs have no cause of action against the herein defendants;

On October 14, 1957 plaintiffs filed their notice of Appeal predicated on "(a)
failure of the Court to adjudge the real or reasonable price of the sale or
otherwise the redemption value thereof; (b) failure of the Court to adjudge
damages including attorney's fees in favor of the plaintiffs and the costs."
(Record on Appeal, p. 18).
Defendants filed their own notice of appeal on October 15, 1957 (Record on
Appeal, p. 19).
On appeal the Court of Appeals in a decision promulgated on August 31, 1966
reversed the decision of the trial court and rendered another one dismissing
plaintiff's complaint with no pronouncement as to costs (Rollo, p. 22).
The instant petition for review by certiorari was filed with the Court on December
12, 1966 (Rollo, p. 11). The Court at first dismissed the petition in a resolution
dated December 22, 1966, for insufficient supporting papers (Rollo, p. 35) but
reconsidered the said Resolution of Dismissal later in a Resolution dated
February 8, 1967 (Rollo, p. 97) as prayed for in a motion for reconsideration filed
by petitioners on February 1, 1967 (Rollo, p. 38). The same Resolution of
February 8, 1967 gave due course to the petition.

ARTICLE 1088

The Brief for the Petitioners was filed on June 9,1967 (Rollo, p. 106); the Brief
for the Respondents was received in the Court on August 31, 1967 (Rollo, p.
119).
Petitioners having manifested they would not file reply brief on September
14,1967 (Rollo, p. 122) the Court considered the case submitted for decision, in
a Resolution dated September 21, 1967 (Rollo, p. 124).
Petitioners assign the following errors:
I. THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT
THE 30-DAY PERIOD PRESCRIBED IN ARTICLE 1088 OF THE NEW CIVIL
CODE FOR A CO-HEIR TO EXERCISE HIS RIGHT OF LEGAL REDEMPTION,
HAD ALREADY ELAPSED WHEN THE HEREIN PLAINTIFFS FILED THE
ACTION ON MAY 7,1955.
II. THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT
THERE WAS NO OFFER TO REIMBURSE THE DEFENDANTS FOR THE
PORTION OF THE LAND IN QUESTION SOLD TO THEM BY THE CO-HEIRS
OF THE PLAINTIFFS.
III. THE HONORABLE COURT OF APPEALS ERRED IN REVERSING THE
JUDGMENT OF THE LOWER COURT, AND IN NOT ADJUDGING DAMAGES,
ATTORNEY'S FEES AND COSTS IN FAVOR OF THE PLAINTIFFS.
(Brief for the Petitioners, p. 1)
There is no question that the provision of law applicable in the instant case is
Art. 1088 of the New Civil Code (Art. 1067, Old Civil Code) as the matter
concerns heirs and inheritance not yet distributed (Wenceslao v. Calimon, 46
Phil. 906 [1923]). Art. 1088 states:
Article 1088.
Should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be subrogated to the rights of
the purchaser by reimbursing him for the price of the sale, provided they do so
within the period of one month from the time they were notified in writing of the
sale by the vendor.
The main issue is whether or not petitioners took all the necessary steps to
effectuate their exercise of the right of legal redemption within the period fixed
by Art. 1088 of the Civil Code.
It is undisputed that no notification in writing was ever received by petitioners
about the sale of the hereditary interest of some of their co-heirs in the parcel of
land they inherited from the late Gelacio Garcia, although in a letter dated June
23, 1953 petitioner Francisco Garcia wrote one of his co- heirs, Joaquin Garcia,

who is an uncle of petitioners, proposing to buy the hereditary interests of his coheirs in their unpartitioned inheritance, (Exhibit, p. 3). Although said petitioner
asked that his letter be answered "in order that I will know the results of what I
have requested you," (Exhibit, p. 14) there is no proof that he was favored with
one.
Petitioners came to know that their co-heirs were selling the property on
December 3, 1954 when one of the heirs, Juanito Bertomo, asked Petitioner Paz
Garcia to sign a document prepared in the Municipality of Tubungan because
the land they inherited was going to be sold to private respondent, Jose
Calaliman (TSN, September 6, 1957, p. 60). The document mentioned by
petitioner Paz Garcia could be no other than the one entitled "Extra-Judicial
Partition and Deed of Sale" dated December 3, 1954 as it is in this document
that the name of Paz Garcia, Maria Garcia and Amado Garcia appear unsigned
by them (Exhibits, p. 19).
It is not known whether the other heirs whose names appear in the document
had already signed the document at the time Paz Garcia was approached by
Juanito Bertomo. Paz Garcia, however, testified that she immediately informed
her brother Francisco that Juanita Bertomo wanted to sell the land to Jose
Calaliman (TSN, September 6,1957, p. 62). On December 26, 1954 he wrote
respondents giving them notice of his desire to exercise the right of legal
redemption and that he will resort to court action if denied the right (Exhibits, p.
8). The respondents received the letter on January 13, 1955 but petitioner
Francisco Garcia did not get any answer from them. Neither did respondents
show him a copy of the document of sale nor inform him about the price they
paid for the sale when he went home to Tubungan from Manila sometime in
March 1955 and went to see the respondent spouse about the matter on March
24,1955 (TSN, September 6,1957, p. 18).
Because of the refusal of respondent Jose Calaliman to show him the document
of sale or reveal to him the price paid for the parcel of land, petitioner Francisco
Garcia went to the Office of the Register of Deeds on the same date, March
24,1955 and there found two documents of sale regarding the same parcel of
land (TSN, Ibid, p. 19).
Petitioners filed the case for legal redemption with the trial court on May 7, 1955.
Respondents claim that the 30-day period prescribed in Article 1088 of the New
Civil Code for petitioners to exercise the right to legal redemption had already
elapsed at that time and that the requirement of Article 1088 of the New Civil
Code that notice would be in writing is deemed satisfied because written notice
would be superfluous, the purpose of the law having been fully served when
petitioner Francisco Garcia went to the Office of the Register of Deeds and saw
for himself, read and understood the contents of the deeds of sale (Brief for
respondents, p. 6).

ARTICLE 1088

The issue has been squarely settled in the case of Castillo v. Samonte, where
this Court observed:

petitioners be awarded damages, attorney's fees and costs in the amount

prayed for.

Both the letter and spirit of the new Civil Code argue against any attempt to
widen the scope of the notice specified in Article 1088 by including therein any
other kind of notice, such as verbal or by registration. If the intention of the law
had been to include verbal notice or any other means of information as sufficient
to give the effect of this notice, then there would have been no necessity or
reasons to specify in Article 1088 of the New Civil Code that the said notice be
made in writing for, under the old law, a verbal notice or information was
sufficient (106 Phil. 1023 [1960]).

SO ORDERED.

In the above-quoted decision the Court did not consider the registration of the
deed of sale with the Register of Deeds sufficient notice, most specially because
the property involved was unregistered land, as in the instant case. The Court
took note of the fact that the registration of the deed of sale as sufficient notice
of a sale under the provision of Section 51 of Act No. 496 applies only to
registered lands and has no application whatsoever to a case where the
property involved is, admittedly, unregistered land.
Consistent with aforesaid ruling, in the interpretation of a related provision
(Article 1623 of the New Civil Code) this Court had stressed that written notice is
indispensable, actual knowledge of the sale acquired in some other manners by
the redemptioner, notwithstanding. He or she is still entitled to written notice, as
exacted by the Code, to remove all uncertainty as to the sale, its terms and its
validity, and to quiet any doubt that the alienation is not definitive. The law not
having provided for any alternative, the method of notifications remains
exclusive, though the Code does not prescribe any particular form of written
notice nor any distinctive method for written notification of redemption (Conejero
et al. v. Court of Appeals et al., 16 SCRA 775 [1966]; Etcuban v. Court of
Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva, G.R. No. 75069, April
15,1988).
Petitioners fault the appellate court in not awarding them damages, attorney's
fees and costs. After finding in favor of respondent spouses and against
petitioners herein it is untenable for petitioners to expect that the appellate court
would award damages and attorney's fees and costs. However as already
discussed, petitioners have not lost their right to redeem, for in the absence of a
written notification of the sale by the vendors, the 30-day period has not even
begun to run. Petitioners clearly can claim attorney's fees for bad faith on the
part of respondents, first, for refusing redemption, and secondly for declaring the
entire land as theirs, although they knew some heirs had not sold their shares.
PREMISES CONSIDERED, the decision of the Court of Appeals is REVERSED
and the decision of the trial court is REINSTATED with the modification that

Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

ARTICLE 1088

G.R. No. 160701

February 9, 2004

BAYLON vs. AMADOR

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in

favor of the plaintiff (Civil Case No. 5633), the petitioner in Civil Case No. 5747
and against the defendant in (Civil Case No. 5633) and the respondent in (Civil
Case No. 5747).

