Property Cases Full Text July 23

8/12/2019 Property Cases Full Text July 23

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Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 72694 December 1, 1987

AURORA DEL BANCO, EVELYN DEL BANCO, FEDERICO TAINO, SOLEDAD TAINO,JOVENCIO TAINO, SAMSON TAINO, NOE TAINO, SOCORRO TAINO and CLEOFAS

TAINO, petitioners,

vs.

INTERMEDIATE APPELLATE COURT (Second Civil Cases Division), ALEJANDRA

PANSACOLA, LEONILA ENCALLADO, VEDASTO ENCALLADO, JOSE YEPES, et

al., respondents.

PARAS,J.:

This is a petition for review on certiorari by way of appeal from: (a) the decision ofrespondent Court of Appeals (Intermediate Appellate Court) *promulgated on May 17,

1985 in AC-G.R. CV No. 70460, entitled "Alejandra Pansacola, et al. vs. Domen Villabona

del Banco, et al." which reversed and set aside the judgment **of the trial court; and (b)

its resolution ** of October 15, 1985 in the same case, denying petitioners' motion for

reconsideration of the aforementioned decision and their supplement to motion for

reconsideration.

The dispositive portion of the questioned decision (Rollo, p. 97) reads, as follows:

ACCORDINGLY, the decision appealed from is hereby SET ASIDE

insofar as it dismisses the complaint, and another one entered

(1) Declaring plaintiffs-appellants and defendants-appellees, in their

respective capacities as described in par. V of the complaint, as co-

owners of the property in dispute, but subject to the four-partpro-

indivisodivision already made by said property;

(2) Ordering the cancellation of all certificates of title that may have

been issued to any of the parties hereto; and

(3) Ordering the complete and final partition of the subject property

in conformity with law.

For this purpose, this case is hereby remanded to the Court of origin

so that a final partition shall be made in accordance with Sections 2,3, et. seq., Rule 69 of the Rules of Court.

Let a copy of this decision be furnished to the Register of Deeds for the

Province of Quezon.

The facts of the case are taken from the decision of the Appellate Court (Rollo, p. 39) asfollows:

In a document executed in the Municipality of San Rafael, Bulacan, on February 11, 1859,

three brothers, Benedicto Pansacola, Jose Pansacola and Manuel Pansacola (known as Fr.

Manuel Pena) entered into an agreement which provided, among others:

(1) That they will purchase from the Spanish Government the lands comprising the

Island of Cagbalite which is located within the boundaries of the Municipality of Mauban,

Province of Tayabas (now Quezon) and has an approximate area of 1,600 hectares;

(2) That the lands shall be considered after the purchase as their common property;

(3) That the co-ownership includes Domingo Arce and Baldomera Angulo, minors at thattime represented by their father, Manuel Pansacola (Fr. Manuel Pena) who will

contribute for them in the proposed purchase of the Cagbalite Island;

(4) That whatever benefits may be derived from the Island shall be shared equally by theco-owners in the following proportion: Benedicto Pansacola-1/4 share; Jose Pansacola-

1/4 share; and, Domingo Arce and Baldomera Angulo-2/4 shares which shall be placed

under the care of their father, Manuel Pansacola (Fr. Manuel Pena).

On August 14, 1866, co-owners entered into the actual possession and enjoyment of the

Island purchased by them from the Spanish Government. On April 11, 1868 they agreed

to modify the terms and conditions of the agreement entered into by them on February

11, 1859. The new agreement provided for a new sharing and distribution of the lands,

comprising the Island of Cagbalite and whatever benefits may be derived therefrom, as

follows:

(a) The first one-fourth (1/4) portion shall belong to Don Benedicto

Pansacola;

(b) The second one-fourth (1/4) portion shall belong to Don Jose

Pansacola;

(c) The third one-fourth(1/4) portion shall henceforth belong to the

children of their deceased brother, Don Eustaquio Pansacola,namely: Don Mariano Pansacola,- Maria Pansacola and Don Hipolito

Pansacola;

(d) The fourth and last one-fourth (1/4) portion shall belong to their

nephews and nieces (1) Domingo Arce, (2) Baldomera Angulo,

(3) Marcelina Flores, (4) Francisca Flores, (5) Candelaria dela Cruz, and(6) Gervasio Pansacolawho, being all minors, are still under the care


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of their brother, Manuel Pansacola (Fr. Manuel Pena). The latter is the

real father of said minors.

About one hundred years later, on November 18, 1968, private respondents brought aspecial action for partition in the Court of First Instance of Quezon, under the provisions

of Rule 69 of the Rules of Court, including as parties the heirs and successors-in-interest

of the co-owners of the Cagbalite Island in the second contract of co-ownership dated

April 11, 1968. In their answer some of the defendants, petitioners herein, interposed

such defenses as prescription, res judicata, exclusive ownership, estoppel and laches.

After trial on the merits, the trial court rendered a decision ***dated November 6, 1981

dismissing the complaint, the dispositive portion of which reads as follows:

WHEREFORE, and in the fight of all the foregoing this Court finds and

so holds that the Cagbalite Island has already been partitioned into

four (4) parts among the original co-owners or their successors-in-

interest.

Judgment is therefore rendered for the defendants against the

plaintiffs dismissing the complaint in the above entitled case.

Considering that the cross claims filed in the above entitled civil caseare not compulsory cross claims and in order that they may be

litigated individually the same are hereby dismissed without

prejudice.

IT IS SO ORDERED.

The motion for reconsideration filed by the plaintiffs, private respondents herein, was

denied by the trial court in an order dated February 25, 1982 (Record on Appeal, p. 241).

On appeal, respondent Court reversed and set aside the decision of the lower court

(Rollo, p. 117). It also denied the motion for reconsideration and the supplement to

motion for reconsideration filed by private respondents, in its resolution dated October15, 1983 (Rollo, p. 86).

Instant petition was filed with the Court on December 5, 1985 (Rollo, p. 12). Petitioners

Josefina Pansacola, et al. having filed a separate petition (G.R. No. 72620) on the same

subject matter and issues raised in the instant 'petition, the counsel for private

respondents filed a consolidated comment on the separate petitions for review on

February 24, 1986 with the First Division of the Court (Rollo, p. 119). It appears that

counsel for petitioners also filed a consolidated reply to the consolidated comment of

private respondents as required by the Second Division of the Court (Rollo, p. 151).

However, petitioners filed a separate reply in the instant case on February 18,1987(Rollo, p. 168)as required by the Court in a Resolution of the Second Division dated

November 24, 1986 (Rollo, p. 160).

On May 19, 1987, private respondents in the instant petition filed a manifestation

praying for the denial of the instant petition in the same manner that G.R. No. 72620 was

denied by the Court in its Resolution dated July 23, 1986 (Rollo, p. 151). Their rejoinder

to the reply of petitioners was filed on May 25,1987 (Rollo, p. 179).

On June 8, 1987, the Court resolved to give due course to the petition (Rollo, p. 192). The

memorandum of private respondents was mailed on July 18, 1987 and received in the

Court on July 29, 1987 (Rollo, p. 112); the memorandum for petitioners was mailed on

August 18, 1987 and received in the Court on September 7, 1987 (Rollo, p. 177).

The sole issue to be resolved by the Court is the question of whether or not Cagbalite

Island is still undivided property owned in common by the heirs and successors-in-

interest of the brothers, Benedicto, Jose and Manuel Pansacola.

The Pansacola brothers purchased the Island in 1859 as common property and agreed

on how they would share in the benefits to be derived from the Island. On A pril 11, 1868,

they modified the terms and conditions of the agreement so as to include in the co-

ownership of the island the children of their deceased brothers Eustaquio and the other

children of Manuel Pansacola (Fr. Manuel Pena) who were committed in the agreement

of February 11, 1859. The new agreement provided for a new sharing proportion and

distribution of the Island among the co-owners.

On January 20, 1907, the representative of the heirs of all the original owners of

Cagbalite Island entered into an agreement to partition the Island, supplemented by

another agreement dated April 18, 1908. The contract dated January 20, 1907 provides

as follows:

Sa Mauban, Tayabas, ika 20 ng Enero ng 1907 caming mga

quinatawan ng mga ibang co-herederos na hindi caharap, sa pulong na

ito, sa nasa naming lahat na magcaroon na ng catahimikan ang aming-

aming cabahagui sa Pulong Kagbalete sumacatuid upang mapagtoosang hangahan ng apat na sapul na pagcacabahagui nitong manang ito,

pagcacausap na naming lahat at maihanay a t mapagtalonan ang

saysay ng isa't isa, ay cusa naming pinagcasunduan at pinasiya ang

nangasosonod:

Una: Ang malaquing calupaan, alis ang lahat na pacatan ay babahaguin

alinsunod sa pagcabaki na guinawa sa croquis na niyari ng practico

agrimensor Don Jose Garcia.

Icalawa: Ang Lomingoy, doon ang tuid na guhit sa ilong ng Pait ay

pagaapatin ding sinlaqui ayon sa dating pagkakabaki.

