THIRD DIVISION

[G.R. No. 123509. March 14, 2000]

LUCIO ROBLES, EMETERIA ROBLES, ALUDIA ROBLES and EMILIO

ROBLES, petitioners, vs. COURT OF APPEALS, Spouses VIRGILIO
SANTOS and BABY RUTH CRUZ, RURAL BANK OF CARDONA, Inc.,
HILARIO ROBLES, ALBERTO PALAD JR. in his capacity as Director of
Lands, and JOSE MAULEON in his capacity as District Land Officer of
the Bureau Of Lands, respondents.
DECISION
PANGANIBAN, J.:
To be entitled to the remedy of quieting of title, petitioners must show that they have title
to the real property at issue, and that some deed or proceeding beclouds its validity or
efficacy. Buyers of unregistered real property, especially banks, must exert due
diligence in ascertaining the titles of mortgagors and sellers, lest some innocent parties
be prejudiced. Failure to observe such diligence may amount to bad faith and may
result in the nullity of the mortgage, as well as of the subsequent foreclosure and/or
auction sale. Unless the co-ownership is clearly repudiated, a co-owner cannot, by
prescription, acquire title to the shares of the other co-owners. Mesm
The Case
Before us is a Petition for Review under Rule 45, assailing the June 15, 1995 Decision
and the January 15, 1996 Resolution of the Court of Appeals (CA) in CA-GR CV No.
34213. In its Decision, the CA ruled:
[1]

[2]

[3]

"WHEREFORE, the trial courts June 17, 1991 decision is REVERSED and
SET ASIDE, and in lieu thereof a new one is hereby entered ordering the
dismissal of the plaintiffs-appellees['] second amended complaint."
Earlier, the trial court had disposed as follows: Spped jo
"WHEREFORE, premises considered, judgment is hereby rendered as
follows:
1. Declaring free patent Title No. IV-1-010021 issued by the Bureau
of Lands as null and void;
2. Ordering the defendant spouses Vergel Santos and Ruth Santos
to deliver the property subject of this case to the plaintiff; and

3. Declaring the heirs of Silvino Robles as the absolute owner of

the land in controversy."
The January 15, 1996 CA Resolution denied petitioners' Motion for Reconsideration.
The Facts
The present Petition is rooted in a case for quieting of title before the Regional Trial
Court of Morong, Rizal, filed on March 14, 1988, by Petitioners Lucio Robles, Emeteria
Robles, Aludia Robles and Emilio Robles. The facts were narrated by the trial court in
this wise:
[4]

"There seems to be no dispute that Leon Robles primitively owned the

land situated in Kay Taga, Lagundi, Morong, Rizal with an area of 9,985
square meters. He occupied the same openly and adversely. He also
declared the same in his name for taxation purposes as early as 1916
covered by Tax Declaration No. 17865 (Exh. "I") and paid the
corresponding taxes thereon (Exh. "B"). When Leon Robles died, his son
Silvino Robles inherited the land, who took possession of the land,
declared it in his name for taxation purposes and paid the taxes
thereon. Rtc-spped
"Upon the death of Silvino Robles in 1942, his widow Maria de la Cruz and
his children inherited the property. They took adverse possession of said
property and paid taxes thereon. The task of cultivat[ing] the land was
assigned to plaintiff Lucio Robles who planted trees and other crops. He
also built a nipa hut on the land. The plaintiffs entrusted the payment of
the land taxes to their co-heir and half-brother, Hilario Robles.
"In 1962, for unknown reasons, the tax declaration of the parcel of land in
the name of Silvino Robles was canceled and transferred to one Exequiel
Ballena (Exh. "19"), father of Andrea Robles who is the wife of defendant
Hilario Robles. Thereafter, Exequiel Ballena secured a loan from the
Antipolo Rural Bank, using the tax declaration as security. Somehow, the
tax declaration was transferred [to] the name of Antipolo Rural Bank (Exh.
"17") and later on, was transferred [to] the name of defendant Hilario
Robles and his wife (Exh. "16").Calrky
"In 1996, Andrea Robles secured a loan from the Cardona Rural Bank,
Inc., using the tax declaration as security. Andrea Robles testified without
contradiction that somebody else, not her husband Hilario Robles, signed
the loan papers because Hilario Robles was working in Marinduque at that
time as a carpenter.

"For failure to pay the mortgage debt, foreclosure proceedings were had
and defendant Rural Bank emerged as the highest bidder during the
auction sale in October 1968.
"The spouses Hilario Robles failed to redeem the property and so the tax
declaration was transferred in the name of defendant Rural Bank. On
September 25, 1987, defendant Rural Bank sold the same to the Spouses
Vergel Santos and Ruth Santos. Jo spped
"In September 1987, plaintiff discovered the mortgage and attempted to
redeem the property, but was unsuccessful. On May 10,1988, defendant
spouses Santos took possession of the property in question and was able
to secure Free Patent No. IV-1-010021 in their names."
[5]

On the other hand, the Court of Appeals summarized the facts of the case as follows:
"The instant action for quieting of title concerns the parcel of land bounded
and more particularly described as follows: Sd-aad-sc
"A parcel of land located at Kay Taga, Lagundi, Morong, Rizal.
Bounded [i]n the north by the property of Venancio Ablay y Simeon
Ablay; [i]n the east by the property of Veronica Tulak y Dionisio
Ablay; [i]n the south by the property of Simeon Ablay y Dionisio
Ablay; and [i]n the west by the property of Dionisio Ablay y Simeon
Ablay, with an area of 9,985 square meters, more or less, assessed
in the year 1935 at P60.00 under Tax Declaration No. 23219.
"As the heirs of Silvino Robles who, likewise inherited the above-described
parcel from Leon Robles, the siblings Lucio, Emeteria, Aludia and Emilio,
all surnamed Robles, commenced the instant suit with the filing of their
March 14, 1988 complaint against Spouses Virgilio and Ruth Santos, as
well as the Rural Bank of Cardona, Inc. Contending that they had been in
possession of the land since 1942, the plaintiff alleged, among other
matters, that it was only in September of 1987 that they came to know of
the foreclosure of the real estate mortgage constituted thereon by the halfbrother, Hilario Robles, in favor of defendant Rural Bank; and that they
likewise learned upon further inquiry, that the latter had already sold the
self-same parcel in favor of the Santos spouses (pp. 1-3, orig. rec.). Twice
amended to implead Hilario Robles (pp. 76-80, orig. rec) and, upon
subsequent discovery of the issuance of Free Patent No. IV-I-010021 in
favor of the defendant spouses, the Director of Lands and the District
Land Officer of the Bureau of Lands as parties-defendants (pp. 117-121,
orig. rec). The plaintiffs complaint sought the following reliefs on the theory
that the encumbrance of their half-brother, constituted on the land, as well
as all proceedings taken subsequent thereto, were null and void, to wit:

"Wherefore, it is respectfully prayed that (a) a preliminary

mandatory injunction be issued forthwith restoring plaintiffs to their
possession of said parcel of land; (b) an order be issued annulling
said Free Patent No. IV-I-010021 in the name of defendants
spouses Vergel Santos and Ruth C. Santos, the deed of sale
aforementioned and any tax declaration which have been issued in
the name of defendants; and (c) ordering defendants jointly and
severally, to pay plaintiffs the sum of P10,000.00 as attorneys fees.
"Plaintiffs pray for other relief as [may be] just and equitable under
the premises." (pp. 120-121, orig. rec.)
xxxxxxxxx
"With the termination of the pre-trial stage upon the parties-litigants
agreement (p. 203, orig. rec.) the trial court proceeded to try the case on
the merits. It thereafter rendered the challenged June 17, 1991 decision
upon the following findings and conclusions:
"The real estate mortgage allegedly executed by Hilario Robles is
not valid because his signature in the mortgage deed was forged.
This fact, which remains unrebutted, was admitted by Andrea
Robles.
"Inasmuch as the real estate mortgage executed allegedly by
Hilario Robles in favor of the defendant Cardona Rural Bank, Inc.
was not valid, it stands to reason that the foreclosure proceedings
therein were likewise not valid. Therefore, the defendant bank did
not acquire any right arising out of the foreclosure proceedings.
Consequently, defendant bank could not have transferred any right
to the spouses Santos.
"The fact that the land was covered by a free patent will not help
the defendant Santos any.
"There can be no question that the subject [property was held] in
the concept of owner by Leon Robles since 1916. Likewise, his
successor-in-interest, Silvino Robles, his wife Maria de la Cruz and
the plaintiffs occupied the property openly, continuously and
exclusively until they were ousted from their possession in 1988 by
the spouses Vergel and Ruth Santos.
"Under the circumstances, therefore, and considering that "open,
exclusive and undisputed possession of alienable public lands for
the period prescribed by law (30 years), creates the legal fiction
whereby the land, upon completion of the requisite period, ipso jure

and without the need of judicial or other action, ceases to be public

land and becomes private property. Possession of public land x x x
which is [of] the character and duration prescribed by the statute is
the equivalent of an express grant from the State, considering the
dictum of the statute itself[:]; "The possessor x x x shall be
conclusively presumed to have performed all the conditions
essential to a government grant and shall be entitled to a certificate
of title x x x." No proof is admissible to overcome a conclusive
presumption[,] and confirmation proceedings would be a little more
than a formality, at the most limited to ascertaining whether the
possession claimed is of the required character and length of time.
Registration thereunder would not confer title, but simply recognize
a title already vested. (Cruz v. IAC, G.R. No. 75042, November 29,
1988) The land in question has become private land.
"Consequently, the issuance of [a] free patent title to the Spouses
Vergel Santos and Ruth C. Santos is not valid because at the time
the property subject of this case was already private land, the
Bureau of Lands having no jurisdiction to dispose of the same." (pp.
257-259, orig. rec.)"
"Dissatisfied with the foregoing decision, the Santos spouses and the
defendant Rural Bank jointly filed their July 6, 1991 Notice of Appeal
(p.260, orig. rec.) x x x."
[6]

