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.
Facts:
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 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:
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)
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)
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).
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:
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;
6. That, plaintiffs would have purchased the
interest and shares of their co-owners 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 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:
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.
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;

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:
(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.
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.

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 co-heirs 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).

as theirs, although they knew some heirs had not sold

their shares.

The issue has been squarely settled in the case of

Castillo v. Samonte, where this Court observed:

PREMISES CONSIDERED, the decision of the Court of

Appeals is REVERSED and the decision of the trial court
is REINSTATED with the modification that 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]).
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

SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmiento and
Regalado, JJ., concur.
G.R. No. 101522 May 28, 1993
LEONARDO MARIANO, AVELINA TIGUE, LAZARO
MARIANO, MERCEDES SAN PEDRO, DIONISIA M.
AQUINO, and JOSE N.T. AQUINO, petitioners,
vs.
HON. COURT OF APPEALS, (Sixteenth Division),
GRACE GOSIENGFIAO, assisted by her husband
GERMAN GALCOS; ESTER GOSIENGFIAO, assisted
by her husband AMADOR BITONA; FRANCISCO
GOSIENGFIAO, JR., NORMA GOSIENGFIAO, and
PINKY ROSE GUENO, respondents.
The Baristers Law Office for petitioners.
Simeon T. Agustin for private respondents.

NOCON, J.:
Before Us is a petition foe review of the decision, dated
May 13, 1991 of the Court of Appeals in CA-G.R. CV No.
13122, entitled Grace Gosiengfiao, et al. v. Leonardo
Mariano v. Amparo Gosiengfiao 1 raising as issue the
distinction between Article 1088 2 and Article 1620 3 of
the Civil Code.
The Court of Appeals summarized the facts as follows:
It appears on record that the decedent
Francisco Gosiengfiao is the registered owner
of a residential lot located at Ugac Sur,
Tuguegarao, Cagayan, particularly described as
follows, to wit:
"The eastern portion of Lot 1351, Tuguegarao
Cadastre, and after its segregation now
designated as Lot 1351-A, Plan PSD-67391,
with an area of 1,1346 square meters."
and covered by Transfer Certificate of Title No.
T-2416 recorded in the Register of Deeds of
Cagayan.
The lot in question was mortgaged by the
decedent to the Rural Bank of Tuguegarao
(designated as Mortgagee bank, for brevity) on

several occasions before the last, being on

March 9, 1956 and 29, 1958.
On August 15, 1958, Francisco Gosiengfiao
died intestate survived by his heirs, namely:
Third-Party Defendants: wife Antonia and
Children Amparo, Carlos, Severino and herein
plaintiffs-appellants Grace, Emma, Ester,
Francisco, Jr., Norma, Lina (represented by
daughter Pinky Rose), and Jacinto.
The loan being unpaid, the lot in dispute was
foreclosed by the mortgagee bank and in the
foreclosure sale held on December 27, 1963,
the same was awarded to the mortgagee bank
as the highest bidder.
On February 7, 1964, third-party defendant
Amparo Gosiengfiao-Ibarra redeemed the
property by paying the amount of P1,347.89
and the balance of P423.35 was paid on
December 28, 1964 to the mortgagee bank.
On September 10, 1965, Antonia Gosiengfiao
on her behalf and that of her minor children
Emma, Lina, Norma together with Carlos and
Severino executed a "Deed of Assignment of
the Right of Redemption" in favor of Amparo G.
Ibarra appearing in the notarial register of
Pedro (Laggui) as Doc. No. 257, Page No. 6,
Book No. 8, Series of 1965.
On August 15, 1966, Amparo Gosiengfiao sold
the entire property to defendant Leonardo
Mariano
who
subsequently
established
residence on the lot subject of this controversy.
It appears in the Deed of Sale dated August 15,
1966 that Amparo, Antonia, Carlos and
Severino were signatories thereto.
Sometime in 1982, plaintiff-appellant Grace
Gosiengfiao learned of the sale of said property
by the third-party defendants. She went to the
Barangay
Captain
and
asked
for
a
confrontation with defendants Leonardo and
Avelina Mariano to present her claim to said
property.
On November 27, 1982, no settlement having
been reached by the parties, the Barangay
captain issued a certificate to file action.
On December 8, 1982, defendant Leonardo
Mariano sold the same property to his children
Lazaro F. Mariano and Dionicia M. Aquino as
evidenced by a Deed of Sale notarized by
Hilarion L. Aquino as Doc. No. 143, Page No. 19,
Book No. V, Series of 1982.

On December 21, 1982, plaintiffs Grace

Gosiengfiao, et al. filed a complaint for
"recovery of possession and legal redemption
with damages" against defendants Leonardo
and Avelina Mariano. Plaintiffs alleged in their
complaint that as co-heirs and co-owners of
the lot in question, they have the right to
recover their respective shares in the same,
and property as they did not sell the same, and
the right of redemption with regard to the
shares of other co-owners sold to the
defendants.
Defendants in their answer alleged that the
plaintiffs has (sic) no cause of action against
them as the money used to redeem lot in
question was solely from the personal funds of
third-party defendant Amparo GosiengfiaoIbarra, who consequently became the sole
owner of the said property and thus validly sold
the entire property to the defendants, and the
fact that defendants had already sold the said
property to the children, Lazaro Mariano and
Dionicia M. Aquino. Defendants further contend
that even granting that the plaintiffs are coowners with the third-party defendants, their
right of redemption had already been barred by
the Statute of Limitations under Article 1144 of
the Civil Code, if not by laches. 4
After trial on the merits, the Regional Trial Court of
Cagayan, Branch I, rendered a decision dated
September 16, 1986, dismissing the complaint and
stating that respondents have no right of ownership or
possession over the lot in question. The trial court
further said that when the subject property foreclosed
and sold at public auction, the rights of the heirs were
reduced to a mere right of redemption. And when
Amparo G. Ibarra redeemed the lot from the Rural Bank
on her own behalf and with her own money she
became the sole owner of the property. Respondents'
having failed to redeem the property from the bank or
from Amparo G. Ibarra, lost whatever rights the might
have on the property. 5
The Court of Appeals in its questioned decision
reversed and set aside the ruling of the trial court and
declared herein respondents as co-owners of the
property in the question. The Court of Appeals said:
The whole controversy in the case at bar
revolves on the question of "whether or not a
co-owner who redeems the whole property with
her own personal funds becomes the sole
owner of said property and terminates the
existing state of co-ownership."
Admittedly, as the property in question was
mortgaged by the decedent, a co-ownership
existed among the heirs during the period
given by law to redeem the foreclosed

property. Redemption of the whole property by

a co-owner does not vest in him sole ownership
over said property but will inure to the benefit
of all co-owners. In other words, it will not end
to the existing state of co-ownership.
Redemption is not a mode of terminating a coownership.

Petitioners
allege
that
upon
the
facts
and
circumstances of the present case, respondents failed
to exercise their right of legal redemption during the
period provided by law, citing as authority the case of
Conejero, et al., v. Court of Appeals, et al. 9 wherein the
Court adopted the principle that the giving of a copy of
a deed is equivalent to the notice as required by law in
legal redemption.

xxx xxx xxx

In the case at bar, it is undisputed and
supported
by
records,
that
third-party
defendant Amparo G. Ibarra redeemed the
propety in dispute within the one year
redemption period. Her redemption of the
property, even granting that the money used
was from her own personal funds did not make
her the exclusive owner of the mortgaged
property owned in common but inured to the
benefit of all co-owners. It would have been
otherwise if third-party defendant Amparo G.
Ibarra purchased the said property from the
mortgagee bank (highest, bidder in the
foreclosure sale) after the redemption period
had already expired and after the mortgagee
bank had consolidated it title in which case
there would no longer be any co-ownership to
speak of . 6
The decision of the Court of Appeals is supported by a
long line of case law which states that a redemption by
a co-owner within the period prescribed by law inures
to the benefit of all the other co-owners. 7
The main argument of petitioners in the case at bar is
that the Court of Appeals incorrectly applied Article
1620 of the Civil Code, instead of Article 1088 of the
same code which governs legal redemption by co-heirs
since the lot in question, which forms part of the
intestate estate of the late Francisco Gosiengfiao, was
never the subject of partition or distribution among the
heirs, thus, private respondents and third-party
defendants had not ceased to be co-heirs.
On that premise, petitioners further contend that the
right of legal redemption was not timely exercised by
the private respondents, since Article 1088 prescribes
that the same must be done within the period of one
month from the time they were notified in writing of
the sale by the vendor.
According to Tolentino, the fine distinction between
Article 1088 and Article 1620 is that when the sale
consists of an interest in some particular property or
properties of the inheritance, the right redemption that
arises in favor of the other co-heirs is that recognized
in Article 1620. On the other hand, if the sale is the
hereditary right itself, fully or in part, in the abstract
sense, without specifying any particular object, the
right recognized in Article 1088 exists. 8

We do not dispute the principle laid down in the

Conejero case. However, the facts in the said case are
not four square with the facts of the present case. In
Conejero, redemptioner Enrique Conejero was shown
and given a copy of the deed of sale of the subject
property. The Court in that case stated that the
furnishing of a copy of the deed was equivalent to the
giving of a written notice required by law. 11
The records of the present petition, however, show no
written notice of the sale being given whatsoever to
private respondents. Although, petitioners allege that
sometime on October 31, 1982 private respondent,
Grace Gosiengfiao was given a copy of the questioned
deed of sale and shown a copy of the document at the
Office of the Barangay Captain sometime November
18, 1982, this was not supported by the evidence
presented. On the contrary, respondent, Grace
Gosiengfiao, in her testimony, declared as follows:
Q. When you went back to the residence of
Atty. Pedro Laggui were you able to see him?
A. Yes, I did.
Q. When you saw him, what did you tell?
A. I asked him about the Deed of Sale which
Mrs. Aquino had told me and he also showed
me a Deed of Sale. I went over the Deed of
Sale and I asked Atty. Laggui about this and he
mentioned here about the names of the legal
heirs. I asked why my name is not included and
I was never informed in writing because I would
like to claim and he told me to better consult
my own attorney.
Q. And did you go?
A. Yes, I did.
Q. What kind of copy or document is that?
A. It is a deed of sale signed by my mother,
sister Amparo and my brothers.
Q. If shown to you the copy of the Deed of Sale
will you be able to identify it?
A. Yes, sir. 11
Thereafter, Grace Gosiengfiao explicitly stated that she
was never given a copy of the said Deed of Sale.
Q. Where did Don Mariano, Dr. Mariano and you
see each other?
A. In the house of Brgy. Captain Antonio Bassig.
Q. What transpired in the house of the Brgy.
Captain when you saw each other there?
A. Brgy. Captain Bassig informed my intention
of claiming the lot and I also informed him
about the Deed of Sale that was not signed by
me since it is mine it is already sold and I was

informed in writing about it. I am a legal heir

and I have also the right to claim.
Q. And what was the reply of Don Mariano and
Dr. Mariano to the information given to them by
Brgy. Captain Bassig regarding your claim?
A. He insisted that the lot is already his
because of the Deed of Sale. I asked for the
exact copy so that I could show to him that I
did not sign and he said he does not have a
copy. 12
The above testimony was never refuted by Dr. Mariano
who was present before Brgy. Captain Bassig.
The requirement of a written notice has long been
settled as early as in the case of Castillo v. Samonte, 13
where this Court quoted the ruling in Hernaez v.
Hernaez, 32 Phil., 214, thus:
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. 14
Moreover, petitioners themselves adopted in their
argument respondents' allegation In their complaint
that sometime on October, 1982 they sought the
redemption of the property from spouses Leonardo
Mariano and Avelina Tigue, by tendering the
repurchase money of P12,000.00, which the spouses
rejected. 15 Consequently, private respondents
exercised their right of redemption at the first
opportunity they have by tendering the repurchase
price to petitioners. The complaint they filed, before
the Barangay Captain and then to the Regional Trial
Court was necessary to assert their rights. As we
learned in the case of Castillo, supra:
It would seem clear from the above that the
reimbursement to the purchaser within the
period of one month from the notice in writing
is a requisite or condition precedent to the
exercise of the right of legal redemption; the
bringing of an action in court is the remedy to
enforce that right in case the purchaser refuses
the redemption. The first must be done within
the month-period; the second within the
prescriptive period provided in the Statute of
Limitation. 16
The ruling in Castillo v. Samonte; supra, was reiterated
in the case of Garcia v. Calaliman, where We also

discussed the reason for the requirement of the written

notice. We said:
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 and 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
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). 17 (Emphasis ours)
We likewise do not find merit in petitioners' position
that private respondents could not have validly
effected redemption due to their failure to consign in
court the full redemption price after tender thereof was
rejected by the petitioners. Consignation is not
necessary, because the tender of payment was not
made to discharge an obligation, but to enforce or
exercise a right. It has been previously held that
consignation is not required to preserve the right of
repurchase as a mere tender of payment is enough on
time as a basis for an action to compel the vendee a
retro to resell the property; no subsequent
consignation was necessary to entitle private
respondents
to
such
reconveyance. 18
Premises considered, respondents 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.
WHEREFORE, the decision of the Court of Appeals is
hereby AFFIRMED. Cost against petitioners.
SO ORDERED.
Narvasa, C.J., Padilla and Nocon, JJ., concur.
G.R. No. 108580 December 29, 1998
CLARITA P. HERMOSO and VICTORIA P. HERMOSO,
petitioners,
vs.
COURT OF APPEALS, SPOUSES CEFERINO C.
PALAGANAS, AZUCENA R. PALAGANAS and DR.
AMANDA C. PALAGANAS, respondents.
MARTINEZ, J.:

This petition seeks the review of the decision dated July

24, 1992 1 of the Court of Appeals which reversed the
decision dated February 15, 1990 of the Regional Trial
Court of Bulacan in an action for legal redemption
instituted by the petitioners against the private
respondents. The motion for reconsideration of
petitioners was likewise denied by the respondent
court in its resolution dated December 22, 1992. 2
There is not much dispute about the background facts,
thus we quote with favor the factual antecedents as
summarized by the Court of Appeals, to wit:
Emilio Hermoso, now deceased, and plaintiff
Clarita Hermoso, were husband and wife whose
union was blessed with the following children:
Rogelio, Victoria (another plaintiff-appellee),
Agustinito and Danilo Ciriaco, all surnamed
Hermoso (the latter two being third party
defendants-appellees). Emilio Hermoso died on
June 22, 1957, leaving as his surviving heirs,
his wife Clarita, and the four above-named
children. Among the properties left by Emilio
Hermoso is an undivided one-third portion of a
parcel of land, the whole of which consisting of
7,842 square meters, more or less, is now
covered by OCT No. 0-1054 (M) issued in 1983,
situated at Calvario, Meycauayan, Bulacan.
The property was originally owned by Agrifina
Francia and the ownership thereof was
transmitted upon her death to her three (3)
children, to wit: Isidro, Consolacion, and Emilio
(herein appellees' predecessor-in-interest) in
the proportion of one-third (1/3) each.
Consolacion Hermoso, married to Manuel Cruz,
later bought the one-third (1/3) undivided
share of her brother, Isidro Hermoso. Thus, as
indicated in OCT No. 0-1054 (M), Consolacion
Hermoso owns two-thirds (2/3) thereof and the
remaining one-third (1/3) is in the name of the
Heirs of Emilio Hermoso [Exhibit 'A'].
On May 29, 1974, the Heirs of Emilio Hermoso
executed a duly notarized ["Agreement" Exh.
"1-A"], the pertinent portion of which reads, as
follows:
2. That it is hereby agreed that for the
convenience of all parties the following
shall be observed in the partition of the
above-mentioned properties; that the
share of CLARITA P. CARIN shall in all
cases be adjacent to the properties
adjudicated
to
CONSOLACION
HERMOSO CRUZ; then following by the
shares pertaining to DANILO CIRIACO
HERMOSO, VICTORINA P. HERMOSO,
ROGELIO P. HERMOSO and AGUSTINITO
P. HERMOSO, respectively, except in
the partition of the parcel of land

situated in Calvario, Meycauayan,

Bulacan, which is the subject of the
DEED OF EXCHANGE above-mentioned,
in which case the share pertaining to
CLARITA P. CARIN shall be adjacent to
the stonewall that segregates the share
of CONSOLACION HERMOSO CRUZ,
then followed by the shares pertaining
to ROGELIO P. HERMOSO, DANILO
CIRIANO HERMOSO, VICTORINA P.
HERMOSO,
and
AGUSTINITO
P.
HERMOSO, at the extreme end,
respectively.
[Emphasis
and
underscoring Ours].
Sometime in July, 1979, third party defendantsappellees Agustinito Hermoso and Danilo
Hermoso ('Hermoso brothers' for brevity)
offered to sell their respective shares to the
land in dispute to one Benjamin Palaganas,
brother of appellees Ceferino Palaganas and
Amanda Palaganas, who are old family
acquaintances of the Hermosos since the
lifetime of their late landlord, Don Marcos
Hermoso.
Upon being shown a copy of the duly notarized
"Agreement" [Exh. "1-A"], Ben Palaganas,
together
with
the
Hermoso
brothers,
approached
Atty.
Ireneo
E.
Guardiano
concerning the preparation of a contract of
sale, with the latter noting that the shares
offered for sale are separated by the share of
Victoria Hermoso; hence, it would be more
feasible for Danilo Ciriaco to execute a deed of
exchange with his sister, Victoria [TSN, 29
October 1986, p. 8]. A "Deed if Exchange"
[Exh. "11"] was thereafter drawn and signed by
Danilo Ciriaco Hermoso but the same was not
however signed by Victoria Hermoso.
Nonetheless,
this
transaction
did
not
materialize for the reasons that Clarita Carin
subsequently offered to redeem the shares sold
by her children by returning the amount
already received by her son, Agustinito. By
reason of their good relations and it appearing
that the sale was made without the knowledge
and consent of Clarita Carin, Ben Palaganas
accepted the offer without suspiration.
In the month of October of the same year,
Agustinito, then reviewing for the Bar
Examinations, and Danilo, in dire need of
money, for the second time offered to sell their
respective shares to Ben Palaganas who acted
for and in behalf of his brother, Dr. Ceferino
Palaganas, and sister, Dr. Amanda Palaganas
(Palaganases, for brevity), this time giving
assurance that their mother (Clarita Carin) had
already consented to the transaction and that
they could convince their sister, Victoria, to

finally agree to an exchange of shares with

Danilo. Elated with this development, the
Palaganases even offered a higher price
[P500,000.00] for the sale.
Thus, with these assurances, the parties
executed on January 30, 1980 a duly notarized
"Deed of Absolute Sale Over Two Undivided
Shares To A Parcel of Land" (Annex "B",
Plaintiffs-Appellees; Exhibit 2, Appellants) with
the Hermoso brothers receiving P300,000.00
upon
the
execution
of
the
contract,
P100,000.00 to be paid upon the eviction of the
squatters/tenants thereon, and the balance of
P100,000.00 to be paid upon the issuance of
title in the name of the vendees.
Upon the commencement of the present action
(October 8, 1984), the Hermoso brothers have
already received a total amount of P401,500.00
with the last condition transfer of title not
having been yet fulfilled.
Contrary to the assurances made by the
Hermoso brothers, plaintiffs-appellees allegedly
came to have known of the transaction only
sometime between May, 1983 and January,
1984 (Complaint, par. 8 in relation to TSN, 21
Nov. 1984, p. 32, Victoria Hermoso).
Thereafter, plaintiffs-appellees allegedly made
arrangements to negotiate for the redemption
of the shares sold by the Hermoso brothers.
This time however, the Palaganases were not
so open to the idea of the offered repurchase
for the value of the property in dispute had
considerably increased and that they have
already set foothold on said property by reason
of their investments and the plans made for its
development. Furthermore, they relied upon
the assurances made by the Hermoso brothers
that the transaction is known to Clarita Carin
and Victoria Hermoso. 3
Consequently, considering the adamant refusal of the
private respondents to resell the disputed lots,
petitioners on October 8, 1984 filed a complaint for
legal redemption before the Regional Trial Court of
Bulacan, Branch 7, Malolos, with prayer for the
issuance of a writ of preliminary injunction to enjoin
defendants third-party plaintiffs from proceeding with
the construction of the building thereon. The trial court
issued the writ prayed for. After trial on the merits, the
court a quo issued its decision dated February 15,
1990, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in
favor of the plaintiffs and against the
defendants and third-party defendants as
follows:

1. Ordering the defendants to allow the

redemption of the shares sold to them
by their vendors, the third party
defendants herein, and upon payment
of the amount of Four Hundred One
Thousand Five Hundred (P401,500.00)
Pesos, to surrender the possession of
the portion of the land covered by OCT
No. 0-1054 (N), together with whatever
improvement they have constructed on
the property, to the plaintiffs;
2. Ordering the defendants to pay the
plaintiffs, the amount of Twenty
Thousand (P20,000.00) Pesos by way
of actual damages to cover the
transportation
expenses
of
the
plaintiffs from Cebu to Malolos and
back and also attorney's fees in the
amount
of
Fifteen
Thousand
(P15,000.00) Pesos which plaintiffs
have paid or are bound to pay their
counsel;
3. Ordering the third party defendants
to pay the defendants, damages by
way of legal interest in the amount
computed at the rate of twelve (12%)
percent of the P401,500.00 which shall
commence from the date of the filing of
the complaint on October 8, 1984 until
the said amount of P401,500.00 shall
have been completely paid to the
defendants by the said plaintiffs.
Costs against the defendants.
On appeal, the issues were
respondent court as follows:

simplified

by

the

1. Whether or not the property in dispute is still coowned or has actually been partitioned thereby
terminating the co-ownership;
2. If otherwise, whether or not the plaintiffs-appellees
could still exercise the rights of redemption.
The respondent court disagreed with the findings of the
trial court and was of the view "that laws and
jurisprudence favor the appellants, hence we reverse."
The dispositive portion of the appellate court's decision
reads:
WHEREFORE,
premises
considered,
the
judgment appealed from is hereby REVERSED,
and a new one is entered dismissing the
Complaint and ordering Third-Party Defendants
to pay on the Third Party Complaint, the Third
Party Plaintiffs the amount of P10,000.00 by
way of attorney's fees.

The parties shall bear their respective costs.

In this petition for review, Clarita P. Hermoso, now

Clarita Carin after her remarriage, and her daughter
Victoria P. Hermoso, raise the following grounds:
I.
THE RESPONDENT COURT ERRED IN NOT AGREEING
WITH THE HOLDING OF THE TRIAL COURT THAT THE
AGREEMENT, MARKED AS EXHIBIT "1-A," IS NOT A
DEED OF PARTITION BUT IS A MERE SCHEME AS TO
HOW TO PARTITION THE PROPERTY IN QUESTION
WHICH IS TEMPORARY IN CHARACTER AND SUBJECT TO
CHANGE AT ANY TIME AND IS NULL AND VOID AS FAR
AS PETITIONER VICTORIA P. HERMOSO IS CONCERNED
BECAUSE SHE WAS STILL A MINOR WHEN SAID
AGREEMENT WAS EXECUTED AND HER CO-PETITIONER
CLARITA P. HERMOSO HAD NO AUTHORITY TO SIGN
SAID AGREEMENT IN HER BEHALF;
II.
THE RESPONDENT COURT ERRED IN NOT HOLDING
THAT THE PROPERTY IN QUESTION WAS STILL
UNDIVIDED AND WAS STILL UNDER CO-OWNERSHIP
DESPITE THE EXECUTION OF THE AGREEMENT MARKED
AS EXHIBIT "1-A" BECAUSE CONSOLACION HERMOSO,
CO-OWNER OF 2/3 OF SAID PROPERTY, WAS NOT A
PARTY TO SAID AGREEMENT;
III.
THE RESPONDENT COURT ERRED IN COUNTING THE
DATE WHEN THE RIGHT OF REDEMPTION SHOULD BE
EXERCISED FROM THE TIME THE PETITIONERS MADE A
FORMAL OFFER TO REDEEM INSTEAD OF FROM THE
TIME THE PETITIONERS STARTED NEGOTIATING FOR
THE REDEMPTION OF THE TWO UNDIVIDED SHARES
AFTER THEY WERE CERTAIN THAT SAID UNDIVIDED
SHARES WERE SOLD TO THE PRIVATE RESPONDENTS. 6
The trial and appellate courts disagreed as to the
interpretation to be given to the agreements and
contracts and to the notice of sale involved in this
case.
In the trial court, petitioners posited the theory that the
disputed land is still under co-ownership. On the basis
of the same documentary evidence, the private
respondents contend that what the two brothers sold
was already definite since partition had already been
effected.
The first two (2) grounds for this petition refer to the
nature of the land sold to the respondents. The
question is: Was it still under co-ownership or had it
already been partitioned and divided among the coowners?

10

In finding that the parcel of land covered and described

in OCT No. O-1054 (M) had not been divided or
partitioned among the co-owners, the trial court said:
In fact, there is no division yet between the
spouses, Manuel Cruz and Consolacion
Hermoso Cruz on one hand and the Heirs of
Emilio Hermoso on the other. This fact of coownership is easily discernible in the title itself
which has not yet been cancelled, and
therefore still subsisting.
Therefore, it is ordered by the Court that said
land be registered in accordance with the
provisions of the Land Registration Act, as
amended, in the name of said spouses. Manuel
C. Cruz and Consolacion Hermoso; and heirs of
Emilio Hermoso, namely: Clarita Pajo, Victoria
Hermoso,
Rogelio
Hermoso,
Agustinito
Hermoso, and Danilo Hermoso as their
exclusive property,
The documents relating to the shares of the
third party defendants readily show this fact of
co-ownership. Thus, in the untitled instrument
introduced by the defendants marked as
Exhibit 3 which is an agreement to sell
purportedly bearing the date October 10, 1979
signed by the Hermoso brothers, Agustinito
and Danilo and stating how the P500,000.00
consideration of the sale shall be paid, what
was referred to have been sold were the
shares, rights and interests over the land of the
said vendors. This document states, among
others:
That we have agreed to transfer and convey
unto spouses Dr. Ceferino C. Palaganas and
Azucena R. Palaganas, both of legal age,
Filipinos and with residence and postal address
at Baga. Meycauayan, Bulacan all our shares,
rights and interests over the aboved escribed
parcel of land free from all liens and
encumbrances under the following terms and
conditions . . . Cf. Exhibit 3, def., emphasis
supplied.
The document signed by the two brothers on January
30, 1980 was obviously prepared at the instances of
Ben Palagas. Acknowledged before Notary Public Irineo
Guardiano whose advise was sought by Ben Palaganas,
its title is immediately revealing, as it is titled "Deed of
Absolute Sale Over Two Undivided Shares to a Parcel of
Land" Cf. Exhibit C. pl., Exhibit 2, def., underlining
supplied. It is also stated in this document that what
was sold by the Hermoso brothers were "shares, rights
and interests over the above-described parcel of land"
(which obviously refers to the land in question).
It is significant to note that in the deed of sale marked
as Exhibit 2, defendant, the area of the shares of the

vendors, the Hermoso brothers were not specified.

What was mentioned on the matter of area is that of
the whole parcel which is 7,829 square meters. If there
was a partition or separation of the portions of the
whole land assigned to the owners named in the title,
the parcels conveyed could have been described with
their specified metes and bounds.
There was no subdivision plan presented by the
defendants. In fact, there was none as yet executed by
a duly licensed geodetic engineer on that registered
land. Ben Palaganas who was then dealing with the
Hermoso brothers, the named vendors in the
document, is a highly educated man. As he had
testified, he is an accountant by profession and he had
served as head of a department of the Central Bank
until his retirement from the government. In the
opinion of this court, he knew all along that what he or
his principals were buying at the time were the
undivided shares, participation and interests of the
vendors to the land. His claim later in court that the
shares of the vendors could already be identified and
segregated is difficult to believe. If his claim were true,
Ben Palaganas with his experience and educational
background could have easily managed to executed
the proper document as a basis of an ultimate issuance
of title in the name of the vendees. The document
which he relied upon which is Exhibit 1-A as the basis
for his conclusion that the Hermoso brothers were
selling definite parcels of land is belied by the recitals
of the documents he himself introduced to the court,
viz. Exhibits 2 and 3. The document, Exhibit 1-A, if at
all, could at best be considered as a scheme how the
land could be divided in the future among the heirs of
Emilio Hermoso. Temporary in nature and subject to
the conformity of the 2 sets of co-owners to the land,
the spouses Manuel Cruz and Consolacion Hermoso
Cruz had not participated in its execution. As it was,
there was no sound basis for Ben Palaganas or his
principals to have assumed that Exhibit 1-A could be
enforced against the spouses Manuel Cruz and
Consolacion Cruz and other third persons. 7
In overturning the aforequoted opinion of the trial
court, the respondent court said that:
In ascertaining whether the community still
subsists, or that it had already been
extinguished by partition among the coowners, it is not a mandatory requirement that
the property co-owned had been determined
with unmistakable definiteness and clarity, as
where the property has been given a technical
description after proper geodetic survey; it is
only required that the shares are properly
determinable and the proper arrangements
thereof identifiable, as when nothing is left for
the co-owners to do but to actually occupy the
portion pertaining to their share without any
dispute arising over the extent of their
respective shares and the respective position
of the parcels they are entitled to occupy.

11

Although OCT No. 0-1054 (M) reveals on its

face the existence of co-ownership between
Consolacion Hermoso-Cruz and the Heirs of
Emilio Hermoso, the fact that the shares are
separated by a stonewall (Cf. Exh. 1-A)
unmistakably reveals the determinate or
determinable character of the property
described under said certificate of title.
The court a quo subscribed to the theory that
Exhibit 1-A is merely a "scheme [of] how the
land could be divided in the future among the
heirs of Emilio Hermoso." (g.v., Decision, p. 5)
Be that as it may, there is nothing more left to
be done but the actual subdivision of the
properly by a duly licensed geodetic engineer
prior to the actual titling of their respective
shares. The corresponding shares of each of
the heirs of Emilio Hermoso is not in dispute
one-fifth each; and their proper respective
arrangements, one after another, had likewise
been included under Exhibit 1-A. 8
We agree with the trial court's findings that the records
show co-ownership of undivided property instead of
definite portions of land having been assigned and
separately owned by each of the co-owners.
It should be stressed that it was Ben Palaganas, the
vendee, who prepared the Deed of Sale. The private
respondents never had a hand in the preparation of the
document, even if the purchase was made in their
behalf. The document states that it is a "Deed of
Absolute Sale Over Two Undivided Shares to a Parcel of
Land." 9 Ben Palaganas who prepared the deed of sale,
knew and intended that the transaction was over "Two
Undivided Shares" of land. After all, as observed by the
trial court, Ben Palaganas was an accountant and was,
prior to retirement from government service, the head
of a department in the Central Bank. Again, we quote
the trial court on this point, thus:
In the opinion of this court, he knew all along
that what he or his principals were buying at
the
time were the undivided shares,
participation and interests of the vendors to
the land. His claim later in court that the
shares of the vendors could already be
identified and segregated is difficult to believe.
If his claim were true, Ben Palaganas with his
experience and educational background could
have easily managed to execute the proper
document as a basis of an ultimate issuance of
title in the name of the vendees. The document
which he relied upon which is Exhibit 1-A as the
basis for his conclusion that the Hermoso
brothers were selling definite parcels of land is
belied by the recitals of the documents he
himself introduced to the court, viz., Exhibits 2
and 3. 10

Ben Palaganas' understanding and interpretation must

necessarily prevail over that of the private
respondents' who were not present during the
transaction and whose claims are colored by selfinterest. In fact, the same document refers to the
brothers as co-owners of undivided shares in the
disputed property. 11

The basis for the opinion of the respondent court that

the co-ownership had been terminated and the
property was subdivided is the document dated May
24, 1974 denominated "Agreement," executed by the
heirs of Emilio Hermoso. The pertinent portion of the
agreement, which has been earlier cited and for
emphasis, is reproduced hereunder runs as follows:

It is plain from the deed of sale of two undivided shares

that the absence of a clear partition among the heirs of
Emilio Hermoso complemented the similar absence of
a division of properties between the heirs and their
aunt Consolacion Hermoso Cruz. Two of the heirs were
selling shares of undivided property which in turn was
also an undivided portion of a much larger undivided
inheritance.

2. That it is hereby agreed that for the

convenience of all parties the following
shall be observed in the partition of the
above-mentioned properties: that the
share of CLARITA P. CARIN shall in all
cases be adjacent to the properties
adjudicated
to
CONSOLACION
HERMOSO CRUZ; then followed by the
shares pertaining to DANILO CIRIACO
HERMOSO, VICTORINA P. HERMOSO,
ROGELIO P. HERMOSO and AGUSTINITO
P. HERMOSO, respectively, except in
the partition of the parcel of land
situated in Calvario, Meycauayan,
Bulacan, which is the subject of the
DEED OF EXCHANGE above-mentioned,
in which case the share pertaining to
CLARITA P. CARIN shall be adjacent to
the stonewall that segregates the share
of CONSOLACION HERMOSO CRUZ,
then followed by the shares pertaining
to ROGELIO P. HERMOSO, DANILO
CIRIACO HERMOSO, VICTORINIA P.
HERMOSO,
and
AGUSTINITO
P.
HERMOSO, at the extreme end,
respectively.

The alleged documents of exchange presented by the

respondents to show a partition with Consolacion
would, to our mind, fall under the same category as the
"1994 Agreement" among the heirs of Emilio Hermoso,
as we shall hereinafter discuss.
The allegation about Consolacion having segregated
and having given her 2/3 share of the inheritance viza-viz the 1/3 share of the heirs of Emilio Hermoso is
belied by the letter sent by husband Manuel Cruz in
August 1981 to the Register of Deeds of Bulacan which
intimated his desire to buy the property of his coowners in his capacity as such. 12 The spouses Cruz
wanted to buy properties which they heard had been
alienated by their co-owners.
The absence of a deed of partition between
Consolacion on the one hand, and the heirs of Emilio
on the other, is bolstered by the fact that the
registered ownership is that of the original owner over
the entire property.
The deed of sale executed by the Hermoso brothers on
January 30, 1980, referred to undivided shares. Prior to
the execution of this document, the Hermoso brothers
were parties to a non-notarized certification dated
October 10, 1979, 13 acknowledging the receipt of
P25,000.00 from the respondents, and wherein they
were described as co-owners with the petitioners. 14
The second paragraph of the certification states that
"We have agreed to sell, transfer and convey unto the
spouses Dr. Ceferino C. Palaganas and Azucena R.
Palaganas. . . all our shares, rights and interests over
the above-described parcel of land . . . ." 15 Note that
the vendors who have described themselves as "coowners" agreed merely to sell their shares, rights and
interests over the land. They were not "selling" but
were "agreeing to sell." They did not sell a specific
portion of land but sold "shares, rights and interests." It
is to be further noted that as late as 1979 and 1980,
Ben Palaganas and the Hermoso brothers, the parties
to the deeds of sale, were in complete agreement that
there was a co-ownership.