Icatlo: Cung magawa na ang tunay na piano at icapit na sa lupa,

paglalagay ng nadarapat na mojon, ang masacupan ng guhit,

sumacatuid ang caingin at pananim ng isa na nasacupan ng pucto na

noocol sa iba, ay mapapasulit sa dapat mag-ari, na pagbabayaran nitoang nagtanim sa halagang:- bawat caponong niog na nabunga, P 1.00


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'un peso); cung ang bias ay abot sa isang vara, P 0.50; cung bagong

tanim o locloc P 0. 50 ang capono.

Icapat: Ang lahat na pacatan ay bacod na pagaapatin at bawat bahaguiay noocol sa isat-isa sa apat na sanga ng paganacang nagmana.

Icalima: Upang ang naipatanim ng bawat isa ay matama sa canya ng

mailagan ang hirap ng loob ng nagatikha; ay pagtotolong-tolongan ng

lahat naiba na mahusay ang dalawang partes na magcalapit na mapa

ayong tumama, hangang may pagluluaran, sa nagsikap at maoyanam,

maidaco sa lugar na walang cailangang pagusapan.

Icanim: Ang casulatang ito, cung mapermahan na na magcacaharap

sampong ng mga ibang co-herederos na notipicahan nitong lahat na

pinagcasundoan ay mahahabilin sa camay ng agrimensor, Amadeo

Pansacola, upang canyang mapanusugan ang maipaganap ang dito'y

naootos.

Na sa catunayan at catibayan ng lahat na nalalagda dito, sa pag galang

at pag ganap dito sa paingacaisahan ay pumirma sampo ng mga

sacsing caharap at catanto ngayong fecha ayon sa itaas.

The contract dated April 18, 1908 provides as follows:

Sa Mauban, ika 18 ng Abril ng 1908, sa pagcacatipon ng lahat na

firmantes nito ay pinagcaisahan itong nangasosonod:

Una Pinagtitibay ang mga pinagcasundoan sa itaas noong 20 ng

Enero ng 1907, liban na lamang sa mga pangcat na una at icapat at

tongcol doon pinasiya naming bahaguinin ng halohalo at paparejo ang

calupaan at pacatan.

Ycalawa Sa pagsucat ng agrimensor na si Amadeo at paggawa ng

piano at descripcion ay pagbabayaran siya ng sa bawat isa naoocol sahalagang isang piso sa bawat hectares.

Icatlo Ang counting pucto sa 'Mayanibulong' na may caingin ni G.

Isidro Altamarino, asawa ni Restitute ay tutumbasan naman cay G.

Norberto Pansacola sa lugar ng Dapo calapit ng Pinangalo ng gasing

sucat.

Icapat Sa inilahad na piano ay pinasiya nang itoloy at upang maca

pagparehistro ang isa't isa ay pinagcaisahang magcacagastos na

parepareho para sa tablang pangmohon at ibat iba pang cagastusan.

Sa catunayan at catibayan ay cami, pumirma. (Record on Appeal, p.224)

There is nothing in all four agreements that suggests that actual or physical partition of

the Island had really been made by either the original owners or their heirs or

successors-in-interest. The agreement entered into in 1859 simply provides for the

sharing of whatever benefits can be derived from the island. The agreement, in fact,

states that the Island to be purchased shall be considered as their common property. In

the second agreement entered in 1868 the co-owners agreed not only on the sharing

proportion of the benefits derived from the Island but also on the distribution of the

Island each of the brothers was allocated a 1/4 portion of the Island with the children of

the deceased brother, Eustaquio Pansacola allocated a 1/4 portion and the children of

Manuel Pansacola (Fr. Manuel Pena) also allocated a 1/4 portion of the Island. With thedistribution agreed upon each of the co-owner is a co-owner of the whole, and in this

sense, over the whole he exercises the right of dominion, but he is at the same time the

sole owner of a portion, in the instant case, a 1/4 portion (for each group of co-owners)

of the Island which is truly abstract, because until physical division is effected such

portion is merely an Ideal share, not concretely determined (3 Manresa, Codigo Civil, 3rd

Ed., page 486, cited in Lopez vs. Cuaycong, 74 Phil. 601; De la Cruz vs. Cruz, 32 SCRA 307

[1970]; Felices vs. Colegado, 35 SCRA 173 [1970],; Dultra vs. CFl 70 SCRA 465 [1976];

Gatchalian vs. Arlegui, 75 SCRA 234 [1977].)

In the agreement of January 20, 1907, the heirs that were represented agreed on how the

Island was to be partitioned. The agreement of April 18, 1908 which supplements that of

January 20, 1907 reveals that as of the signing of the 1908 agreement no actual partition

of the Island had as yet been done. The second and fourth paragraphs of the agreementspeaks of a survey yet to be conducted by a certain Amadeo and a plan and description

yet to be made. Virgilio Pansacola, a son of the surveyor named Amadeo who is referred

to in the contract dated April 18, 1908 as the surveyor to whom the task of surveying

Cagbalite Island pursuant to said agreement was entrusted, however, testified that said

contracts were never implemented because nobody defrayed the expenses for surveying

the same (Record on Appeal, p. 225).

Petitioners invoke res judicatato bar this action for partition in view of the decision of

the Court in G.R. No. 21033,"Domingo Arce vs. Maria Villabona, et al.,"21034, "Domingo

Arce vs. Francisco Pansacola, et al.,"and 21035,"Domingo Arce vs. Emiliano Pansacola, et

al."promulgated on February 20, 1958 (Rollo, p. 141) and Brief for Defendants-

Appellees, p. 87 Appendix 1), wherein the Court said:

Considering the facts that he waited for a period of nearly 23 years

after the return from his deportation before taking any positive action

to recover his pretended right in the property in question, gives great

credit, in our opinion, to the declaration of the witnesses for the

defense (a) that the original parcel of land was partitioned as they

claim, and (b) that the plaintiff had disposed of all the right and

interest which he had in the portion which had been given to him.

The issue in the aforementioned case which were tried together is not whether there has

already been a partition of the Cagbalite Island. The actions were brought by the plaintiff

to recover possession of three distinct parcels of land, together with damages. In fact the

word partition was used in the metaphysical or Ideal sense (not in its physical sense).


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Commenting on the above ruling of the Court in connection with the instant case, the

respondent Court said:

Concededly, the Supreme Court decision in G.R. Nos. 21033-35 (Exh.X) did use or employ the word "partition." A careful reading of the

said decision will, however, reveal, and we so hold, that the

employment or use of the word "partition" therein was made not in its

technical and legal meaning or sense adverted to above, but, rather in

its Ideal, abstract and spiritual sense, this is (at) once evident from the

bare statement in said decision to the effect that the property wasdivided into four parts, without any reference to the specific parts of

the property that may have been adjudicated to each owner. There

being no such reference in the decision and in the judgment affirmed

therein to the adjudication of specific and definite portions of the

property to each co-owner, there is a clear and logical inference that

there was indeed no adjudication of specific and definite portions of

the property made to each co-owner.

It must be admitted that the word "partition" is not infrequently used both in popular

and technical parlance (Fule vs. Fule, 52 Phil. 750 [1929]). For purposes of the

aforementioned case, evidently the Court used the word "partition" to refer to the

distribution of the Cagbalite Island agreed upon by the original owners and in the later

agreements, by the heirs and their subsequent successors-in-interest. There need not bea physical partition; a distribution of the Island even in a state of indiviso or was

sufficient in order that a co-owner may validly sell his portion of the co-owned property.

The sale of part of a particular lot thus co-owned by one co-owner was within his

rightpro-indivisois valid in its entirety (Pamplona vs. Moreto, 96 SCRA 775 [1980]) but

he may not convey a physical portion with boundaries of the land owned in common(Mercado vs. Liwanag, 5 SCRA 472 [1962]). Definitely, there was no physical partition of

the Island in 1859. Neither could there have been one in 1894 because the manner of

subdividing the Island was only provided for in the later agreements entered into by the

heirs in 1907 and 1908. There was a distribution of the Island in 1868 as agreed upon by

the original co-owners in their agreement of April 11, 1868. Any agreement entered into

by the parties in 1894 could be no more than another agreement as to the distribution of

the Island among the heirs of the original co-owners and the preparation of a tentative

plan by a practical surveyor, a Mr. Jose Garcia, mentioned in the first paragraph of the1907 agreement, preparatory to the preparation of the real plan to be prepared by the

surveyor Amadeo, mentioned in the agreement of April 18, 1908.

What is important in the Court's ruling in the three aforementioned cases is that, the fact

that there was a distribution of the Island among the co-owners made the sale of

Domingo Arce of the portion allocated to him though pro-indiviso, valid. He thus

disposed of all his rights and interests in the portion given to him.