THIRD DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated FEB 9
2004.

1.Finding that the plaintiff has .the preferential right to acquire the property in
question in the event defendant sells/alienate the remaining portion of the
property in question.
2.To permanently enjoin the lower court from enforcing the alias writ of execution
in Civil Case 183.

G.R. No. 160701 (em>Fulton Baylon vs. Terencio Amador.)

Petitioner assails the July 30, 2001 decision[1]cralaw of the Court of Appeals in
CA-G.R. CV No. 54363 which modified the January 22, 1996 consolidated
decision of the Regional Trial Court (RTC) of Sorsogon, Branch 52 in Civil
Cases 91-5653 (specific performance) and 92-5747 (certiorari).
On August 26, 1987, private respondent filed an ejectment case against
petitioner at the Municipal Trial Court (MTC) of Bacon, Sorsogon, alleging that
the latter defaulted in payment of rentals and refused to vacate the subject
property owned by private respondent despite repeated demands.

3.Declaring plaintiff to be co-owner of the house and lot in question for having
acquired by purchase at least 3/9 portion of the questioned property.
4.Ordering the defendant to pay plaintiff the sum of P10,000.00 as attorney's
fees and the sum of P5,000.00 as litigation expenses.
5. The counterclaim of defendant is hereby dismissed.
6.Defendant shall pay the cost of the suit.[2]cralaw
Private respondent appealed to the Court of Appeals.

On December 28, 1990, after the parties submitted their respective position
papers, the MTC decided in favor of private respondent and ordered petitioner to
vacate the subject premises.
In retaliation, petitioner filed Civil Case No. 91-5663 before the Sorsogon RTC
for specific performance alleging that their contract of lease also contained an
option to buy through which private respondent gave petitioner the preferential
right to purchase the subject property in the event the same was put on sale.
In the meantime, private respondent's ex parte motion for execution of judgment
in the ejectment case was granted and on April 19, 1992, the MTC issued an
alias writ of execution.
To prevent imminent ejectment, petitioner filed a petition for certiorari, prohibition
and mandamus with prayer for issuance of temporary restraining order (TRO) at
the Sorsogon RTC, docketed as Civil Case No. 92-5747.

On July 30, 2001, the appellate court modified the decision of the Sorsogon
RTC:
WHEREFORE, in view of the foregoing, the appealed decision dated January
22, 1996 of the Regional Trial Court (Branch 52) in Sorsogon, Sorsogon in Civil
Cases Nos. 91-5653 and 92-5747, is hereby MODIFIED in that:
(1)The plaintiff-appellee has lost his preferential right to buy the property in
question; and
(2)The defendant-appellant be given a period of thirty (30) days from finality of
this judgment within which to redeem that portion which had been acquired by
the plaintiff-appellee;
but AFFIRMED in all other respects. No costs. Let the records be remanded to
the court a quo for appropriate action.[3]cralaw

Meanwhile, without notice to private respondent, petitioner acquired a "3/9

portion" of the subject property from one of the co-owners.

Petitioner's motion for reconsideration was denied on November 6, 2003.

Trial of both Civil Case Nos. 91-5653 and 92-5747 ensued. Thereafter the
Sorsogon RTC, Branch 52 rendered the January 22, 1996 decision. The
dispositive portion stated:

Petitioner argues that the appellate court committed reversible error when it
declared him to have lost his preferential right to buy the subject property and
gave private respondent 30 days from finality of judgment to redeem the "3/9

ARTICLE 1088

portion" of the disputed property acquired by petitioner from private respondent's

co-owner.
The petition is without merit.
As correctly ruled by the appellate court, even if the parties originally had a
contract of lease with option to buy, when the lease contract expired, the tacit
renewal of the contract was limited only to those terms of the contract which
were germane to the petitioner's right of continued lease over the property and
did not extend to alien matters like the option to buy the leased premises.
[4]cralaw
The Court has ruled that, in case of implicit renewal of a contract of lease on a
monthly basis, the terms of the original lease contract which are revived in the
implied new lease under Article 1670 of the New Civil Code are only those terms
germane to the lessee's right of continued possession and enjoyment of the
property leased. Therefore, in this case, the implied new lease did not ipso facto
carry with it the revival of petitioner's option to buy the leased premises because
said option was alien to the lease. Stated differently, petitioner's right to exercise
the option to purchase expired with the termination of the original contract of
lease.[5]cralaw
Regarding private respondent's right of redemption, Article 1088 of the New Civil
Code explicitly states that, should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for the price of the sale, provided
they do so within the period of one month from the time they were notified in
writing by the vendor.
The requirement of a written notice is mandatory. This Court has long
established the rule that, notwithstanding actual knowledge of a co-owner, the
latter is still entitled to a written notice from the selling co-owner in order to
remove all uncertainties about the sale, its terms and conditions as well as its
efficacy and status.[6]cralaw
Private respondent was never given such written notice. He thus still has the
right to redeem said one-third portion of the subject property. On account of the
lack of written notice of the sale by the other co-heirs, the 30-day period never
commenced.
All told, the Court finds no reversible error committed by the appellate court in
rendering the assailed decision.
WHEREFORE, petition is hereby denied due course.
SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON
Clerk of Court

ARTICLE 1088

G.R. No. 156536

October 31, 2006

JOSEPH CUA, petitioner,

vs.
GLORIA A. VARGAS, AURORA VARGAS, RAMON VARGAS, MARITES
VARGAS, EDELINA VARGAS AND GEMMA VARGAS, respondents.
DECISION

After knowing of the sale of the 55 square meters to petitioner, Gloria Vargas
tried to redeem the property, with the following letter7 sent to petitioner on her
behalf:
29th June 1995
Mr. Joseph Cua
Capilihan, Virac, Catanduanes

AZCUNA, J.:

Sir:

This is a petition for review under Rule 45 of the Rules of Court seeking the
reversal of the decision1 dated March 26, 2002, and the resolution2 dated
December 17, 2002, of the Court of Appeals in CA-G.R. SP No. 59869 entitled
"Gloria A. Vargas, Aurora Vargas, Ramon Vargas, Marites Vargas, Edelina
Vargas and Gemma Vargas v. Joseph Cua."

This is in behalf of my client, Ms. Aurora Vargas,8 (c/o Atty. Prospero V. Tablizo)
one of the lawful heirs of the late Paulina Vargas, original owner of Lot No. 214
of Virac, Poblacion covered by ARP No. 031-0031 in her name.

The facts are as follows:

A parcel of residential land with an area of 99 square meters located in San
Juan, Virac, Catanduanes was left behind by the late Paulina Vargas. On
February 4, 1994, a notarized Extra Judicial Settlement Among Heirs was
executed by and among Paulina Vargas' heirs, namely Ester Vargas, Visitacion
Vargas, Juan Vargas, Zenaida V. Matienzo, Rosario V. Forteza, Andres Vargas,
Gloria Vargas, Antonina Vargas and Florentino Vargas, partitioning and
adjudicating unto themselves the lot in question, each one of them getting a
share of 11 square meters. Florentino, Andres, Antonina and Gloria, however,
did not sign the document. Only Ester, Visitacion, Juan, Zenaida and Rosario
signed it. The Extra Judicial Settlement Among Heirs was published in the
Catanduanes Tribune for three consecutive weeks.3

I understand that a document "Extra Judicial Settlement Among Heirs with Sale"
was executed by some of my client's co-heirs and alleged representatives of
other co-heirs, by virtue of which document you acquired by purchase from the
signatories to the said document, five (5) shares with a total area of fifty-five
square meters of the above-described land.
This is to serve you notice that my client shall exercise her right of legal
redemption of said five (5) shares as well as other shares which you may
likewise have acquired by purchase. And you are hereby given an option to
agree to legal redemption within a period of fifteen (15) days from your receipt
hereof.
Should you fail to convey to me your agreement within said 15-day-period,
proper legal action shall be taken by my client to redeem said shares.
Thank you.