Ruling of the Court of Appeals

In reversing the trial court, the Court of Appeals held that petitioners no longer had any
title to the subject property at the time they instituted the Complaint for quieting of title.
The CA ratiocinated as follows: Mis spped
"As correctly urged by the appellants, the plaintiff-appellees no longer had
any title to the property at the time of the institution of the instant
complaint. (pp. 25-27, rec.) The latters claim of continuous possession
notwithstanding (pp. 3-5, TSN, July 5, 1990; p. 12, TSN, July 12, 1990),
the aforesaid loss of title is amply evidenced by the subsequent
declaration of the subject realty for taxation purposes not only in the name
of Exequiel Ballena (Exhibits "1" and "2", pp. 23-24, orig. rec.) but also in
the name of the Rural Bank of Antipolo (Exhibit 17, vol. II, orig. rec.). On
the theory that tax declarations can be evincive of the transfer of a parcel
of land or a portion thereof (Gacos v. Court of Appeals, 212 SCRA 214),
the court a quo clearly erred in simply brushing aside the apparent
transfers [which] the land in litigation had undergone. Whether legal or
equitable, it cannot, under the circumstances, be gainsaid that the plaintiffappellees no longer had any title to speak of when Exequiel Ballena
executed the November 7, 1966 Deed of Absolute Sale transferring the

land in favor of the spouses Hilario and Andrea Robles (Exhibit "3", p. 25,
orig. rec.)
"Even on the theory that the plaintiffs-appellees and their half-brother,
Hilario Robles, are co-owners of the land left behind by their common
father, Silvino Robles, such title would still be effectively discounted by
what could well serve as the latters acts of repudiation of the coownership, i.e., his possession (p. 22, TSN, November 15, 1990) and
declaration thereof for taxation purposes in his own name (Exhibit "4", p.
26, orig. rec.). In view of the plaintiffs-appellees inaction for more than
twenty (20) years from the time the subject realty was transferred in favor
of Hilario Robles, the appellants correctly maintain that prescription had
already set in. While it may be readily conceded that an action to quiet title
to property in the possession of the plaintiff is imprescriptible (Almanza vs.
Arguelles, 156 SCRA 718; Coronel vs. Intermediate Appellate Court, 155
SCRA 270; Caragay-Layno vs. Court of Appeals, 133 SCRA 718; Charon
Enterprises vs. Court of Appeals, 124 SCRA 784; Faja vs. Court of
Appeals, 75 SCRA 441; Burton vs. Gabar, 55 SCRA 4999), it equally
bears emphasis that a co-owner or, for that matter, the said co-owner[']s
successors-in-interest who occupy the community property other than as
co-owner[s] can claim prescription as against the other co-owners (De
Guzman vs. Austria, 148 SCRA 75; Ramos vs. Ramos, 45 Phil. 362; Africa
vs. Africa, 42 Phil. 902; Bargayo vs. Camumot, 40 Phil. 857; De Castro vs.
Echarri, 20 Phil. 23). If only in this latter sense, the appellants correctly
argue that the plaintiffs-appellees have lost their cause of action by
prescription.
"Over and above the foregoing considerations, the court a quo gravely
erred in invalidating the real estate mortgage constituted on the land solely
on the basis of Andrea Robles testimony that her husbands signature
thereon was forged (p. 257, orig. rec.),
xxx xxx xxx
"In according to the foregoing testimony x x x credibility which, while
admittedly unrebutted, was altogether uncorroborated, the trial court lost
sight of the fact that the assailed deed of real estate mortgage (Exhibit "5",
Vol. II, orig. rec.) is a public document, the acknowledgment of which is
a prima facie evidence of its due execution (Chua vs. Court of Appeals,
206 SCRA 339). As such, it retains the presumption of validity in the
absence of a full, clear and convincing evidence to overcome such
presumption (Agdeppa vs. Ibe, 220 SCRA 584). Maniks
"The foregoing principles take even more greater [sic] when it is,
moreover, borne in mind that Hilario Robles made the following
admissions in his March 8, 1989 answer, viz:

"3. The complaint filed against herein answering defendant has no

legal basis considering that as the lawful owner of the subject real
property, defendant Hilario Robles has the right to mortgage the
said real property and could dispose the same in whatever manner
he wishe[s] to do." (p. 96, orig. rec.)
"Appropriately underscored by the appellants, the foregoing admission is
binding against Hilario [Robles]. Judicial admissions, verbal or written,
made by the parties in the pleadings or in the course of the trial or other
proceedings in the same case are conclusive, no evidence being required
to prove the same. They cannot be contradicted unless shown to have
been made through [a] palpable mistake or [unless] no such admission
was actually made (Philippine American General Insurance, Inc. vs. Sweet
Lines, Inc., 212 SCRA 194).
"It does not help the plaintiffs-appellees cause any that, aside from
complying with the requirements for the foreclosure of the subject real
estate mortgage (Exhibits "6", "7", "8" and "10", Volume II[)], the appellant
Rural Bank had not only relented to the mortgagors request to postpone
the (Exhibit "g", Vol. II, orig. rec.) but had likewise granted the latters
request for an extension of the redemption period therefor (Exhibits "11"
and "12", pp. 35-36, orig. rec.). Without going into minute detail in
discussing the Santos spouses rights as purchasers for value and in good
faith (Exhibit "21", Vol. II, orig. rec.), the mortgagor and the plaintiffsappellees cannot now be heard to challenge the validity of the sale of the
land after admittedly failing to redeem the same within the extension the
appellant Rural Bank granted (pp. 10-11, TSN, November 15, 1990).
"Being dependent on the supposed invalidity of the constitution and
foreclosure of the subject real estate mortgage, the plaintiffs-appellees
attack upon x x x Free Patent No. IV-I must necessarily fail. The trial court,
therefore, misread, and ignored the evidence o[n] record, to come up with
erroneous conclusion." Manikx
Contending that such ruling was contrary to law and jurisprudence, Petitioners Lucio,
Emeteria, Aludia and Emilio -- all surnamed Robles -- filed this Petition for Review.
[7]

The Assigned Error

Petitioners ascribe the following error to the respondent court:
"Respondent Court of Appeals grievously erred in ruling that with the
transfers of the tax declaration over the parcel of land in question from
Silvino Robles to Exequiel Ballena, then to the Rural Bank of Antipolo,
then to Respondent Hilario Robles, then to Respondent Rural Bank of
Cardona Inc., and then finally to Respondent Spouses Santos, petitioners,

who by themselves and their predecessors in interest have been in open,

actual and adverse possession of said parcel of land since 1916 up to
their forced removal therefrom in 1988, have lost their title to said property
by prescription to their half-brother, Respondent Hilario Robles, and then
finally, to Respondent Spouses Santos."
[8]

For a better understanding of the case, the above issue will be broken down into three
points: first, the nature of the remedy of quieting of title;second, the validity of the real
estate mortgage; and third, the efficacy of the free patent granted to the Santos
spouses. Spped
First Issue: Quieting of Title
Article 476 of the Civil Code provides:
"Whenever there is cloud on title to real property or any interest therein, by
reason of any instrument, record, claim, encumbrance or proceeding
which is apparently valid or effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may be prejudicial to said title,
an action may be brought to remove such cloud or to quiet title.
"An action may also be brought to prevent a cloud from being cast upon
title to real property or any interest therein."
Based on the above definition, an action to quiet title is a common-law remedy for the
removal of any cloud or doubt or uncertainty on the title to real property. It is essential
for the plaintiff or complainant to have a legal or an equitable title to or interest in the
real property which is the subject matter of the action. Also, the deed, claim,
encumbrance or proceeding that is being alleged as a cloud on plaintiffs title must be
shown to be in fact invalid or inoperative despite its prima facie appearance of validity or
legal efficacy.
[9]

[10]

[11]

That there is an instrument or a document which, on its face, is valid and efficacious is
clear in the present case. Petitioners allege that their title as owners and possessors of
the disputed property is clouded by the tax declaration and, subsequently, the free
patent thereto granted to Spouses Vergel and Ruth Santos. The more important
question to be resolved, however, is whether the petitioners have the appropriate title
that will entitle them to avail themselves of the remedy of quieting of title. Nexold
Petitioners anchor their claim to the disputed property on their continued and open
occupation and possession as owners thereof. They allege that they inherited it from
their father, Silvino, who in turn had inherited it from his father, Leon. They maintain that
after their fathers death, they agreed among themselves that Petitioner Lucio Robles
would be tending and cultivating it for everyone, and that their half-brother Hilario would
be paying the land taxes.

Petitioners insist that they were not aware that from 1962 until 1987, the subject
property had been declared in the names of Exequiel Ballena, the Rural Bank of
Antipolo, Hilario Robles, the Rural Bank of Cardona, Inc., and finally, Spouses Vergel
and Ruth Santos. Maintaining that as co-owners of the subject property, they did not
agree to the real estate mortgage constituted on it, petitioners insist that their shares
therein should not have been prejudiced by Hilarios actions. Miso
On the other hand, Private Respondents Vergel and Ruth Santos trace their claim to the
subject property to Exequiel Ballena, who had purportedly sold it to Hilario and Andrea
Robles. According to private respondents, the Robles spouses then mortgaged it to the
Rural Bank of Cardona, Inc. -- not as co-owners but as absolute owners -- in order to
secure an agricultural loan worth P2,000. Upon their failure to pay their indebtedness,
the mortgage was foreclosed and the property sold to the bank as the highest bidder.
Thereafter, private respondents purchased the property from the bank. Sppedjo
Undisputed is the fact that the land had previously been occupied by Leon and later by
Silvino Robles, petitioners predecessors-in-interest, as evidenced by the different tax
declarations issued in their names. Also undisputed is the fact that the petitioners
continued occupying and possessing the land from the death of Silvino in 1942 until
they were allegedly ousted therefrom in 1988. In 1962, the subject property was
declared in the name of Exequiel for taxation purposes. On September 30, 1965, it was
again declared in the same name; on October 28, 1965, in the name of the Rural Bank
of Antipolo; on November 7, 1966, in the name of Hilario and Andrea; and thereafter, in
the name of the Rural Bank of Cardona and, finally, in the name of the Santos spouses.
Ostensibly, the Court of Appeals failed to consider irregularities in the transactions
involving the disputed property. First, while it was declared in the name of Exequiel in
1962, there was no instrument or deed of conveyance evidencing its transfer from the
heirs of Silvino to him. This fact is important, considering that the petitioners are alleging
continued possession of the property. Second, Exequiel was the father-in-law of Hilario,
to whom petitioners had entrusted the payment of the land taxes. Third, considering that
the subject property had been mortgaged by Exequiel to the Rural Bank of Antipolo, and
that it was foreclosed and in fact declared in the banks name in 1965, why was he able
to sell it to Spouses Hilario and Andrea in 1966? Lastly, inasmuch as it was
an unregistered parcel of land, the Rural Bank of Cardona, Inc., did not observe due
diligence in determining Hilarios title thereto. Jospped
The failure to show the indubitable title of Exequiel to the property in question is vital to
the resolution of the present Petition. It was from him that Hilario had allegedly derived
his title thereto as owner, an allegation which thereby enabled him to mortgage it to the
Rural Bank of Cardona. The occupation and the possession thereof by the petitioners
and their predecessors-in-interest until 1962 was not disputed, and Exequiels
acquisition of the said property by prescription was not alleged. Thus, the deed of
conveyance purportedly evidencing the transfer of ownership and possession from the
heirs of Silvino to Exequiel should have been presented as the best proof of that
transfer. No such document was presented, however. Scmis