12

We agree with the trial court that this Agreement was

merely a scheme as to how the land would be
subdivided in the future among the heirs. The owner of
two-thirds (2/3) of the property, Consolacion Hermoso,
was not a party to the agreement. As a majority owner
of the undivided property, she could have demanded
and insisted on getting the particular portions which
the respondent court ruled had already been
segregated in favor of the two vendors-brothers. The
agreement among the heirs of Emilio Hermoso as to
shares following one another in a specific order cannot
be binding on the co-owner who owns 2/3 of the entire
parcel but who was not a signatory or party to the
document.
The reference to a stonewall separating the shares of
Consolacion Hermoso Cruz from the share of Clarita
Carin and the use thereof as reference point should not
be taken to mean that thereby a partition was effected
among the heirs. The statement of the Heirs of Emilio
Hermoso that the 2/3 portion of the co-owner in
relation to the heirs of Emilio shall be adjacent to that
of Clarita Carin followed by the shares of Rogelio,
Danilo, Victorina and Agustinito is a statement of a
desire on how the land should be subdivided. It cannot
be said that it is a kind of division or partition of
property which clearly terminates co-ownership. The

statement of Agustinito of an assignment of shares

cited by the respondent court was more of an
expression on how a future partition should be
effected. In fact, the word "positions" was used in
addition to shares.
The documents evidencing the deed of sale are more
authoritative in determining the existence of coownership. The May 29, 1974 "Agreement" could not
have been a partition or division of co-owned
properties because five and six years later, as can be
gleaned from the October 10, 1979 certification and
from the January 13, 1980 Deed of Sale Over Two
Undivided Shares To A Parcel of Land, both Ben
Palaganas who prepared the documents as vendee,
and the brothers Agustinito and Danilo who signed as
vendors, were definite about the property being under
co-ownership. As late as August, 1981, Manuel Cruz,
the husband of Consolacion, described the parties as
"co-owners."
The private respondents, to buttress their stance that
the standards of concrete determinability and
identifiability have been met in the case at bar, cited
the case of De la Cruz v. Cruz. 16 We have read the
case, regrettably the standards are not present. In De
la Cruz, the northern half of the property was assigned
to the plaintiff and the southern half to the defendant.
In which case, such a division is concrete and definite,
which is not so in this case. Here, the majority coowner, Consolacion Hermoso, was not even consulted
and the mention of names following one another was
apparently only a statement of who are the co-ownersheirs. It was not a formal division or partition of the
bigger property still to be validly partitioned with
Consolacion, owner of two-thirds (2/3) and later,
among the co-heirs who owned the remaining one-third
(1/3). It is only a statement of a future action to be
taken. We, therefore, rule that the lot in question is still
undivided property owned in common by the co-heirs.
The second issue herein refers to the timeliness of
exercising the right of legal redemption. The petitioners
question the respondent court's ruling that the right
had already prescribed when they exercised legal
redemption.
The law apropos to this case is Article 1623 of the Civil
Code, which provides:
Art. 1623. The right of legal preemption 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.

13

The right of redemption of co-owners

excludes that of adjoining owners.
An identical provision governing co-heirs is found in
Article 1088 of the Civil Code, quoted hereunder:
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.
It is to be noted that Article 1623 stresses the need for
notice in writing in three other species of legal
redemption namely: (1) redemption in a case where
the share of all the other co-owners or any of them are
sold to a third person; 17 (2) redemption by owners of
adjoining lands when a piece of rural land not
exceeding one hectare in area is alienated; 18 and (3)
redemption by owners of adjoining lands in the sale of
a piece of an urban land so small and so situated that
the portion thereof cannot be used for any practical
purpose within a reasonable time, having been bought
merely for speculation. 19
In all the above-cited provisions of law, the
interpretation thereof always tilts in favor of the
redemptioner and against the vendee. The purpose is
to reduce the number of participants until the
community is terminated, being a hindrance to the
development and better administration of the property.
20
Thus, we agree with the trial court when it said:
The purpose of Article 1067 (of the old
Civil Code, now Article 1088 of the
present Civil Code) 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 (De Jesus
vs. Manglapus, 81 Phil 144). While
there should no question that an heir
may dispose his right before partition
(Rivero vs. Serrano (CA) 46 O.G. 642;
Wenceslao vs. Calimon, 46 Phil. 906.
Hernaez vs Hernaez, 32 Phil. 214), a
co-heir would have had to pay only the
price for which the vendee acquired it
(Hernaez
vs.
Hernaez,
Ibid.) 21
It is a one-way street. It is always in favor of the
redemptioner since he can compel the vendee to sell
to him but he cannot be compelled by the vendee to
buy the alienated property.

In this case, the land has not been validly partitioned

between Consolacion Hermoso, who owns 2/3 and the
heirs of Emilio Hermoso who 1/3 regardless of the
sentiments of Consolacion on the land in dispute may
later have been. There has been no subsequent
distribution among the co-heirs of their specific shares.
But even granting that the heirs divided the properties
owned in common in the May 29, 1974 Agreement, the
right of legal redemption under Article 1620 of the
Code, would still subsist in their capacity as co-owners.
For, it a co-owner has offered to redeem the land within
the period fixed by law, he has complied with the law.
He may bring the action to enforce the redemption
after every offer has been rejected. This is exactly the
situation in this case.

Q Did you inform

your mother and sister
about the sale of these
properties?
A During that time?
Q Yes.
A I did not.
xxx xxx xxx
ATTY. GARCIA:

The respondent court found that the petitioners

already had notice of the sale in January 1984.
Considering that the letter, 22 coursed through Atty.
Sandico, offering to redeem the property was made
only in September 1984, the appellate court was of the
view that the action to enforce redemption had
prescribed. A perusal of the record, however, shows
that after Ben Palaganas had confirmed the
transaction, the petitioners confronted the two brothers
who were compelled to admit they have sold their
shares. The vendor-brothers never took the initiative of
informing their co-heirs in writing that they have
alienated their shares. As found by the trial court, the
petitioners immediately started negotiations with Ben
Palaganas to redeem the alienated share. At this time,
the payment for the shares had not yet been
completed neither by Ben Palaganas nor by the private
respondents.

Q Do you know
when, for the first time,
did your mother and
your sister came to
know of this sale?
A Personally, I do not
know when they came
upon that knowledge.
(TSN, 5-22-86, pp. 1011).
ATTY. HERMOSO:
Q Did you ever
consult your mother or
your sister of your
desire
to
sell
the
property?

The observation of the trial court on this issue is

enlightening, thus:
It is evident from the evidence in the
record that the vendors, i.e., the
Hermoso brothers, Agustinito and
Danilo had not notified in writing or
even verbally their co-heirs which
include the plaintiffs herein before or
during the execution of the sale of their
shares to Ben Palaganas or the
defendants. The transaction of these
two brothers had with Ben Palaganas
was kept out of the knowledge of their
mother and sister, the plaintiffs herein.
Their need for funds must have been
urgent and it was obvious that their
mother if advised what they intended
to do with the land could have objected
to it. This reaction from the plaintiffs
was easily expected because when
Agustinito Hermoso sold his share to
Ben Palaganas in July 1979, the same
was aborted by the plaintiff, Clarita
Carin. On this regard, Agustinito
Hermoso, one of the two third party
defendants testified:

14

A No, sir.
Q Why not?
A

Because
I
personally believe that
what we were selling
then were but our right
to the said property.
Q How about your
brother
Danilo
Hermoso, did he inform
your mother and sister
about the sale of the
property?
xxx xxx xxx
A Danilo Hermoso,
my brother, told me
that he did not inform

our mother and our

sister about his desire
to sell his share on the
property.
(TSN, 5-21-87, pp. 1213 & 15).
ATTY. OSORIO:
Q How about the
second
sale
which
included the share of
your brother?
A No, we did not
inform
our
mother
regarding our desire to
sell
our
respective
properties, sir.
Art. 1088 of the Civil Code is applicable
in the instant case. But whether it is
under this article or Article 1623 of
same Code, the period of 30 days has
not began to run.
When the plaintiffs had become certain
after Ben Palaganas had confirmed the
transaction that there was such a sale
covering the shares of the third party
defendants (tsn, 6-19-86, pp. 20-21)
sometime in 1984, the vendors had to
admit to the herein plaintiffs the fact of
sale. Plaintiffs immediately started
negotiations with Ben Palaganas to
redeem the shares sold by the vendors.
Ben Palaganas or the defendants after
all, had not completely paid the whole
consideration of the sale by that time.
Ben Palaganas did not want to give
money anymore to the vendors as the
amounts already paid had amounted to
P401,500.00 (see footnote of Ben
Palaganas in Exhibit 10). The several
payments made to the vendors are
evidenced by Exhibits 3, 4, 5, 6, 7, 8, 9
and 10. Ben Palaganas acting for
himself or for the defendants refused
the offer of the plaintiffs to redeem the
land, claiming that the rights to the
land of his principals to the vendors'
shares to the land was already
established. The formal demand to
redeem was sent by the plaintiffs
through counsel to the defendants
(Exhibit B, p. 203, record). Still the
defendants
did
not
respond
accordingly.
They
had
instead
constructed a building within the land
covered by the title and in a place

15

therein, relying on the temporary

scheme of partition marked as Exhibit
1-a. To the plaintiffs, there was no other
recourse except to go to court. And
they did by filing this complaint on
October 4, 1984 with the court. 23
Ben Palaganas confirmed the offer to redeem. When
questioned why the private respondents agreed to the
return of the sold shares in 1979 but refused to do so in
1980, this witness waxed sentimental and gave a
lengthy narration of the debt of gratitude his family
owed to the Hermoso family. Ben Palaganas related
that the patriarch Marcos Hermoso allowed the
Palaganas clan to build their house on his land and to
stay there for 27 years without paying rent. And, when
three sons and one daughter of the Palaganases were
in medical school, and the family ran out of funds,
Marcos Hermoso extended financial assistance without
interest and payable only when the Palaganases could
afford to pay. Out of respect for the Hermoso family,
Ben Palaganas related, the private respondents agreed
to the cancellation of the 1979 sale. However, in 1984
when the offer to redeem the share sold in 1980 was
made, the Palaganas clan no longer wanted to resell
the property. Considering that over the intervening
years, they had paid on a piecemeal basis the amount
of P400,000.00 to the two brothers and out of "selfrespect" refused to agree to the redemption. But since
the property purchased had already increased in value
not only "self-respect" but apparently self-interest had
entered the picture.
It was error for the respondent court to rule that the
right of the petitioner to redeem the alienated share
had long prescribed. This finding fails to take into
account that the period of legal redemption is not a
prescriptive period. It is a condition precedent to the
exercise of the right of redemption. It is a period set by
law to restrict the right of the person exercising the
right of legal redemption. 24 It is not one of
prescription.
The written notice required by Article 1623 of the Civil
Code was enacted to remove all doubts and
uncertainty that the alienation may not be definite. 25
The co-owners must know with certainty the
circumstances of the sale by his co-owners and the
terms and the validity of the alienation. Only after said
knowledge is the co-owner required to exercise the
right of redemption given to him by law.
While the law requires that the notice must be in
writing, it does not state any particular form thereof, so
long as the reasons for a written notice are present.
The records of the case show that the sale of the
brothers' share was deliberately hidden from the
petitioners. For sometime after the sale, the petitioners
were ignorant about its execution. When they
somehow heard rumors about it, they had to take one
step after another to find out if the information was
true.

It is to be noted that in the case at bar, not only were

the petitioners intentionally kept in the dark for several
years but even after knowledge of the act of the two
brothers, they still had difficulty in ascertaining and
confirming its veracity. Far from giving the notice
required by law or giving information on the history
and details of the sale, Agustinito and Danilo gave the
petitioners the run-around until the brothers were
practically forced to admit it and the petitioners
immediately went to see Ben Palaganas. In their
dialogue with Ben Palaganas, petitioners offered to
redeem the property, but this time, unlike the first, the
offer was rejected.
When the petitioners offered to redeem within the
period fixed by law, they complied with the condition
precedent to the exercise of their right. The filing of an
action to enforce the redemption is not the determining
point in time. In Conejero, supra, this Court ruled that a
consignation of the tendered price is not necessary as
long as a valid tender is present. 26 However, the offer
to redeem is indispensable. Considering the indignation
and the wrath of the petitioners directed at the two
brothers for their acts of alienating an undivided
portion of the property, despite the earlier redemption
of the sale sold in 1979, there can be no question
about the willingness and capability of the petitioners
to buy back the shares sold in 1980.
In applying Article 1623 of the Civil Code on the
exercise of legal redemption to certain facts, the
interpretation must be in favor of justice and equity. 27
This Court explained ". . . . We test a law by its
result. A law should not be interpreted so as not to
cause an injustice . . . . There are laws which are
generally valid but may seem arbitrary when applied in
a particular case because of its peculiar circumstances.
We are not bound to apply them in slavish obedience
to their language."
Whether it is the vendees who will prevail as in the
Alonzo doctrine, or the redemptioners as in this case,
the righting of justice is the key to the resolution of the
issues.
The standards and conditions of legal redemption
provided under Article 1623 of the Civil Code have not
been met in this petition. Furthermore, there is the fact
that justice and equity, as the law provides, are also on
the side of the petitioners. As we said, the righting of
an injustice is the key to the resolution of this case and
thus would be the end result of our decision.
The two brothers, Agustinito and Danilo Hermoso, were
still students when they sold their shares in their
inheritance. In 1979, Agustinito was already a
graduating student of law. According to the trial court,
it was "sometime in October of that year, he and his
younger brother Danilo separately needed cash which
there could not easily secure from their mother, Clarita
Carin, one of the plaintiffs herein." 28 However, if they

16

were strapped of cash, considering that their

allowances were insufficient for their needs, they could
have pleaded with their mother for additional funds
instead of selling the still undivided property without
her knowledge and against her known will. They knew
that their mother was against the very idea of selling a
portion of the undivided property considering that
Consolacion Hermoso cancelled the prior sale made by
them in July 1979 by redeeming the property. From the
records, one gets the impression that the two brothers,
Agustinito and Danilo, were irresponsible and selfcentered, failing to consider the wishes of their mother.
Ben Palaganas, who represented the respondents in a
transaction, admitted a debt of gratitude to the
Hermoso family. Yet, apparently he took advantage of
the situation. Through several years he doled out funds
in installments to the two brothers in partial payment
of the disputed property until the indebtedness had
reached an amount that Agustinito and Danilo had no
other recourse but to sell their inheritance and
practically compelled them to execute the deed of sale
in dispute.
Again, we reiterate the salient fact that Clarita Carin,
their mother, and Victoria Hermoso, their sister, were
kept in the dark about the sale. Considering the factual
background of this case, the honorable and expected
step for the Palaganas was to inform the petitioners
about the action taken by Agustinito and Danilo.
Instead, as the record reveals the parties to the sale
concealed the transaction from petitioners for four (4)
years. It was only after hearing rumors about the sale
when petitioners started to investigate and search for
evidence to confirm their hear say acknowledge about
the transaction. Even then, the two brothers and the
Palaganases gave them a hard time.
The Palaganas clan knew all along the strong feelings
of the petitioners against the alienation of share in the
still undivided property. This was their second attempt
to buy the property. As a matter of fact, they knew that
in 1979 when the land was first sold, the petitioners
immediately took steps to cancel the sale upon
discovery thereof. In 1980, the private respondents and
Ben Palaganas still did exactly what the petitioners
vigorously opposed and did not want to happen. They
also hid the sale from the petitioners until confronted
with facts that they could no longer hide or deny. The
impressions of the trial judge is worth quoting
hereunder thus:
It is obvious that the acts of Ben
Palaganas or his principals would be
considered as done in bad faith. Ben
Palaganas should not be allowed to say
that he had relied merely on the
impressions given by the vendors, the
Hermoso brothers. Aside from what
was
obvious
in
the
documents
executed by the Hermoso brothers, he
should have inquire nor verified said

impressions made by the vendors from

the plaintiffs or any of the co-owners to
the property. The evidence in the
record shows that it was their intense
desire to own a property in the place
where the land is located because of
the business potentials thereat stated
herein above. They did not exercise the
diligence of a good father of a family
because they did not want to, what
with their experience with the first
transaction affecting the share of the
third
party
defendant,
Agustinito
Hermoso which took place only in July,
1979 a few months earlier to the
transaction in question. 29
There can be no doubt that the Palaganas clan were in
bad faith at the time they bought the disputed property
from the Hermoso brothers. We cannot thus close our
eyes to the injustice which would befall the petitioners
considering that this is not the first time that they have
expressed their desire to redeem the property sold by
the Hermoso brothers. Under the circumstances, it is
just and equitable to rule in favor of the exercise of
legal redemption.
WHEREFORE, the assailed decision of the Court of
Appeals should be, as it is hereby, REVERSED and SET
ASIDE. The decision of the Regional Trial Court dated
February 15, 1990 is hereby REINSTATED.
SO ORDERED.
Bellosillo, Puno and Mendoza, JJ., concur.

BRION, J.:
At issue in this petition is the timeliness of the exercise
of the right of legal redemption that this Court has
recognized in a final and executory decision.
The petitioners, heirs of Francisco Gosiengfiao
(petitioner-heirs), assail in this Rule 45 petition for
review on certiorari the January 17, 2003 decision and
September 9, 2003 resolution of the Court of Appeals
(CA) in CA-G.R. CV No. 63093. 1 The assailed CA
decision ruled that the thirty-day period for the
exercise of the right of legal redemption should be
counted, not from the notice of sale by the vendor but,
from the finality of the judgment of this Court.
BACKGROUND FACTS
I. G.R. No. 101522 - Mariano v. Court of Appeals
The previous case where we recognized the petitionerheirs right of legal redemption is Mariano v. CA. 2 To
quote, by way of background, the factual antecedents
that Mariano recognized:
It appears on record that the decedent Francisco
Gosiengfiao is the registered owner of a residential lot
located at Ugac Sur, Tuguegarao, Cagayan, particularly
described as follows, to wit:
The eastern portion of Lot 1351, Tuguegarao Cadastre,
and after its segregation now designated as Lot 1351A, Plan PSD-67391, with an area of 1,346 square
meters.
and covered by Transfer Certificate of Title (TCT) No. T2416 recorded in the Register of Deeds of Cagayan.