On November 15, 1994, an Extra Judicial Settlement Among Heirs with Sale4
was again executed by and among the same heirs over the same property and
also with the same sharings. Once more, only Ester, Visitacion, Juan, Zenaida
and Rosario signed the document and their respective shares totaling 55 square
meters were sold to Joseph Cua, petitioner herein.
According to Gloria Vargas, the widow of Santiago Vargas and one of
respondents herein, she came to know of the Extra Judicial Settlement Among
Heirs with Sale dated November 16, 1994 only when the original house built on
the lot was being demolished sometime in May 1995.5 She likewise claimed she
was unaware that an earlier Extra Judicial Settlement Among Heirs dated
February 4, 1994 involving the same property had been published in the
Catanduanes Tribune.6

Very truly yours,

(Sgd.)
JUAN G. ATENCIA
When the offer to redeem was refused and after having failed to reach an
amicable settlement at the barangay level,9 Gloria Vargas filed a case for
annulment of Extra Judicial Settlement and Legal Redemption of the lot with the
Municipal Trial Court (MTC) of Virac, Catanduanes against petitioner and
consigned the amount of P100,000 which is the amount of the purchase with the
Clerk of Court on May 20, 1996.10 Joining her in the action were her children
with Santiago, namely, Aurora, Ramon, Marites, Edelina and Gemma, all
surnamed Vargas.

ARTICLE 1088

Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged primitive
owner of the lot in question, Pedro Lakandula, intervened in the case.11
Respondents claimed that as co-owners of the property, they may be
subrogated to the rights of the purchaser by reimbursing him the price of the
sale. They likewise alleged that the 30-day period following a written notice by
the vendors to their co-owners for them to exercise the right of redemption of the
property had not yet set in as no written notice was sent to them. In effect, they
claimed that the Extra Judicial Settlement Among Heirs and the Extra Judicial
Settlement Among Heirs with Sale were null and void and had no legal and
binding effect on them.12
After trial on the merits, the MTC rendered a decision13 in favor of petitioner,
dismissing the complaint as well as the complaint-in-intervention for lack of
merit, and declaring the Deed of Extra Judicial Settlement Among Heirs with
Sale valid and binding. The MTC upheld the sale to petitioner because the
transaction purportedly occurred after the partition of the property among the coowner heirs. The MTC opined that the other heirs could validly dispose of their
respective shares. Moreover, the MTC found that although there was a failure to
strictly comply with the requirements under Article 1088 of the Civil Code14 for a
written notice of sale to be served upon respondents by the vendors prior to the
exercise of the former's right of redemption, this deficiency was cured by
respondents' actual knowledge of the sale, which was more than 30 days before
the filing of their complaint, and their consignation of the purchase price with the
Clerk of Court, so that the latter action came too late. Finally, the MTC ruled that
respondents failed to establish by competent proof petitioner's bad faith in
purchasing the portion of the property owned by respondents' co-heirs.15
On appeal, the Regional Trial Court (RTC), Branch 42, of Virac, Catanduanes
affirmed the MTC decision in a judgment dated November 25, 1999. The matter
was thereafter raised to the Court of Appeals (CA).
The CA reversed the ruling of both lower courts in the assailed decision dated
March 26, 2002, declaring that the Extra Judicial Settlement Among Heirs and
the Extra Judicial Settlement Among Heirs with Sale, dated February 4, 1994
and November 15, 1994, respectively, were void and without any legal effect.
The CA held that, pursuant to Section 1, Rule 74 of the Rules of Court, 16 the
extrajudicial settlement made by the other co-heirs is not binding upon
respondents considering the latter never participated in it nor did they ever
signify their consent to the same.
His motion for reconsideration having been denied, petitioner filed the present
petition for review.
The issues are:

Whether heirs are deemed constructively notified and bound, regardless of their
failure to participate therein, by an extrajudicial settlement and partition of estate
when the extrajudicial settlement and partition has been duly published; and,
Assuming a published extrajudicial settlement and partition does not bind
persons who did not participate therein, whether the written notice required to be
served by an heir to his co-heirs in connection with the sale of hereditary rights
to a stranger before partition under Article 1088 of the Civil Code17 can be
dispensed with when such co-heirs have actual knowledge of the sale such that
the 30-day period within which a co-heir can exercise the right to be subrogated
to the rights of a purchaser shall commence from the date of actual knowledge
of the sale.
Petitioner argues, as follows:
Firstly, the acquisition by petitioner of the subject property subsequent to the
extrajudicial partition was valid because the partition was duly published. The
publication of the same constitutes due notice to respondents and signifies their
implied acquiescence thereon. Respondents are therefore estopped from
denying the validity of the partition and sale at this late stage. Considering that
the partition was valid, respondents no longer have the right to redeem the
property.
Secondly, petitioner is a possessor and builder in good faith.
Thirdly, the MTC had no jurisdiction over the complaint because its subject
matter was incapable of pecuniary estimation. The complaint should have been
filed with the RTC.
Fourthly, there was a non-joinder of indispensable parties, the co-heirs who sold
their interest in the subject property not having been impleaded by respondents.
Fifthly, the appeal to the CA should have been dismissed as it was not properly
verified by respondents. Gloria Vargas failed to indicate that she was authorized
to represent the other respondents (petitioners therein) to initiate the petition.
Moreover, the verification was inadequate because it did not state the basis of
the alleged truth and/or correctness of the material allegations in the petition.
The petition lacks merit.
The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The
rule plainly states, however, that persons who do not participate or had no notice
of an extrajudicial settlement will not be bound thereby.18 It contemplates a
notice that has been sent out or issued before any deed of settlement and/or
partition is agreed upon (i.e., a notice calling all interested parties to participate
in the said deed of extrajudicial settlement and partition), and not after such an

ARTICLE 1088

agreement has already been executed19 as what happened in the instant case
with the publication of the first deed of extrajudicial settlement among heirs.
The publication of the settlement does not constitute constructive notice to the
heirs who had no knowledge or did not take part in it because the same was
notice after the fact of execution. The requirement of publication is geared for
the protection of creditors and was never intended to deprive heirs of their lawful
participation in the decedent's estate. In this connection, the records of the
present case confirm that respondents never signed either of the settlement
documents, having discovered their existence only shortly before the filing of the
present complaint. Following Rule 74, these extrajudicial settlements do not bind
respondents, and the partition made without their knowledge and consent is
invalid insofar as they are concerned.
This is not to say, though, that respondents' co-heirs cannot validly sell their
hereditary rights to third persons even before the partition of the estate. The
heirs who actually participated in the execution of the extrajudicial settlements,
which included the sale to petitioner of their pro indiviso shares in the subject
property, are bound by the same. Nevertheless, respondents are given the right
to redeem these shares pursuant to Article 1088 of the Civil Code. The right to
redeem was never lost because respondents were never notified in writing of the
actual sale by their co-heirs. Based on the provision, there is a need for written
notice to start the period of redemption, thus:
Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the
purchaser by reimbursing him for the price of the sale, provided they do so
within the period of one month from the time they were notified in writing of the
sale by the vendor. (Emphasis supplied.)
It bears emphasis that the period of one month shall be reckoned from the time
that a co-heir is notified in writing by the vendor of the actual sale. Written notice
is indispensable and mandatory,20 actual knowledge of the sale acquired in
some other manner by the redemptioner notwithstanding. It cannot be counted
from the time advance notice is given of an impending or contemplated sale.
The law gives the co-heir thirty days from the time written notice of the actual
sale within which to make up his or her mind and decide to repurchase or effect
the redemption.21
Though the Code does not prescribe any particular form of written notice nor
any distinctive method for written notification of redemption, the method of
notification remains exclusive, there being no alternative provided by law.22 This
proceeds from the very purpose of Article 1088, which is to keep strangers to the
family out of a joint ownership, if, as is often the case, the presence of outsiders
be undesirable and the other heir or heirs be willing and in a position to
repurchase the share sold.23