It is not disputed that some of the private respondents and some of the petitioners at the

time the action for partition was filed in the trial court have been in actual possession

and enjoyment of several portions of the property in question (Rollo, p. 148). This does

not provide any proof that the Island in question has already been actually partitionedand co-ownership terminated. A co-owner cannot, without the conformity of the other

co-owners or a judicial decree of partition issued pursuant to the provision of Rule 69 of

the Rules of Court (Rule 71 of the Old Rules), adjudicate to himself in fee simple a

determinate portion of the lot owned in common, as his share therein, to the exclusion of

other co-owners (Santos, Jr. vs. Buenconsejo, 14 SCRA 407 [1965]; Carvajal vs. Court of

Appeals, 112 SCRA 237 [1982]). It is a basic principle in the law of co-ownership both

under the present Civil Code as in the Code of 1889 that no individual co- owner can

claim any definite portion thereof (Diversified Credit Corporation vs. Rosada 26 SCRA

470 [1968]). lt is therefore of no moment that some of the co-owners have succeeded in

securing cadastral titles in their names to some portions of the Island occupied by them

(Rollo, p. 10).

It is not enough that the co-owners agree to subdivide the property. They must have a

subdivision plan drawn in accordance with which they take actual and exclusive

possession of their respective portions in the plan and titles issued to each of them

accordingly (Caro vs. Court of Appeals, 113 SCRA 10 [1982]). The mechanics of actual

partition should follow the procedure laid down in Rule 69 of the Rules of Court.

Maganon vs. Montejo, 146 SCRA 282 [1986]).

Neither can such actual possession and enjoyment of some portions of the Island by

some of the petitioners herein be considered a repudiation of the co-ownership. It is

undisputed that the Cagbalite Island was purchased by the original co-owners as a

common property and it has not been proven that the Island had been partitioned among

them or among their heirs. While there is co-ownership, a co-owner's possession of hisshare is co-possession which is linked to the possession of the other co-owners

(Gatchalian vs. Arlegui, 75 SCRA 234 [1977]).

Furthermore, no prescription shall run in favor of a co-owner against his co-owners or

co-heirs so long as he expressly or impliedly recognizes the co-ownership (Valdez vs.

Olonga, 51 SCRA 71 [1973], Tero vs. Tero, 131 SCRA 100 [1984]). Co-owners cannot

acquire by prescription the share of the other co-owners, absent a clear repudiation of

the co-ownership clearly communicated to the other co-owners (Mariano vs. De Vega,

148 SCRA 342 [1987]).

An action for partition does not prescribe. Article 403 of the Old Civil Code, now Article

497, provides that the assignees of the co-owners may take part in the partition of thecommon property, and Article 400 of the Old Code, now Article 494 provides that each

co-owner may demand at any time the partition of the common property, a provision

which implies that the action to demand partition is imprescriptible or cannot be barred

by laches (Budlong vs. Pondoc, 79 SCRA 24 [1977]). An action for partition does not lie

except when the co-ownership is properly repudiated by the co- owner (Jardin vs.

Hollasco, 117 SCRA 532 [1982]).

On July 23, 1986, the Court through its Second Division denied the petition for the review

of G.R. No. 72620, the petition for review on certiorari separately filed by JosefinaPansacola (Rollo, p. 151).

PREMISES CONSIDERED, the instant petition is likewise DENIED for lack of merit.


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SO ORDERED.

Teehankee, C.J., Narvasa, Cruz and Gancayco, JJ., concur.


SUPREME COURT

Manila

EN BANC

G.R. No. L-4656 November 18, 1912

RICARDO PARDELL Y CRUZ and

VICENTA ORTIZ Y FELIN DE PARDELL,plaintiffs-appellees,

vs.

GASPAR DE BARTOLOME Y ESCRIBANO and

MATILDE ORTIZ Y FELIN DE BARTOLOME, defendants-appellants.

Gaspar de Bartolome, in his own behalf.

B. Gimenez Zoboli, for appellees.

TORRES,J.:

This is an appeal by bill of exceptions, from the judgment of October 5, 1907, whereby

the Honorable Dionisio Chanco, judge, absolved the defendants from the complaint, and

the plaintiff from a counterclaim, without special finding as to costs.

Counsel for the spouses Ricardo y Cruz and Vicente Ortiz y Felin de Pardell, the first of

whom, absent in Spain by reason of his employment, conferred upon the second

sufficient and ample powers to appear before the courts of justice, on June 8, 1905, in his

written complaint, alleged that the plaintiff, Vicente Ortiz, and the defendant, MatildeOrtiz, are the duly recognized natural daughters of the spouses Miguel Ortiz and Calixta

Felin y Paula who died in Vigan, Ilocos Sur, in 1875 and 1882, respectively; that Calixta

Felin, prior to her death, executed on August 17, 1876, a nuncupative will in Vigan

whereby she made her four children, named Manuel, Francisca, Vicenta, and Matilde,

surnamed Ortiz y Felin, her sole and universal heirs of all her property; that, of the

persons enumerated, Manuel died before his mother and Francisca a few years after her

death, leaving no heirs by force of law, and therefore the only existing heirs of the saidtestatrix are the plaintiff Vicenta Ortiz and the defendant Matilde Ortiz; that, aside from

some personal property and jewelry already divided among the heirs, the testatrix

possessed, at the time of the execution of her will, and left at her death the real

properties which, with their respective cash values, are as follows:

1. A house of strong material, with the lot on which it is built, P6,000.00

situated on Escolta Street, Vigan, and valued at

2. A house of mixed material, with the lot on which it stands, at No.

88 Washington Street, Vigan; valued at1,500.00

3. A lot on Magallanes Street, Vigan; valued at 100.00

4. A parcel of rice land, situated in the barrio of San Julian, Vigan;

valued at60.00

5. A parcel of rice land in the pueblo of Santa Lucia; valued at 86.00

6. Three parcels of land in the pueblo of Candon; valued at 150.00

Total 7,896.00

That, on or about the first months of the year 1888, the defendants, without judicialauthorization, nor friendly or extrajudicial agreement, took upon themselves the

administration and enjoyment of the said properties and collected the rents, fruits, and

products thereof, to the serious detriment of the plaintiffs' interest; that,

notwithstanding the different and repeated demands extrajudicially made upon Matilde

Ortiz to divide the aforementioned properties with the plaintiff Vicente and to deliver to

the latter the one-half thereof, together with one-half of the fruits and rents collectedtherefrom, the said defendant and her husband, the self-styled administrator of the

properties mentioned, had been delaying the partition and delivery of the said properties

by means of unkept promises and other excuses; and that the plaintiffs, on account of the

extraordinary delay in the delivery of one-half of said properties, or their value in cash,

as the case might be, had suffered losses and damages in the sum of P8,000. Said counsel

for the plaintiffs therefore asked that judgment be rendered by sentencing the

defendants, Gaspar de Bartolome, and Matilde Ortiz Felin de Bartolome, to restore anddeliver to the plaintiffs one-half of the total value in cash, according to appraisal, of the

undivided property specified, which one-half amounted approximately to P3,948, or if

deemed proper, to recognize the plaintiff Vicenta Ortiz to be vested with the full and

absolute right of ownership to the said undivided one-half of the properties in question,

as universal testamentary heir thereof together with the defendant Matilde Ortiz, to

indemnify the plaintiffs in the sum of P8,000, for losses and damages, and to pay thecosts.

Counsel for the defendants, in his answer denied the facts alleged in paragraphs 1, 4, 6, 7,

and 8 thereof, inasmuch as, upon the death of the litigating sister's brother Manuel, their

mother, who was still living, was his heir by force of law, and the defendants had neverrefused to give to the plaintiff Vicente Ortiz her share of the said properties; and stated

that he admitted the facts alleged in paragraph 2, provided it be understood, however,

that the surname of the defendant's mother was Felin, and not Feliu, and that Miguel

Ortiz died in Spain, and not in Vigan; that he also admitted paragraph 3 of the complaint,

with the difference that the said surname should be Felin, and likewise paragraph 5,

except the part thereof relating to the personal property and the jewelry, since the latter

had not yet been divided; that the said jewelry was in the possession of the plaintiffs and

consisted of: one Lozada gold chronometer watch with a chain in the form of a bridlecurb and a watch charm consisting of the engraving of a postage stamp on a stone


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mounted in gold and bearing the initials M. O., a pair of cuff buttons made of gold coins,

four small gold buttons, two finger rings, another with the initials M. O., and a gold

bracelet; and that the defendants were willing to deliver to the plaintiffs, in conformity

with their petitions, one-half of the total value in cash, according to appraisement, of the

undivided real properties specified in paragraph 5, which half amounted to P3,948.