G.R. No. 159755

June 18, 2009

GRACE GOSIENGFIAO GUILLEN, deceased EMMA

GOSIENGFIAO GALAOS, represented by her
daughter EMELYN GALAOS-MELARION, deceased
FRANCISCO GOSIENGFIAO, JR., represented by
his widow EDELWISA GOSIENGFIAO, JACINTO
GOSIENGFIAO,
and
absentees
ESTER
GOSIENGFIAO BITONIO, NORMA GOSIENGFIAO,
and PINKY BUENO PEDROSO, represented by
their attorney-in-fact JACINTO GOSIENGFIAO,
Petitioners,
vs.
THE COURT OF APPEALS, HON. JIMMY HENRY F.
LUCZON, JR., in his capacity as Presiding Judge of
the Regional Trial Court, Branch I, Tuguegarao,
Cagayan, LEONARDO MARIANO, AVELINA TIGUE,
LAZARO MARIANO, MERCEDES SAN PEDRO,
DIONISIA M. AQUINO, and JOSE N.T. AQUINO,
Respondents.
DECISION

17

The lot in question was mortgaged by the decedent to

the Rural Bank of Tuguegarao (designated as
mortgagee bank, for brevity) on several occasions
before the last, being on March 9, 1956 and January
29, 1958.
On August 15, 1958, Francisco Gosiengfiao died
intestate survived by his heirs, namely: Third-Party
Defendants: wife Antonia and Children Amparo, Carlos,
Severino and herein plaintiffs-appellants Grace, Emma,
Ester, Francisco, Jr., Norma, Lina (represented by
daughter Pinky Rose), and Jacinto.
The loan being unpaid, the lot in dispute was
foreclosed by the mortgagee bank, and in the
foreclosure sale held on December 27, 1963, the same
was awarded to the mortgagee bank as the highest
bidder.
On February 7, 1964, third-party defendant Amparo
Gosiengfiao-Ibarra redeemed the property by paying

the amount of P1,347.89 and the balance of P423.35

was paid on December 28, 1964 to the mortgagee
bank.
On September 10, 1965, Antonia Gosiengfiao on her
behalf and that of her minor children Emma, Lina,
Norma, together with Carlos and Severino, executed a
"Deed of Assignment of the Right of Redemption" in
favor of Amparo G. Ibarra appearing in the notarial
register of Pedro (Laggui) as Doc. No. 257, Page No. 6,
Book No. 8, Series of 1965.
On August 15, 1966, Amparo Gosiengfiao sold the
entire property to defendant Leonardo Mariano who
subsequently established residence on the lot subject
of this controversy. It appears in the Deed of Sale dated
August 15, 1966 that Amparo, Antonia, Carlos and
Severino were signatories thereto.
Sometime
in
1982,
plaintiff-appellant
Grace
Gosiengfiao learned of the sale of said property by the
third-party defendants. She went to the Barangay
Captain and asked for a confrontation with defendants
Leonardo and Avelina Mariano to present her claim to
the said property.
On November 27, 1982, no settlement having been
reached by the parties, the Barangay Captain issued a
certificate to file action.
On December 8, 1982, defendant Leonardo Mariano
sold the same property to his children Lazaro F.
Mariano and Dionicia M. Aquino as evidenced by a
Deed of Sale notarized by Hilarion L. Aquino as Doc.
No. 143, Page No. 19, Book No. V, Series of 1982.
On December 21, 1982, plaintiffs Grace Gosiengfiao, et
al. [herein petitioner-heirs] filed a complaint for
"recovery of possession and legal redemption with
damages" against defendants Leonardo and Avelina
Mariano [herein respondent-buyers]. Plaintiffs alleged
in their complaint that as co-heirs and co-owners of the
lot in question, they have the right to recover their
respective shares in the said property as they did not
sell the same, and the right of redemption with regard
to the shares of other co-owners sold to the
defendants.
Defendants in their answer alleged that the plaintiffs
has [sic] no cause of action against them as the money
used to redeem the lot in question was solely from the
personal funds of third-party defendant Amparo
Gosiengfiao-Ibarra, who consequently became the sole
owner of the said property and thus validly sold the
entire property to the defendants, and the fact that
defendants had already sold the said property to their
children, Lazaro Mariano and Dionicia M. Aquino.
Defendants further contend that even granting that the
plaintiffs
are
co-owners
with
the
third-party
defendants, their right of redemption had already been

18

barred by the Statute of Limitations under Article 1144

of the Civil Code, if not by laches.
On September 16, 1986, the trial court dismissed the
complaint before it, as "only Amparo redeemed the
property from the bank" using her money and solely in
her behalf so that the petitioner-heirs had lost all their
rights to the property.3 The trial court explained that
what Gosiengfiaos heirs inherited from him was only
the right to redeem the property, as it was then
already owned by the bank. By redeeming the property
herself, Amparo became the sole owner of the
property, and the lot ceased to be a part of
Gosiengfiaos estate.
On May 13, 1991, the CA reversed the trial courts
decision, declaring the petitioner-heirs "co-owners of
the property who may redeem the portions sold" to the
respondent-buyers. The CA denied the respondentbuyers motion for reconsideration;4 thus, they came to
this Court to question the CAs rulings.
Our Decision, promulgated on May 28, 1993, affirmed
the appellate court decision.5 It stated in its
penultimate paragraph and in its dispositive portion
that:
Premises considered, respondents 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 begun to run.
WHEREFORE, the decision of the Court of Appeals is
hereby AFFIRMED. Costs against petitioners.
Aside from this express declaration, the Court
explained that, as the property was mortgaged by the
decedent, co-ownership existed among his heirs during
the period given by law to redeem the foreclosed
property. Redemption of the whole property by coowner Amparo did not vest in her the sole ownership
over the property, as the redemption inured to the
benefit of all co-owners; redemption will not put an end
to co-ownership, as it is not a mode of terminating a
co-ownership. The Court also distinguished 6 between
Articles 10887 and 16208 of the Civil Code and ruled as
inapplicable the doctrine that "the giving of a copy of
the deed of sale to the co-heirs as equivalent to a
notice."9 On July 12, 1993, this Court denied the
respondent-buyers motion for reconsideration. The
entry of judgment was made on August 2, 1993.
II. Execution of the Mariano Decision
(G.R. No. 101522) By the Lower Court
a. The Incidents
On April 26, 1994, the petitioner-heirs, as winning
parties, filed a motion for the execution of our Decision

in G.R. No. 101522, which motion the trial court

granted on May 11, 1994.10 The next day, the clerk of
court issued a writ of execution and a notice to
vacate.11 The respondent-buyers moved for a
reconsideration of the May 11, 1994 order and prayed
for the nullification of the notice to vacate, arguing that
the dispositive portion of the decision to be executed
merely declared and recognized the petitioner-heirs as
co-owners of the lot and did not authorize the sheriff to
remove their houses from the land. They argued they
can remain in possession of the property as co-owners
because the judgment did not divest them of
possession.12 The sheriff later informed the trial court
that copies of the notice to vacate and the writ of
execution were served on, but were not signed by, the
respondent-buyers. After the expiration of the 45-day
period to vacate, the sheriff went back to check if the
respondent-buyers had complied. They had not.
On March 31, 1995, the petitioner-heirs filed a notice of
redemption with the court of origin, duly served on the
respondent-buyers, for the shares of Amparo, Antonia,
Carlos, and Severino, and tendered the redemption
price of P53,760.13 On April 18, 1995, the sheriff issued
a certificate of redemption after the first and second
buyers refused to sign the notice and accept the
tender, and after the aggrieved heirs deposited the
redemption money with the court.14 On the same date,
the sheriff issued a return of service informing the
court that on March 31, 1995, the redemption money
was tendered to, but was not accepted by, Engr. Jose
Aquino who received, but did not sign, the notice of
redemption.15
From 1994 to 1995, the respondent-buyers filed four
motions: a motion for reconsideration of the May 11,
1994 order granting the motion for the issuance of a
writ of execution;16 a motion to ascertain the
redemptive shares of third-party defendants;17 a
motion to declare the petitioner-heirs to have lost their
right of legal redemption;18 and a motion to expunge
from the records the petitioner-heirs notice of
redemption.19
b. The Judge Beltran Rulings
On December 4, 1995, the trial court, through Judge
Orlando Beltran,20 issued an order (1) recalling the writ
of execution for "incorrectly" quoting the dispositive
portion of the CA decision and nullifying the notice to
vacate; (2) denying the motion to ascertain third-party
defendants shares, as Amparos redemption inured to
the benefit of her co-heirs, thus, each of the 10 heirs
has 1/10 equal share of the lot; (3) denying the third
motion as no written notice of the sale has been served
on the petitioner-heirs by the vendor or by the vendee;
and (4) denying the last motion for lack of legal and
factual basis.21 The trial court thereafter denied the
respondent-buyers motion for reconsideration that
followed.22

19

On May 30, 1996, the court denied their motion to

nullify the certificate of redemption and cancellation of
the certificate at the back of TCT No. T-2416; the
respondent-buyers moved to reconsider this denial on
July 9, 1996.23
On June 11, 1996, the respondent-buyers
omnibus motion for reconsideration, arguing
December 4, 1995 order is contrary
jurisprudence, and the decisions of the CA
Court on this case.24

filed an
that the
to law,
and this

On July 15, 1996, the respondent-buyers again filed a

motion for reconsideration of the May 30, 1996 order
denying their motion to nullify the certificate of
redemption and to order its cancellation at the back of
TCT No. T-2416, which move the petitioner-heirs
opposed. They argued that the decision of this Court
was not self-executing, and the sheriff had no power to
do anything without a court sanction. They also argued
that it was untrue that the basis of the April 18, 1995
certificate of redemption was the May 31, 1991
decision of the CA, as affirmed by this Court, because
the certificate was "inexistent" when those decisions
were promulgated.
c. The Judge Luczon Rulings
On September 26, 1997, the trial court, through Judge
Jimmy Henry F. Luczon, Jr.,25 issued an order granting
the
respondent-buyers
omnibus
motion
for
reconsideration of the December 4, 1995 order,
declaring the petitioner-heirs to have lost their right of
redemption, and nullifying the notice and the
certificate of redemption.26 Noting the absence of a
written notice of sale or manifestation received by the
petitioner-heirs, the trial court deemed as notice of sale
this Courts decision which became final and executory
on August 2, 1993. The trial court considered
September 1, 1993 as the last day of the redemption
period, and, consequently, declared that the notice and
the certificate of redemption were filed late.
The trial court denied the petitioner-heirs motion for
reconsideration of the September 26, 1997 order,
ruling that the introduction of the deed of sale as the
parties evidence in the trial and higher courts was
sufficient to give the petitioner-heirs written notice of
the sale; and that the Civil Code does not require any
particular form of written notice or distinctive method
for written notification of redemption.
III. The Assailed Court of Appeals Decision
The petitioner-heirs thereupon went to the CA on a
petition for certiorari to question the lower courts
orders. (They had earlier filed an Appeal Ad Cautelam
which the CA consolidated with the petition for
certiorari.)27 As grounds, they cited the lower courts
lack of jurisdiction since the motions ruled upon were
really initiatory pleadings based on causes of action

independent of, although related to, Civil Case No.

3129, and that no certificate of non-forum shopping
was attached, nor any docket fees paid. They also
claimed that the respondent-buyers motion was a
prohibited second motion for reconsideration that the
lower court could not rule upon, and one that was filed
beyond the 15-day period of appeal. 28 Finally, they
faulted the lower court for ignoring the law of the case,
as established in Mariano.
The respondent-buyers questioned the petition on
technicalities, but focused on the issue of whether the
final and executory decision of this Court in Mariano
was effectively a written notice of sale to the heirs;
they continued to maintain that the redemption period
should run from the finality of our Decision, and, thus,
had already lapsed.
The CA followed the respondent-buyers lead and
likewise focused on the effect of our Decision on the
petitioner-heirs redemption of the disputed co-owned
property. To quote the appellate court:
The pivot of inquiry here is: whether or not the final
and executory Decision of the Supreme Court
constitutes written notice to plaintiffs-appellants
[herein petitioner-heirs].
xxx
It is undisputed that the Highest Magistrates Decision
in G.R. 101522 had become final and executory on 02
August 1993 and that it was only on 26 April 1994 or
after the lapse of more than eight (8) months from the
finality of the said Decision that plaintiffs-appellants
filed a Motion for Execution.
The Entry of Judgment of G.R. 101522 states as follows,
thus:

As it is an established procedure in court that when an

entry of judgment was issued, it means that the
contending parties were already properly notified of
the same either through the parties themselves or
through their respective counsels.
Thus, the very existence of the Supreme Courts Entry
of Judgment negates plaintiffs-appellants claim that no
notice of what [sic] nature was received by them
insofar as G.R. 101522 was concerned.
Concomitantly, the Court concurs with the argument of
respondents-appellees [herein respondent-buyers] that
the thirty (30) days grace period within which to
redeem the contested property should be counted from
02 August 1993.
As they failed to redeem the same in accordance with
the instruction of the High Court, plaintiffs-appellants
lost all the rights and privileges granted to them by the
Supreme Court in G.R. 101522.
From the foregoing facts, it is clear that plaintiffsappellants had slept from their rights and their failure
to exercise the same within the period allowed by the
High Court is deemed a waiver on their part.
All told, the Court holds and so rules that the court a
quo erred not in reversing itself.
To summarize, the appellate court ruled that (1)
because an entry of judgment had been made, the
Mariano Decision is deemed to have been served on
the petitioner-heirs; (2) based on this premise, the
appellate court held that the 30-day redemption period
should run from August 2, 1993 (the date of the entry
of judgment); and (3) for the petitioner-heirs failure to
redeem within that period, they "lost all the rights and
privileges granted to them by the Supreme Court in
G.R. No. 101522."

This is to certify that on May 26, 1993 a decision

rendered in the above-entitled case was filed in this
Office, the dispositive portion of which reads as follows:

THE PETITION

Premises considered, respondents have not lost their

right to redeem, for in the absence of a written
certification of the sale by the vendors, the 30-day
period has not even begun to run.

Faced with the CAs ruling and the denial of their

motion for reconsideration, the petitioner-heirs filed the
present petition with this Court. They argue in this
petition and in their memorandum that the January 17,
2003 decision of the CA is erroneous for the reasons
outlined below.

WHEREFORE, the decision of the Court of Appeals is

hereby AFFIRMED. Costs against the petitioners.
SO ORDERED.
and that the same has, on August 2, 1993 become final
and executory and is hereby recorded in the book of
Entries of Judgment.

20

First. They clarify that their theory that the Decision of

this Court is not the written notice required by law was
not anchored on lack of notice of that decision, but on
Article 1623 of the Civil Code: the written notice should
be given by the vendor, not by this Court by virtue of a
final decision. The CA erred and abused its discretion in
concluding that they lost their right of redemption
under this Courts Decision because the start of the
redemption period is not reckoned from the date of the

finality of that decision; the Decision is not the source

of their right to redeem.

missed the thrust and substance of the Mariano

Decision.

Second. They posit a redemption period is not a

prescriptive period, and the lower courts erred in
considering the 30-day period as an extinctive
prescriptive period because legal redemption under
Article 1623 does not prescribe. The period has not
even begun to run. Their use of the services of the
sheriff to exercise their right of redemption through a
motion for execution was approved by this Court as a
method of redemption.

We grant the petition and hold pursuant to the

Mariano Decision and based on the subsequent
pleaded developments that the petitioner-heirs have
effectively exercised their right of redemption and are
now the owners of the redeemed property pursuant to
the Sheriffs Certificate of Redemption.

In their Comment, the respondent-buyers stress that

the main issue in this petition is whether the petitionerheirs right of legal redemption, as recognized in G.R.
No. 101522, had been lost. The "non-reviewable"
findings of facts of the trial and appellate courts that
plaintiffs exercised their right of redemption late, and
that the decision in G.R. No. 101522 had already
become final, bind this Court.
In their Reply to Comment, the petitioner-heirs argue
that the 30-day redemption period under Article 1623
cannot be reckoned from the date of finality of this
Courts Decision in G.R. No. 101522 because it is not
and cannot be a "notice" in writing by the vendor; this
Court is not the vendor and a written notice by the
vendor is mandatory for the 30-day redemption period
to run. The Decision negates the notion that it serves
as a "notice," because it clearly states that the period
of redemption had not begun to run. Having previously
exercised the right of redemption, the execution was
nothing more than the implementation of what had
been the final ruling of this Court.lavvphil.net
In their memorandum, the respondent-buyers maintain
that the petitioner-heirs "time-barred" right to redeem
the property was not cured by the notice of redemption
and by their "late" tender of the redemption money;
since the petitioner-heirs were exercising their right of
legal redemption by virtue of the Decisions of this
Court and the CA, it was incumbent upon them to
effectuate the steps of redemption seasonably. The
"belated" notice of redemption and tender of payment
of redemption price were not bona fide, as they were
not made within the required period.
THE COURTS RULING
The parties positions all focus, and rightly so, on the
main issue: when did the 30-day period to redeem the
subject property start? This is a question of law, not of
fact, as the respondent-buyers erroneously claim; thus,
the lower courts findings cannot bind this Court.
The appellate court unfortunately failed to appreciate
the breadth and significance of this issue, simply ruling
on the case based on the implications of an entry of
judgment. Because of this myopic view, it completely

21

A significant aspect of Mariano that the CA failed to

appreciate is our confirmation of the ruling that a
written notice must be served by the vendor. 29 We
ruled as follows:
The requirement of a written
settled as early as in the case
(106 Phil. 1023 [1960]) where
ruling in Hernaez v. Hernaez (32

notice has long been

of Castillo v. Samonte
this Court quoted the
Phil. 214), thus:

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.
xxx
The ruling in Castillo v. Samonte, supra, was reiterated
in the case of Garcia v. Calaliman (G.R. No. 26855, April
17, 1989, 172 SCRA 201) where We also discussed the
reason for the requirement of the written notice. We
said:
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).
We also made the factual finding that:

The records of the present petition, however, show no

written notice of the sale being given whatsoever to
private
respondents
[petitioner-heirs].
Although,
petitioners allege that sometime on October 31, 1982
private respondent, Grace Gosiengfiao was given a
copy of the questioned deed of sale and shown a copy
of the document at the Office of the Barangay Captain
sometime November 18, 1982, this was not supported
by the evidence presented. x x x
From these premises, we ruled that "[P]etitioner-heirs
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." These
premises and conclusion leave no doubt about the
thrust of Mariano: The right of the petitioner-heirs to
exercise their right of legal redemption exists, and the
running of the period for its exercise has not even been
triggered because they have not been notified in
writing of the fact of sale. This is what our Decision
held, as the penultimate paragraph and the dispositive
portion clearly state. This is the law of the case that
should guide all other proceedings on the case,
particularly its execution.30 For the Luczon ruling and
the CA to miss or misinterpret the clear ruling in
Mariano the Decision subject of the execution is a
gross and patent legal error that cannot but lead to the
reversal of their decisions.
In light of this conclusion, we see no need to discuss
the other presented issues. We hold that the
computation of the 30-day period to exercise the legal
right of redemption did not start to run from the finality
of the Mariano Decision, and that the petitioner-heirs
seasonably filed, via a writ of execution, their notice of
redemption, although they applied for the issuance of
the writ some eight (8) months after the finality of the
Decision. In seeking the execution of a final and
executory decision of this Court, what controls is
Section 11, Rule 51,31 in relation to Section 2, Rule 56, 32
of the Rules of Court. Before the trial court executing
the decision, Section 6, Rule 39, 33 on the question of
timeliness of the execution, governs. Eight (8) months
after the finality of the judgment to be executed is still
a seasonable time for execution by motion pursuant to
this provision. The writ, notice of redemption, and the
tender of payment were all duly served, so that it was
legally in order for the Sheriff to issue a Certificate of
Redemption when the respondent-buyers failed to
comply with the writ and to accept the notice and the
tender of payment.
WHEREFORE, in light of the foregoing, we hereby
GRANT the petition and, accordingly, REVERSE and
SET ASIDE the January 17, 2003 decision and
September 9, 2003 resolution of the Court of Appeals
in CA-G.R. CV No. 63093. The petitioner-heirs exercise
of their right of redemption of co-heirs Amparo G.
Ibarra, Antonio C. Gosiengfiao, Carlos Gosiengfiao, and
Severino Gosiengfiaos shares over Lot 1351-A, Plan
Psd-67391, covered by Transfer Certificate of Title No.
T-2416, and located in Ugac Sur, Tuguegarao, Cagayan,

22

in view of their March 31, 1995 Notice of Redemption

and the April 18, 1995 Certificate of Redemption issued
by the Sheriff of the Regional Trial Court, Branch IV,
Tuguegarao, Cagayan, is hereby declared VALID and
LEGAL.
Costs against the respondents.
SO ORDERED.