It should be kept in mind that the obligation to serve written notice devolves
upon the vendor co-heirs because the latter are in the best position to know the
other co-owners who, under the law, must be notified of the sale.24 This will
remove all uncertainty as to the fact of the sale, its terms and its perfection and
validity, and quiet any doubt that the alienation is not definitive.25 As a result,
the party notified need not entertain doubt that the seller may still contest the
alienation. 26
Considering, therefore, that respondents' co-heirs failed to comply with this
requirement, there is no legal impediment to allowing respondents to redeem the
shares sold to petitioner given the former's obvious willingness and capacity to
do so.
Likewise untenable is petitioner's contention that he is a builder in good faith.
Good faith consists in the belief of the builder that the land the latter is building
on is one's own without knowledge of any defect or flaw in one's title.27
Petitioner derived his title from the Extra Judicial Settlement Among Heirs With
Sale dated November 15, 1994. He was very much aware that not all of the
heirs participated therein as it was evident on the face of the document itself.
Because the property had not yet been partitioned in accordance with the Rules
of Court, no particular portion of the property could have been identified as yet
and delineated as the object of the sale. This is because the alienation made by
respondents' co-heirs was limited to the portion which may be allotted to them in
the division upon the termination of the co-ownership. Despite this glaring fact,
and over the protests of respondents, petitioner still constructed improvements
on the property. For this reason, his claim of good faith lacks credence.
As to the issue of lack of jurisdiction, petitioner is estopped from raising the
same for the first time on appeal. Petitioner actively participated in the
proceedings below and sought affirmative ruling from the lower courts to uphold
the validity of the sale to him of a portion of the subject property embodied in the
extrajudicial settlement among heirs. Having failed to seasonably raise this
defense, he cannot, under the peculiar circumstances of this case, be permitted
to challenge the jurisdiction of the lower court at this late stage. While it is a rule
that a jurisdictional question may be raised at any time, an exception arises
where estoppel has already supervened.
Estoppel sets in when a party participates in all stages of a case before
challenging the jurisdiction of the lower court. One cannot belatedly reject or
repudiate its decision after voluntarily submitting to its jurisdiction, just to secure
affirmative relief against one's opponent or after failing to obtain such relief. The
Court has, time and again, frowned upon the undesirable practice of a party
submitting a case for decision and then accepting the judgment, only if
favorable, and attacking it for lack of jurisdiction when adverse.28

ARTICLE 1088

Petitioner's fourth argument, that there is a non-joinder of indispensable parties,

similarly lacks merit. An indispensable party is a party-in-interest without whom
there can be no final determination of an action and who is required to be joined
as either plaintiff or defendant.29 The party's interest in the subject matter of the
suit and in the relief sought is so inextricably intertwined with the other parties
that the former's legal presence as a party to the proceeding is an absolute
necessity. Hence, an indispensable party is one whose interest will be directly
affected by the court's action in the litigation. In the absence of such
indispensable party, there cannot be a resolution of the controversy before the
court which is effective, complete, or equitable.30
In relation to this, it must be kept in mind that the complaint filed by respondents
ultimately prayed that they be allowed to redeem the shares in the property sold
by their co-heirs. Significantly, the right of the other heirs to sell their undivided
share in the property to petitioner is not in dispute. Respondents concede that
the other heirs acted within their hereditary rights in doing so to the effect that
the latter completely and effectively relinquished their interests in the property in
favor of petitioner. Petitioner thus stepped into the shoes of the other heirs to
become a co-owner of the property with respondents. As a result, only
petitioner's presence is absolutely required for a complete and final
determination of the controversy because what respondents seek is to be
subrogated to his rights as a purchaser.
Finally, petitioner contends that the petition filed by respondents with the CA
should have been dismissed because the verification and certificate of nonforum shopping appended to it were defective, citing specifically the failure of
respondent Gloria Vargas to: (1) indicate that she was authorized to represent
her co-respondents in the petition, and (2) state the basis of the alleged truth of
the allegations.
The general rule is that the certificate of non-forum shopping must be signed by
all the plaintiffs or petitioners in a case and the signature of only one of them is
insufficient.31 Nevertheless, the rules on forum shopping, which were designed
to promote and facilitate the orderly administration of justice, should not be
interpreted with such absolute literalness as to subvert their own ultimate and
legitimate objective. Strict compliance with the provisions regarding the
certificate of non-forum shopping merely underscores its mandatory nature in
that the certification cannot be altogether dispensed with or its requirements
completely disregarded.32 Under justifiable circumstances, the Court has
relaxed the rule requiring the submission of such certification considering that
although it is obligatory, it is not jurisdictional.33
Thus, when all the petitioners share a common interest and invoke a common
cause of action or defense, the signature of only one of them in the certification
against forum shopping substantially complies with the rules.34 The corespondents of respondent Gloria Vargas in this case were her children. In order

not to defeat the ends of justice, the Court deems it sufficient that she signed the
petition on their behalf and as their representative.
WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.
SO ORDERED.
Puno, J., Chairperson, Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

10

ARTICLE 1088

G.R. No. 150060

August 19, 2003

PRIMARY STRUCTURES CORP. represented herein by its President ENGR.

WILLIAM C. LIU, Petitioner,
vs.
SPS. ANTHONY S. VALENCIA and SUSAN T. VALENCIA, Respondents.
DECISION
VITUG, J.:
On appeal is the decision of the Court of Appeals in CA-G.R. CV No. 59960,
promulgated on 13 February 2001, which has affirmed in toto the decision of the
Regional Trial Court of Cebu City dismissing the complaint of petitioners for legal
redemption over certain rural lots sold to respondents.

"This right is not applicable to adjacent lands which are separated by brooks,
drains, ravines, roads and other apparent servitudes for the benefit of other
estates.
"If two or more adjoining owners desire to exercise the right of redemption at the
same time, the owner of the adjoining land of smaller area shall be preferred;
and should both lands have the same area, the one who first requested the
redemption."
"ART. 1623. The right of legal pre-emption or redemption shall not be exercised
except within thirty days from the notice in writing by the prospective vendor, or
by the vendor, as the case may be. The deed of sale shall not be recorded in the
Registry of Property, unless accompanied by an affidavit of the vendor that he
has given written notice thereof to all possible redemptioners.
"The right of redemption of co-owners excludes that of adjoining owners."

Petitioner is a private corporation based in Cebu City and the registered owner
of Lot 4523 situated in Liloan, Cebu, with an area of 22,214 square meters.
Adjacent to the lot of petitioner are parcels of land, identified to be Lot 4527, Lot
4528, and Lot 4529 with a total combined area of 3,751 square meters. The
three lots, aforenumbered, have been sold by Hermogenes Mendoza to
respondent spouses sometime in December 1994. Petitioner learned of the sale
of the lots only in January, 1996, when Hermogenes Mendoza sold to petitioner
Lot No. 4820, a parcel also adjacent to Lot 4523 belonging to the latter.
Forthwith, it sent a letter to respondents, on 30 January 1996, signifying its
intention to redeem the three lots. On 30 May 1996, petitioner sent another letter
to respondents tendering payment of the price paid to Mendoza by respondents
for the lots. Respondents, in response, informed petitioner that they had no
intention of selling the parcels. Thereupon, invoking the provisions of Articles
1621 and 1623, petitioner filed an action against respondents to compel the
latter to allow the legal redemption. Petitioner claimed that neither Mendoza, the
previous owner, nor respondents gave formal or even just a verbal notice of the
sale of the lots as so required by Article 1623 of the Civil Code.
After trial, the Regional Trial Court of Cebu dismissed petitioners complaint and
respondents' counterclaim; both parties appealed the decision of the trial court
to the Court of Appeals. The appellate court affirmed the assailed decision.
Basically, the issues posed for resolution by the Court in the instant petition
focus on the application of Article 1621 and Article 1623 of the Civil Code, which
read:
"ART. 1621. The owners of adjoining lands shall also have the right of
redemption when a piece of rural land, the area of which does not exceed one
hectare, is alienated unless the grantee does not own any rural land.