In a special defense said counsel alleged that the defendants had never refused to divide

the said property and had in fact several years before solicited the partition of the same;

that, from 1886 to 1901, inclusive, there was collected from the property on Calle Escolta

the sum of 288 pesos, besides a few other small amounts derived from other sources,which were delivered to the plaintiffs with other larger amounts, in 1891, and from the

property on Calle Washington, called La Quinta, 990.95 pesos, which proceeds, added

together, made a total of 1,278.95 pesos, saving error or omission; that, between the

years abovementioned, Escolta, and that on Calle Washington,La Quinta, 376.33, which

made a total of 1,141.71, saving error or omission; that, in 1897, the work of

reconstruction was begun of the house on Calle Escolta, which been destroyed by an

earthquake, which work was not finished until 1903 and required an expenditure on the

part of the defendant Matilde Ortiz, of 5,091.52 pesos; that all the collections made up to

August 1, 1905, including the rent from the stores, amounted to only P3,654.15, and the

expenses, to P6,252.32, there being, consequently, a balance of P2,598.17, which divided

between the sisters, the plaintiff and the defendant, would make the latter's share

P1,299.08; that, as shown by the papers kept by the plaintiffs, in the year 1891 the

defendant Bartolome presented to the plaintiffs a statement in settlements of accounts,and delivered to the person duly authorized by the latter for the purpose, the sum of

P2,606.29, which the said settlement showed was owing his principals, from various

sources; that, the defendant Bartolome having been the administrator of the undivided

property claimed by the plaintiffs, the latter were owing the former legal remuneration

of the percentage allowed by law for administration; and that the defendants were

willing to pay the sum of P3,948, one-half of the total value of the said properties,

deducting therefrom the amount found to be owing them by the plaintiffs, and asked that

judgment be rendered in their favor to enable them to recover from the latter that

amount, together with the costs and expenses of the suit.

The defendants, in their counter claim, repeated each and all of the allegations contained

in each of the paragraphs of section 10 of their answer; that the plaintiffs were obliged to

pay to the administrator of the said property the remuneration allowed him by law; that,as the revenues collected by the defendants amounted to no more than P3,654.15 and

the expenditures incurred by them, to P6,252.32, it followed that the plaintiffs owed the

defendants P1,299.08, that is one-half of the difference between the amount collected

from and that extended on the properties, and asked that judgment be therefore

rendered in their behalf to enable them to collect this sum from the plaintiffs, RicardoPardell and Vicenta Ortiz, with legal interest thereon from December 7, 1904, the date

when the accounts were rendered, together with the sums to which the defendant

Bartolome was entitled for the administration of the undivided properties in question.

By a written motion of August 21, 1905, counsel for the plaintiffs requested permission

to amend the complaint by inserting immediately after the words "or respective

appraisal," fifth line of paragraph 5, the phrase "in cash in accordance with the assessed

value," and likewise further to amend the same, in paragraph 6 thereof, by substitutingthe following word in lieu of the petition for the remedy sought: "By reason of all the

foregoing, I beg the court to be pleased to render the judgment by sentencing the

defendants, Gaspar de Bartolome and Matilde Ortiz Felin de Bartolome, to restore and

deliver to the plaintiffs an exact one-half of the total vale of the undivided properties

described in the complaint, such value to be ascertained by the expert appraisal of two

competent persons, one of whom shall be appointed by the plaintiffs and the other by the

defendants, and, in case of disagreement between these two appointees such value shall

be determined by a third expert appraiser appointed by the court, or, in a proper case, by

the price offered at public auction; or, in lieu thereof, it is requested that the court

recognize the plaintiff, Vicenta Ortiz, to be vested with a full and absolute right to an

undivided one-half of the said properties; furthermore, it is prayed that the plaintiffs beawarded an indemnity of P8,000 for losses and damages, and the costs."

Notwithstanding the opposition of the defendants, the said amendment was admitted by

the court and counsel for the defendants were allowed to a period of three days within

which to present a new answer. An exception was taken to this ruling.

The proper proceedings were had with reference to the valuation of the properties

concerned in the division sought and incidental issues were raised relative to the

partition of some of them and their award to one or the other of the parties. Due

consideration was taken of the averments and statements of both parties who agreed

between themselves, before the court, that any of them might at any time acquire, at the

valuation fixed by the expert judicial appraiser, any of the properties in question, there

being none in existence excluded by the litigants. The court, therefore, by order of

December 28, 1905, ruled that the plaintiffs were entitled to acquire, at the valuationdetermined by the said expert appraiser, the building known as La Quinta, the lot on

which it stands and the warehouses and other improvements comprised within the

inclosed land, and the seeds lands situated in the pueblos of Vigan and Santa Lucia; and

that the defendants were likewise entitled to acquire the house on Calle Escolta, the lot

on Calle Magallanes, and the three parcels of land situated in the pueblo of Candon.

After this partition had been made counsel for the defendants, by a writing of March 8,

1906, set forth: That, having petitioned for the appraisement of the properties in

question for the purpose of their partition, it was not to be understood that he desired

from the exception duly entered to the ruling made in the matter of the amendment to

the complaint; that the properties retained by the defendants were valued at P9,310, and

those retained by the plaintiffs, at P2,885, one-half of which amounts each party had to

deliver to the other, as they were pro indivisoproperties; that, therefore, the defendantshad to pay the plaintiffs the sum of P3,212.50, after deducting the amount which the

plaintiffs were obliged to deliver to the defendants, as one-half of the price of the

properties retained by the former; that, notwithstanding that the amount of the

counterclaim for the expenses incurred in the reconstruction of the pro indiviso property

should be deducted from the sum which the defendants had to pay the plaintiffs, theformer, for the purpose of bringing the matter of the partition to a close, would deliver to

the latter, immediately upon the signing of the instrument of purchase and sale, the sum

of P3,212.50, which was one-half of the value of the properties alloted to the defendants;

such delivery, however, was not to be understood as a renouncement of the said

counterclaim, but only as a means for the final termination of thepro indiviso status of

the property.

The case having been heard, the court on October 5, 1907, rendered judgment holdingthat the revenues and the expenses were compensated by the residence enjoyed by the


7/38

defendant party, that no losses or damages were either caused or suffered, nor likewise

any other expense besides those aforementioned, and absolved the defendants from the

complaint and the plaintiffs from the counterclaim, with no special finding as to costs. An

exception was taken to this judgment by counsel for the defendants who moved for a

new trial on the grounds that the evidence presented did not warrant the judgment

rendered and that the latter was contrary to law. This motion was denied, exception

whereto was taken by said counsel, who filed the proper bill of exceptions, and the same

was approved and forwarded to the clerk of this court, with a transcript of the evidence.

Both of the litigating sisters assented to a partition by halves of the property left in herwill by their mother at her death; in fact, during the course of this suit, proceedings were

had, in accordance with the agreement made, for the division between them of the said

hereditary property of common ownership, which division was recognized and approved

in the findings of the trial court, as shown by the judgment appealed from.

The issues raised by the parties, aside from said division made during the trial, and

which have been submitted to this court for decision, concern: (1) The indemnity

claimed for losses and damages, which the plaintiffs allege amount to P8,000, in addition

to the rents which should have been derived from the house on Calle Escolta, Vigan; (2)

the payment by the plaintiffs to the defendants of the sum of P1,299.08, demanded by

way of counterclaim, together with legal interest thereon from December 7, 1904; (3) the

payment to the husband of the defendant Matilde Ortiz, of a percentage claimed to be

due him as the administrator of the property of common ownership; (4) the division ofcertain jewelry in the possession of the plaintiff Vicenta Ortiz; and (5) the petition that

the amendment be held to have been improperly admitted, which was made by the

plaintiffs in their written motion of August 21, 1905, against the opposition of the

defendants, through which admission the latter were obliged to pay the former

P910.50.lawphil.net

Before entering upon an explanation of the propriety or impropriety of the claims made

by both parties, it is indispensable to state that the trial judge, in absolving the

defendants from the complaint, held that they had not caused losses and damages to the

plaintiffs, and that the revenues and the expenses were compensated, in view of the fact

that the defendants had been living for several years in the Calle Escolta house, which

waspro indivisoproperty of joint ownership.

By this finding absolving the defendants from the complaint, and which was acquiesced

in by the plaintiffs who made no appeal therefrom, the first issue has been decided which

was raised by the plaintiffs, concerning the indemnity for losses and damages, wherein

are comprised the rents which should have been obtained from the upper story of the

said house during the time it was occupied by the defendants, Matilde Ortiz and her

husband, Gaspar de Bartolome.

Notwithstanding the acquiescence on the part of the plaintiffs, assenting to the saidfinding whereby the defendants were absolved from the complaint, yet, as such

absolution is based on the compensation established in the judgment of the trial court,

between the amounts which each party is entitled to claim from the other, it is

imperative to determine whether the defendant Matilde Ortiz, as coowner of the houseon Calle Escolta, was entitled, with her husband, to reside therein, without paying to her

coowner, Vicenta Ortiz, who, during the greater part of the time, lived with her husband

abroad, one-half of the rents which the upper story would have produced, had it been

rented to a stranger.

Article 394 of the Civil Code prescribes:

Each coowner may use the things owned in common, provided he uses them in

accordance with their object and in such manner as not to injure the interests

of the community nor prevent the coowners from utilizing them according to

their rights.

Matilde Ortiz and her husband occupied the upper story, designed for use as a dwelling,

in the house of joint ownership; but the record shows no proof that, by so doing, the said

Matilde occasioned any detriment to the interest of the community property, nor that

she prevented her sister Vicenta from utilizing the said upper story according to her

rights. It is to be noted that the stores of the lower floor were rented and accounting of

the rents was duly made to the plaintiffs.