Therefore, there is merit to the contention of the petitioners that Hilario mortgaged the
disputed property to the Rural Bank of Cardona in his capacity as a mere co-owner
thereof. Clearly, the said transaction did not divest them of title to the property at the
time of the institution of the Complaint for quieting of title.
Contrary to the disquisition of the Court of Appeals, Hilario effected no clear and evident
repudiation of the co-ownership. It is a fundamental principle that a co-owner cannot
acquire by prescription the share of the other co-owners, absent any clear repudiation of
the co-ownership. In order that the title may prescribe in favor of a co-owner, the
following requisites must concur: (1) the co-owner has performed unequivocal acts of
repudiation amounting to an ouster of the other co-owners; (2) such positive acts of
repudiation have been made known to the other co-owners; and (3) the evidence
thereof is clear and convincing.
[12]

In the present case, Hilario did not have possession of the subject property; neither did
he exclude the petitioners from the use and the enjoyment thereof, as they had
indisputably shared in its fruits. Likewise, his act of entering into a mortgage contract
with the bank cannot be construed to be a repudiation of the co-ownership. As absolute
owner of his undivided interest in the land, he had the right to alienate his share, as he
in fact did. Neither should his payment of land taxes in his name, as agreed upon by
the co-owners, be construed as a repudiation of the co-ownership. The assertion that
the declaration of ownership was tantamount to repudiation was belied by the continued
occupation and possession of the disputed property by the petitioners as owners. Mis sc
[13]

[14]

Second Issue: Validity of the Real Estate Mortgage

In a real estate mortgage contract, it is essential that the mortgagor be the absolute
owner of the property to be mortgaged; otherwise, the mortgage is void. In the present
case, it is apparent that Hilario Robles was not the absolute owner of the entire subject
property; and that the Rural Bank of Cardona, Inc., in not fully ascertaining his title
thereto, failed to observe due diligence and, as such, was a mortgagee in bad faith.
[15]

First, the bank was utterly remiss in its duty to establish who the true owners and
possessors of the subject property were. It acted with precipitate haste in approving the
Robles spouses loan application, as well as the real estate mortgage covering the
disputed parcel of land. Had it been more circumspect and assiduous, it would have
discovered that the said property was in fact being occupied by the petitioners, who
were tending and cultivating it.
[16]

Second, the bank should not have relied solely on the Deed of Sale purportedly
showing that the ownership of the disputed property had been transferred from Exequiel
Ballena to the Robles spouses, or that it had subsequently been declared in the name
of Hilario. Because it was dealing with unregistered land, and the circumstances
surrounding the transaction between Hilario and his father-in-law Exequiel were
suspicious, the bank should have exerted more effort to fully determine the title of the
Robleses. Rural Bank of Compostela v. Court of Appeals invalidated a real estate
[17]

mortgage after a finding that the bank had not been in good faith. The Court explained:
"The rule that persons dealing with registered lands can rely solely on the certificate of
title does not apply to banks." In Tomas v. Tomas, the Court held: Sc-slx
"x x x. Banks, indeed, should exercise more care and prudence in dealing
even with registered lands, than private individuals, for their business is
one affected with public interest, keeping in trust money belonging to their
depositors, which they should guard against loss by not committing any
act of negligence which amounts to lack of good faith by which they would
be denied the protective mantle of land registration statute, Act 496,
extended only to purchasers for value and in good faith, as well as to
mortgagees of the same character and description. x x x."
[18]

Lastly, the Court likewise finds it unusual that, notwithstanding the banks insistence that
it had become the owner of the subject property and had paid the land taxes thereon,
the petitioners continued occupying it and harvesting the fruits therefrom.
[19]

Considering that Hilario can be deemed to have mortgaged the disputed property not
as absolute owner but only as a co-owner, he can be adjudged to have disposed to the
Rural Bank of Cardona, Inc., only his undivided share therein. The said bank, being the
immediate predecessor of the Santos spouses, was a mortgagee in bad faith. Thus,
justice and equity mandate the entitlement of the Santos spouses, who merely stepped
into the shoes of the bank, only to what legally pertains to the latter -- Hilarios share in
the disputed property. Missc
Third Issue: Efficacy of Free Patent Grant
Petitioners repeatedly insist that the disputed property belongs to them by private
ownership and, as such, it could not have been awarded to the Santos spouses by free
patent. They allege that they possessed it in the concept of owners -- openly, peacefully,
publicly and continuously as early as 1916 until they were forcibly ousted therefrom in
1988. They likewise contend that they cultivated it and harvested its fruits. Lucio Robles
testified:
"xxx xxx xxx
Q By the way, why do you know this parcel of land?
A Because before my father died, he showed me all the documents.
Q Before the death of your father, who was the owner of this parcel of
land?
A My father, sir. Spped
Q How did your father acquire this parcel of land?

A My father knew that it [was] by inheritance, sir.

Q From whom?
A From his father, Leon Robles, sir.
Q And do you know also [from] whom Leon Robles acquired this land?
A It was inherited from his father, sir.
Q What is the nature of this parcel of land?
A Its an agricultural land, sir,
Q Now, at the time of the death of your father, this land was planted with
what crops?
A Mango trees, santol trees, and I was the one who planted those trees,
sir.
Q When did you plant those trees?
A Before the death of my father, sir. M-issdaa
Q Now, after the death of your father, who cultivated this parcel of land?
A I took charge of the land after the death of my father, sir.
Q Up to when?
A Up to the present, sir, after this case was already filed."

[20]

The preceding claim is an assertion that the subject property is private land. The
petitioners do not concede, and the records do not show, that it was ever an alienable
land of the public domain. They allege private ownership thereof, as evidenced by their
testimonies and the tax declarations issued in the names of their predecessors-ininterest. It must be noted that while their claim was not corroborated by other witnesses,
it was not controverted by the other parties, either. Kycalr
Carlos Dolores insisted that the Rural Bank of Cardona, Inc., of which he was the
manager, had acquired and possessed the subject property. He did not, however, give
any reason why the petitioners had continued occupying it, even as he admitted on the
stand that he had visited it twice.
[21]

In the light of their open, continuous, exclusive and notorious possession and
occupation of the land, petitioners are "deemed to have acquired, by operation of law, a

right to a grant, a government grant, without the necessity of a certificate of title being
issued." The land was "segregated from the public domain." Accordingly, the director of
lands had no authority to issue a free patent thereto in favor of another person. Verily,
jurisprudence holds that a free patent covering private land is null and void.
[22]

[23]

Worth quoting is the disquisition of the Court in Agne v. Director of Lands, in which it
held that a riparian owner presently in possession had a better right over an abandoned
river bed than had a registered owner by virtue of a free patent.
[24]

"Under the provisions of Act 2874 pursuant to which the title of private
respondents predecessor-in-interest was issued, the President of the
Philippines, or his alter ego, the Director of Lands, has no authority to
grant a free patent for land that has ceased to be a public land and has
passed to private ownership and a title so issued is null and void. The
nullity arises, not from fraud or deceit, but from the fact that the land is not
under the jurisdiction of the Bureau of Lands. The jurisdiction of the
Director of Lands is limited only to public lands and does not cover lands
publicly owned. The purpose of the Legislature in adopting the former
Public Land Act, Act No. 2874, was and is to limit its application to lands of
the public domain, and lands held in private ownership are not included
therein and are not affected in any manner whatsoever thereby. Land held
in freehold or fee title, or of private ownership, constitutes no part of the
public domain, and cannot possibly come within the purview of said act
2874, inasmuch as the subject of such freehold or private land is not
embraced in any manner in the title of the Act and the same is excluded
from the provisions of the text thereof. Kyle
"We reiterate that private ownership of land is not affected by the issuance
of the free patent over the same land because the Public Land Act applies
only to lands of the public domain. Only public land may be disposed of by
the Director of Lands. Since as early as 1920, the land in dispute was
already under the private ownership of herein petitioners and no longer a
part of the lands of the public domain, the same could not have been the
subject matter of a free patent. The patentee and his successors-ininterest acquired no right or title to said land. Necessarily, Free Patent No.
23263 issued to Herminigildo Agpoon is null and void and the subsequent
titles issued pursuant thereto cannot become final and indefeasible.
Hence we ruled in Director of Lands v. Sicsican, et al. that if at the time the
free patents were issued in 1953 the land covered therein were already
private property of another and, therefore, not part of the disposable land
of the public domain, then applicants patentees acquired no right or title to
the land.
"Now, a certificate of title fraudulently secured is null and void ab initio if
the fraud consisted in misrepresenting that the land is part of the public
domain, although it is not. As earlier stated, the nullity arises, not from the

fraud or deceit, but from the fact that the land is not under the jurisdiction
of the Bureau of Lands. Being null and void, the free patent granted and
the subsequent titles produce no legal effect whatsoever. Quod nullum
est, nullum producit effectum.
"A free patent which purports to convey land to which the government did
not have any title at the time of its issuance does not vest any title in the
patentee as against the true owner. The Court has previously held that the
Land Registration Act and the Cadastral Act do not give anybody who
resorts to the provisions thereof a better title than what he really and
lawfully has. Exsm
xxx xxx xxx
"We have, therefore, to arrive at the unavoidable conclusion that the title
of herein petitioners over the land in dispute is superior to the title of the
registered owner which is a total nullity. The long and continued
possession of petitioners under a valid claim of title cannot be defeated by
the claim of a registered owner whose title is defective from the
beginning."
The Santos spouses argue that petitioners do not have the requisite personality to
question the free patent granted them, inasmuch as "it is a well-settled rule that actions
to nullify free patents should be filed by the Office of the Solicitor General at the behest
of the Director of Lands."
[25]

Private respondents reliance on this doctrine is misplaced. Indeed, the Court held in
Peltan Development, Inc. v. Court of Appeals that only the solicitor general could file
an action for the cancellation of a free patent. Ruling that the private respondents, who
were applicants for a free patent, were not the proper parties in an action to cancel the
transfer certificates covering the parcel of land that was the subject of their application,
the Court ratiocinated thus: Sl-xm-is
[26]

"The Court also holds that private respondents are not the proper parties
to initiate the present suit. The complaint, praying as it did for the
cancellation of the transfer certificates of title of petitioners on the ground
that they were derived from a "spurious" OCT No. 4216, assailed in effect
the validity of said title. While private respondents did not pray for the
reversion of the land to the government, we agree with the petitioners that
the prayer in the complaint will have the same result of reverting the land
to the government under the Regalian Doctrine. Gabila v. Barinaga ruled
that only the government is entitled to this relief. x x x."
[27]

Because the cancellation of the free patent as prayed for by the private respondents
in Peltan would revert the property in question to the public domain, the ultimate

beneficiary would be the government, which can be represented by the solicitor general
only. Therefore, the real party-in-interest is the government, not the private respondents.
This ruling does not, however, apply to the present case. While the private respondents
in Peltan recognized that the disputed property was part of the public domain when they
applied for free patent, herein petitioners asserted and proved private ownership over
the disputed parcel of land by virtue of their open, continued and exclusive possession
thereof since 1916. Msesm
[28]