Whenever a piece of rural land not exceeding one hectare is alienated, the law
grants to the adjoining owners a right of redemption except when the grantee or
buyer does not own any other rural land.1 In order that the right may arise, the
land sought to be redeemed and the adjacent property belonging to the person
exercising the right of redemption must both be rural lands. If one or both are
urban lands, the right cannot be invoked.2
The trial court found the lots involved to be rural lands. Unlike the case of Fabia
vs. Intermediate Appellate Court3 (which ruled, on the issue of whether a piece
of land was rural or not, that the use of the property for agricultural purpose
would be essential in order that the land might be characterized as rural land for
purposes of legal redemption), respondents in the instant case, however, did not
dispute before the Court of Appeals the holding of the trial court that the lots in
question are rural lands. In failing to assail this factual finding on appeal,
respondents would be hardput to now belatedly question such finding and to ask
the Court to still entertain that issue.
Article 1621 of the Civil Code expresses that the right of redemption it grants to
an adjoining owner of the property conveyed may be defeated if it can be shown
that the buyer or grantee does not own any other rural land. The appellate court,
sustaining the trial court, has said that there has been no evidence proffered to
show that respondents are not themselves owners of rural lands for the
exclusionary clause of the law to apply.
With respect to the second issue, Article 1623 of the Civil Code provides that the
right of legal pre-emption or redemption shall not be exercised except within
thirty days from notice in writing by the prospective vendor, or by the vendor, as
the case may be. In stressing the mandatory character of the requirement, the
law states that the deed of sale shall not be recorded in the Registry of Property

11

ARTICLE 1088

unless the same is accompanied by an affidavit of the vendor that he has given
notice thereof to all possible redemptioners.
The Court of Appeals has equated the statement in the deed of sale to the effect
that the vendors have complied with the provisions of Article 1623 of the Civil
Code, as being the written affirmation under oath, as well as the evidence, that
the required written notice to petitioner under Article 1623 has been met.
Respondents, like the appellate court, overlook the fact that petitioner is not a
party to the deed of sale between respondents and Mendoza and has had no
hand in the preparation and execution of the deed of sale.1wphi1 It could not
thus be considered a binding equivalent of the obligatory written notice
prescribed by the Code.
In Verdad vs. Court of Appeals4 this court ruled:

"In Alonzo, the right of legal redemption was invoked several years, not just days
or months, after the consummation of the contracts of sale. The complaint for
legal redemption itself was there filed more than thirteen years after the sales
were concluded."5
WHEREFORE, the instant petition is GRANTED, and the assailed decision of
the Court of Appeals is reversed and set aside. Petitioner is hereby given a
period of thirty days from finality of this decision within which to exercise its right
of legal redemption. No costs.
SO ORDERED.
Ynares-Santiago, Carpio, and Azcuna, JJ., concur.
Davide, Jr., C.J., (Chairman), on leave.

"We hold that the right of redemption was timely exercised by private
respondents. Concededly, no written notice of the sale was given by the
Burdeos heirs (vendors) to the co-owners required under Article 1623 of the Civil
Code "x x x

xxx

xxx

Hence, the thirty-day period of redemption had yet to commence when private
respondent Rosales sought to exercise the right of redemption on 31 March
1987, a day after she discovered the sale from the Office of the City Treasurer of
Butuan City, or when the case was initiated, on 16 October 1987, before the trial
court.
"The written notice of sale is mandatory. This Court has long established the rule
that notwithstanding actual knowledge of a co-owner, the latter is still entitled to
a written notice from the selling co-owner in order to remove all uncertainties
about the sale, its terms and conditions, as well as its efficacy and status.
"Even in Alonzo vs. Intermediate Appellate Court (150 SCRA 259), relied upon
by petitioner in contending that actual knowledge should be an equivalent to a
written notice of sale, the Court made it clear that it was not reversing the
prevailing jurisprudence; said the Court:
"We realize that in arriving at our conclusion today, we are deviating from the
strict letter of the law, which the respondent court understandably applied
pursuant to existing jurisprudence. The said court acted properly as it had no
competence to reverse the doctrines laid down by this Court in the above-cited
cases. In fact, and this should be clearly stressed, we ourselves are not
abandoning the De Conejero and Buttle doctrines. What we are doing simply is
adopting an exception to the general rule, in view of the peculiar circumstances
of this case.

G.R. No. 72873

May 28, 1987

12

ARTICLE 1088

CARLOS ALONZO and CASIMIRA ALONZO, petitioners,

vs.
INTERMEDIATE APPELLATE COURT and TECLA PADUA, respondents.
Perpetuo L.B. Alonzo for petitioners.
Luis R. Reyes for private respondent.
CRUZ, J.:
The question is sometimes asked, in serious inquiry or in curious conjecture,
whether we are a court of law or a court of justice. Do we apply the law even if it
is unjust or do we administer justice even against the law? Thus queried, we do
not equivocate. The answer is that we do neither because we are a court both of
law and of justice. We apply the law with justice for that is our mission and
purpose in the scheme of our Republic. This case is an illustration.
Five brothers and sisters inherited in equal pro indiviso shares a parcel of land
registered in 'the name of their deceased parents under OCT No. 10977 of the
Registry of Deeds of Tarlac. 1
On March 15, 1963, one of them, Celestino Padua, transferred his undivided
share of the herein petitioners for the sum of P550.00 by way of absolute sale. 2
One year later, on April 22, 1964, Eustaquia Padua, his sister, sold her own
share to the same vendees, in an instrument denominated "Con Pacto de Retro
Sale," for the sum of P 440.00. 3

consisted of only 604 square meters, including the portions sold to the
petitioners . 8 Eustaquia herself, who had sold her portion, was staying in the
same house with her sister Tecla, who later claimed redemption petition. 9
Moreover, the petitioners and the private respondents were close friends and
neighbors whose children went to school together. 10
It is highly improbable that the other co-heirs were unaware of the sales and that
they thought, as they alleged, that the area occupied by the petitioners had
merely been mortgaged by Celestino and Eustaquia. In the circumstances just
narrated, it was impossible for Tecla not to know that the area occupied by the
petitioners had been purchased by them from the other. co-heirs. Especially
significant was the erection thereon of the permanent semi-concrete structure by
the petitioners' son, which was done without objection on her part or of any of
the other co-heirs.
The only real question in this case, therefore, is the correct interpretation and
application of the pertinent law as invoked, interestingly enough, by both the
petitioners and the private respondents. This is Article 1088 of the Civil Code,
providing as follows:
Art. 1088.
Should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be subrogated to the rights of
the purchaser by reimbursing him for the price of the sale, provided they do so
within the period of one month from the time they were notified in writing of the
sale by the vendor.

By virtue of such agreements, the petitioners occupied, after the said sales, an
area corresponding to two-fifths of the said lot, representing the portions sold to
them. The vendees subsequently enclosed the same with a fence. In 1975, with
their consent, their son Eduardo Alonzo and his wife built a semi-concrete house
on a part of the enclosed area. 4

In reversing the trial court, the respondent court ** declared that the notice
required by the said article was written notice and that actual notice would not
suffice as a substitute. Citing the same case of De Conejero v. Court of Appeals
11 applied by the trial court, the respondent court held that that decision,
interpreting a like rule in Article 1623, stressed the need for written notice
although no particular form was required.