Each coowner of realty heldpro indiviso exercises his rights over the whole property and

may use and enjoy the same with no other limitation than that he shall not injure the

interests of his coowners, for the reason that, until a division be made, the respective

part of each holder can not be determined and every one of the coowners exercises,together with his other coparticipants, joint ownership over the pro indiviso property, in

addition to his use and enjoyment of the same.

As the hereditary properties of the joint ownership of the two sisters, Vicenta Ortiz,

plaintiff, and Matilde Ortiz, defendant, were situated in the Province of Ilocos Sur, and

were in the care of the last named, assisted by her husband, while the plaintiff Vicenta

with her husband was residing outside of the said province the greater part of the time

between 1885 and 1905, when she left these Islands for Spain, it is not at all strange that

delays and difficulties should have attended the efforts made to collect the rents andproceeds from the property held in common and to obtain a partition of the latter,

especially during several years when, owing to the insurrection, the country was in a

turmoil; and for this reason, aside from that founded on the right of coownership of the

defendants, who took upon themselves the administration and care of the properties ofjoint tenancy for purposes of their preservation and improvement, these latter are not

obliged to pay to the plaintiff Vicenta one-half of the rents which might have been

derived from the upper of the story of the said house on Calle Escolta, and, much less,

because one of the living rooms and the storeroom thereof were used for the storage of

some belongings and effects of common ownership between the litigants. The defendant

Matilde, therefore, in occupying with her husband the upper floor of the said house, did

not injure the interests of her coowner, her sister Vicenta, nor did she prevent the latter

from living therein, but merely exercised a legitimate right pertaining to her as coowner

of the property.

Notwithstanding the above statements relative to the joint-ownership rights which

entitled the defendants to live in the upper story of the said house, yet in view of the fact

that the record shows it to have been proved that the defendant Matilde's husband,Gaspar de Bartolome, occupied for four years a room or a part of the lower floor of the


8/38

same house on Calle Escolta, using it as an office for the justice of the peace, a position

which he held in the capital of that province, strict justice, requires that he pay his sister-

in-law, the plaintiff, one half of the monthly rent which the said quarters could have

produced, had they been leased to another person. The amount of such monthly rental is

fixed at P16 in accordance with the evidence shown in the record. This conclusion as to

Bartolome's liability results from the fact that, even as the husband of the defendant

coowner of the property, he had no right to occupy and use gratuitously the said part of

the lower floor of the house in question, where he lived with his wife, to the detriment of

the plaintiff Vicenta who did not receive one-half of the rent which those quarters could

and should have produced, had they been occupied by a stranger, in the same mannerthat rent was obtained from the rooms on the lower floor that were used as stores.

Therefore, the defendant Bartolome must pay to the plaintiff Vicenta P384, that is, one -

half of P768, the total amount of the rents which should have been obtained during four

years from the quarters occupied as an office by the justice of the peace of Vigan.

With respect to the second question submitted for decision to this court, relative to the

payment of the sum demanded as a counterclaim, it was admitted and proved in the

present case that, as a result of a serious earthquake on August 15, 1897, the said house

on Calle Escolta was left in ruins and uninhabitable, and that, for its reconstruction or

repair, the defendants had to expend the sum of P6,252.32. This expenditure,

notwithstanding that it was impugned, during the trial, by the plaintiffs, was duly proved

by the evidence presented by the defendants. Evidence, unsuccessfully rebutted, was

also introduced which proved that the rents produced by all the rural and urbanproperties of common ownership amounted, up to August 1, 1905, to the sum of

P3,654.15 which, being applied toward the cost of the repair work on the said house,

leaves a balance of P2,598.17, the amount actually advanced by the defendants, for the

rents collected by them were not sufficient for the termination of all the work

undertaken on the said building, necessary for its complete repair and to replace it in a

habitable condition. It is therefore lawful and just that the plaintiff Vicenta Ortiz, who

was willing to sell to her sister Matilde for P1,500, her share in the house in question,

when it was in a ruinous state, should pay the defendants one-half of the amount

expanded in the said repair work, since the building after reconstruction was worth

P9,000, according to expert appraisal. Consequently, the counterclaim made by the

defendants for the payment to them of the sum of P1,299.08, is a proper demand, though

from this sum a reduction must be made of P384, the amount of one-half of the rents

which should have been collected for the use of the quarters occupied by the justice ofthe peace, the payment of which is incumbent upon the husband of the defendant

Matilde, as aforesaid, and the balance remaining, P915.08, is the amount which the

plaintiff Vicenta must pay to the defendants.

The defendants claim to be entitled to the collection of legal interest on the amount of thecounterclaim, from December 7, 1904. This contention can not be sustained, inasmuch

as, until this suit is finally decided, it could not be known whether the plaintiffs would or

would not be obliged to pay the sum whatever in reimbursement of expenses incurred

by the plaintiffs in the repair work on the said house on Calle Escolta, whether or not the

defendants, in turn, were entitled to collect any such amount, and, finally, what the net

sum would be which the plaintiff's might have to pay as reimbursement for one-half of

the expenditure made by the defendants. Until final disposal of the case, no such net sum

can be determined, nor until then can the debtor be deemed to be in arrears. In orderthat there be an obligation to pay legal interest in connection with a matter at issue

between the parties, it must be declared in a judicial decision from what date the interest

will be due on the principal concerned in the suit. This rule has been established by the

decisions of the supreme court of Spain, in reference to articles 1108, 1109, and 1110 of

the Civil Code, reference on April 24, 1867, November 19, 1869, and February 22, 1901.

With regard to the percentage, as remuneration claimed by the husband of the defendant

Matilde for his administration of the property of common ownership, inasmuch as no

stipulation whatever was made in the matter by and between him and his sister-in-law,

the said defendant, the claimant is not entitled to the payment of any remuneration

whatsoever. Of his own accord and as an officious manager, he administered the saidproindivisoproperty, one-half of which belonged to his wife who held it in joint tenancy, with

his sister-in-law, and the law does not allow him any compensation as such voluntary

administrator. He is merely entitled to a reimbursement for such actual and necessary

expenditures as he may have made on the undivided properties and an indemnity for the

damages he may have suffered while acting in that capacity, since at all events it was his

duty to care for and preserve the said property, half of which belonged to his wife; and in

exchange for the trouble occasioned him by the administration of his sister-in-law's half

of the said property, he with his wife resided in the upper story of the house

aforementioned, without payment of one-half of the rents said quarters might have

produced had they been leased to another person.

With respect to the division of certain jewelry, petitioned for by the defendants and

appellants only in their brief in this appeal, the record of the proceedings in the lowercourt does not show that the allegation made by the plaintiff Vicenta is not true, to the

effect that the deceased mother of the litigant sisters disposed of this jewelry during her

lifetime, because, had she not done so, the will made by the said deceased would have

been exhibited in which the said jewelry would have been mentioned, at least it would

have been proved that the articles in question came into the possession of the plaintiffVicenta without the expressed desire and the consent of the deceased mother of the said

sisters, for the gift of this jewelry was previously assailed in the courts, without success;

therefore, and in view of its inconsiderable value, there is no reason for holding that the

said gift was not made.

As regards the collection of the sum of P910.50, which is the difference between the

assessed value of the undivided real properties and the price of the same as determined

by the judicial expert appraiser, it is shown by the record that the ruling of the trial judgeadmitting the amendment to the original complaint, is in accord with the law and

principles of justice, for the reason that any of the coowners of apro indiviso property,

subject to division or sale, is entitled to petition for its valuation by competent expert

appraisers. Such valuation is not prejudicial to any of the joint owners, but is beneficial to

their interests, considering that, as a general rule, the assessed value of a building or a

parcel of realty is less than the actual real value of the property, and this being appraiser

to determine, in conjunction with the one selected by the plaintiffs, the value of the

properties of joint ownership. These two experts took part in the latter proceedings of

the suit until finally, and during the course of the latter, the litigating parties agreed to an

amicable division of thepro indiviso hereditary property, in accordance with the price

fixed by the judicial expert appraiser appointed as a third party, in view of the

disagreement between and nonconformity of the appraisers chosen by the litigants.

Therefore it is improper now to claim a right to the collection of the said sum, thedifference between the assessed value and that fixed by the judicial expert appraiser, for


9/38

the reason that the increase in price, as determined by this latter appraisal, redounded to

the benefit of both parties.