Neither does the present case call for the reversion of the disputed property to the
State. By asking for the nullification of the free patent granted to the Santos spouses,
the petitioners are claiming the property which, they contend, rightfully belongs to them.
Indeed, the same issue was resolved by this Court in Heirs of Marciano Nagano v.
Court of Appeals. In that case, the trial court dismissed a Complaint seeking the
declaration of nullity of an Original Certificate of Title issued pursuant to a free patent,
reasoning that the action should have been instituted by the solicitor general. In
reversing the trial court, the Supreme Court held: Sl-xsc
[29]

"It is settled that a Free Patent issued over private land is null and void,
and produces no legal effect whatsoever. Quod nullum est, nullum
producit effectum. Moreover, private respondents claim of open, peaceful,
continuous and adverse possession of the 2,250 square meter portion
since 1920, and its illegal inclusion in the Free Patent of petitioners and in
their original certificate of title, gave private respondents a cause of action
for quieting of title which is imprescriptible." Scmis
In any event, the Office of the Solicitor General was afforded an opportunity to express
its position in these proceedings. But it manifested that it would not file a memorandum,
because "this case involves purely private interests."
[30]

The foregoing considered, we sustain the contention of petitioners that the free patent
granted to the Santos spouses is void. It is apparent that they are claiming ownership of
the disputed property on the basis of their possession thereof in the concept of owners
-- openly, peacefully, publicly, continuously and adversely since 1916. Because they and
their predecessors-in-interest have occupied, possessed and cultivated it as owners for
more than thirty years, only one conclusion can be drawn -- it has become private land
and is therefore beyond the authority of the director of lands. Misspped
[31]

Epilogue
We recognize that both the petitioners and the Santos spouses fell victim to the dubious
transaction between Spouses Hilario and Andrea Robles and the Rural Bank of
Cardona, Inc. However, justice and equity mandate that we declare Petitioners Lucio,
Emerita, Aludia and Emilio Robles to have the requisite title essential to their suit for

quieting of title. Considering the circumstances peculiar to this complicated problem, the
Court finds this conclusion the logical and just solution. Sc
The claim that petitioners were guilty of laches in not asserting their rights as owners of
the property should be viewed in the light of the fact that they thought their brother was
paying the requisite taxes for them, and more important, the fact that
they continued cultivating it and harvesting and gaining from its fruits.
From another viewpoint, it can even be said that it was the Rural Bank of Cardona, Inc.,
which was guilty of laches because, granting that it had acquired the subject property
legally, it failed to enforce its rights as owner. It was oblivious to the petitioners
continued occupation, cultivation and possession thereof. Considering that they had
possessed the property in good faith for more than ten years, it can even be argued that
they thus regained it by acquisitive prescription. In any case, laches is a remedy in
equity, and considering the circumstances in this case, the petitioners cannot be held
guilty of it. Jurismis
In sum, the real estate mortgage contract covering the disputed property a contract
executed between Spouses Hilario and Andrea on the one hand and the Rural Bank of
Cardona, Inc., on the other -- is hereby declared null and void insofar as it prejudiced
the shares of Petitioners Lucio, Emerita, Aludia and Emilio Robles; it is valid as to
Hilario Robles share therein. Consequently, the sale of the subject property to the
Santos spouses is valid insofar as it pertained to his share only. Likewise declared null
and void is Free Patent No. IV-1-010021 issued by the Bureau of Lands covering the
subject property. Jjjuris
WHEREFORE, the Petition is hereby GRANTED. The assailed Decision
is REVERSED and SET ASIDE. Except as modified by the last paragraph of this
Decision, the trial courts Decision is REINSTATED. No costs.
SO ORDERED.
Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.

First Division composed of Justice Nathanael P. De Pano Jr., Division chairman and ponente; concurred in by
Justices Salome A. Montoya and Hector L. Hofilea.
[2]
Entitled "Lucio Robles, et al. v. Spouses Virgilio Santos and Baby Ruth Cruz, et. al."
[3]
CA Decision, p. 12; rollo, p. 32.
[4]
Docketed as Civil Case No. 250-M.
[5]
RTC Decision, pp. 2-3; Original Records, pp. 256-257.
[6]
CA Decision, pp. 3-7; rollo, pp. 23-27.
[7]
The case was deemed submitted for decision on November 15, 1999, upon the receipt by the Court of the solicitor
generals Manifestation and Motion in lieu of Memorandum signed by Solicitor General Ricardo P. Galvez, Assistant
Solicitor General Amparo M. Cabotaje-Tang and Associate Solicitor Christopher B. Arpon. Private respondents
[1]

Memorandum, signed by Atty. Mariano H.G. Cervo, was filed on June 19, 1998; while petitioners Memorandum,
signed by Atty. Remigio D. Saladero, was received by the Court on August 5, 1997.
[8]
Rollo, pp. 13-14.
[9]
Vitug, Compendium of Civil Law and Jurisprudence, 1993 rev. ed., p. 295, as quoted in Vda. de Aviles v. Court of
Appeals, 264 SCRA 473, November 21, 1996.
[10]
Art. 477, Civil Code. "The plaintiff must have legal or equitable title to, or an interest in the real property which is
the subject matter of the action. He need not be in possession of said property." See also Amagan v. Marayag, GR
No. 138377, February 28, 2000.
[11]
Tolentino, Civil Code of the Philippines, Vol. II, 1992 ed., p. 150.
[12]
Deiparine et al. v. Court of Appeals, 299 SCRA 668, December 4, 1998; Heirs of Salamat v. Tamayo, 298 SCRA
313, October 30, 1998; Trinidad v. Court of Appeals, 289 SCRA 188, April 20, 1998.
[13]

TSN, Nov. 15, 1990, p. 22. Andrea Robles testified:

"Q And who planted the trees planted [o]n the land?
A My children were going to that land and planted trees.
Q And who took care of those trees?
A They and us, sir.
Q When you said they, to whom [we]re you referring?
A Plaintiffs in this case, sir.
xxx xxx xxx
Q And you and the plaintiffs participated in the harvest of these plants, is that correct?
A Yes sir, and I was giving them their share.
xxx xxx xxx"
[14]
Art. 493, Civil Code. "Each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its
enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to
the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of
the co-ownership."
[15]

Article 2085, Civil Code. "The following requisites are essential to the contracts of pledge and mortgage:

(1) That they be constituted to secure the fulfillment of a principal obligation;

(2) That the pledgor or mortgagor be the absolute owner of the thing pledged or mortgaged.
(3) That the persons constituting the pledge or mortgage have the free disposal of their property, and in the absence
thereof, that they be legally authorized for the purpose." (Italics supplied).
[16]
Hilario and Andrea Robles, who had declared the disputed property under their names on November 7, 1966,
following the alleged sale to them by Exequiel Ballena of the said property on the same day, applied for an
agricultural loan on November 19, 1966. On November 24, 1966, the Robles spouses executed a real estate
mortgage upon the said property. On November 29, 1966, the loan was released to them. (RTC Records, Vol. III,
exhibits for the plaintiffs and the defendants.)

271 SCRA 76, April 8, 1997, per Davide, J. (Now CJ). See also GSIS v. Court of Appeals, 287 SCRA 204, March
6, 1998.
[18]
98 SCRA 280, 286, June 25, 1980, per De Castro, J. See also Rural Bank of Sariaya v. Yacon, 175 SCRA 62, July
5, 1989; Gonzales v. Intermediate Appellate Court, 157 SCRA 587, January 29, 1988. Pichay v. Celestino, 20 SCRA
314, May 30, 1967.
[19]
TSN, July 5, 1990, pp. 4-5; TSN, July 12, 1990, pp. 6-12.
[20]
TSN, July 5, 1990, pp. 4-5. Emeteria Robles testimony supports her brother Lucio Robles assertions regarding the
fact of possession, occupation and cultivation of the property in question. SeeTSN, July 12, 1990, pp. 6-12.
[17]

[21]

TSN, August 16, 1990, p. 21. Carlos Dolores testified:

"Q By the way, have you visited these properties from the time that your bank acquired the same from the auction
sale?
A I went there after the foreclosure, sir.
Q And after that date, have you ever gone to these properties?
A Yes, sir.
Q When?
A 1987, sir."
[22]
Herico v. Dar, 95 SCRA 437,443, January 22, 1980, per De Castro, J.
[23]
Mesina v. Vda. de Sonza et al., 108 Phil. 251, May 25, 1960; Herico v. Dar, 95 SCRA 437, January 22, 1980;
Azarcon v. Vallarta, 100 SCRA 450, October 28, 1980; Mendoza v. Navarette, 214 SCRA 337, September 30, 1992;
Heirs of Marciano Nagao v. Court of Appeals, 282 SCRA 43, November 17, 1997.
[24]
181 SCRA 793, February 6, 1990, per Regalado, J.; italics supplied.
[25]
Memorandum of the Santos spouses, p. 6; rollo, p. 81.
[26]
270 SCRA 82, March 19, 1997, per Panganiban, J. In this case, the private respondents, as plaintiffs before the
trial court, filed a Complaint for Cancellation of Titles and Damages, alleging that they had been in possession of the
disputed property for many years, occupying and cultivating it until they were forcibly ousted therefrom by one of
the defendants. They maintained that the processing and the eventual approval of their free patent application were
held in abeyance because of the alleged existence of several certificates of title, which had been derived from a
fictitious or spurious original certificate of title.
[27]
41 SCRA 131, September 30, 1971.
[28]
The private respondents even averred in their Complaint before the trial court that "as citizens and taxpayers of
this country, they [also] have a legitimate interest in the disposition of alienable lands of the State xxx."
(Peltan, supra, at p. 87).
[29]
282 SCRA 43, November 17, 1997, per Davide, J. (Now CJ).
[30]
Manifestation and Motion in lieu of Memorandum, p. 1; rollo, p. 101.
[31]

Art. 1137 of the Civil Code provides:

"Ownership and other real rights over immovables also prescribe through uninterrupted adverse possession thereof
for thirty years, without need of title or good faith."

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 of respondent 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-part pro-indiviso division 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) as follows:
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 that time
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 the co-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 Pansacola who, being all minors,
are still under the care 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 a special 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 case are 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 October 15, 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 April 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 mapagtoos ang hangahan ng apat na sapul na pagcacabahagui
nitong manang ito, pagcacausap na naming lahat at maihanay at 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 nito ang nagtanim sa halagang:- bawat caponong niog na nabunga, P
1.00 '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 bahagui ay 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 sa halagang 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 the distribution 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 agreement speaks 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 judicata to 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).
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 was divided 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-ininterest. There need not be a 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 right pro-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 the 1907 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 partitioned and 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 his share 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 the common 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 Josefina Pansacola (Rollo, p. 151).
PREMISES CONSIDERED, the instant petition is likewise DENIED for lack of merit.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Gancayco, JJ., concur.