G.R. No. 72873 May 28, 1987

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
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

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
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 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
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.
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

23

need for written notice although no particular form was

required.
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. "
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:
Art. 1623. The right of legal preemption or redemption shall not be
exercised except within thirty days
from the notice in writing by the
prospective 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 co-heirs. 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.

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?

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.

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.

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

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

Now, when did the 30-day period of redemption begin?

The following doctrine is also worth noting:

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

24

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.
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.
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.
G.R. No. L-39697

April 5, 1934

SERAFIN SANSON, plaintiff-appellee,

vs.
ISABEL ARANETA, ALFREDO SANSON, EVA
SANSON and her husband
ANTONIO YUSAY, defendants-appellants.

25

Ezpeleta and Zulueta and Feria and La O for

appellants.
Treas and Laserna and Camus and Delgado for
appellee.
GODDARD, J.:
This is an appeal from the decision of the Court of First
Instance of Iloilo, the dispositive part of which, as
amended by a supplementary decision, reads as
follows:
Por todo lo expuesta, el Juzgado falla esta
causa, como sigue:
Se declara que el convenio de reparticion, cuya
copia certificada es el documento Exhibit D,
otorgado por los herederos del finado Roque
Sanson el dia 10 de junio de 1927, no esta de
acuerdo con la voluntad del finado Roque
Sanson manifestada en su testamento Exhibit
A, pues con dicho convenido de reparticion
aparece lesionada y de hecho resulta lesionada
en mas de una cuarta parte la verdadera
participacion de uno de sus herederos y
legatarios, el de-mandante Serafin Sanson.
Se declara rescindido dicho convenio de
reparticipacion Exhibit D para todos los efectos
legales;
Se declara nulo legal el auto de este Juzgado
de fecha 31 de agosto de 1928, obrante en el
expediente numero 1055 de este mismo
juzgado, titulolado "Testamentaria del Finado
Roque Sanson", cuya copia certificada de dicho
auto es el documento Exhibit D-2;
Se ordena a la demanda Isabel Araneta que,
dentro del plazo de treinta dias, presente en
este asunto un inventario completo de todos
los bienes inmuebles, muebles, alhajas,
creditos y acciones que pertenecieron en vida
al finado Roque Sanson, con anotacion
completa de sus respectivos valores, segun
consta probado en la vista de este asunto;
Se ordena a la misma demanda Isabel Araneta
que, dentro de igual plazo de treinta dias,
presente un proyecto de particion de dichos
bienes dejados los herederos del citado finado
Roque Sanson.
Sin especial pronunciamiento en cuanto a las
costas.
Asi se ordena.

The plaintiff in his complaint filed on August 23, 1932,

prays for the rescission of the agreement of partition of
the property of his father Roque Sanson, approved by
the Court of First Instance of Iloilo, August 31, 1928,
upon the grounds that it is not in accordance with the
will of his father, executed April 6, 1920, and that as a
result of said agreement of partition the share he is
entitled to receive under his father's will has been
reduced by more than one-fourth, both in area and in
value. He also prays that the defendant Isabel Araneta
be ordered to prepare and present immediately a
complete inventory of all the property, real and
personal, of his deceased father and include therein
the jewelry, credits, etc. and that she be ordered to
prepare and present another project of partition of said
property in which an equitable division of the same
shall be made between the plaintiff and appellants
Alfredo Sanson and Eva Sanson.
The defendants answered by a general denial and
alleged three special defenses: That each and every
one of the signers of said agreement of partition
renounced in favor of the others whatever difference
there might be in their respective shares; that the
action of the plaintiff has prescribed and that said
agreement has been approved by a final order of the
lower court.
The will of Roque Sanson, deceased, the husband of
Isabel Araneta and the father of the plaintiff Serafin
Sanson and of the defendants Alfredo Sanson and Eva
Sanson provides among other things the following:
PRIMERA. Declaro que estoy casado en
matrimonio legitimo con la seora Isabel
Araneta de Sanson, habiendo tenido nosotros
dos los siguientes hijos, Alfredo Sanson y
Araneta, Serafin Sanson y Araneta y Eva
Sanson y Araneta;
SEGUNDA. Instituyo por herederos a todos y
cada unode mis hijos arriba nombrados, los
cuales se encuentran todavia en la minoria de
edad. En caso de mi muerte, dispongo y
ordeno de una manera especial que mi esposa
sea la tutora de nuestros citados hijos tanto en
las personas delos mismos como en sus
bienes. Como tal tutora cuidarano solo de la
manutencion sino de la educacion de nuestros
hijos forma que ella creyese conviente, y
administrara los bienes de los mismos;
TERCERA. Cuando todos mis hijos lleguen a la
mayoria de edad, se hara una reparticion de la
herencia, no pudiendo verificar esta particion
mientras alguno de ellos sea menor de edad.
Antes de ser repartida mi herencia, se sacara
de la masa hereditaria bienes equivalentes a la
suma de diez mil pesos filipinos (10,000), cuya
suma se dispondra en la forma como dire mas
abajo;

26

CUARTA. Despues de sacada la referida suma

de diez mil pesos (P10,000), o su equivalente
del valor de los bienes, el remanente se
distribuira por partes iguales a cada uno de mis
tres hijos arriba ya mencionados. La
distribucion sehara en la forma mas equitativa,
armonica y satisfactoria y de conformidad con
las disposiciones de este testamento;
xxx

xxx

xxx

SEXTA. Pasado el termino de diez aos

consecutivos despues de la reparticion de los
citados herederos y resultase que no hubiere
ningun heredero necesitado y pobre, segun el
criterio de mil albacea, entonces la cantidad
separada de diez mil pesos (P10,000)
destinada para este efecto sera repartida por
partes iguales entre mis tres herederos;
SEPTIMA. En caso de que la tutora de mis hijos
que esmi citada esposa, muriese antes de que
todos llegaren a la mayoria de edad, seran
entonces conjuntamente lassiguientes
personas: Agripina Sanson de Lacson,
Celedonia Sanson, Lina Araneta y Concepcion
Araneta. Estas mismas personas, en la epoca
de la reparticion de los bienes entre los
herederos, en la epoca de la reparticion de los
bienes entre los herederos, veran y
aconsejaran juntamente con la tutora a fin de
que la reparticion se haga entre mis herederos
en la forma mas satisfactoria y que en todo
tiempo y ocasion hubiere buena armonia entre
todos mis herederos.
Roque Sanson died April 28, 1920, and on June 2 of the
same year his widow presented his will for probate in
the Court of First Instance of Iloilo; the will was
probated in case No. 1055 of that court, entitled
"Testamentaria del Finado Roque Sanson" and on July
10, 1920, the widow, Isabel Araneta, was appointed
executrix. On March 29, 1922, the executrix filed an
inventory of the property of her deceased husband in
which she noted the value of each individual piece of
property. The committee of claims and appraisal found
that this valuation was correct. On March 31, 1923, the
executrix presented an account accompanied by a
project of partition, Exhibit 2. On April 28, 1923, the
court approved, that account and also the project of
partition, but, as this project did not contain a
description of the property, on October 19, 1923, the
same court ordered the executrix to present another
project of partition, within 30 days, in which the
description of the property adjudicated to each heir
should appear. This order was not complied with. The
executrix, on June 10, 1927, and a few days before her
son, the plaintiff Serafin Sanson, went to Manila to
continue his studies, had him and the defendants
Alfredo and Eva Sanson appear in the office of an
attorney before whom they signed the agreement of
partition in question in this case, Exhibit D. In 1928,

during the school vacation, the plaintiff went to the

municipality of Sara, Province of Iloilo, and for the first
time visited the lands allotted to him and to his brother
Alfredo by virtue of the agreement of partition, Exhibit
D. Upon this visit he found that there was a great
difference in quality and area in favor of his brother. In
view of this he decided to visit the land allotted to his
sister, Eva Sanson, situated in the municipality of
Banate of the same province. He found that her land
was also greater in area and better in quality than the
land given to him by virtue of Exhibit D. The plaintiff
thought of speaking to his mother about these
differences, but fearing that this might annoy and
displease her he left for Manila to continue his studies
without saying anything to her at that time. After
arriving in Manila the plaintiff wrote the following letter
to his mother:
1876 MANGAHAN, STA. CRUZ, MANILA
25 de agosto de 1928
Sra. ISABEL ARANETA,
Molo, Iloilo, I. F.
MI QUERIDA MADRE: Hace ya tiempo que
deseaba escribirte, pero siempre me ha faltado
tiempo debido a que mis estudios de este ao
son demasiado dificiles.
Madre, desearia hablarte de una cosa, pero me
temo que lo tomes a mal, por lo que de
antemano te pido perdon y te suplico no te
enfades de mi, porque de esto ya deseaba
hablarte cuando aun estaba alli pero temia que
te enfadaras de mi.
Madre, cuando mi fui a Sara he visto que los
terrenos que me habias dado eran de inferior
calidad que los demi hermano y hermana; y
son muchos los que dicen que de nosotros tres,
la peor parte es la mia. Esto, madre, te lo
pongo de manifiesto, porque tu tampoco has
visto aquellos terrenos. Madre, no tienes
compasion de mi dandome la peor parte,
teniedo en cuenta que por nosotros tres
sufristes por igual al darnos a luz. Madre, me
da verguenza hablarte de esto, porque eres
libre de darme lo que quieras, porque fuisteis
vosotros los que habeis buscado dichos bienes;
pero, madre, confio en el amor que me
profesas, porque muchas veces he oido de ti
decir que a ninguno de nosotros tus hijos
sientes preferencia porque nos amas por igual.
Si es asi, por que vas a disminuir mi parte? Tal
vez, madre, pienses que mi tia tiene algo y que
dicho algo ira a parar conmigo. De esto, madre,
no puedo estar seguro, porque mi tia suele
decir que ellas son unastres viejas que tambien
necesitan de dinero para cuando se enfermen.
Aparte de esto, madre, siempre es diferente lo
que viene de nuestros padres, porque esto

27

hace que los hijos puedan decir que sus padres

les aman por igual porque en la misma
proporcion les reparte su patrimonio. Madre,
solo os expongo a vosotros tres para que no
digais despues que no os habia hablado de
ello. Madre, si vosotros tres no teneis
inconveniente yo os pediria que aumenteis mi
porcion con el terreno de Sibucao que es
bienpoco. No teneis compasion de mi,
hermanos mios.
Madre, si te parece mal esto que te pido y que
te he manifestado, perdoname, igualmente si
tambien a vosotros os parece mal.
Recuerdos a todos vosotros, a ti y a mis
hermanos.
Tu hijo qeu te ama como siempre.
(Fdo.) SERAFIN SANSON
This letter was received by the defendant Isabel
Araneta on August 27, 1928, and on the following day
she had her daughter, the defendant Eva Sanson, who
was a minor at the time Exhibit D was signed, go
before a notary public and sign a document, Exhibit 5,
which confirmed the contents of the agreement of
partition, Exhibit D. On the 29th of the same month
and year the defendant Isabel Araneta, through her
attorney, submitted the original of Exhibit D to the
court for approval in an ex-parte motion, Exhibit D-1,
and the project of partition, Exhibit D, and Exhibit 5
were approved by an order of the court, Exhibit D-2,
dated August 31, 1928. Eighteen days after the order
Exhibit D-2 was issued and twenty-one days after she
received the above letter, Isabel Araneta wrote a letter,
Exhibit 4, to her son, the plaintiff, in which she refused
to cede to him the land situated in Sibucao, Occidental
Negros. In view of this denial, plaintiff consulted a
relative of his in Manila, Attorney Ramirez, who advised
him that he could enter his objection to Exhibit D when
it was set for approval by the court at Iloilo. Upon his
return to Iloilo during the vacations of 1929 he asked
his mother, Isabel Araneta, if the court had approved
the original of Exhibit D. She pretended to know
nothing about the matter. However the plaintiff learned
through Attorney Geminiano Sanson that the court had
approved the original of Exhibit D on August 31, 1928.
Upon his return to Manila, to continue his studies, in
1929 he again went to Attorney Ramirez and told him
that Exhibit D had been approved by the court of Iloilo,
and Ramirez advised him that the only thing for him to
do was to ask for the rescission of the agreement of
partition, Exhibit D.
Another incident in this case which conclusively proves
that Isabel Araneta favored her children Alfredo and
Eva to the prejudice of the plaintiff Serafin Sanson is
the fictitious sale of lot No. 461 of the Cadastral Survey
of La Carlota, a description of which appears at the

bottom of page 1 of the inventory, to Herminio

Maravilla for the alleged sum of P12,000. The
document of sale is dated October 15, 1932, and was
acknowledged before C. M. Zulueta, the attorney for
the defendants in the trial of this case in the lower
court. This same land was sold by Herminio Marvilla to
the spouses Antonio Yusay and Eva Sanson on October
18, 1932, three days later. This document was also
acknowledged before the same attorney, C. M. Zulueta.
This was a round-about way of giving this land to her
daughter Eva Sanson. This particular parcel of land was
not included in the division set forth in the agreement
of partition Exhibit D, but was reserved for the purpose
set forth in the third, fourth and sixth paragraphs of the
will of Roque Sanson, copied above.
If we accept the inventory value of the property
allotted to the heirs in Exhibit D as a basis of partition,
the share corresponding to the plaintiff, under the will
of his father, would be P33,683.69. The land allotted to
him in said exhibit is valued at P14,615 in the
inventory. As a result the portion corresponding to the
plaintiff has been reduced in value in the sum of
P19,068.69. It is plain to be seen that this reduction
constitutes a lesion exceeding the forth part of the
value of the property that he should receive under his
father's will.
If we take the assessed value of the property allotted
to the heirs in Exhibited as a basis of partition, the
evidence shows that the value of the property
adjudicated to the plaintiff in Exhibit D has been
reduced in the sum of P16,696. This reduction also
constitutes a lesion exceeding the fourth part of the
value of the property that he should receive under his
father's will.
If we take the market value of the land, as testified to
by four witnesses, alloted to the heirs in Exhibit D as a
basis of partition, the value of the land which should
have been adjudicated to the plaintiff in Exhibit D
would be P51,300, whereas the market value of the
land actually adjudicated to him in Exhibit D is only
P25,050. It is plain to be seen that this reduction
constitutes a lesion of much more than one-fourth of
the value of the property that he should receive under
his father's will.
If we take the total area of the land allotted to the heirs
in Exhibit D as a basis of partition , the plaintiff should
have received 467 hectares, 14 ares and 12 centiares,
but the area of the land actually adjudicated to him in
Exhibit D is only 254 hectares, 10 are and 13 centiares
or a reduction of 213.0399 hectares. This also
constitutes a lesion of more than one-fourth of the area
of the property that he should receive under his
father's will.
Articles 1073 of the Civil Code read as follows:

28

ART. 1073. Partitions may be rescinded for the

same causes as obligations.
ART. 1074. They may also be rescinded on
account of lesion exceeding the fourth part,
taking into consideration the value of the
things at the time they were awarded.
It is evident that the agreement of partition, Exhibit D,
may be rescinded as provided in article 1074.
The defendants did not present any proof to the effect
that Serafin Sanson had renounced in favor of his coheirs whatever difference there might be between his
share and their shares of the property. On the contrary,
as we have seen, the plaintiff, as soon as he learned
there was a difference, wrote the letter of August 25,
1928, to his mother and consulted Attorney Ramirez as
to the manner of vindicating his rights.
There is no merit to the allegation of the defendants as
to the prescription of plaintiff's action. The agreement
of partition was approved by the court on August 31,
1928. The four years provided in article 1076 of the
Civil Code should commence to run from that date. As
stated above this case was filed on August 23, 1932. It
must be remembered that this is not an extrajudicial
partition. "While it is true that the partition agreement
was made by all the heirs extrajudicially, in submitting
it to the court for approval, and in being approved by
the latter after having announced the hearing through
publication in the newspapers, said extrajudicial
agreement of partition became judicial, and the order
of the court approving it and declaring the respective
testamentary proceedings involving the estates of the
deceased spouses closed, became final and absolute,
and binding upon all the parties who took part in the
said partition agreement, and acquiesced therein."
(Centeno vs. Centeno, 52 Phil., 322, 399.) It was
submitted to the court for approval in case No. 1055 of
the Court of First Instance of Iloilo, entitled
"Testamentaria del Finado Roque Sanson". That
approval validated the agreement partition Exhibit D. If
it had not been approved by the court it would not
have been valid and the court after payment of the
debts, funeral charges, and expenses of administration,
and the allowances, if any, made for the expense of
maintenance of the family of the deceased, would have
assigned the residue of the estate to the persons
entitled to the same in the proportions or parts to
which each was entitled (section 753 of the Code Civil
Procedure). Articles 1073 to 1079 of the Civil Code are
still in force. In the case of Salunga vs. Evangelista (20
Phil., 273), this court treats all of these articles as
being in full force and effect. This court in the case of
Garcia vs. Tolentino (25 Phil., 102), held that an action
for rescission of the partition of an inheritance by
reason of lesion can only be exercised during the
period prescribed in articles 1074 and 1076. In Tinsay
vs. Yusay and Yusay (47 Phil., 639), this court said: "We
may say further that if a case of estoppel should not be
established, the appellants might Civil Code, be

compelled to restore to the estate of Juana Servando

one-half of the amount received by them from the sale
of lots Nos. 283 and 744, unless it is shown that Juana's
interest in the lot was transferred to them either by
sale or by valid donation. The registration of land does
not necessarily extinguish obligations of that
character."
The judgment of the trial court is affirmed with costs in
this instance against the appellants.
Malcolm, Hull, Imperial, and Diaz, JJ., concur.
G.R. No. L-29759 May 18, 1989
NATIVIDAD DEL ROSARIO VDA. DE ALBERTO, in
her individual capacity and as judicial guardian
of the minors ANTONIO ALBERTO, JR. and
LOURDES ALBERTO, petitioners,
vs.
THE HON. COURT OF APPEALS and ANTONIO J.
ALBERTO, JR., assisted by his mother as his
natural guardian, ANDREA JONGCO, respondents.
Taada, Carreon & Taada for petitioners.