On February 25, 1976, Mariano Padua, one of the five coheirs, sought to
redeem the area sold to the spouses Alonzo, but his complaint was dismissed
when it appeared that he was an American citizen . 5 On May 27, 1977,
however, Tecla Padua, another co-heir, filed her own complaint invoking the
same right of redemption claimed by her brother. 6

Thus, according to Justice J.B.L. Reyes, who was the ponente of the Court,
furnishing the co-heirs with a copy of the deed of sale of the property subject to
redemption would satisfy the requirement for written notice. "So long, therefore,
as the latter (i.e., the redemptioner) is informed in writing of the sale and the
particulars thereof," he declared, "the thirty days for redemption start running. "

The trial court * also dismiss this complaint, now on the ground that the right had
lapsed, not having been exercised within thirty days from notice of the sales in
1963 and 1964. Although there was no written notice, it was held that actual
knowledge of the sales by the co-heirs satisfied the requirement of the law. 7

In the earlier decision of Butte v. UY, 12 " the Court, speaking through the same
learned jurist, emphasized that the written notice should be given by the vendor
and not the vendees, conformably to a similar requirement under Article 1623,
reading as follows:

In truth, such actual notice as acquired by the co-heirs cannot be plausibly

denied. The other co-heirs, including Tecla Padua, lived on the same lot, which

Art. 1623.
The right of legal pre-emption or redemption shall not be
exercised except within thirty days from the notice in writing by the prospective

13

ARTICLE 1088

vendor, or by the vendors, as the case may be. The deed of sale shall not be
recorded in the Registry of Property, unless accompanied by an affidavit of the
vendor that he has given written notice thereof to all possible redemptioners.
The right of redemption of co-owners excludes that of the adjoining owners.
As "it is thus apparent that the Philippine legislature in Article 1623 deliberately
selected a particular method of giving notice, and that notice must be deemed
exclusive," the Court held that notice given by the vendees and not the vendor
would not toll the running of the 30-day period.
The petition before us appears to be an illustration of the Holmes dictum that
"hard cases make bad laws" as the petitioners obviously cannot argue against
the fact that there was really no written notice given by the vendors to their coheirs. Strictly applied and interpreted, Article 1088 can lead to only one
conclusion, to wit, that in view of such deficiency, the 30 day period for
redemption had not begun to run, much less expired in 1977.
But as has also been aptly observed, we test a law by its results; and likewise,
we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of
the law, the first concern of the judge should be to discover in its provisions the
in tent of the lawmaker. Unquestionably, the law should never be interpreted in
such a way as to cause injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume the good motives of the
legislature, is to render justice.
Thus, we interpret and apply the law not independently of but in consonance
with justice. Law and justice are inseparable, and we must keep them so. To be
sure, there are some laws that, while generally valid, may seem arbitrary when
applied in a particular case because of its peculiar circumstances. In such a
situation, we are not bound, because only of our nature and functions, to apply
them just the same, in slavish obedience to their language. What we do instead
is find a balance between the word and the will, that justice may be done even
as the law is obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply
the law as it is worded, yielding like robots to the literal command without regard
to its cause and consequence. "Courts are apt to err by sticking too closely to
the words of a law," so we are warned, by Justice Holmes again, "where these
words import a policy that goes beyond them." 13 While we admittedly may not
legislate, we nevertheless have the power to interpret the law in such a way as
to reflect the will of the legislature. While we may not read into the law a purpose
that is not there, we nevertheless have the right to read out of it the reason for
its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit
that vivifieth," to give effect to the law maker's will.

The spirit, rather than the letter of a statute determines its construction, hence, a
statute must be read according to its spirit or intent. For what is within the spirit
is within the letter but although it is not within the letter thereof, and that which is
within the letter but not within the spirit is not within the statute. Stated differently,
a thing which is within the intent of the lawmaker is as much within the statute as
if within the letter; and a thing which is within the letter of the statute is not within
the statute unless within the intent of the lawmakers. 14
In requiring written notice, Article 1088 seeks to ensure that the redemptioner is
properly notified of the sale and to indicate the date of such notice as the
starting time of the 30-day period of redemption. Considering the shortness of
the period, it is really necessary, as a general rule, to pinpoint the precise date it
is supposed to begin, to obviate any problem of alleged delays, sometimes
consisting of only a day or two.
The instant case presents no such problem because the right of redemption was
invoked not days but years after the sales were made in 1963 and 1964. The
complaint was filed by Tecla Padua in 1977, thirteen years after the first sale and
fourteen years after the second sale. The delay invoked by the petitioners
extends to more than a decade, assuming of course that there was a valid
notice that tolled the running of the period of redemption.
Was there a valid notice? Granting that the law requires the notice to be written,
would such notice be necessary in this case? Assuming there was a valid notice
although it was not in writing. would there be any question that the 30-day period
for redemption had expired long before the complaint was filed in 1977?
In the face of the established facts, we cannot accept the private respondents'
pretense that they were unaware of the sales made by their brother and sister in
1963 and 1964. By requiring written proof of such notice, we would be closing
our eyes to the obvious truth in favor of their palpably false claim of ignorance,
thus exalting the letter of the law over its purpose. The purpose is clear enough:
to make sure that the redemptioners are duly notified. We are satisfied that in
this case the other brothers and sisters were actually informed, although not in
writing, of the sales made in 1963 and 1964, and that such notice was sufficient.
Now, when did the 30-day period of redemption begin?
While we do not here declare that this period started from the dates of such
sales in 1963 and 1964, we do say that sometime between those years and
1976, when the first complaint for redemption was filed, the other co-heirs were
actually informed of the sale and that thereafter the 30-day period started
running and ultimately expired. This could have happened any time during the
interval of thirteen years, when none of the co-heirs made a move to redeem the
properties sold. By 1977, in other words, when Tecla Padua filed her complaint,

14

ARTICLE 1088

the right of redemption had already been extinguished because the period for its
exercise had already expired.

WHEREFORE, the petition is granted. The decision of the respondent court is

REVERSED and that of the trial court is reinstated, without any pronouncement
as to costs. It is so ordered.

The following doctrine is also worth noting:

While the general rule is, that to charge a party with laches in the assertion of an
alleged right it is essential that he should have knowledge of the facts upon
which he bases his claim, yet if the circumstances were such as should have
induced inquiry, and the means of ascertaining the truth were readily available
upon inquiry, but the party neglects to make it, he will be chargeable with laches,
the same as if he had known the facts. 15
It was the perfectly natural thing for the co-heirs to wonder why the spouses
Alonzo, who were not among them, should enclose a portion of the inherited lot
and build thereon a house of strong materials. This definitely was not the act of
a temporary possessor or a mere mortgagee. This certainly looked like an act of
ownership. Yet, given this unseemly situation, none of the co-heirs saw fit to
object or at least inquire, to ascertain the facts, which were readily available. It
took all of thirteen years before one of them chose to claim the right of
redemption, but then it was already too late.
We realize that in arriving at our conclusion today, we are deviating from the
strict letter of the law, which the respondent court understandably applied
pursuant to existing jurisprudence. The said court acted properly as it had no
competence to reverse the doctrines laid down by this Court in the above-cited
cases. In fact, and this should be clearly stressed, we ourselves are not
abandoning the De Conejero and Buttle doctrines. What we are doing simply is
adopting an exception to the general rule, in view of the peculiar circumstances
of this case.
The co-heirs in this case were undeniably informed of the sales although no
notice in writing was given them. And there is no doubt either that the 30-day
period began and ended during the 14 years between the sales in question and
the filing of the complaint for redemption in 1977, without the co-heirs exercising
their right of redemption. These are the justifications for this exception.
More than twenty centuries ago, Justinian defined justice "as the constant and
perpetual wish to render every one his due." 16 That wish continues to motivate
this Court when it assesses the facts and the law in every case brought to it for
decision. Justice is always an essential ingredient of its decisions. Thus when
the facts warrants, we interpret the law in a way that will render justice,
presuming that it was the intention of the lawmaker, to begin with, that the law
be dispensed with justice. So we have done in this case.

Teehankee, C.J., Yap, Narvasa, Melencio-Herrera Gutierrez, Jr., Paras,

Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
Fernan and Feliciano, JJ., are on leave.