Footnotes

* Penned by Associate Justice Desiderio P. Jurado, concurred in by Justices Crisolito

Pascual, Jose C. Campos, Jr. and Ma. Rosario Quetulio-Losa.
** Penned by Judge Fernando A. Santiago.
*** Rendered by Judge Fernando A. Santiago.

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, Matilde Ortiz, 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 said testatrix 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, 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 at
3. A lot on Magallanes Street, Vigan; valued at

P6,000.00
1,500.00
100.00

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

60.00

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 judicial authorization, 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 collected therefrom, 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
and deliver 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 the costs.
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 never refused 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 bridle curb and a watch charm
consisting of the engraving of a postage stamp on a stone 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, Ricardo Pardell 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 substituting the 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 be awarded 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 valuation determined 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 indiviso properties; that, therefore,
the defendants had 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, the former, 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 the pro indiviso status of the property.
The case having been heard, the court on October 5, 1907, rendered judgment holding that the
revenues and the expenses were compensated by the residence enjoyed by the 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 her will 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 of
certain 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 was pro 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 said finding 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 house on 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 held pro 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 and proceeds 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 of joint 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 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 manner that 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 urban properties 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 of the 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 the
counterclaim, 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 order that 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 said pro indivisoproperty, 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 lower court 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 plaintiff Vicenta 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 judge admitting 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 a pro 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 the pro
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,
the difference between the assessed value and that fixed by the judicial expert appraiser, for 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 have been 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 the amount 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 the pro indiviso property
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 the complaint; 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.
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, 1 promulgated 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 the Registry 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 sale and mortgage and cancellation of the annotation of the
sale and mortgage involving the same parcels of 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 been
notified 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 possible redemptioners 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 disinterest in buying
the property.
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 was actively 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 as practitioner
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 the Civil 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, 1968 confirming 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 question is under coownership, 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 the shares 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 may respectively 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 the affidavits 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 legal redemption
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 among the 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
partition agreement 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 was asserted not only after partition but after the
property inherited had actually been subdivided into 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 in fraud 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, it cannot 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 of administration, 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 of the 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 complaint specifically stated
that she brought the action in her capacity as administratrix of the intestate estate of Mario Benito.
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 the redemptioner should tender payment of the
redemption money within thirty (30) days from written notice of the sale by the coowner.
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 letter informing 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.
G.R. No. 78178 April 15, 1988
DELIA BAILON-CASILAO, LUZ PAULINO-ANG, EMMA PAULINO-YBANEZ, NILDA PAULINOTOLENTINO, 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 of lis
pendens on 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 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 of Donato 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 the two-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 each of 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 court insofar 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 as his, the
sale will affect only his own share but not those of the other co-owners who did not consent to the
sale [Punsalan v. Boon Liat 44 Phil. 320 (1923)]. This is because under the aforementioned codal
provision, the sale or other disposition affects only his undivided share and the transferee gets only
what would correspond to his grantor in the partition of the thing owned in common.[Ramirez v.
Bautista, 14 Phil. 528 (1909)]. Consequently, by virtue of the sales made by Rosalia and Gaudencio

Bailon which are valid with respect to their proportionate shares, and the subsequent transfers which
culminated in the sale to private respondent Celestino Afable, the said Afable thereby became a coowner of the disputed parcel of land as correctly held by the lower court since the sales produced
the effect of substituting the buyers in the enjoyment thereof [Mainit v. Bandoy, 14 Phil. 730 (1910)].
From the foregoing, it may be deduced that since a co-owner is entitled to sell his undivided share, a
sale of the entire property by one co-owner without the consent of the other co-owners is not null
and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a
co-owner of the property.
The proper action in cases like this is not for the nullification of the sale or for the recovery of
possession of the thing owned in common from the third person who substituted the co-owner or coowners 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 their consent 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.' [Emphasis supplied.] 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 squarely applicable. 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 the registered coowners 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 registered" 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 be equally
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
the Atus doctrine. Thus:
Prescription is unavailing not only against the registered owner but also 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 institute suit; (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 unreasonable length of time
to do that which by exercising due diligence could or should have been done earlier;
it is negligence or omission to assert a right within a reasonable time warranting a
presumption that the party entitled to assert it either has abandoned it or declined to
assert it. Tijam, et al., v. Sibonghanoy, G.R. No. L-21450, April 25, 1968, 23 SCRA
29,35; Tendo v. Zamacoma, G.R. No. L-63048, August 7, 1985, 138 SCRA 78, 90].
The doctrine of "laches" or of "stale demands" is based upon grounds of public policy
which requires for the peace of society, the discouragement of stale claims and
unlike the statute of limitations, is not a mere question of time but is principally a
question of inequity or unfairness of permitting a right or claim to be enforced or
asserted," [Tijam v. Sibonghanoy, supra, p. 35]. [Emphasis supplied.]

It must be noted that while there was delay in asserting petitioners' rights, such delay was not
attended with any knowledge of the sale nor with any opportunity to bring suit. In the first place,
petitioners had no notice of the sale made by their eldest sister. It is undisputed that the petitioner
co-owners had entrusted the care and management of the parcel of land to Rosalia Bailon who was
the oldest among them [TSN, July 27, 1983, p. 14]. In fact, Nicanor Lee, a son of Rosalia, who was
presented as a witness by the plaintiffs-petitioners, testified on cross-examination that his mother
was only the administrator of the land as she is the eldest and her brothers and sisters were away
[TSN, October 5, 1983, p. 15]. Indeed, when Delia Bailon-Casilao left Sorsogon in 1942 after she got
married, it was only in 1983 that she returned. Sabina on the other hand, is said to be living in
Zamboanga while Bernabe who left for China in 1931 has not been heard from since then.
Consequently, when Rosalia, from whom the private respondent derived his title, made the disputed
sales covering the entire property, the herein petitioners were unaware thereof.
In the second place, they were not afforded an opportunity to bring suit inasmuch as until 1981, they
were kept in the dark about the transactions entered into by their sister. It was only when Delia
Bailon-Casilao returned to Sorsogon in 1981 that she found out about the sales and immediately,
she and her co-petitioners filed the present action for recovery of property. The appellate court thus
erred in holding that 'the petitioners did nothing to show interest in the land." For the administration
of the parcel of land was entrusted to the oldest co-owner who was then in possession thereof
precisely because the other co-owners cannot attend to such a task as they reside outside of
Sorsogon where the land is situated. Her co-owners also allowed her to appropriate the entire
produce for herself because it was not even enough for her daily consumption [TSN, October 5,
1983, pp. 17-18]. And since petitioner was the one receiving the produce, it is but natural that she
was the one to take charge of paying the real estate taxes. Now, if knowledge of the sale by Rosalia
was conveyed to the petitioners only later, they cannot be faulted for the acts of their co-owner who
failed to live up to the trust and confidence expected of her. In view of the lack of knowledge by the
petitioners of the conduct of Rosalia in selling the land without their consent in 1975 and the
absence of any opportunity to institute the proper action until 1981, laches may not be asserted
against the petitioners.
The third element of laches is likewise absent. There was no lack of knowledge or notice on the part
of the defendant that the complainants would assert the right on which they base the suit. On the
contrary, private respondent is guilty of bad faith in purchasing the property as he knew that the
property was co-owned by six persons and yet, there were only two signatories to the deeds of sale
and no special authorization to self was granted to the two sellers by the other co-owners.
Even as the land here was misrepresented in the deeds of sale as "unregistered," the truth was that
Afable already had notice that the land was titled in the name of six persons by virtue of the
Certificate of Title which was already in his possession even before the sale. Such fact is apparent
from his testimony before the court a quo:
COURT:
Q: From whom did you get the certificate of Title?
A: When it was mortgaged by Ponciana Aresgado.
Q: It was mortgaged to you before you bought it?

A: Yes, Your Honor. (TSN, March 5, 1984, p. 12) When crossexamined, he stated:
Q: Mr. Witness, the original Certificate of Title was given to you in the
year 1974, was it not?
A: 1975.
Q: In 1975, you already discovered that the title was in the name of
several persons, is it not?
A: Yes, sir.
Q: When you discovered that it is in the name of several persons, you
filed a case in court for authority to cancel the title to be transferred in
your name, is it not?
A: Yes, sir.
Q: And that was denied by the Court of First Instance of Sorsogon
because there was ordinary one signatory to the deed of sale instead
of six, was it not?
A: Not one but two signatories.
[Decision of the Regional Trial Court of Sorsogon, Rollo, p. 35]
Such actual knowledge of the existence of other co-owners in whose names the lot subject of the
sale was registered should have prompted a searching inquiry by Afable considering the well- known
rule in this jurisdiction that:
... a person dealing with a registered land has a right to rely upon the face of the
Torrens certificate of title and to dispense with the need of inquiring further, except
when the party concerned has actual knowledge of facts and circumstances that
would impel a reasonably cautions man to make such inquiry. [Gonzales v. IAC and
Rural Bank of Pavia, Inc., G.R. No. 69622, January 29, 1988).
Moreover, the undisputed fact is that petitioners are relatives of his wife. As a genuine gesture of
good faith, he should have contacted the petitioners who were still listed as co-owners in the
certificate of title which was already in his possession even before the sale. In failing to exercise
even a minimum degree of ordinary prudence required by the situation, he is deemed to have
bought the lot at his own risk. Hence any prejudice or injury that may be occasioned to him by such
sale must be borne by him.
Indeed, aware of the flaws impairing his title, Afable went to the herein petitioner Delia BailonCasilao, asking the latter to sign a document obviously to cure the flaw [TSN, July 27, 1983, p.6].
Later, he even filed a petition in the Court of First Instance to register the title in his name which was
denied as aforesaid.

It may be gleaned from the foregoing examination of the facts that Celestino Afable is not a buyer in
good faith. Laches being an equitable defense, he who invokes it must come to the court with clean
hands.
WHEREFORE, the petition for certiorari is hereby GRANTED, the challenged decision of the Court
of Appeals is SET ASIDE, and the decision of the trial court is REINSTATED.
SO ORDERED.
G.R. No. 75886 August 30, 1988
CONCEPCION ROQUE, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT, ERNESTO ROQUE, FILOMENA OSMUNDO,
CECILIA ROQUE, MARCELA ROQUE, JOSE ROQUE and RUBEN ROQUE, respondents.
Lorenzo J. Liwag for petitioner.
Dominador Ad Castillo for private respondents.