BIDIN, J.:
This is a petition for review on certiorari of the August
31, 1968 Decision of the Court of Appeals in CA-G.R.
No. 34750-R'* entitled "Antonio J. Alberto, Jr., thru his
mother as his natural guardian, Andrea Jongco,
plaintiff-appellant, vs. Natividad del Rosario Vda. de
Alberto, in her individual capacity and as judicial
guardian of the minors, Lourdes Alberto and Antonio
Alberto, Jr., defendants-appellees", reversing the
August 10, 1964. Decision of the then Court of First
Instance of Manila.
The case originated from a complaint for
acknowledgment and partition filed on September 8,
1960 with the then Court of First Instance of Manila by
the herein private respondent, a minor, 18 years of
age, assisted by his mother, Andrea Jongco, as his
natural guardian, against the herein petitioners (Record
on Appeal, pp. 2-8). In the said Complaint, private
respondent alleged, in substance, that in 1941 his
alleged father, Antonio C. Alberto, and his mother,
Andrea Jongco, lived together as husband and wife and
as a result of which, he was born on September 10,
1942; that during the time that his alleged father and
mother lived together as husband and wife and up to
the time of his birth, both were single and had no legal
impediment to marry each other; that after his birth,
his father and mother continued living together as
husband and wife, his father supporting them and
introducing him to the public as his natural child; that
even the family of his father recognized him as such;

29

that on or about the year 1944, his father and mother

separated, and subsequently, his father married herein
petitioner Natividad del Rosario; that as a result of the
marriage, two (2) children were born herein petitioners
Lourdes Alberto and Antonio Alberto, Jr.; that although
his father was separated from his mother, he continued
to support him and recognized him as his own child;
that on July 3, 1949, his father died, and without notice
to him, petitioner Natividad del Rosario Vda. de
Alberto, on July 17, 1949, instituted before the then
Court of First Instance of Manila an intestate
proceedings for the estate of his deceased father,
docketed therein as Special Proceedings No. 9092; that
in the said intestate proceedings, petitioners
deliberately omitted him as one of the heirs and for
this reason they succeeded in having the properties of
his deceased father adjudicated and partitioned among
themselves; that the said intestate proceedings were
terminated on November 9, 1953; that his father left
properties valued at P74,963.81, and accordingly, as a
natural child of his father, he is entitles to at least
P18,000.00; and that he had absolutely no previous
knowledge of the intestate proceedings and came to
know about it only recently and thereupon made a
demand from the petitioners who refused to give him
his share. Accordingly, he prays that the petitioners be
ordered to acknowledge him as the natural child of
Antonio C. Alberto; that his one-fourth share be turned
over to him; and that petitioners be sentenced to pay
him the sum of P5,000.00 as attorney's fee and the
cost of suit (Record on Appeals, pp. 2-9).
On September 21, 1960, petitioners filed a Motion to
Dismiss on the grounds that (1) the cause of action is
barred by prior judgment; and (2) that the cause of
action is also barred by the statute of limitation (Ibid,
pp. 9-19). To this motion, private respondents filed an
opposition on October 22, 1960 (Ibid, pp. 20-58).
On November 11, 1960, the trial court issued an Order
denying the Motion to Dismiss (Ibid, pp. 97-98).
On November 18, 1964, petitioners filed their Answer
to the Complaint (Ibid, pp. 98-102).
On November 23, 1964, private respondent filed his
Answer to Defendants' counterclaim (Ibid, pp. 102104). On August 10, 1964, the trial court rendered a
decision in favor of the petitioners (Ibid, pp. 104- 123).
The dispositive portion of the Decision reads:
Considering all the foregoing, the Court
orders the dismissal of the complaint
without pronouncement as to the costs.
The counterclaim is also dismissed.
SO ORDERED.
Private respondent, not satisfied with the decision,
appealed to respondent Court, and in a Decision
promulgated on August 31, 1968 (Ibid, pp. 61-75),

respondent Court reversed the decision of the trial

court. The dispositive portion of the said Decision,
reads:
Wherefore, the decision appealed from
is hereby reversed and set aside and
another rendered declaring plaintiff
Antonio J. Alberto, Jr., an acknowledged
Natural Child of the deceased Antonio
C. Alberto; declaring said plaintiff the
owner pro indiviso of one-fifth (1/5) of
the hereditary estate of Antonio C.
Alberto; and ordering the defendants to
deliver to plaintiff Antonio J. Alberto, Jr.,
his one-fifth (1/5) share in said estate,
subject to the usufructuary rights of
defendants Natividad del Rosario Vda.
de Alberto pursuant to Articles 834 of
the Old Civil Code, and to pay the costs
of suit.
SO ORDERED.
On September 24, 1968, petitioners filed a Motion for
Reconsideration, but the same was denied in a
Resolution dated October 14, 1968 (Rollo, p. 77).
Hence, the instant petition.

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD

JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT
CASE, THE HONORABLE COURT OF APPEALS ERRED IN
NOT HOLDING THAT RESPONDENT ALBERTO, JR., IN
NOT BRINGING THE INSTANT ACTION FOR AN
UNREASONABLE LENGTH OF TIME, WAS GUILTY OF
LACHES.
V
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD
JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT
CASE, THE HONORABLE COURT OF APPEALS GROSSLY
ERRED IN REVERSING THE FINDINGS OF THE TRIAL
COURT BY BASING ITS JUDGMENT ON A
MISAPPREHENSION OF FACTS, GIVING CREDENCE TO
THE TESTIMONIES OF ANDREA JONGCO AND OTHER
WITNESSES OF RESPONDENT ALBERTO, JR., DESPITE
THE SERIOUS CONTRADICTIONS, INCONSISTENCIES
AND IMPROBABILITIES IN THEIR TESTIMONIES AS
FOUND BY THE TRIAL COURT AND CATEGORICALLY
STATED IN ITS DECISION.
VI

This Court, in a resolution dated November 27,1968,

resolved to give due course to the petition (Rollo, p.
91).

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD

JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT
CASE, THE HONORABLE COURT OF APPEALS
COMMITTED A GROSS ERROR OF LAW AND A GRAVE
ABUSE OF DISCRETION WHEN IT ARBITRARILY AND
CAPRICIOUSLY DISREGARDED PETITIONERS' EVIDENCE.

Petitioners assigned the following errors:

VII

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD

JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT
CASE, THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT RESPONDENT ALBERTO, JR., WAS AN
ACKNOWLEDGED NATURAL CHILD OF THE DECEASED
ALBERTO AND IN DECLARING HIM OWNER PROINDIVISO OF ONE-FIFTH OF THE HEREDITARY ESTATE
OF THE DECEASED.

THE HONORABLE COURT OF APPEALS ERRED IN NOT

HOLDING THAT THE COURT OF FIRST INSTANCE OF
MANILA (TRIAL COURT) HAD NO JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE.
II
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD
JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT
CASE, THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT RESPONDENT ALBERTO JR.'S CAUSE OF
ACTION WAS NOT BARRED BY PRIOR JUDGMENT.
III
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD
JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT
CASE, THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT RESPONDENT ALBERTO JR.'S CAUSE OF
ACTION HAD NOT YET PRESCRIBED.
IV

30

I.
It is the contention of petitioners that inasmuch as the
instant case was filed on September 8, 1960, almost
five (5) years after the enactment of R.A. No. 1401
creating the Juvenile and Domestic Relations Court, the
questions of paternity and acknowledgment fall beyond
the jurisdictional pale of the Court of First Instance of
Manila and instead comes within the exclusive original
jurisdiction of the Juvenile and Domestic Relations
Court. While petitioners admitted that this objection to
lack of jurisdiction by the Court of First Instance of
Manila over the subject matter of the present action
had not been raised either in the said court or in the
Court of Appeals and is brought to this Court for
resolution for the first time on appeal, they contend
that a party may object to the jurisdiction of the court

over the subject matter of the action at any stage of

the proceedings, even for the first time on appeal since
lack of jurisdiction of the court over the subject matter
cannot be waived. Such contention is untenable.
This Court has already ruled that the question of
jurisdiction not raised in the trial court cannot be raised
on appeal (Dalman vs. City Court of Dipolog City,
Branch II, 134 SCRA 243 [1985]). Besides, a party who
had voluntarily participated in the trial, like the herein
petitioners, cannot later on raise the issue of the
court's lack of jurisdiction (Philippine National Bank vs.
Intermediate Appellate Court, 143 SCRA 299 [1986];
Royales vs. Intermediate Appellate Court, 143 SCRA
470 [1984]; Tijam vs. Sibonghanoy, 23 SCRA 29
[1968]). Moreover, there are no more Juvenile and
Domestic Relations Courts today. Under Batas
Pambansa Blg. 129, the functions of the Juvenile and
Domestic Relations Court have been transferred to the
Regional Trial Courts (Divinagracia vs. Bellosillo, 143
SCRA 356 [1986]).
II.
Petitioners alleged that the intestate proceedings for
the settlement of estate of the deceased Antonio C.
Alberto (Special Proceedings No. 9092) had already
been terminated on November 9, 1953 by the order of
distribution directing the delivery of the residue of the
estate to the persons entitled thereto and that in said
proceedings the court also declared who are the heirs
of the deceased. Consequently, the instant case which
seeks to secure the recognition of Antonio J. Alberto, Jr.
as an acknowledged natural child of the deceased in
order to establish his rights to the inheritance is
already barred by prior judgment (Petitioners' Brief, p.
47) despite private respondent's insistence that he had
no knowledge or notice of the intestate proceedings of
his alleged natural father (Record on Appeal, p. 21).
Petitioners' submission is impressed with merit.
This Court has invariably ruled that insolvency
proceedings and settlement of a decedent's estate are
both proceedings in rem which are binding against the
whole world. All persons having interest in the subject
matter involved, whether they were notified or not, are
equally bound (Philippine Savings Bank vs. Lantin, 124
SCRA 483 [1983]). The court acquires jurisdiction over
all persons interested, through the publication of the
notice prescribed ... and any order that may be entered
therein is binding against all of them (Ramon vs.
Ortuzar, 89 Phil. 741 [1951] citing in re Estate of
Johnson, 39 Phil. 156). It was ruled further that a final
order of distribution of the estate of a deceased person
vests the title to the land of the estate in the
distributees; and that the only instance where a party
interested in a probate proceeding may have a final
liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or
inadvertence not imputable to negligence. Even then,

31

the better practice to secure relief is reopening of the

same case by proper motion within the reglementary
period, instead of an independent action, the effect of
which, if successful, would be, as in the instant case,
for another court or judge to throw out a decision or
order already final and executed and reshuffle
properties long ago distributed and disposed of (Ramon
vs. Ortuzar, supra; Santos vs. Roman Catholic Bishop of
Nueva Caceres 45 Phil. 895).
III.
As to the issue of prescription, the Civil Code of the
Philippines clearly provides:
Art. 1100. The action for rescission on
account of lesion shall prescribe after
four years from the time the partition
was made.
Intestate proceedings were terminated as alleged in
the complaint itself on November 9, 1953 so that said
four years prescriptive period expired on November
9,1957. Hence, the present action filed on September
8, 1960 and which has for one of its objects the
rescission of the agreement of partition among the
petitioners, as approved by the intestate court, is
already barred by prescription.
That an action for rescission is also the proper action in
case of an alleged preterition of a compulsory heir by
reason of alleged bad faith or fraud of the other
persons interested, which is what the complaint in this
case alleges in substance, is indicated in Article 1104
of the Civil Code as follows:
Art. 1104. A partition made with
preterition of any of the compulsory
heirs shall not be rescinded, unless it
be proved that there was bad faith or
fraud on the part of the other persons
interested; ...
It has also been ruled by this Court that the four years
period provided in Article 1100 of the Civil Code
(formerly Art. 1076 of the old Civil Code) should
commence to run from the approval of the agreement
of partition by the Court (Samson vs. Araneta, 60 Phil.
27, 36). Thus, in the case at bar, it is evident that the
action to rescind the Agreement of Partition which was
approved by the Court on November 9, 1953, had
already prescribed when respondent filed the
complaint in the case at bar on September 8, 1960.
While as a general rule the action for partition among
co-owners does not prescribe so long as the coownership is expressly or impliedly recognized (Art.
494, Civil Code), petitioners herein had never
recognized respondent as a co-owner or co-heir either
expressly or impliedly. Consequently, the rule on non-

prescription of action for partition of property owned in

common (Art. 494) does not apply to the case at bar.
Moreover, private respondent cannot claim exemption
from the effects of prescription on the plea of minority
under the New Civil Code which provides:
Art. 1108. Prescription, both acquisitive
and extinctive, runs against: (1) Minors
and other incapacitated persons who
have parents, guardians or other legal
representatives:
xxxxxxxxx
Respondent Alberto, Jr. who has a living parent, his
mother, Andrea Jongco, who in fact filed the complaint
in the case at bar for him, falls squarely under the
above-cited provision.
Granting arguendo that respondent is a natural child of
the deceased Antonio Alberto, Sr., the action for
recognition of natural child may be brought only during
the lifetime of the presumed parent. And if the
presumed father or mother died during the minority of
the child, the latter may file the action within four (4)
years from the attainment of majority (Art. 285 [1]).
However, if the minor has a guardian as in this case,
prescription runs against him even during minority
(Wenzel etc., et al. vs. Surigao Consolidated Mining,
Inc., 108 Phil. 530 [1960]). In such case, the action for
recognition must be instituted within four (4) years
after the death of the natural father (Magallanes, et al.
vs. Court of Appeals, et al., 95 Phil. 795 [1954]).
Antonio C. Alberto, Sr., the alleged father, died on July
3, 1949. The complaint for acknowledgment and
partition was filed eleven (11) years later, on
September 8, 1960. Hence, prescription had set in.
Neither can it be claimed that the present action is in
substance one for recovery of property in order to
avoid the consequences of prescription, for as correctly
stated by the petitioners, to be entitled to the recovery
of the property from the estate, Alberto, Jr. must first
rescind the partition and distribution approved by the
intestate proceedings, otherwise, the recovery of any
property from the petitioners is not possible. Be that as
it may, such partition can no longer be rescinded
having been already barred by the Statute of
Limitations.
Furthermore, even granting that Article 1104 of the
Civil Code does not apply and there is an injury to the
rights of plaintiff, tills action would still not prosper
under Articles 1146 and 1149 of the same Code which
provide that the action must be brought within four and
five years, respectively, from the time the right of
action accrues.
IV