In consideration of the foregoing, whereby the errors assigned to the lower court havebeen duly refuted, it is our opinion that, with a partial reversal of the judgment appealed

from, in so far as it absolves the plaintiffs from the counterclaim presented by the

defendants, we should and hereby do sentence the plaintiffs to the payment of the sum of

P915.08, the balance of the sum claimed by the defendants as a balance of the one-half of

the amount which the defendants advanced for the reconstruction or repair of the Calle

Escolta house, after deducting from the total of such sum claimed by the latter theamount of P384 which Gaspar de Bartolome, the husband of the defendant Matilde,

should have paid as one-half of the rents due for his occupation of the quarters on the

lower floor of the said house as an office for the justice of the peace court of Vigan; and

we further find: (1) That the defendants are not obliged to pay one-half of the rents

which could have been obtained from the upper story of the said house; (2) that the

plaintiffs can not be compelled to pay the legal interest from December 7, 1904, on the

sum expanded in the reconstruction of the aforementioned house, but only the interest

fixed by law, at the rate of 6 per cent per annum, from the date of the judgment to be

rendered in accordance with this decision; (3) that the husband of the defendant Matilde

Ortiz is not entitled to any remuneration for the administration of thepro

indivisoproperty belonging to both parties; (4) that, neither is he entitled to collect from

the plaintiffs the sum of P910.50, the difference between the assessed valuation and the

price set by the expert appraisal solicited by the plaintiffs in their amendment to thecomplaint; and, (5) that no participation shall be made of jewelry aforementioned now in

the possession of the plaintiff Vicenta Ortiz. The said judgment, as relates to the points

appealed, is affirmed, in so far as its findings agree with those of this decision, and is

reversed, in so far as they do not. No special finding is made regarding the costs of both

instances. So ordered.

Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur.


SUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-46001 March 25, 1982

LUZ CARO, petitioner,

vs.

HONORABLE COURT OF APPEALS and BASILIA LAHORRA VDA. DE BENITO, AS

ADMINISTRATRIX OF THE INTESTATE ESTATE OF MARIO BENITO, respondents.

GUERRERO,J.:

This is a petition for certiorari under Rule 45 of the Revised Rules of Court seeking a

review of the decision of the Court of Appeals, 1promulgated on February 11, 1977, in

CA-G.R. No. 52570-R entitled "Basilia Lahorra Vda. de Benito, as Administratrix of the

Intestate Estate of Mario Benito vs. Luz Caro", as well as the resolution of the respondent

Court, dated May 13, 1977, denying petitioner's Motion for Reconsideration.

The facts of the case are as follows:

Alfredo Benito, Mario Benito and Benjamin Benito were the original co-owners of two

parcels of land covered by Transfer Certificates of Title Nos. T-609 and T-610 of theRegistry of Deeds of Sorsogon. Mario died sometime in January, 1957. His surviving wife,

Basilia Lahorra and his father, Saturnino Benito, were subsequently appointed in Special

Proceeding No. 508 of the Court of First Instance of Sorsogon as joint administrators of

Mario's estate.

On August 26, 1959, one of the co-owners, Benjamin Benito, executed a deed of absolute

sale of his one-third undivided portion over said parcels of land in favor of herein

petitioner, Luz Caro, for the sum of P10,000.00. This was registered on September 29,

1959. Subsequently, with the consent of Saturnino Benito and Alfredo Benito as shown in

their affidavits both dated September 15, 1960, Exhibits G and F respectively, a

subdivision title was issued to petitioner Luz Caro over Lot I -C, under T.C.T. No. T-4978.

Sometime in the month of May, 1966, private respondent Basilia Lahorra Vda. de Benito

learned from an allegation in a pleading presented by petitioner in Special Proceeding

No. 508 that the latter acquired by purchase from Benjamin Benito the aforesaid one-

third undivided share in each of the two parcels of land. After further verification, she

sent to petitioner thru her counsel, a written offer to redeem the said one-third

undivided share dated August 25, 1966. Inasmuch as petitioner ignored said offer,

private respondent sought to intervene in Civil Case No. 2105 entitled "Rosa Amador

Vda. de Benito vs. Luz Caro" for annulment of sa le and mortgage and cancellation of the

annotation of the sale and mortgage involving the same parcels o f land, but did not

succeed as the principal case was dismissed on a technicality, that is, for failure to

prosecute and the proposed intervenor failed to pay the docketing fees. Private

respondent, thus, filed the present case as an independent one and in the trial sought to

prove that as a joint administrator of the estate of Mario Benito, she had not beennotified of the sale as required by Article 1620 in connection with Article 1623 of the

New Civil Code.

On the other hand, petitioner presented during the hearing of the case secondary

evidence of the service of written notice of the intended sale to possible redemptioners

in as much as the best thereof, the written notices itself sent to and Saturnino Benito,

could not be presented for the reason that said notices were sent to persons who were

already dead when the complaint for legal redemption was brought. Instead, the affidavit

of Benjamin Benito, executed ante litem motam,attesting to the fact that the possibleredemptioners were formally notified in writing of his intention to sell his undivided

share, was presented in evidence. The deposition of Saturnino's widow was likewise

taken and introduced in evidence, wherein she testified that she received and gave to her

husband the written notice of the intended sale but that the latter expressed disinterestin buying the property.


10/38

After hearing the evidence, the trial judge dismissed the complaint on the grounds that:

(a) private respondent, as administratrix of the intestate estate of Mario Benito, does not

have the power to exercise the right of legal redemption, and (b) Benjamin Benito

substantially complied with his obligation of furnishing written notice of the sale of his

one-third undivided portion to possible redemptioners.

Private respondent's Motion for Reconsideration of the trial court's decision having been

denied, she appealed to the respondent Court of Appeals contending that the trial Judge

erred in

I. . . not inhibiting himself from trying and deciding the case because

his son is an associate or member of the law office of Atty. Rodolfo A.

Madrid, the attorney of record of defendant-appellee in the instant

case;

II. . contending that Benjamin Benito complied with the provisions of

Article 1623 of the Revised Civil Code that before a co-owner could

sell his share of the property owned in common with the other co-

heirs, he must first give written notice of his desire to his co-heirs; (p.

49, R.A.)

III. concluding that the fact that one of the administrators who wasactively managing the estate was furnished a written notice by the co-

owner of his desire to sell his share was enough compliance of the

provisions of Article 1623 of the Civil Code for the reason that the

intention of the law is only to give a chance to the new co-owner to

buy the share intended to be sold if he desires to buy the same; (p. 50,

R.A.)

IV. . refusing to allow plaintiff to redeem the subject property upon

authority of Butte vs. Manuel Uy & Sons, L-15499, Feb. 28, 1962 (p. 51,R.A.) and in consequently dismissing the complaint (p. 52, R.A.).

In disposing of the aforesaid errors, the Court of Appeals finding for plaintiff (herein

private respondent) held:

1. That it is not clear that Atty. Arcangel, son of the trial Judge, was legally associated aspractitioner with counsel for Luz Caro; that it is not shown at any rate that plaintiff had

asked for Judge Arcangel's disqualification and that at any rate also, in such factual

situation, an optional ground for disqualification is addressed to his sound discretion

with which it would not be correct for appellate court to interfere or overrule.

2. That since the right of the co-owner to redeem in case his share be sold to a stranger

arose after the death of Mario Benito, such right did not form part of the hereditary

estate of Mario but instead was the personal right of the heirs, one of whom is Mario's

widow. Thus, it behooved either the vendor, Benjamin, or his vendee, Luz Caro, to have

made a written notice of the intended or consummated sale under Article 1620 of theCivil Code.

3. That the recital in the deed of sale that the vendor notified his co-owners of his desire

to dispose of his share, who all declined to buy, was but a unilateral statement and could

not be proof of the notice required by the law.

4. That the registration of the deed of sale did not erase that right.

5. That the affidavit of notice executed on January 20, 1960 of Benjamin Benito declaring

that written notices of the sale as required by law were duly sent to Alfredo Benito and

Saturnino Benito, the latter in his capacity as administrator of the estate of Mario Benito,

as well as the sworn statement of Saturnino Benito's widow dated November 18, 1968confirming that her husband received the written notice of the sale referred to in

Benjamin Benito's affidavit of notice would not satisfy that there was clear notice in

writing of the specific term of the intended sale. Worse, Saturnino was only a co-

administrator and hence, his unilateral act could not bind the principal because there

was no less than a renunciation of a right pertaining to the heirs, under Article 1818,

NCC, apart from the fact that the right of redemption is not within their administration.

6. That the further claim of defendant that offer to redeem was filed out of time and that

there was no actual tender loses all importance, there being no date from which to count

the 30-day period to redeem because there was no notice given.

The dispositive part of the decision of the Court of Appeals reads as follows:

IN VIEW THEREOF, this Court is constrained to reverse, as it now

reverses, judgment appealed from, upon payment by plaintiff or

deposit in Court, within 30 days after this judgment should have

become final, of the sum of P10,000.00, defendant is ordered to

execute a deed of redemption over the one-third share of BENJAMIN

BENITO in favor of plaintiff for herself and as representative of the

children of Mario Benito and therefrom, to deliver said one-third

share of BENJAMIN BENITO, costs against defendant-appellee.

SO ORDERED.

Upon denial of the motion for reconsideration, petitioner brought this petition for review

raising the following errors:

1. Respondent Court erred in allowing the exercise of the right of legal redemption with

respect to the lots in question.

2. Respondent Court erred when it made the finding that there was no notice in law from

which to count the tolling of the period of redemption and that the sale was not made

known at all to private respondent.