FELICIANO, J.:
The subject of the present Petition for Review is the 31 July 1986 Decision of the former
Intermediate Appellate Court in AC-G.R. CV No. 02248 (entitled, "Concepcion Roque, plaintiffappellee, vs. Ernesto Roque, Filomena Osmunda Cecilia Roque, Marcela Roque, Jose Roque and
Ruben Roque, defendants-appellants") which reversed and set aside on appeal the decision of the
Regional Trial Court of Malolos, Branch 9.
The controversy here involves a 312 square meter parcel of land situated in San Juan, Malolos,
Bulacan and designated as Lot No. 1549 of the Cadastral Survey of Malolos. The property was
registered originally in the name of Januario Avendao, a bachelor who died intestate and without
issue on 22 October 1945.
On 21 September 1959, the intestate heirs of Januario Avendafio executed a document entitled
"Paghahati at Pagtagabuyan ng Mana sa Labas ng Hukuman." 1 Through this instrument, extrajudicial
partition of Lot No. 1549 was effected among the intestate heirs as follows:
a. One-fourth (1/4) undivided portion to Illuminada Avendao.
b. One-fourth (1/4) undivided portion to Gregorio Avendafio and Miguel Avendao.
c. One-fourth (1/4) undivided portion to Bernardino, Bienvenido, Numeriano and
Rufina, all surnamed Avendao.
d. One-fourth (1/4) undivided portion to respondent Emesto Roque and Victor
Roque. 2

On 28 September 1959, co-owners Illuminada, Gregorio, Miguel, Bernardino, Bienvenido,

Numeriano and Rufina, all surnamed Avendao, in consideration of the aggregate amount of
P500.00, transferred their collective and undivided threefourths (3/4) share in Lot No. 1549 to
respondent Ernesto Roque and Victor Roque, thereby vesting in the latter full and complete
ownership of the property. The transactions were embodied in two (2) separate deeds of sale both
entitled "Kasulatan ng Bilihang Patuluyan" 3 and both duly notarized. Subsequently, in an unnotarized
"Bilihan Lubos at Patuluyan" 4 dated 27 November 1961, Emesto and Victor Roque purportedly sold a
three-fourths (3/4) undivided portion of Lot No. 1549 to their half-sister, petitioner Concepcion Roque, for
the same amount. The property, however, remained registered in the name of the decedent, Januario
Avendao.
Upon the instance of petitioner Concepcion Roque and allegedly of respondent Ernesto Roque, Lot
No. 1549 was surveyed on 20 September 1975. Consequent thereto, a Subdivision Plan 5 was drawn
up by the Geodetic Engineer Identifying and delineating a one-fourth (1/4) portion (78 square meters) of
the property as belonging to respondent Ernesto Roque and Victor Roque (who had died on 14 April
1962), upon the one hand, and a three-fourths (3/4) portion (234 square meters) of the same property as
belonging to petitioner Concepion Roque, upon the other hand. Petitioner claimed that preparation of the
Subdivision Plan, which was approved on 3 November 1975 by the Land Registration Commission was a
preliminary step leading eventually to partition of Lot No. 1549, partition allegedly having been previously
agreed upon inter se by the co-owners. Respondents Ernesto Roque and the legal heirs of Victor Roque, however,
refused to acknowledge petitioner's claim of ownership of any portion of Lot No. 1549 and rejected the plan to divide the land.

Attempts at amicable settlement having fallen through, petitioner Concepcion Roque, on 6

December 1977, filed a Complaint for "Partition with Specific Performance" 6 (docketed as Civil Case
No. 5236-M) with Branch 2 of the then Court of First Instance of Malolos against respondents Emesto
Roque and the heirs of Victor Roque. In her complaint, petitioner (plaintiff below) claimed legal ownership
of an undivided threefourths (3/4) portion of Lot No. 1549, by virtue of the 27 November 1961 "Bilihan
Lubos at Patuluyan" executed in her favor by Emesto Roque and Victor Roque. In support of this claim,
petitioner also presented an undated and unnotarized "Kasulatang Pagkilala sa Bilihan Patuluyan ng
Bahagui at Pagmamana sa Labas ng Hukuman at Paghahati-hati at Abuyan ng Bahagui" 7 said to have
been signed by the respondents in acknowledgment of the existence and validity of the Bilihan in favor of
petitioner. Finally, petitioner alleged that, as a coowner of Lot No. 1549, she had a right to seek partition of
the property, that she could not be compelled to remain in the coownership of the same.
In an Answer with Compulsory Counterclaim 8 filed on 28 December 1977, respondents (defendants
below) impugned the genuineness and due execution of the "Bilihan Lubos at Patuluyan" dated 27
November 1961 on the ground "that the signatures appearing thereon are not the authentic signatures of
the supposed signatories ...." It was also alleged that petitioner Concepcion Roque, far from being a coowner of Lot No. 1549, "occupied a portion of the lot in question by mere tolerance of the [defendants]."
Respondents also refused to honor the unnotarized Kasulatan and, additionally, denied having had any
participation in the preparation of the Subchvision Plan.
On 27 June 1983, the trial court (now Branch 9, Regional Trial Court of Malolos) rendered a
Decision, 9 the dispositive portion of which read:
WHEREFORE, judgment is hereby rendered, in favor of the plaintiff and against the
defendants;
1. Ordering the heirs of the late Victor Roque namely Filomena Osmunda his spouse,
his children, Cecilia Roque, Marcela Roque, Jose Roque and Ruben Roque and their

uncle and co-defendant Emesto Roque, to execute a deed of confirmation of the sale
made by Emesto and Victor Roque in favor of plaintiff Concepcion Roque, entitled
"Bilihan Lubos at Patuluyan," executed on November 27, 1961, Exh. E, over the 3/4
portion of the subject property;
2. Ordering the partition of the parcel of land described in par. 3 of tie complaint
covered by Original Certificate of Title No. 1442 Bulacan issued in the name of
Januario Avendafio, in the proportion of 3/4 to pertain to Concepcion Roque, and 1/4
to pertain to Emesto Roque and his co- defendants, his sister-in-law, nephews and
nieces, in accordance with the approved subdivision plan (LRC Psd-230726).
3. Ordering defendants,jointly and severally, to pay to plaintiff the sum of P2,000.00
as and for attomey's fees and the costs of suit.
SO ORDERED.
The respondents appealed from this decision alleging the following errors:
I
The lower court erred when it decided and ordered defendantsappellants to execute
a confirmation of the "Bilihan Lubos at Patuluyan," Exh. "E."
II
The lower court erred when it decided and ordered the defendantsappellant,s to
deliver unto the plaintiff [a] 3/4 share of the land in question.
III
The lower court erred in deciding this case in favor of the plaintiff-appellee, based on
an unnotarized and forged signature of defendantappellant Ernesto Roque.
IV
The lower court erred in giving credence to the testimony of the plaintiff-appellee
Concepcion Roque despite [its] gross inconsistencies. 10
Acting on the appeal (docketed as A.C.-G.R. CV No. 02248), the Intermediate Appellate Court, in a
Decision 11dated 31 July 1986, reversed the judgment of the trial court and dismissed both the petitioner's
complaint and the respondents' appeal. A Motion for Reconsideration of petitioner Concepcion Roque
was denied.
The present Petition for Review was filed with this Court on 18 September 1986. In a resolution
dated 27 July 1987, we gave due course to the Petition and required the parties to submit their
respective Memoranda.

1. On the matter of dismissal of petitioner's complaint, the Intermediate Appellate Court stated in its
decision:
While the action filed by the plaintiff is for partition, the defendantz, after denying
plaintiff's assertion of co-ownership, asserted that they are the exclusive and sole
owners of the 314 portion of the parcel of land claimed by the plaintiff.
Upon the issue thusjoined by the pleadings, it is obvious that the case has become
one ofownership of the disputed portion of the subject lot.
It is well settled that an action for partition will not prosper as such from the moment
an alleged co-owner asserts an adverse title. The action that may be brought by an
aggrieved co-owner is accion reivindicatoria or action for recovery of title and
possession (Jardin vs. Hallasgo, 11 7 SCRA 532, 536, 537; Paner vs. Gaspar, 3 CA
Rep. 155, 158). (Emphasis supplied)
Viewed in the light of the facts of the present case, the Intermediate Appellate Court's decision
appears to imply that from the moment respondents (defendants below) alleged absolute and
exclusive ownership of the whole of Lot No. 1549 in their Answer, the trial court should have
immediately ordered the dismissal of the action for partition and petitioner (plaintiff below), if she so
desired, should have refiled the case but this time as an accion reinvindicatoria. Taking this analysis
a step further should the reivindicatory action prosper i.e., a co-ownership relation is found to
have existed between the parties a second action for partition would still have to be instituted in
order to effect division of the property among the co-owners.
We do not agree with the above view. An action for partition-which is typically brought by a person
claiming to be co-owner of a specified property against a defendant or defendants whom the plaintiff
recognizes to be co-owners may be seen to present simultaneously two principal issues. First,
there is the issue of whether the plaintiff is indeed a co-owner of the property sought to be
partitioned. Second, assuming that the plaintiff successfully hurdles the first issue, there is the
secondary issue of how the property is to be divided between plaintiff and defendant(s) i.e., what
portion should go to which co-owner.
Should the trial court find that the defendants do not dispute the status of the plaintiff as co-owner,
the court can forthwith proceed to the actual partitioning of the property involved. In case the
defendants assert in their Answer exclusive title in themselves adversely to the plaintiff, the court
should not dismiss the plaintiffs action for partition but, on the contrary and in the exercise of its
general jurisdiction, resolve the question of whether the plaintiff is co-owner or not. Should the trial
court find that the plaintiff was unable to sustain his claimed status as co-owner, or that the
defendants are or have become the sole and exclusive owners of the property involved, the court will
necessarily have to dismiss the action for partition. This result would be reached, not because the
wrong action was commenced by the plaintiff, but rather because the plaintiff having been unable to
show co-ownership rights in himself, no basis exists for requiring the defendants to submit to
partition the property at stake. If, upon the other hand, the court after trial should find the eidstence
of co-ownership among the parties litigant, the court may and should order the partition of the
property in the same action. Judgment for one or the other party being on the merits, the losing party
(respondents in this case) may then appeal the same. In either case, however, it is quite
unnecessary to require the plaintiff to file another action, separate and independent from that for
partition originally instituted. Functionally, an action for partition may be seen to be at once an action