32

Petitioners' claim of laches is likewise tenable. The trial

court in its findings clearly and unmistakably declared
that respondent Alberto, Jr. is guilty of laches as
follows:
About 1944, Andrea Jongco said she
learned of Antonio Alberto's marriage
to Natividad del Rosario. Yet, she took
no steps to protect the interests of her
child, Antonio, although she was
already confronted with the
incontrovertible proof of Antonio's
infidelity and the hallowness of his
promises.
It might be that Andrea Jongco was
then relying on Antonio Alberto's not
denying that Alberto, Jr. was his child, if
such was the case. If this was so,
however, how can we explain her
inaction even after the death of
Antonio Alberto in 1949, or until
September 8, 1960, when she filed this
action, Andrea kept silent, took no
action to have her child recognized as
the son of the alleged father. Her
laches, as well as the inherent
improbabilities in her testimony
rendered it unworthy of belief.
... It is evident that the plaintiff's case
is adversely affected by his long delay
in bringing this action. 'Undue delay in
the separate enforcement of a right is
strongly persuasive of lack of merit in
this claim, since it is human nature for
a person to assert his rights most
strongly when they are threatened or
invaded. (Buenaventura vs. David, 37
Phil. 435-440). (Record on Appeal, pp.
108-109).
This Court has consistently declared that laches is the
failure or neglect, for an unreasonable and unexplained
length of time, to do that which by exercising due
diligence, could or should have been done earlier. The
negligence or omission to assert a right within a
reasonable time, warrants a presumption that the party
entitled to assert it either has abandoned it or declined
to assert it (Corro vs. Lising, 137 SCRA 541 [1985];
Tendo vs. Zamacoma, 138 SCRA 78 [1985]; De Castro
vs. Tan, 129 SCRA 85 [1984]; Medija vs. Patcho, 132
SCRA 540 [1984]; Burgos, Sr. vs. Chief of Staff, Armed
Forces of the Phil., 133 SCRA 800 [1984]; Gumonpin vs.
CA, 120 SCRA 687 [1983]).
As pointed out by the trial court, there appears to be
no explanation for the surprising delay in the filing of
the complaint in the case at bar except perhaps, the
fact that during the lifetime of the deceased Antonio
Alberto, private respondents were receiving support

until the latter died in 1949; but thereafter, they

allowed more than ten years to elapse or until
September 8, 1960 before they filed the present action
to assert their rights despite Andrea Jongco's allegation
that they stopped receiving support after Alberto, Sr.'s
death.
On the other hand, there is merit in petitioners'
allegations that such delay is prejudicial to them.
Private respondents could have filed the action in 1944
when Andrea Jongco learned of the marriage of the
deceased with petitioner Natividad del Rosario instead
of waiting for 16 years when the supposed father's lips
had been sealed by death and possible witnesses like
Antonio Alberto, Sr.'s mother had become too old to
give coherent testimony.
On this point, the Supreme Court ruled:
The assertion of doubtful claims, after
long delay, cannot be favored by the
courts. Time inevitably tends to
obliterate occurrences from the
memory of witnesses, and even where
the recollection appears to be entirely
clear, the true clue to the solution of a
case may be hopelessly lost. These
considerations constitute one of the
pillars of the doctrine long familiar in
equity jurisprudence to the effect that
laches or unreasonable delay on the
part of a plaintiff in seeking to enforce
a right is not only persuasive of a want
of merit but may, according to the
circumstances, be destructive of the
right itself. Vigilantibus non
dormientibus equites subvenit
(Buenaventura vs. David, 37 Phil. 435,
reiterated in Edralin vs. Edralin, 1 SCRA
227 [1961]).
The other explanation might have been the minority of
Antonio Alberto, Jr. at the time of his supposed father's
death. But such explanation as discussed earlier is
unavailing even in case of prescription under Article
1108 of the Civil Code where minority does not stop
the running of the prescriptive period for minors who
have parents, guardians or legal representatives.
Thus, it is well established that "The law serves those
who are vigilant and diligent and not those who sleep
when the law requires them to act (Cui and Joven vs.
Henson, 51 Phil. 606, 610; Bacolod-Murcia Milling Co.
vs. Villaluz, Sept. 29, 1951, 90 Phil. 154)." The law does
not encourage laches, indifference, negligence or
ignorance. On the contrary, for a party to deserve the
considerations of the courts, he... must show that he is
not guilty of any of the aforesaid failings (Samson vs.
Yateo, August 28,1958; 104 PMI. 378).
V.

33

Finally on the merits of this case, petitioners would

have this Court review and reverse the conclusions of
fact of the Court of Appeals. As a general rule, this is a
function this Court does not undertake. The established
principle is that the factual findings of the Court of
Appeals are final and may not be reviewed on appeal
to this Court; except: (1) when the conclusion is
grounded entirely on speculation, surmises and
conjectures; (2) when the inference is manifestly
mistaken, absurd and impossible; (3) where there is
grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the
Court in making its findings went beyond the issues of
the case, and the same are contrary to the admissions
of both the apellant and the appellee; (6) when the
findings of the Appellate Court are contrary to those of
the trial court; (7) when the findings are without
citation of specific evidence on which they are based
(Manlapaz vs. C.A., 147 SCRA 238-239 [1987]; Guita vs.
C.A., 139 SCRA 576 [1985]; Sacay vs. Sandiganbayan,
147 SCRA 593 [1986]).
It is readily evident that this case falls within one of the
recognized exceptions to the rule, specifically that the
findings of the Appellate Court are contrary to those of
the trial court.
At the trial, the lower court in evaluating the evidence
presented by the complainants is of the view that the
testimony alone of Andrea Jongco is sufficient to totally
discredit not only her testimony but also her entire
case. Aside from being inherently improbable and the
merit of her claim being adversely affected by her
testimony and her long delay in bringing action, her
testimony is contradicted by the testimonies of Jose,
Zoilo and Pilar who are brothers and sister of the
deceased Antonio Alberto and who have no pecuniary
interest whatsoever in the outcome of the controversy.
They testified that during the period Andrea Jongco
claimed that Antonio Alberto, Sr. lived with her, the
deceased in fact lived with his mother and brothers at
the family residence except for his brief stint with the
army (Decision, Civil Case No. 44164; Record on
appeal, pp. 111-112).
More than that, the trial court found among others,
that Andrea Jongco has had five children (aside from
her son Antonio) with four different men. The
assumption, therefore, is that she lived with at least
four different men without being married to any of
them. Thus, the trial court aptly ruled that his
propensity to promiscuous relationship with different
men, render it unjust to state with definiteness that
any particular person is the father of any one of her
children." (Ibid, p. 121).
Other witnesses are Eufracia Cailan who allegedly took
care of Antonio, the father, since the latter was a child
and then of Antonio, the alleged son, and Encarnacion
Peralta, an alleged former lessor of Andrea Jongco and
Antonio Alberto. Their testimonies were, however,
found by the trial court to be inherently improbable,

inconsistent with human experience and deliberately

invented to conform with the testimony of Andrea
Jongco (Ibid, pp. 109-117).

People vs. Fernandez, 124 SCRA 248 (1983]; Olangco

vs. C.F.I. of Misamis Oriental, 121 SCRA 338 [1983];
Minuchechi vs. C.A., 129 SCRA 479 [1984]).

On the other hand, the Court of Appeals in its decision

gave more credence to the testimonies of Eufracia
Cailan and Encarnacion Peralta and declared that their
testimonies have sufficiently established the fact that
Antonio J. Alberto, Jr. is the son of the late Antonio C.
Alberto and Andrea Jongco which finds further proof in
the birth certificate and the baptismal certificate of
Alberto, Jr. (Rollo, pp. 6-11).

After a careful review of the records and the evidence

presented by the contending parties, no cogent
reasons could be found to justify the reversal of the
findings of the trial court.

In this connection, it must be stated that in the case of

Reyes vs. Court of Appeals, 135 SCRA 439 (1985), this
Court, citing the cases of Bercilles vs. GSIS, 128 SCRA
53; People vs. Villeza, 127 SCRA 349; Cid vs.
Burnaman, 24 SCRA 434; Vudaurrazaga vs. C.A., 91
Phil. 492; and Capistrano vs. Gabino, 8 Phil. 135, ruled
that a birth certificate not signed by the alleged father
therein indicated, like in the instant case, is not
competent evidence of paternity.

In view of the foregoing, there appears to be no need

to discuss the last two assignments of errors.
WHEREFORE, the assailed decision of the Court of
Appeals is hereby Reversed and the decision of the
trial court is Reinstated. No costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Cortes, JJ.,
concur.
G.R. No. 128102

In casting doubt upon the credibility of petitioner

Natividad's testimony, the Court of Appeals pointed out
her serious inconsistency on material points such as
her claim that she was married to the deceased in
1941 and her later admission in the answer that they
were married in 1944.
The record shows, however, that both admissions were
correct, the first marriage was a secret civil marriage
celebrated in Pililla, Rizal while the second was a
religious ratification of the former. The lack of marriage
certificate as evidence was also considered by the
Court of Appeals as an impairment of credibility despite
a certification to the effect that all pre-war records in
the Municipality of Pililla, Rizal were destroyed during
the last war. Said Appellate Court is of the view that if
they did plan to marry secretly at that time, they could
have chosen a city or municipality near Manila and that
Pililla must have been chosen as the place of the
supposed marriage so that petitioners could have an
apparent good reason for the non-presentation of the
marriage certificate.
As aptly argued by the petitioners, such conclusion is
purely conjectural. Besides petitioners' reasons for the
choice of that place, the celebration of the marriage
was positively confirmed by Damaso Herrera, one of
the sponsors thereof.
In any event, it is a fundamental rule that conclusions
and findings of fact by the trial court are entitled to
great weight on appeal and should not be disturbed
unless for strong and cogent reasons because the trial
court is in a better position to examine real evidence,
as well as to observe the demeanor of the witnesses
while testifying in the case (People vs. Pimentel, 147
SCRA 29, 30 [19871; People vs. Grefiel, 125 SCRA 108
[1983]; Chase vs. Buencamino, 136 SCRA 381 [1985];

34

March 7, 2000

AZNAR BROTHERS REALTY COMPANY, petitioner,

vs.
COURT OF APPEALS, LUIS AYING, DEMETRIO
SIDA, FELOMINO AUGUSTO, FEDERICO ABING,
and ROMEO AUGUSTO, respondents.
DAVIDE, JR., C.J.:
This is a petition for review on certiorari under Rule 45
of the Revised Rules of Court seeking to reverse and
set aside the 26 March 1996 Decision 1 of the Court of
Appeals declaring the private respondents the rightful
possessors de facto of the subject lot and permanently
enjoining Sheriff Juan Gato or his representative from
effecting the demolition of private respondents'
houses.
Culled from the evidence proffered by petitioner Aznar
Brothers Realty Co. (hereafter AZNAR), it appears that
Lot No. 4399 containing an area of 34,325 square
meters located at Brgy. Mactan, Lapu-Lapu City, was
acquired by AZNAR from the heirs of Crisanta Maloloyon by virtue of an Extrajudicial Partition of Real Estate
with Deed of Absolute Sale dated 3 March 1964. This
deed was registered with the Register of Deeds of
Lapu-Lapu City on 6 March 1964 as shown on the face
thereof. After the sale, petitioner AZNAR declared this
property under its name for taxation purposes and
regularly paid the taxes thereon. Herein private
respondents were allegedly allowed to occupy portions
of Lot No. 4399 by mere tolerance provided that they
leave the land in the event that the company would
use the property for its purposes. Later, AZNAR entered
into a joint venture with Sta. Lucia Realty Development
Corporation for the development of the subject lot into
a multi-million peso housing subdivision and beach
resort. When its demands for the private respondents

to vacate the land failed, AZNAR filed with the

Municipal Trial Court (MTCC) of Lapu-Lapu City a case
for unlawful detainer and damages, which was
docketed as Civil Case No. R-1027.
On the other hand, the private respondents alleged
that they are the successors and descendants of the
eight children of the late Crisanta Maloloy-on, whose
names appear as the registered owners in the Original
Certificate of Title No. RC-2856. They had been residing
and occupying the subject portion of the land in the
concept of owner since the time of their parents and
grandparents, except for Teodorica Andales who was
not a resident in said premises. Private respondents
claimed that the Extrajudicial Partition of Real Estate
with Deed of Absolute Sale is void ab initio for being
simulated and fraudulent, and they came to know of
the fraud only when AZNAR entered into the land in the
last quarter of 1991 and destroyed its vegetation. They
then filed with the Regional Trial Court (RTC) of LapuLapu City a complaint seeking to declare the subject
document null and void. This case was docketed as
Civil Case No. 2930-L.
On 1 February 1994, the MTCC rendered a decision
ordering the private respondents to (a) vacate the land
in question upon the finality of the judgment; and (b)
pay P8,000 as attorney's fees and P2,000 as litigation
expenses, plus costs.2
The MTCC delved into the issue of ownership in order
to resolve the issue of possession. It found that
petitioner AZNAR acquired ownership of Lot No. 4399
by virtue of the Extrajudicial Partition of Real Estate
with Deed of Absolute Sale executed by the Heirs of
Crisanta Maloloy-on on 3 March 1964, which was
registered with the Register of Deeds of Lapu-Lapu City
on 6 March 1964 as appearing on the face thereof.
Private respondents' allegation that two of the
signatories were not heirs of the registered owners;
that some of the signatories were already dead at the
date of the execution of the deed; and that many heirs
were not parties to the extrajudicial partition is a form
of a negative pregnant, which had the effect of
admitting that the vendors, except those mentioned in
the specific denial, were heirs and had the legal right
to sell the subject land to petitioner. The fact that some
or most heirs had not signed the deed did not make
the document null and void ab initio but only
annullable, unless the action had already prescribed.
Since the private respondents occupied the land
merely by tolerance, they could be judicially ejected
therefrom. That the Deed has not been annotated on
OCT RO-2856 is of no moment, since said title was
reconstituted only on 25 August 1988, while the
subject Deed was executed on 3 March 1964. Lastly,
the reconstituted title has not as yet been transferred
to a purchaser for value.
Aggrieved by the decision of the MTCC, private
respondents appealed to the RTC.

35

During the pendency of the appeal, or on 8 March

1994, the RTC, upon Aznar's ex parte motion, issued an
order granting the issuance of a writ of execution
pursuant to Section 8, Rule 70 of the Revised Rules of
Court in view of the failure of private respondents to
put up a supersedeas bond. A week later, a writ of
execution was issued. The sheriff then served upon
private respondents the said writ of execution together
with a notice to vacate. On 11 April 1994, the sheriff
padlocked their houses, but later in the day, private
respondents re-entered their houses. Thus, on 6 May
1994, AZNAR filed an omnibus motion for the issuance
of a writ of demolition, which private respondents
opposed. This motion was set for hearing three times,
but the parties opted to submit a consolidated
memorandum and agreed to submit the same for
resolution.3
On 22 July 1994, the RTC affirmed the decision of the
MTCC and ordered the issuance of a writ of demolition
directing the sheriff to demolish private respondents'
houses and other improvements which might be found
on the subject premises. 4
On 29 July 1994, a writ of demolition was issued, and
notices of demolition were served upon private
respondents. Per Sheriff's Report,5 private respondents'
houses were demolished on 3 August 1994, except for
two houses which were moved outside the premises in
question upon the plea of the owners thereof.
On appeal by the private respondents, the Court of
Appeals reversed and set aside the decision of the RTC;
declared the private respondents as the rightful
possessors de facto of the land in question; and
permanently enjoined Sheriff Juan Gato or whoever
was acting in his stead from effectuating the
demolition of the houses of the private respondents.
In arriving at its challenged decision, the Court of
Appeals noted that at the time AZNAR entered the
property, the private respondents had already been in
possession thereof peacefully, continuously, adversely
and notoriously since time immemorial. There was no
evidence that petitioner was ever in possession of the
property. Its claim of ownership was based only on an
Extrajudicial Partition with Deed of Absolute Sale,
which private respondents, however, claimed to be null
and void for being simulated and fraudulently
obtained. The Court of Appeals further held that where
not all the known heirs had participated in the
extrajudicial agreement of partition, the instrument
would be null and void and therefore could not be
registered.6 Moreover, AZNAR was estopped to assert
ownership of the property in question, since it had
admitted in a pleading in the reconstitution
proceedings that the property had never been
conveyed by the decreed owners. Additionally, from
1988 up to the filing of the ejectment case on 4 August
1993, AZNAR never registered the extrajudicial
partition despite opportunities to do so. Its allegation
that private respondents occupied the property by

mere tolerance was not proved. Pursuant to the ruling

in Vda. de Legazpi v. Avendano, 7 the fact that the right
of the private respondents was so seriously placed in
issue and the execution of the decision in the
ejectment case would have meant demolition of
private respondents' houses constituted an equitable
reason to suspend the enforcement of the writ of
execution and order of demolition.
AZNAR then elevated the case to this Court, via this
petition for review on certiorari, contending that
respondent Court of Appeals erred in
1. . . . reversing the judgments of the Municipal
Trial Court and the Regional Trial Court of LapuLapu City despite the finality of the judgments
and the full implementation thereof;
2. . . . invoking lack of prior physical possession
over the land in question by the petitioner as
one ground in its Decision sought to be
reviewed;
3. . . . holding that the Extrajudicial Partition
with Deed of Absolute Sale was null and void;
4. . . . holding that petitioner was in estoppel in
pais when it made the allegation that the
property was not sold or encumbered in its
petition for reconstitution of title;
5. . . . applying the ruling in the case of Vda. de
Legazpi vs. Avendano (79 SCRA 135 [1977]).
We shall jointly discuss the first and fifth assigned
errors for being interrelated with each other.
In its first assigned error, petitioner argues that the
decision of the MTCC of Lapu-Lapu City had become
final and immediately executory in view of the
undisputed failure of the private respondents to post a
supersedeas bond as required by Section 8, Rule 70 of
the Revised Rules of Court.
We do not agree. Since the private respondents had
seasonably filed an appeal with the RTC of Lapu-Lapu
City, the judgment of the MTCC of Lapu-Lapu City did
not become final. And for reasons hereunder stated,
the perfection of the appeal was enough to stay the
execution of the MTCC decision.
Under the former Section 8, Rule 70 of the Rules of
Court,8 if the judgment of the municipal trial court in an
ejectment case is adverse to the defendant, execution
shall issue immediately. To stay the immediate
execution of the judgment, the defendant must (1)
perfect his appeal; (2) file a supersedeas bond to
answer for the rents, damages, and costs accruing
down to the time of the judgment appealed from; and