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ARTICLE 1088

G.R. No. 162421

August 31, 2007

NELSON CABALES and RITO CABALES, Petitioners,

vs.
COURT OF APPEALS, JESUS FELIANO and ANUNCIACION FELIANO,
Respondents.

It is hereby declared and understood that the amount of TWO THOUSAND TWO
HUNDRED EIGHTY SIX PESOS (P2,286.00) corresponding and belonging to
the Heirs of Alberto Cabales and to Rito Cabales who are still minors upon the
execution of this instrument are held
in trust by the VENDEE and to be paid and delivered only to them upon reaching
the age of 21.

DECISION
PUNO, C.J.:
This is a petition for review on certiorari seeking the reversal of the decision1 of
the Court of Appeals dated October 27, 2003, in CA-G.R. CV No. 68319 entitled
"Nelson Cabales and Rito Cabales v. Jesus Feliano and Anunciacion Feliano,"
which affirmed with modification the decision2 of the Regional Trial Court of
Maasin, Southern Leyte, Branch 25, dated August 11, 2000, in Civil Case No. R2878. The resolution of the Court of Appeals dated February 23, 2004, which
denied petitioners motion for reconsideration, is likewise herein assailed.
The facts as found by the trial court and the appellate court are well established.
Rufino Cabales died on July 4, 1966 and left a 5,714-square meter parcel of
land located in Brgy. Rizal, Sogod, Southern Leyte, covered by Tax Declaration
No. 17270 to his surviving wife Saturnina and children Bonifacio, Albino,
Francisco, Leonora, Alberto and petitioner Rito.
On July 26, 1971, brothers and co-owners Bonifacio, Albino and Alberto sold the
subject property to Dr. Cayetano Corrompido for P2,000.00, with right to
repurchase within eight (8) years. The three (3) siblings divided the proceeds of
the sale among themselves, each getting a share of P666.66.
The following month or on August 18, 1971, Alberto secured a note ("vale") from
Dr. Corrompido in the amount of P300.00.
In 1972, Alberto died leaving his wife and son, petitioner Nelson.

On December 17, 1985, the Register of Deeds of Southern Leyte issued

Original Certificate of Title No. 17035 over the purchased land in the names of
respondents-spouses.
On December 30, 1985, Saturnina and her four (4) children executed an affidavit
to the effect that petitioner Nelson would only receive the amount of P176.34
from respondents-spouses when he reaches the age of 21 considering that
Saturnina paid Dr. Corrompido P966.66 for the obligation of petitioner Nelsons
late father Alberto, i.e., P666.66 for his share in the redemption of the sale with
pacto de retro as well as his "vale" of P300.00.
On July 24, 1986, 24-year old petitioner Rito Cabales acknowledged receipt of
the sum of P1,143.00 from respondent Jesus Feliano, representing the formers
share in the proceeds of the sale of subject property.
In 1988, Saturnina died. Petitioner Nelson, then residing in Manila, went back to
his fathers hometown in Southern Leyte. That same year, he learned from his
uncle, petitioner Rito, of the sale of subject property. In 1993, he signified his
intention to redeem the subject land during a barangay conciliation process that
he initiated.
On January 12, 1995, contending that they could not have sold their respective
shares in subject property when they were minors, petitioners filed before the
Regional Trial Court of Maasin, Southern Leyte, a complaint for redemption of
the subject land plus damages.

On December 18, 1975, within the eight-year redemption period, Bonifacio and
Albino tendered their payment of P666.66 each to Dr. Corrompido. But Dr.
Corrompido only released the document of sale with pacto de retro after
Saturnina paid for the share of her deceased son, Alberto, including his "vale" of
P300.00.

In their answer, respondents-spouses maintained that petitioners were estopped

from claiming any right over subject property considering that (1) petitioner Rito
had already received the amount corresponding to his share of the proceeds of
the sale of subject property, and (2) that petitioner Nelson failed to consign to
the court the total amount of the redemption price necessary for legal
redemption. They prayed for the dismissal of the case on the grounds of laches
and prescription.

On even date, Saturnina and her four (4) children Bonifacio, Albino, Francisco
and Leonora sold the subject parcel of land to respondents-spouses Jesus and
Anunciacion Feliano for P8,000.00. The Deed of Sale provided in its last
paragraph, thus:

No amicable settlement was reached at pre-trial. Trial ensued and on August 11,
2000, the trial court ruled against petitioners. It held that (1) Alberto or, by his
death, any of his heirs including petitioner Nelson lost their right to subject land
when not one of them repurchased it from Dr. Corrompido; (2) Saturnina was

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ARTICLE 1088

effectively subrogated to the rights and interests of Alberto when she paid for
Albertos share as well as his obligation to Dr. Corrompido; and (3) petitioner
Rito had no more right to redeem his share to subject property as the sale by
Saturnina, his legal guardian pursuant to Section 7, Rule 93 of the Rules of
Court, was perfectly valid; and it was shown that he received his share of the
proceeds of the sale on July 24, 1986, when he was 24 years old.

shares to the land. When Alberto died prior to repurchasing his share, his rights
and obligations were transferred to and assumed by his heirs, namely his wife
and his son, petitioner Nelson. But the records show that it was Saturnina,
Albertos mother, and not his heirs, who repurchased for him. As correctly ruled
by the Court of Appeals, Saturnina was not subrogated to Albertos or his heirs
rights to the property when she repurchased the share.

On appeal, the Court of Appeals modified the decision of the trial court. It held
that the sale by Saturnina of petitioner Ritos undivided share to the property
was unenforceable for lack of authority or legal representation but that the
contract was effectively ratified by petitioner Ritos receipt of the proceeds on
July 24, 1986. The appellate court also ruled that petitioner Nelson is co-owner
to the extent of one-seventh (1/7) of subject property as Saturnina was not
subrogated to Albertos rights when she repurchased his share to the property. It
further directed petitioner Nelson to pay the estate of the late Saturnina Cabales
the amount of P966.66, representing the amount which the latter paid for the
obligation of petitioner Nelsons late father Alberto. Finally, however, it denied
petitioner Nelsons claim for redemption for his failure to tender or consign in
court the redemption money within the period prescribed by law.

In Paulmitan v. Court of Appeals,3 we held that a co-owner who redeemed the

property in its entirety did not make her the owner of all of it. The property
remained in a condition of co-ownership as the redemption did not provide for a
mode of terminating a co-ownership.4 But the one who redeemed had the right
to be reimbursed for the redemption price and until reimbursed, holds a lien
upon the subject property for the amount due.5 Necessarily, when Saturnina
redeemed for Albertos heirs who had then acquired his pro-indiviso share in
subject property, it did not vest in her ownership over the pro-indiviso share she
redeemed. But she had the right to be reimbursed for the redemption price and
held a lien upon the property for the amount due until reimbursement. The result
is that the heirs of Alberto, i.e., his wife and his son petitioner Nelson, retained
ownership over their pro-indiviso share.

In this petition for review on certiorari, petitioners contend that the Court of
Appeals erred in (1) recognizing petitioner Nelson Cabales as co-owner of
subject land but denied him the right of legal redemption, and (2) not recognizing
petitioner Rito Cabales as co-owner of subject land with similar right of legal
redemption.

Upon redemption from Dr. Corrompido, the subject property was resold to
respondents-spouses by the co-owners. Petitioners Rito and Nelson were then
minors and as indicated in the Deed of Sale, their shares in the proceeds were
held in trust by respondents-spouses to be paid and delivered to them upon
reaching the age of majority.

First, we shall delineate the rights of petitioners to subject land.