for declaration of coownership and for segregation and conveyance of a determinate portion of the
property involved. This is the import of our jurisprudence on the matter. 12 and is sustained by the
public policy which abhors multiplicity of actions.
The question of prescription also needs to be addressed in this connection. It is sometimes said that
"the action for partition of the thing owned in common (actio communi dividendo or actio familiae
erciscundae) does not prescribe."13 This statement bears some refinement. In the words of Article 494 of
the Civil Code, "each co-owner may demand at any time the partition of the thing owned in common,
insofar as his share is concemed." No matter how long the co-ownership has lasted, a co-owner can
always opt out of the co-ownership, and provided the defendant co-owners or co-heirs have theretofore
expressly or impliedly recognized the co-ownership, they cannot set up as a defense the prescription of
the action for partition. But if the defendants show that they had previously asserted title in themselves
adversely to the plaintiff and for the requisite period of time, the plaintiffs right to require recognition of his
status as a co-owner will have been lost by prescription and the court cannot issue an order requiring
partition. This is precisely what happened in Jardin v. Hallasgo, 117 SCRA 532 (1982), which the
respondent appellate court cited to support its position quoted above.
The case of Jardin involved, among others, two (2) parcels of land which were inherited in 1920 by
the brothers Catalino jardin and Galo Jardin together with their half-brother, Sixto Hallasgo. The
three (3) held these lands in co-ownership until Sixto later (the date was not specified) repudiated
the coownership and occupied and possessed both parcels of land, claiming the same exclusively
as his own. Sometime in 1973, the heirs of Catalino and Galo instituted an action for partition of the
two (2) properties against Sixto's heirs, who had refused to surrender any portion of the same to the
former. The trial court, assuming that prescription had started to run in that case even before the
Civil Code took effect, held that the action for partition filed by the heirs of Catalino and Galo had
already prescribed. On appeal, this Court affirmed the trial court on this point in the following terms:
Article 494 of the Civil Code provides that "no co-owner shall be obliged to remain in
the co- ownership" and that "each co-owner may demand at any time the partition of
the thing owned in common, insofar as his share is concerned." It also provides that
'no prescription shall run in favor of a co-owner or co-heir against his co-owners or
co-heirs so long as he expressly or impliedly recognizes the co-ownership.
While the action for the partition of the thing owned in common (actio communi
dividendo or actio familiae erciscundae) does not prescribe, the co-ownership does
not last forever since it may be repudiated by a co-owner [i.e., Sixto]. In such a case,
the action for partition does not lie. What may be brought by the aggrieved co-owner
[i.e., the heirs of Catalino and Galo] is an accion reivindicatoria or action for recovery
of title and possession. That action may be barred by prescription.
If the co-heir or co-owner having possession of the hereditary or community property,
holds the same in his own name, that is, under claim of exclusive ownership, he may
acquire the property by prescription if his possession meets all the other
requirements of the law, and after the expiration of the prescriptive period, his co-heir
or co-owner may lose their right to demand partition, and their action may then be
held to have prescribed (De los Santos vs. Santa Teresa, 44 Phil. 811).
xxx xxx xxx

(Emphasis supplied)
In the light of the foregoing discussion, it will be seen that the underscored portion of the Court's
opinion in Jardin is actually obiter. For there, the Court simply held the action for partition by the
heirs of Catalino and Galo had prescribed and did not require such heirs to start a new action (which
would have been quite pointless); on the other hand, the Court remanded the case to the lower court
for further proceedings in respect of the recovery of a 350 square meter lot which the evidence
showed was owned by the plaintiffs but wrongfully included by Sixto in the cadastral survey of his
share of the adjoining lot.
In Jardin, the claim of co-ownership asserted by the heirs of Catalino and Galo was effectively
refuted by the heirs of Sixto, who not only claimed for themselves absolute and exclusive ownership
of the disputed properties but were also in actual and adverse possesion thereof for a substantial
length of time. The Court found, further, that the action for partition initially available to the heirs of
Catalino and Galo had, as a result of the preceding circumstance, already prescribed.
An entirely different situation, however, obtains in the case at bar. First of all, petitioner Concepcion
Roque-the co-owner seeking partition has been and is presently in open and continuous
possession of a three-fourths (3/4) portion of the property owned in common. The Court notes in this
respect the finding of the trial court that petitioner, following execution of the "Bilihan Lubos at
Pattlluyan" on 27 November 1961, had been in "continuous occupancyof the 3/4 portion of the
lot ... up to the present, and whereon plaintifrs house and that of her son are erected.
" 14Respondents do not dispute this finding of fact, although they would claim that petitioner's possession
is merely tolerated by them. Second, prior to filing in 1977 of the Complaint in Civil Case No. 5236M, neither of the parties involved had asserted or manifested a claim of absolute and exclusive ownership
over the whole of Lot No. 1549 adverse to that of any of the other co-owners: in other words, coownership of the property had continued to be recognized by all the owners. Consequently, the action for
partition could not have and, as a matter of fact, had not yet prescribed at the time of institution by
Concepcion of the action below.
2. Coming now to the matter regarding dismissal of the respondents'appeal, the Intermediate
Appellate Court held that inasmuch as the attack on the validity of the "Bilihan Lubos at Patuluyan"
was predicated on fraud and no action for annulment of the document had been brought by
respondents within the four (4) year prescriptive period provided under Article 1391 of the Civil Code,
such action had already prescribed.
We find it unnecessary to deal here with the issue of prescription discussed by the respondent court
in its assailed decision. The facts on record clearly show that petitioner Concepcion Roque had been
in actual, open and continuous possession of a three-fourths (3/4) portion of Lot No. 1549 ever since
execution of the "Bilihan Lubos at Patuluyan" in November of 1961. The Court notes that it was only
in their Answer with Compulsory Counterclaim filed with the trial court in December of 1977 more
than sixteen (16) years later that respondents first questioned the genuineness and authenticity of
the "Bilihan Lubos at Patuluyan." Not once during those sixteen (16) years did respondents contest
petitioner's occupation of a three-fourths (3/4) portion of Lot No. 1549. Furthermore, if indeed it is
true that respondents, as they claim, are the absolute owners of the whole of Lot No. 1549, it is most
unusual that respondents would have allowed or tolerated such prolonged occupation by petitioner
of a major portion (3/4) of the land while they, upon the other hand, contented themselves with
occupation of only a fourth thereof. This latter circumstance, coupled with the passage of a very
substantial length of time during which petitioner all the while remained undisturbed and

uninterrupted in her occupation and possession, places respondents here in laches: respondents
may no longer dispute the existence of the co-ownership between petitioner and themselves nor the
validity of petitioner's claim of a threefourths (3/4) interest in Lot No. 1549, as they are deemed, by
their unreasonably long inaction, to have acquiesced in the coow,aership. 15 In this respect, we affirm
the decision of the respondent appellate court presently under review.
WHEREFORE, the Decision of the Intermediate Appellate Court dated 31 July 1986 in A.C.-G.R. CV
No. 02248 is SET ASIDE with respect to that portion which orders the dismissal of the Complaint in
Civil Case No. 5236-M, but is AFFIRMED with respect to that portion which orders the dismissal of
the respondents'appeal in A.C.-G.R. CV No. 02248. The Decision of Branch 9 of the Regional Trial
Court of Malolos dated 27 June 1983 in Civil Case No. 5236-M is hereby REINSTATED. No
pronouncement as to costs.
SO ORDERED.
G.R. No. L-46296 September 24, 1991
EPITACIO DELIMA, PACLANO DELIMA, FIDEL DELIMA, VIRGILIO DELIMA, GALILEO DELIMA,
JR., BIBIANO BACUS, OLIMPIO BACUS and PURIFICACION BACUS, petitioners,
vs.
HON. COURT OF APPEALS, GALILEO DELIMA (deceased), substituted by his legal heirs,
namely: FLAVIANA VDA. DE DELIMA, LILY D. ARIAS, HELEN NIADAS, ANTONIO DELIMA,
DIONISIO DELIMA, IRENEA DELIMA, ESTER DELIMA AND FELY DELIMA, respondents.
Gabriel J. Canete for petitioners.
Emilio Lumontad, Jr. for private respondents.

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

No. 3009 was issued on February 4,1954 in the name of Galileo Delima alone to the exclusion of the
other heirs.
Galileo Delima declared the lot in his name for taxation purposes and paid the taxes thereon from
1954 to 1965.
On February 29, 1968, petitioners, who are the surviving heirs of Eulalio and Juanita Delima, filed
with the Court of First Instance of Cebu (now Regional Trial Court) an action for reconveyance
and/or partition of property and for the annulment of TCT No. 3009 with damages against their
uncles Galileo Delima and Vicente Delima,. Vicente Delima was joined as party defendant by the
petitioners for his refusal to join the latter in their action.
On January 16, 1970, the trial court rendered a decision in favor of petitioners, the dispositive portion
of which states:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the following are the declared
owners of Lot No. 7758 of the Talisay-Minglanilla Friar Lands Estate presently
covered by transfer Certificate of Title No. 3009, each sharing a pro-indiviso share of
one-fourth;
1) Vicente Delima (one-fourth)
2) Heirs of Juanita Delima, namely: Bibiano Bacus, Olimpio Bacus and Purificacion
Bacus (on-fourth);
3) Heirs of Eulalio Delima, namely Epitacio, Pagano, Fidel, Virgilio and Galileo Jr., all
surnamed Delima (one-fourth); and
4) The Heirs of Galileo Delima, namely Flaviana Vda. de Delima, Lily D. Arias, Helen
Niadas and Dionisio, Antonio, Eotu Irenea, and Fely, all surnamed Delima (onefourth).
Transfer Certificate of Title No. 3009 is declared null and void and the Register of
Deeds of Cebu is ordered to cancel the same and issue in lieu thereof another title
with the above heirs as pro-indiviso owners.
After the payment of taxes paid by Galileo Delima since 1958, the heirs of Galileo
Delima are ordered to turn a over to the other heirs their respective shares of the
fruits of the lot in question computed at P170.00 per year up to the present time with
legal (interest).
Within sixty (60) days from receipt of this decision the parties are ordered to petition
the lot in question and the defendants are directed to immediately turn over
possession of the shares here awarded to the respective heirs.
Defendants are condemned to pay the costs of the suit.
The counterclaim is dismissed.

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

Not satisfied with the decision, respondents appealed to the Court of Appeals. On May 19, 1977,
respondent appellate court reversed the trial court's decision and upheld the claim of Galileo Delima
that all the other brothers and sister of Lino Delima, namely Eulalio, Juanita and Vicente, had
already relinquished and waived their rights to the property in his favor, considering that he (Galileo
Delima) alone paid the remaining balance of the purchase price of the lot and the realty taxes
thereon (p. 26, Rollo).
Hence, this petition was filed with the petitioners alleging that the Court of Appeals erred:
1) In not holding that the right of a co-heir to demand partition of inheritance is
imprescriptible. If it does, the defenses of prescription and laches have already been
waived.
2) In disregarding the evidence of the petitioners.(p.13, Rollo)
The issue to be resolved in the instant case is whether or not petitioners' action for partition is
already barred by the statutory period provided by law which shall enable Galileo Delima to perfect
his claim of ownership by acquisitive prescription to the exclusion of petitioners from their shares in
the disputed property. Article 494 of the Civil Code expressly provides:
Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner
may demand at any time the partition of the thing owned in common, insofar as his
share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period of time,
not exceeding ten years, shall be valid. This term may be extended by a new
agreement.
A donor or testator may prohibit partition for a period which shall not exceed twenty
years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his co-owners or
co-heirs so long as he expressly or impliedly recognizes the co-ownership.
As a rule, possession by a co-owner will not be presumed to be adverse to the others, but will be
held to benefit all. It is understood that the co-owner or co-heir who is in possession of an
inheritance pro-indiviso for himself and in representation of his co-owners or co-heirs, if, as such
owner, he administers or takes care of the rest thereof with the obligation of delivering it to his coowners or co-heirs, is under the same situation as a depository, a lessee or a trustee (Bargayo v.
Camumot, 40 Phil, 857; Segura v. Segura, No. L-29320, September 19, 1988, 165 SCRA 368).
Thus, an action to compel partition may be filed at any time by any of the co-owners against the
actual possessor. In other words, no prescription shall run in favor of a co-owner against his coowners or co-heirs so long as he expressly or impliedly recognizes the co-ownership (Del Blanco v.
Intermediate Appellate Court, No. 72694, December 1, 1987, 156 SCRA 55).