The alleged first error of respondent Court is premised on the fact that the lot in question

sought to be redeemed is no longer owned in common. Petitioner contends that the right

sought to be exercised by private respondent in the case assumes that the land in


11/38

question is under co-ownership, the action being based on Article 1620 of the New Civil

Code which provides:

A co-owner of a thing may exercise the right of redemption in case theshares of all the other co-owners or any of them, are sold to a third

person. If the price of alienation is grossly excessive, the petitioner

shall pay only a reasonable price.

Should two or more co-owners desire to exercise the right of

redemption, they may only do so in proportion to the share they mayrespectively have in the thing owned in common.

However, the fact is that as early as 1960, co-ownership of the parcels of land covered by

Transfer Certificates of Title Nos. T-609 and T-610 was terminated when Alfredo Benito,

Luz Caro and the Intestate Estate of Mario Benito, represented by administrators

Saturnino Benito, as trustee and representative of the heirs of Mario Benito, agreed to

subdivide the property.

An agreement of partition, though oral, is valid and consequently

binding upon the parties. (Hernandez vs. Andal, et al., 78 Phil. 196)

A petition for subdivision was then filed for the purpose. This was accompanied by theaffidavits of Alfredo Benito and Saturnino Benito, both dated September 15, 1960 to the

effect that they agree to the segregation of the land formerly owned in common by Mario

Benito, Alfredo Benito and Benjamin Benito. A subdivision plan was made and by

common agreement Lot I-C thereof, with an area of 163 hectares, more or less, was

ceded to petitioner. Thereafter, the co-owners took actual and exclusive possession of

the specific portions respectively assigned to them. A subdivision title was subsequently

issued on the lot assigned to petitioner, to wit, Transfer Certificate of Title No. T-4978.

In Caram, et al. vs. Court of Appeals, et al., 101 Phil. 315, a case squarely in point, this

Court held:

Inasmuch as the purpose of the law in establishing the right of legalredemption between co-owners is to reduce the number of

participants until the community is done away with (Viola vs. Tecson,

49 Phil. 808), once the property is subdivided and distributed amongthe co-owners, the community has terminated and there is no reason

to sustain any right of legal redemption.

Although the foregoing pronouncement has reference to the sale made after partition,

this Court therein saw no difference with respect to a conveyance which took

place before the partitionagreement and approval by the court. Thus, it held:

Nevertheless, the result is the same, because We held in Saturnino vs.

Paulino, 97 Phil. 50, that the right of redemption under Article 1067

may be exercised only before partition. In this case the right wasasserted not only after partitionbut after the property inherited had

actually been subdividedinto several parcels which were assigned by

lot to the several heirs.

In refutation, private respondent argues that petitioner Luz Caro acted in bad faith and infraud of the rights of the heirs of a deceased Mario Benito in obtaining a subdivision title

over a one-third portion of the land in question which she brought from Benjamin

Benito, and for this reason, she is deemed to hold said property in trust for said heirs.

The rule, however, is it fraud in securing the registration of titles to the land should be

supported by clear and convincing evidence. (Jaramil vs. Court of Appeals, 78 SCRA 420).

As private respondent has not shown and proved the circumstances constituting fraud, itcannot be held to exist in this case.

As aforesaid, a subdivision title has been issued in the name petitioner on the lot ceded

to her. Upon the expiration of the term of one year from the date of the entry of the

subdivision title, the Certificate of Title shall be incontrovertible (Section 38, Act 496).

Since the title of petitioner is now indefeasible, private respondent cannot, by means of

the present action, directly attack the validity thereof.

Even on the assumption that there still is co-ownership here and that therefore, the right

of legal redemption exists, private respondent as administratrix, has no personality to

exercise said right for and in behalf of the intestate estate of Mario Benito. She is on the

same footing as co-administrator Saturnino Benito. Hence, if Saturnino's consent to the

sale of the one-third portion to petitioner cannot bind the intestate estate of Mario

Benito on the ground that the right of redemption was not within the powers ofadministration, in the same manner, private respondent as co-administrator has no

power exercise the right of redemption the very power which the Court of Appeals

ruled to be not within the powers of administration.

While under Sec. 3, Rule 85, Rules of Court, the administrator has the

right to the possession of the real and personal estate of the deceased,

so far as needed for the payment of the expenses of administration,

and the administrator may bring and defend action for the recovery or

protection of the property or right of the deceased (Sec. 2, Rule 88),

such right of possession and administration do not include the right of

legal redemption of the undivided share sold to a stranger by one ofthe co-owners after the death of another, because in such case, the

right of legal redemption only came into existence when the sale to

the stranger was perfected and formed no part of the estate of the

deceased co-owner; hence, that right cannot be transmitted to the heir

of the deceased co-owner. (Butte vs. Manuel Uy and Sons, Inc., 4 SCRA

526).

Private respondent cannot be considered to have brought this action in her behalf and in

behalf of the heirs of Mario Benito because the jurisdictional allegations of the complaintspecifically stated that she brought the action in her capacity as administratrix of the

intestate estate of Mario Benito.


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It is petitioner's contention that, assuming that private respondent may exercise the

right of redemption, there was no compliance with the conditions precedent for the valid

exercise thereof.

In Conejero et al. vs. Court of Appeals, et al., 16 SCRA 775, this Court explained the nature

of the right of redemption in this wise:

While the co-owner's right of legal redemption is a substantive right,

it is exceptional in nature, limited in its duration and subject to strict

compliance with the legal requirements. One of these is that theredemptioner should tender payment of the redemption money

within thirty (30) days from written notice of the sale by the co-

owner.

It has been held that this thirty-day period is peremptory because the policy of the law is

not to leave the purchaser's title in uncertainty beyond the established 30-day period.

(Butte vs. Manuel Uy and Sons, Inc., 4 SCRA 526). It is not a prescriptive period but is

more a requisite or condition precedent to the exercise of the right of legal redemption.

In the case at bar, private respondent alleged in her complaint that she learned of the

sale sometime in May, 1966 upon receipt of a pleading in Special Proceeding No. 508 of

the Court of First Instance of Sorsogon. She likewise alleged that she gave a letterinforming petitioner of her desire to redeem the land on August 25, 1966. Clearly, three

months have elapsed since the notice of the sale. Hence, petitioner claims that the thirty-

day period of redemption has already expired. In addition, petitioner makes capital of

the admission of private respondent that she already knew of the said transaction even

before receipt of the said pleading (t.s.n., p. 16) as well as of the evidence presented that

Saturnino Benito, the admittedly active administrator until 1966, duly received a written

notice of the intended sale of Benjamin Benito's share. Said evidence consists of the

affidavit of the vendor stating that the required notice had been duly given to possible

redemptioners, the statement in the deed of sale itself and the deposition of Saturnino

Benito's widow with respect to her receipt of the written notice. Finally, petitioner points

to the records which disclose that private respondent knew of the subdivision (t.s.n., p.

25) and hence, rationalized that private respondent should have known also of the

previous sale.

Since We have ruled that the right of legal redemption does not exist nor apply in this

case because admittedly a subdivision title (T.C.T. No. T-4978) has already been issued in

the name of the petitioner on Lot I-C sold to her, it becomes moot and academic, if not

unnecessary to decide whether private respondent complied with the notice

requirements for the exercise of the right of legal redemption under Article 1623 of the

New Civil Code.

WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the Court of Appeals is

hereby REVERSED and SET ASIDE, and judgment is hereby rendered DISMISSING the

complaint.

SO ORDERED.

Makasiar, Fernandez and Melencio-Herrera, JJ., concur.

Teehankee, J., took no part.

Plana, J., concur in the result.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 78178 April 15, 1988

DELIA BAILON-CASILAO, LUZ PAULINO-ANG, EMMA PAULINO-YBANEZ, NILDA

PAULINO-TOLENTINO, and SABINA BAILON, petitioners,

vs.

THE HONORABLE COURT OF APPEALS and CELESTINO AFABLE, respondents.

Veronico E. Rubio for petitioners.

Mario G. Fortes for private-respondent.

CORTES,J.:

The fate of petitioners' claim over a parcel of land rests ultimately on a determination of

whether or not said petitioners are chargeable with such laches as may effectively bar

their present action.

The petitioners herein filed a case for recovery of property and damages with notice

oflis pendenson March 13, 1981 against the defendant and herein private respondent,

Celestino Afable. The parcel of land involved in this case, with an area of 48,849 square

meters, is covered by Original Certificate of Title No. 1771 issued on June 12, 1931, in the

names of Rosalia, Gaudencio, Sabina Bernabe, Nenita and Delia, all surnamed Bailon, as

co-owners, each with a 1/6 share. Gaudencio and Nenita are now dead, the latter being

represented in this case by her children. Luz, Emma and Nilda. Bernabe went to China in

1931 and had not been heard from since then [Decision of the Court of Appeals, Rollo, p.

39].

It appears that on August 23, 1948, Rosalia Bailon and Gaudencio Bailon sold a portion of

the said land consisting of 16,283 square meters to Donato Delgado. On May 13, 1949,Rosalia Bailon alone sold the remainder of the land consisting of 32,566 square meters to


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Ponciana V. Aresgado de Lanuza. On the same date, Lanuza acquired from Delgado the

16,283 square meters of land which the latter had earlier acquired from Rosalia and

Gaudencio. On December 3, 1975, John Lanuza, acting under a special power of attorney

given by his wife, Ponciana V. Aresgado de Lanuza, sold the two parcels of land to

Celestino Afable, Sr.