As to petitioner Rito, the contract of sale was unenforceable as correctly held by

the Court of Appeals. Articles 320 and 326 of the New Civil Code6 state that:

When Rufino Cabales died intestate, his wife Saturnina and his six (6) children,
Bonifacio, Albino, Francisco, Leonora, Alberto and petitioner Rito, survived and
succeeded him. Article 996 of the New Civil Code provides that "[i]f a widow or
widower and legitimate children or descendants are left, the surviving spouse
has in the succession the same share as that of each of the children." Verily, the
seven (7) heirs inherited equally on subject property. Petitioner Rito and Alberto,
petitioner Nelsons father, inherited in their own rights and with equal shares as
the others.
But before partition of subject land was effected, Alberto died. By operation of
law, his rights and obligations to one-seventh of subject land were transferred to
his legal heirs his wife and his son petitioner Nelson.
We shall now discuss the effects of the two (2) sales of subject land to the rights
of the parties.
The first sale with pacto de retro to Dr. Corrompido by the brothers and coowners Bonifacio, Albino and Alberto was valid but only as to their pro-indiviso

Art. 320. The father, or in his absence the mother, is the legal administrator of
the property pertaining to the child under parental authority. If the property is
worth more than two thousand pesos, the father or mother shall give a bond
subject to the approval of the Court of First Instance.
Art. 326. When the property of the child is worth more than two thousand pesos,
the father or mother shall be considered a guardian of the childs property,
subject to the duties and obligations of guardians under the Rules of Court.
In other words, the father, or, in his absence, the mother, is considered legal
administrator of the property pertaining to the child under his or her parental
authority without need of giving a bond in case the amount of the property of the
child does not exceed two thousand pesos.7 Corollary to this, Rule 93, Section 7
of the Revised Rules of Court of 1964, applicable to this case, automatically
designates the parent as legal guardian of the child without need of any judicial
appointment in case the latters property does not exceed two thousand pesos,8
thus:

17

ARTICLE 1088

Sec. 7. Parents as guardians. When the property of the child under parental
authority is worth two thousand pesos or less, the father or the mother, without
the necessity of court appointment, shall be his legal guardian x x x x9
Saturnina was clearly petitioner Ritos legal guardian without necessity of court
appointment considering that the amount of his property or one-seventh of
subject property was P1,143.00, which is less than two thousand pesos.
However, Rule 96, Sec. 110 provides that:
Section 1. To what guardianship shall extend. A guardian appointed shall have
the care and custody of the person of his ward, and the management of his
estate, or the management of the estate only, as the case may be. The guardian
of the estate of a nonresident shall have the management of all the estate of the
ward within the Philippines, and no court other than that in which such guardian
was appointed shall have jurisdiction over the guardianship.

But may petitioners redeem the subject land from respondents-spouses?

Articles 1088 and 1623 of the New Civil Code are pertinent:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before
the partition, any or all of the co-heirs may be subrogated to the rights of the
purchaser by reimbursing him for the price of the sale, provided they do so
within the period of one month from the time they were notified in writing of the
sale by the vendor.
Art. 1623. The right of legal pre-emption or redemption shall not be exercised
except within thirty days from the notice in writing by the prospective vendor, or
by the vendor, as the case may be. The deed of sale shall not be recorded in the
Registry of Property, unless accompanied by an affidavit of the vendor that he
has given written notice thereof to all possible redemptioners.
The right of redemption of co-owners excludes that of adjoining owners.

Indeed, the legal guardian only has the plenary power of administration of the
minors property. It does not include the power of alienation which needs judicial
authority.11 Thus, when Saturnina, as legal guardian of petitioner Rito, sold the
latters pro-indiviso share in subject land, she did not have the legal authority to
do so.

Clearly, legal redemption may only be exercised by the co-owner or co-owners

who did not part with his or their pro-indiviso share in the property held in
common. As demonstrated, the sale as to the undivided share of petitioner Rito
became valid and binding upon his ratification on July 24, 1986. As a result, he
lost his right to redeem subject property.

Article 1403 of the New Civil Code provides, thus:

Art. 1403. The following contracts are unenforceable, unless they are ratified:
(1) Those entered into in the name of another person by one who has been
given no authority or legal representation, or who has acted beyond his powers;

However, as likewise established, the sale as to the undivided share of petitioner

Nelson and his mother was not valid such that they were not divested of their
ownership thereto. Necessarily, they may redeem the subject property from
respondents-spouses. But they must do so within thirty days from notice in
writing of the sale by their co-owners vendors. In reckoning this period, we held
in Alonzo v. Intermediate Appellate Court,13 thus:

xxxx
Accordingly, the contract of sale as to the pro-indiviso share of petitioner Rito
was unenforceable. However, when he acknowledged receipt of the proceeds of
the sale on July 24, 1986, petitioner Rito effectively ratified it. This act of
ratification rendered the sale valid and binding as to him.
With respect to petitioner Nelson, on the other hand, the contract of sale was
void. He was a minor at the time of the sale. Saturnina or any and all the other
co-owners were not his legal guardians with judicial authority to alienate or
encumber his property. It was his mother who was his legal guardian and, if duly
authorized by the courts, could validly sell his undivided share to the property.
She did not. Necessarily, when Saturnina and the others sold the subject
property in its entirety to respondents-spouses, they only sold and transferred
title to their pro-indiviso shares and not that part which pertained to petitioner
Nelson and his mother. Consequently, petitioner Nelson and his mother retained
ownership over their undivided share of subject property.12

x x x we test a law by its results; and likewise, we may add, by its purposes. It is
a cardinal rule that, in seeking the meaning of the law, the first concern of the
judge should be to discover in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted in such a way as to cause
injustice as this is never within the legislative intent. An indispensable part of that
intent, in fact, for we presume the good motives of the legislature, is to render
justice.
Thus, we interpret and apply the law not independently of but in consonance
with justice. Law and justice are inseparable, and we must keep them so. x x x x
x x x x While we may not read into the law a purpose that is not there, we
nevertheless have the right to read out of it the reason for its enactment. In
doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to
give effect to the lawmakers will.

18

ARTICLE 1088

In requiring written notice, Article 1088 (and Article 1623 for that matter)14 seeks
to ensure that the redemptioner is properly notified of the sale and to indicate
the date of such notice as the starting time of the 30-day period of redemption.
Considering the shortness of the period, it is really necessary, as a general rule,
to pinpoint the precise date it is supposed to begin, to obviate the problem of
alleged delays, sometimes consisting of only a day or two.1awph!1

Nelson sought the barangay conciliation process to redeem his property. By

January 12, 1995, when petitioner Nelson filed a complaint for legal redemption
and damages, it is clear that the thirty-day period had already expired.

In the instant case, the right of redemption was invoked not days but years after
the sale was made in 1978. We are not unmindful of the fact that petitioner
Nelson was a minor when the sale was perfected. Nevertheless, the records
show that in 1988, petitioner Nelson, then of majority age, was informed of the
sale of subject property. Moreover, it was noted by the appellate court that
petitioner Nelson was likewise informed thereof in 1993 and he signified his
intention to redeem subject property during a barangay conciliation process. But
he only filed the complaint for legal redemption and damages on January 12,
1995, certainly more than thirty days from learning about the sale.

Petitioner Nelson, as correctly held by the Court of Appeals, can no longer

redeem subject property. But he and his mother remain co-owners thereof with
respondents-spouses. Accordingly, title to subject property must include them.

In the face of the established facts, petitioner Nelson cannot feign ignorance of
the sale of subject property in 1978. To require strict proof of written notice of the
sale would be to countenance an obvious false claim of lack of knowledge
thereof, thus commending the letter of the law over its purpose, i.e., the
notification of redemptioners.
The Court is satisfied that there was sufficient notice of the sale to petitioner
Nelson. The thirty-day redemption period commenced in 1993, after petitioner

As in Alonzo, the Court, after due consideration of the facts of the instant case,
hereby interprets the law in a way that will render justice.15

IN VIEW WHEREOF, the petition is DENIED. The assailed decision and

resolution of the Court of Appeals of October 27, 2003 and February 23, 2004
are AFFIRMED WITH MODIFICATION. The Register of Deeds of Southern
Leyte is ORDERED to cancel Original Certificate of Title No. 17035 and to issue
in lieu thereof a new certificate of title in the name of respondents-spouses
Jesus and Anunciacion Feliano for the 6/7 portion, and petitioner Nelson
Cabales and his mother for the remaining 1/7 portion, pro indiviso.
SO ORDERED.
REYNATO S. PUNO
Chief Justice

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