36

(3) periodically deposit the rentals falling due during

the pendency of the appeal. 9
As a rule, the filing of a supersedeas bond is
mandatory and if not filed, the plaintiff is entitled as a
matter of right to the immediate execution of the
judgment. An exception is where the trial court did not
make any findings with respect to any amount in
arrears, damages or costs against the defendant, 10 in
which case no bond is necessary to stay the execution
of the judgment. Thus, in Once v. Gonzales, 11 this
Court ruled that the order of execution premised on the
failure to file a supersedeas bond was groundless and
void because no such bond was necessary there being
no back rentals adjudged in the appealed judgment.
Similarly, in the instant case, there was no need for the
private respondents to file a supersedeas bond
because the judgment of the MTCC did not award
rentals in arrears or damages. The attorney's fees of
P8,000 and the litigation expenses of P2,000 awarded
in favor of the petitioner need not be covered by a
bond, as these are not the damages contemplated in
Section 8 of Rule 70 of the Rules of Court. The
damages referred to therein are the reasonable
compensation for the use and occupation of the
property which are generally measured by its fair
rental value and cannot refer to other damages which
are foreign to the enjoyment or material possession of
the property. 12 Neither were the private respondents
obliged to deposit the rentals falling due during the
pendency of the appeal in order to secure a stay of
execution because the appealed judgment did not fix
the reasonable rental or compensation for the use of
the premises. 13 Hence, it was error for the RTC to order
the execution of the judgment of the MTCC.
At any rate, pursuant to Section 21 of the Revised
Rules of Summary Procedure, the decision of the RTC
affirming the decision of the MTCC has become
immediately executory, without prejudice to the appeal
before the Court of Appeals. The said Section repealed
Section 10 of the Rules of Court allowing during the
pendency of the appeal with the Court of Appeals a
stay of execution of the RTC judgment with respect to
the restoration of possession where the defendant
makes a periodic deposit of rentals. Thus, immediate
execution of the judgment becomes a ministerial duty
of the court. No new writ of execution was, however,
issued. Nevertheless, the writ of demolition thereafter
issued was sufficient to constitute a writ of execution,
as it substantially complied with the form and contents
of a writ of execution as provided for under Section 8 of
Rule 39 of the Rules of Court. Moreover, private
respondents were duly notified and heard on the
omnibus motion for the issuance of the writ of
demolition and were given five days to remove their
houses. 14
Invoking Legaspi v. Avendao, 15 the Court of Appeals
held that there was an equitable reason to suspend the
enforcement of the writ of execution and order of

demolition until after the final determination of the civil

case for the nullification of the Extrajudicial Partition
with Deed of Absolute Sale.
In Legaspi, this Court held:
Where the action . . . is one of illegal
detainer . . . and the right of the plaintiff to
recover the premises is seriously placed in
issue in a proper judicial proceeding, it is more
equitable and just and less productive of
confusion and disturbance of physical
possession, with all its concomitant
inconvenience and expense [f]or the court in
which the issue of legal possession, whether
involving ownership or not, is brought to
restrain, should a petition for preliminary
injunction be filed with it, the effects of any
order or decision in the unlawful detainer case
in order to await the final judgment in the more
substantive case involving legal possession or
ownership.
In the instant case, private respondents' petition for
review with prayer for the immediate issuance of a
temporary restraining order (TRO) or preliminary
injunction was mailed on 2 August 1994 but was
received by the Court of Appeals only on 30 August
1994. Meanwhile, on 3 August 1994, the writ of
demolition was implemented, resulting in the
demolition of private respondents' houses. Hence, any
relevant issue arising from the issuance or
enforcement of the writ had been rendered moot and
academic. Injunction would not lie anymore, as the
acts sought to have been enjoined had already become
a fait accompli or an accomplished or consummated
act.
Now on the applicability to unlawful detainer cases of
the requirement of prior physical possession of the
disputed property. Contrary to the ruling of the Court of
Appeals, prior physical possession by the plaintiff of
the subject property is not an indispensable
requirement in unlawful detainer cases, although it is
indispensable in an action for forcible entry. 16 The lack
of prior physical possession on the part of AZNAR is
therefore of no moment, as its cause of action in the
unlawful detainer case is precisely to terminate private
respondents' possession of the property in question. 17
We now come to the issue of the validity of the
Extrajudicial Partition with Deed of Absolute Sale.
In an action for ejectment, the only issue involved is
possession de facto. However, when the issue of
possession cannot be decided without resolving the
issue of ownership, the court may receive evidence
upon the question of title to the property but solely for
the purpose of determining the issue of possession. 18

37

In the instant case, private respondents have set up

the defense of ownership and questioned the title of
AZNAR to the subject lot, alleging that the Extrajudicial
Partition with Deed of Absolute Sale upon which
petitioner bases its title is null and void for being
simulated and fraudulently made.
First, private respondents claim that not all the known
heirs of Crisanta Maloloy-on participated in the
extrajudicial partition, and that two persons who
participated and were made parties thereto were not
heirs of Crisanta. This claim, even if true, would not
warrant rescission of the deed. Under Article 1104 of
the Civil Code, "[a] partition made with preterition of
any of the compulsory heirs shall not be rescinded,
unless it be proved that there was bad faith or fraud on
the part of the persons interested; but the latter shall
be proportionately obliged to pay to the person omitted
the share which belongs to him." In the present case,
no evidence of bad faith or fraud is extant from the
records. As to the two parties to the deed who were
allegedly not heirs, Article 1105 is in point; it provides:
"A partition which includes a person believed to be an
heir, but who is not, shall be void only with respect to
such person." In other words, the participation of nonheirs does not render the partition void in its entirety
but only to the extent corresponding to them.
Private respondents also allege that some of the
persons who were made parties to the deed were
already dead, while others were still minors. Moreover,
the names of some parties thereto were misspelled,
and others who knew how to read and write their
names were made to appear to have affixed only their
thumbmark in the questioned document. Likewise, the
signatures of those who were made parties were
forged.
The foregoing are bare allegations with no leg to stand
on. No birth or death certificates were presented before
the MTCC to support the allegations that some of the
parties to the deed were minors and others were
already dead at the time of the execution of the deed.
What private respondents adduced as evidence was
merely a family tree, which was at most self-serving. It
was only when the case was on appeal with the RTC
that the private respondents presented as Annex "B" of
their Memorandum and Appeal Brief a photocopy of
the certificate of death of Francisco Aying, 19 son of
Crisanta Maloloy-on, who reportedly died on 7 March
1963. This certificate was allegedly issued on 17
January 1992 by the Parish Priest of Virgen de Regla
Parish, Lapu-Lapu City. The fact remains, however, that
this photocopy was not certified to be a true copy.
It is worthy to note that the Extrajudicial Partition with
Deed of Absolute Sale is a notarized
document.1wphi1 As such, it has in its favor the
presumption of regularity, and it carries the evidentiary
weight conferred upon it with respect to its due
execution. 20 It is admissible in evidence without further
proof of authenticity 21 and is entitled to full faith and

credit upon its face. 22 He who denies its due execution

has the burden of proving that contrary to the recital in
the Acknowledgment he never appeared before the
notary public and acknowledged the deed to be his
voluntary act. 23 It must also be stressed that whoever
alleges forgery has the burden of proving the same.
Forgery cannot be presumed but should be proved by
clear and convincing evidence. 24 Private respondents
failed to discharge this burden of proof; hence, the
presumption in favor of the questioned deed stands.
Private respondents contend that there was violation of
the Notarial Law because the lawyer who prepared and
notarized the document was AZNAR's representative in
the execution of the said document. Under Section 22
of the Spanish Notarial Law of 1889, a notary public
could not authenticate a contract which contained
provisions in his favor or to which any of the parties
interested is a relative of his within the fourth civil
degree or second degree of affinity; otherwise,
pursuant to Section 28 thereof, the document would
not have any effect. This rule on notarial
disqualification no longer holds true with the
enactment of Act No. 496, which repealed the Spanish
Notarial Law. 25 Under the Notarial Law in force at the
time of the notarization of the questioned deed,
Chapter 11 of the Revised Administrative Code, only
those who had been convicted of any crime involving
moral turpitude were disqualified to notarize
documents. Thus, a representative of a person in
whose favor a contract was executed was not
necessarily so disqualified. Besides, there is no proof
that Atty. Ramon Igaa was a representative of
petitioner in 1964; what appears on record is that he
was the Chief of the petitioner's Legal Department in
1993. Additionally, this alleged violation of the Notarial
Law was raised only now.
Anent the non-annotation of the Extrajudicial Partition
with Deed of Absolute Sale in the reconstituted Original
Certificate of Title No. RO-2856, the same does not
render the deed legally defective. It must be borne in
mind that the act of registering a document is never
necessary to give the conveyance legal effect as
between the parties 26 and the vendor's heirs. As
between the parties to a sale, registration is not
indispensable to make it valid and effective. The
peculiar force of a title is exhibited only when the
purchaser has sold to innocent third parties the land
described in the conveyance. The purpose of
registration is merely to notify and protect the interests
of strangers to a given transaction, who may be
ignorant thereof, and the non-registration of the deed
evidencing said transaction does not relieve the parties
thereto of their obligations thereunder. 27 Here, no right
of innocent third persons or subsequent transferees of
the subject lot is involved; thus, the conveyance
executed in favor of AZNAR by private respondents and
their predecessors is valid and binding upon them, and
is equally binding and effective against their heirs. 28

38

The principle that registration is the operative act that

gives validity to the transfer or creates a lien upon the
land "refers to cases involving conflicting rights over
registered property and those of innocent transferees
who relied on the clean title of the properties." 29 This
principle has no bearing on the present case, as no
subsequent transfer of the subject lot to other persons
has been made either by private respondents or their
predecessors-in-interest. 30
By and large, it appears on the face of the Extrajudicial
Partition with Deed of Absolute Sale that the same was
registered on 6 March 1964. The registration was under
Act No. 3344 on unregistered lands allegedly because
at the time, no title was existing in the files of the
Register of Deeds of Lapu-Lapu City, as it was allegedly
lost during the last world war. It was only on 8 August
1988 that the title was reconstituted at the instance of
the petitioner.
As to the fourth assigned error, we do not agree with
the Court of Appeals and the private respondents that
petitioner is in estoppel to assert ownership over the
subject property because of petitioner's own allegation
in the petition for reconstitution, to wit:
That certificates of title were issued thereto but
were lost during the last world war. That the
same were not conveyed much less offered as
a collateral for any debt contracted or
delivered for the security of payment of any
obligation in favor of any person or lending
institution.
The words "the same" in the second sentence of the
afore-quoted paragraph clearly refers to the
certificates of title. This means that the certificates of
title, not necessarily the subject lot, were not conveyed
or offered as a collateral but were lost during the last
world war. Indeed, as petitioner contends, it would be
very absurd and self-defeating construction if we were
to interpret the above-quoted allegation in the manner
that the Court of Appeals and the private respondents
did, for how could petitioner, who is claiming ownership
over the subject property, logically allege that the
property was not sold to it?
It bears repeating that petitioner's claim of possession
over the subject lot is anchored on its claim of
ownership on the basis of the Extrajudicial Partition
with Deed of Absolute Sale. Our ruling on the issue of
the validity of the questioned deed is solely for the
purpose of resolving the issue of possession and is to
be regarded merely as provisional, without prejudice,
however, to the final determination of the issue in the
other case for the annulment or cancellation of the
Extrajudicial Partition with Deed of Absolute Sale.
WHEREFORE, the petition is GRANTED. The challenged
decision of public respondent Court of Appeals in CAG.R. SP No. 35060 is hereby REVERSED, and the

decision of the Regional Trial Court, Branch 27, LapuLapu City, is REINSTATED.
No pronouncement as to costs.1wphi1.nt
SO ORDERED.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.

G.R. No. L-30455 September 30, 1982

MARIA LANDAYAN, et al., petitioners,
vs.
HON. ANGEL BACANI, et al., respondents.
Anastacio E. Caoayan for petitioners.
Felipe V. Avenojar for respondents.

that they are the legitimate children of Guillerma

Abenojar, then already deceased, who was the only
child of Teodoro Abenojar with his first wife named
Florencia Bautista; and that while Teodoro Abenojar
contracted a second marriage with Antera Mandap and
a third with private respondent Maxima Andrada, he
did not have any offspring in any of the said second
and third marriages. They aver that private respondent
Severino Abenojar is an illegitimate son of Guillerma
Abenojar. They accordingly pray that they be declared
as among the legal heirs of the deceased Teodoro
Abenojar entitled to share in his estate.
Private respondents, on the other hand, have alleged in
their pleadings that Teodoro Abenojar married only
once, and that was with private respondent Maxima
Andrada. They claimed that private respondent
Severino Abenojar is an acknowledged natural child of
Teodoro Abenojar with Florencia Bautista. They
disclaimed the allegation of the petitioners that their
mother Guillerma Abenojar was a legitimate daughter
of Teodoro Abenojar and Florencia Bautista, the truth
being allegedly that Guillerma Abenojar, the mother of
the Landayans, was Teodoro Abenojar's spurious child
with Antera Mandap who was then married to another
man.

VASQUEZ, J.:
In his lifetime, Teodoro Abenojar owned several parcels
of land located in Urdaneta, Pangasinan, and a house
and lot in Manila. The said properties were all covered
by Torrens Titles in his name. He died intestate in
Urdaneta, on March 20, 1948.
On February 3, 1949, private respondents Maxima
Andrada, the surviving spouse of Teodoro Abenojar,
and Severino Abenojar, executed a public document,
entitled "Extra-Judicial Agreement of Partition" whereby
they adjudicated between themselves the properties
left by Teodoro Abenojar. Severino Abenojar
represented himself in said document as "the only
forced heir and descendant" of the late Teodoro
Abenojar.
On March 6, 1968, petitioners herein filed a complaint
in the Court of First Instance of Pangasinan presided
over by the respondent Judge seeking a judicial
declaration that they are legal heirs of the deceased
Teodoro Abenojar, and that private respondents be
ordered to surrender the ownership and possession of
some of the properties that they acquired under the
deed of extra-judicial settlement corresponding to the
shares of the petitioners and that the said deed of
extra- judicial settlement and the subsequent deed of
donation executed in favor of private respondents,
spouses Liberata Abenojar and Jose Serrano, in
consequence thereof be declared nun and void.
In their complaint, petitioners Maria, Segundo, Marcial
and Lucio, all surnamed LANDAYAN (the rest of the
petitioners being their respective spouses), alleged

39

As their affirmative and special defense, the private

respondents alleged that the action of the petitioners
had already prescribed, the same having been filed
more than 18 years after the execution of the
documents that they seek to annul.
After a preliminary hearing on said affirmative defense,
the respondent Judge issued an Order sustaining the
contention that the action is barred by prescription and
dismissing the case as a consequence thereof.
The finding that prescription had set in was rationalized
on two main considerations, namely; (1) the action for
the annulment of the deed of extra-judicial partition
and the deed of donation is based on fraud, the
prescriptive period of which is four years from the
discovery of the fraud, such discovery being presumed
to have taken place upon the registration of the
documents in the Office of the Registry of Deeds and
the issuance of new titles in the names of the
transferees which, in this case, had occurred on
November 21, 1951; and (2) the deed of extra-judicial
partition is not an inexistent and void contract the
action for the declaration of which does not prescribe,
the said document being at most a voidable contract,
subject to the operation of the statute of limitations.
We find the dismissal of the action filed by the
petitioners to be precipitious and erroneous. Although
the principles relied upon by the respondent Judge are
legally correct, he had unqualifiedly assumed the
extra-judicial partition to be merely a voidable contract
and not a void one. This question may not be resolved
by determining alone the ground for the annulment of

the contract. It requires an inquiry into the legal status

of private respondent Severino Abenojar, particularly
as to whether he may be considered as a "legal heir" of
Teodoro Abenojar and as such entitled to participate in
an extra-judicial partition of the estate of said
deceased. This is a most material point on which the
parties have asserted conflicting claims.
Understandably so, inasmuch as the question of
whether the question document is void or merely
voidable depends largely on such determination.
As stated above, petitioners contend that Severino
Abenojar is not a legal heir of Teodoro Abenojar, he
being only an acknowledged natural child of Guillerma
Abenojar, the mother of petitioners, whom they claim
to be the sole legitimate daughter in first marriage of
Teodoro Abenojar. If this claim is correct, Severino
Abenojar has no rights of legal succession from Teodoro
Abenojar in view of the express provision of Article 992
of the Civil Code, which reads as follows:

entire deed of extra-judicial partition but only insofar

as the same deprived them of their shares in the
inheritance from the estate of Teodoro Abenojar;
Should it be proved, therefore, that Severino Abenojar
is, indeed, not a legal heir of Teodoro Abenojar, the
portion of the deed of extra-judicial partition
adjudicating certain properties of Teodoro Abenojar in
his favor shall be deemed inexistent and void from the
beginning in accordance with Articles 1409, par. (7)
and 1105 of the Civil Code. By the express provision of
Article 1410 of the Civil Code, the action to seek a
declaration of the nullity of the same does not
prescribe.
WHEREFORE, the Order appealed from is hereby
REVERSED and SET ASIDE. The respondent Judge is
ordered to try the case on the merits and render the
corresponding judgment thereon. The private
respondents shall pay the costs.
SO ORDERED.

ART. 992. An illegitimate child has no

right to inherit ab intestato from the
legitimate children and relatives of his
father or mother; nor shall such
children or relatives inherit in the same
manner from the illegitimate child.
The right of Severino Abenojar to be considered a legal
heir of Teodoro Abenojar depends on the truth of his
allegations that he is not an illegitimate child of
Guillerma Abenojar, but an acknowledged natural child
of Teodoro Abenojar. On this assumption, his right to
inherit from Teodoro Abenojar is recognized by law (Art.
998, Civil Code). He even claims that he is the sole
legal heir of Teodoro Abenojar inasmuch as the
petitioners Landayans, who are admittedly the children
of the deceased Guillerma Abenojar, have no legal
successional rights from Teodoro Abenojar, their
mother being a spurious child of Teodoro Abenojar.
Should the petitioners be able to substantiate their
contention that Severino Abenojar is an illegitimate son
of Guillerma Abenojar, he is not a legal heir of Teodoro
Abenojar. The right of representation is denied by law
to an illegitimate child who is disqualified to inherit ab
intestato from the legitimate children and relatives of
Ms father. (Art. 992, Civil Code). On this supposition,
the subject deed of extra- judicial partition is one that
included a person who is not an heir of the descendant
whose estate is being partitioned. Such a deed is
governed by Article 1105 of the Civil Code, reading as
follows:
Art. 1105. A partition which includes a
person believed to be an heir, but who
is not, shall be void only with respect to
such person.
It could be gathered from the pleadings filed by the
petitioners that they do not seek the nullification of the

40

Teehankee (Chairman), Makasiar, Melencio-Herrera,

Plana, Relova and Gutierrez, Jr., JJ., concur.