In all these transfers, it was stated in the deeds of sale that the land was not registered

under the provisions of Act No. 496 when the fact is that it is. It appears that said land

had been successively declared for taxation first, in the name of Ciriaca Dellamas, mother

of the registered co-owners, then in the name of Rosalia Bailon in 1924, then in that ofDonato Delgado in 1936, then in Ponciana de Lanuza's name in 1962 and finally in the

name of Celestino Afable, Sr. in 1983.

In his answer to the complaint filed by the herein petitioners, Afable claimed that he had

acquired the land in question through prescription and contended that the petitioners

were guilty of laches.He later filed a third-party complaint against Rosalia Bailon for

damages allegedly suffered as a result of the sale to him of the land.

After trial, the lower court rendered a decision:

1. Finding and declaring Celestino Afable, a co-owner of the land

described in paragraph III of the complaint having validly bought thetwo-sixth (2/6) respective undivided shares of Rosalia Bailon and

Gaudencio Bailon;

2. Finding and declaring the following as pro-indiviso co-owners,

having 1/6 share each, of the property described in paragraph III of

the complaint, to wit:

a. Sabina Bailon

b. Bernabe Bailon

c. Heirs of Nenita Bailon-Paulino

d. Delia Bailon-Casilao;

3. Ordering the segregation of the undivided interests in the property

in order to terminate co-ownership to be conducted by any Geodetic

Engineer selected by the parties to delineate the specific part of eachof the co-owners.

4. Ordering the defendant to restore the possession of the plaintiffs

respective shares as well as all attributes of absolute dominion;

5. Ordering the defendant to pay the following:

a. P5,000.00 as damages;

b. P2,000.00 as attorney's fees and;

c. to pay the costs.

[Decision of the Trial Court, Rollo, p. 37-38].

On appeal, the respondent Court of Appeals affirmed the decision of the lower courtinsofar as it held that prescription does not he against plaintiffs-appellees because they

are co-owners of the original vendors. However, the appellate court declared that,

although registered property cannot be lost by prescription, nevertheless, an action to

recover it may be barred by laches, citing the ruling in Mejia de Lucaz v. Gamponia [100

Phil. 277 (1956)]. Accordingly, it held the petitioners guilty of laches and dismissed their

complaint. Hence, this petition for review on certiorari of the decision of the Court of

Appeals.

The principal issue to be resolved in this case concerns the applicability of the equitable

doctrine of laches. Initially though, a determination of the effect of a sale by one or more

co-owners of the entire property held in common without the consent of all the co -

owners and of the appropriate remedy of the aggrieved co-owners is required.

The rights of a co-owner of a certain property are clearly specified in Article 493 of the

Civil Code.Thus:

Art. 493. Each co-owner shall have the full ownership of his part and of

the acts and benefits pertaining thereto, and he may therefore alienate

assign or mortgage it and even substitute another person in its

enjoyment, except when personal rights are involved. But the effect of

the alienation or mortgage, with respect to the co-owners, shall be

limited to the portion which may be allotted to him in the division upon

the termination of the co-ownership. [Emphasis supplied.]

As early as 1923, this Court has ruled that even if a co-owner sells the whole property ashis, the sale will affect only his own share but not those of the other co-owners who did

not consent to the sale [Punsalan v. Boon Liat 44 Phil. 320 (1923)]. This is because under

the aforementioned codal provision, the sale or other disposition affects only his

undivided share and the transferee gets only what would correspond to his grantor in

the partition of the thing owned in common.[Ramirez v. Bautista, 14 Phil. 528 (1909)].

Consequently, by virtue of the sales made by Rosalia and Gaudencio Bailon which are

valid with respect to their proportionate shares, and the subsequent transfers which

culminated in the sale to private respondent Celestino Afable, the said Afable thereby

became a co-owner of the disputed parcel of land as correctly held by the lower court

since the sales produced the effect of substituting the buyers in the enjoyment thereof

[Mainit v. Bandoy, 14 Phil. 730 (1910)].

From the foregoing, it may be deduced that since a co-owner is entitled to sell hisundivided share, a sale of the entire property by one co-owner without the consent of the


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other co-owners is not null and void. However, only the rights of the co-owner-seller are

transferred, thereby making the buyer a co-owner of the property.

The proper action in cases like this is not for the nullification of the sale or for the recoveryof possession of the thing owned in common from the third person who substituted the co-

owner or co-owners who alienated their shares, but the DIVISION of the common property

as if it continued to remain in the possession of the co-owners who possessed and

administered it[Mainit v. Bandoy, supra.]

Thus, it is now settled that the appropriate recourse of co-owners in cases where theirconsent were not secured in a sale of the entire property as well as in a sale merely of the

undivided shares of some of the co-owners is an action. for PARTITION under Rule 69 of

the Revised Rules of Court. Neither recovery of possession nor restitution can be granted

since the defendant buyers are legitimate proprietors and possessors in joint ownership

of the common property claimed [Ramirez v. Bautista, supra].

As to the action for petition, neither prescription nor laches can be invoked.

In the light of the attendant circumstances, defendant-appellee's defense of prescription

is a vain proposition. Pursuant to Article 494 of the Civil Code, '(n)o co-owner shall be

obliged to remain in the co-ownership. Such co-owner may demand at anytime the

partition of the thing owned in common, insofar as his share is concerned.' [Emphasissupplied.] In Budiong v. Bondoc [G.R. No. L-27702, September 9, 1977, 79 SCRA 241, this

Court has interpreted said provision of law to mean that the action for partition is

imprescriptible or cannot be barred by prescription. For Article 494 of the Civil Code

explicitly declares: "No prescription shall lie in favor of a co-owner or co- heir so long as

he expressly or impliedly recognizes the co-ownership."

Furthermore, the disputed parcel of land being registered under the Torrens System, the

express provision of Act No. 496 that '(n)o title to registered land in derogation to that of

the registered owner shall be acquired by prescription or adverse possession' is squarelyapplicable. Consequently, prescription will not lie in favor of Afable as against the

petitioners who remain the registered owners of the disputed parcel of land.

It is argued however, that as to the petitioners Emma, Luz and Nelda who are not theregistered co-owners but merely represented their deceased mother, the late Nenita

Bailon, prescription lies.Respondents bolster their argument by citing a decision of this

Court in Pasion v. Pasion [G.R.No. L-15757, May 31, 1961, 2 SCRA 486, 489] holding that

"the imprescriptibility of a Torrens title can only be invoked by the person in whose name

the title is r egistered" and that 'one who is not the registered owner of a parcel of land

cannot invoke imprescriptibility of action to claim the same.'

Reliance on the aforesaid Pasion case is futile. The ruling therein applies only against

transferees other than direct issues or heirs or to complete strangers. The rational is

clear:

If prescription is unavailing against the registered owner, it must beequally unavailing against the latter's hereditary successors, because

they merely step into the shoes of the decedent by operation of law

(New Civil Code, Article 777; Old Civil Code, Article 657), the title or

right undergoing no change by its transmission mortis causa [Atus, et

al., v. Nunez, et al., 97 Phil. 762, 764].

The latest pronouncement of this Court in Umbay v. Alecha [G. R. No. 67284, March 18,

1985, 135 SCRA 427, 429], which was promulgated subsequent to the Pasion case

reiterated theAtus doctrine. Thus:

Prescription is unavailing not only against the registered owner butalso against his hereditary successors, because they merely step into

the shoes of the decedent by operation of law and are merely the

continuation of the personality of their predecessor-in-interest.

[Barcelona v. Barcelona, 100 Phil. 251, 257].

Laches is likewise unavailing as a shield against the action of herein petitioners.

Well-stated in this jurisdiction are the four basic elements of laches, namely: (1) conduct

on the part of the defendant or of one under whom he claims, giving rise to the situation

of which complaint is made and for which the complainant seeks a remedy; (2) delay in

asserting the corporations complainant's rights, the complainant having had knowledge

or notice of the defendant's conduct and having been afforded an opportunity to institutesuit; (3) lack of knowledge or notice on the part of the defendant that the complainant

would assert the right on which he bases his suit; and, (4) injury or prejudice to the

defendant in the event relief is accorded to the complainant, or the suit is not held to be

barred [Go China Gun, et al. v. Co Cho et al., 96 Phil. 622 (1955)].

While the first and last elements are present in this case, the second and third elements

are missing.

The second element speaks of delay in asserting the complainant's rights. However, the

mere fact of delay is insufficient to constitute, laches. It is required that (1) complainant

must have had knowledge of the conduct of defendant or of one under whom he claims and

(2) he must have been afforded an opportunity to institute suit. This court has pointed out

that laches is not concerned with the mere lapse of time. Thus:

Laches has been defined as the failure or neglect, for an unreasonablelength of time to do that which by exercising due diligence could or

should ha

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