However, from the moment one of the co-owners claims that he is the absolute and exclusive owner
of the properties and denies the others any share therein, the question involved is no longer one of
partition but of ownership (De Castro v. Echarri, 20 Phil. 23; Bargayo v. Camumot, supra; De los
Santos v. Santa Teresa, 44 Phil. 811). In such case, the imprescriptibility of the action for partition
can no longer be invoked or applied when one of the co-owners has adversely possessed the
property as exclusive owner for a period sufficient to vest ownership by prescription.
It is settled that possession by a co-owner or co-heir is that of a trustee. In order that such
possession is considered adverse to the cestui que trust amounting to a repudiation of the coownership, the following elements must concur: 1) that the trustee has performed unequivocal acts
amounting to an ouster of the cestui que trust; 2) that such positive acts of repudiation had been
made known to the cestui que trust; and 3) that the evidence thereon should be clear and conclusive
(Valdez v. Olorga, No. L-22571, May 25, 1973, 51 SCRA 71; Pangan v. Court of Appeals, No. L39299, October 18, 1988, 166 SCRA 375).
We have held that when a co-owner of the property in question executed a deed of partition and on
the strength thereof obtained the cancellation of the title in the name of their predecessor and the
issuance of a new one wherein he appears as the new owner of the property, thereby in effect
denying or repudiating the ownership of the other co-owners over their shares, the statute of
limitations started to run for the purposes of the action instituted by the latter seeking a declaration of
the existence of the co-ownership and of their rights thereunder (Castillo v. Court of Appeals, No. L18046, March 31, 1964, 10 SCRA 549). Since an action for reconveyance of land based on implied
or constructive trust prescribes after ten (10) years, it is from the date of the issuance of such title
that the effective assertion of adverse title for purposes of the statute of limitations is counted
(Jaramil v. Court of Appeals, No. L-31858, August 31, 1977, 78 SCRA 420).
Evidence shows that TCT No. 2744 in the name of the legal heirs of Lino Delima, represented by
Galileo Delima, was cancelled by virtue of an affidavit executed by Galileo Delima and that on
February 4, 1954, Galileo Delima obtained the issuance of a new title in Ms name numbered TCT
No. 3009 to the exclusion of his co-heirs. The issuance of this new title constituted an open and clear
repudiation of the trust or co-ownership, and the lapse of ten (10) years of adverse possession by
Galileo Delima from February 4, 1954 was sufficient to vest title in him by prescription. As the
certificate of title was notice to the whole world of his exclusive title to the land, such rejection was
binding on the other heirs and started as against them the period of prescription. Hence, when
petitioners filed their action for reconveyance and/or to compel partition on February 29, 1968, such
action was already barred by prescription. Whatever claims the other co-heirs could have validly
asserted before can no longer be invoked by them at this time.
ACCORDINGLY, the petition is hereby DENIED and the assailed decision of the Court of Appeals
dated May 19, 1977 is AFFIRMED.
SO ORDERED.
Narvasa (Chairman), Cruz and Grio-Aquino, JJ., concur.
G.R. No. 76351 October 29, 1993

VIRGILIO B. AGUILAR, petitioner,

vs.
COURT OF APPEALS and SENEN B. AGUILAR, respondents.
Jose F. Manacop for petitioner.
Siruello, Muyco & Associates Law Office for private respondent.

BELLOSILLO, J.:
This is a petition for review on certiorari seeking to reverse and set aside the Decision of the Court of
Appeals in CA-GR CV No. 03933 declaring null and void the orders of 23 and 26 April, 1979, the
judgment by default of 26 July 1979, and the order of 22 October 1979 of the then Court of First
Instance of Rizal, Pasay City, Branch 30, and directing the trial court to set the case for pre-trial
conference.
Petitioner Virgilio and respondent Senen are brothers; Virgilio is the youngest of seven (7) children of
the late Maximiano Aguilar, while Senen is the fifth. On 28 October 1969, the two brothers purchased
a house and lot in Paraaque where their father could spend and enjoy his remaining years in a
peaceful neighborhood. Initially, the brothers agreed that Virgilio's share in the co-ownership was
two-thirds while that of Senen was one-third. By virtue of a written memorandum dated 23 February
1970, Virgilio and Senen agreed that henceforth their interests in the house and lot should be equal,
with Senen assuming the remaining mortgage obligation of the original owners with the Social
Security System (SSS) in exchange for his possession and enjoyment of the house together with
their father.
Since Virgilio was then disqualified from obtaining a loan from SSS, the brothers agreed that the
deed of sale would be executed and the title registered in the meantime in the name of Senen. It
was further agreed that Senen would take care of their father and his needs since Virgilio and his
family were staying in Cebu.
After Maximiano Aguilar died in 1974, petitioner demanded from private respondent that the latter
vacate the house and that the property be sold and proceeds thereof divided among them.
Because of the refusal of respondent to give in to petitioner's demands, the latter filed on 12 January
1979 an action to compel the sale of the house and lot so that the they could divide the proceeds
between them.
In his complaint, petitioner prayed that the proceeds of the sale, be divided on the basis of two-thirds
(2/3) in his favor and one-third (1/3) to respondent. Petitioner also prayed for monthly rentals for the
use of the house by respondent after their father died.
In his answer with counterclaim, respondent alleged that he had no objection to the sale as long as
the best selling price could be obtained; that if the sale would be effected, the proceeds thereof
should be divided equally; and, that being a co-owner, he was entitled to the use and enjoyment of
the property.

Upon issues being joined, the case was set for pre-trial on 26 April 1979 with the lawyers of both
parties notified of the pre-trial, and served with the pre-trial order, with private respondent executing
a special power of attorney to his lawyer to appear at the pre-trial and enter into any amicable
settlement in his behalf. 1
On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel for respondent, filed a motion to cancel pretrial on the ground that he would be accompanying his wife to Dumaguete City where she would be
a principal sponsor in a wedding.
On 23 April 1979, finding the reasons of counsel to be without merit, the trial court denied the motion
and directed that the pre-trial should continue as scheduled.
When the case was called for pre-trial as scheduled on 26 April 1979, plaintiff and his counsel
appeared. Defendant did not appear; neither his counsel in whose favor he executed a special
power of attorney to represent him at the pre-trial. Consequently, the trial court, on motion of plaintiff,
declared defendant as in default and ordered reception of plaintiff's evidence ex parte.
On 7 May 1979, defendant through counsel filed an omnibus motion to reconsider the order of
default and to defer reception of evidence. The trial court denied the motion and plaintiff presented
his evidence.
On 26 July 1979, rendering judgment by default against defendant, the trial court found him and
plaintiff to be co-owners of the house and lot, in equal shares on the basis of their written agreement.
However, it ruled that plaintiff has been deprived of his participation in the property by defendant's
continued enjoyment of the house and lot, free of rent, despite demands for rentals and continued
maneuvers of defendants, to delay partition. The trial court also upheld the right of plaintiff as coowner to demand partition. Since plaintiff could not agree to the amount offered by defendant for the
former's share, the trial court held that this property should be sold to a third person and the
proceeds divided equally between the parties.
The trial court likewise ordered defendant to vacate the property and pay plaintiff P1,200.00 as
rentals 2 from January 1975 up to the date of decision plus interest from the time the action was filed.
On 17 September 1979, defendant filed an omnibus motion for new trial but on 22 October 1979 the
trial court denied the motion.
Defendant sought relief from the Court of Appeals praying that the following orders and decision of
the trial court be set aside: (a) the order of 23 April 1970 denying defendants motion for
postponement of the pre-trial set on 26 April 1979; (b) the order of 26 April 1979 declaring him in
default and authorizing plaintiff to present his evidence ex-parte; (e) the default judgment of 26 July
1979; and, (d) the order dated 22 October 1979 denying his omnibus motion for new trial.
On 16 October 1986, the Court of Appeals set aside the order of the trial court of 26 April 1979 as
well as the assailed judgment rendered by default., The appellate court found the explanation of
counsel for defendant in his motion to cancel pre-trial as satisfactory and devoid of a manifest
intention to delay the disposition of the case. It also ruled that the trial court should have granted the
motion for postponement filed by counsel for defendant who should not have been declared as in
default for the absence of his counsel.

Petitioner now comes to us alleging that the Court of Appeals erred (1) in not holding that the motion
of defendant through counsel to cancel the pre-trial was dilatory in character and (2) in remanding
the case to the trial court for pre-trial and trial.
The issues to be resolved are whether the trial court correctly declared respondent as in default for
his failure to appear at the pre-trial and in allowing petitioner to present his evidence ex-parte, and
whether the trial court correctly rendered the default judgment against respondent.
We find merit in the petition.
As regards the first issue, the law is clear that the appearance of parties at the pre-trial is
mandatory. 3 A party who fails to appear at a pre-trial conference may be non-suited or considered as in
default. 4 In the case at bar, where private respondent and counsel failed to appear at the scheduled pretrial, the trial, court has authority to declare respondent in default. 5
Although respondent's counsel filed a motion to postpone pre-trial hearing, the grant or denial
thereof is within the sound discretion of the trial court, which should take into account two factors in
the grant or denial of motions for postponement, namely: (a) the reason for the postponement and
(b) the merits of the case of movant. 6
In the instant case, the trial court found the reason stated in the motion of counsel for respondent to
cancel the pre-trial to be without merit. Counsel's explanation that he had to go to by boat as early as
25 March 1979 to fetch his wife and accompany her to a wedding in Dumaguete City on 27 April
1979 where she was one of the principal sponsors, cannot be accepted. We find it insufficient to
justify postponement of the pre-trial, and the Court of Appeals did not act wisely in overruling the
denial. We sustain the trial court and rule that it did not abuse its discretion in denying the
postponement for lack of merit. Certainly, to warrant a postponement of a mandatory process as pretrial would require much more than mere attendance in a social function. It is time indeed we
emphasize that there should be much more than mere perfunctory treatment of the pre-trial
procedure. Its observance must be taken seriously if it is to attain its objective, i.e., the speedy and
inexpensive disposition of cases.
Moreover, the trial court denied the motion for postponement three (3) days before the scheduled
pre-trial. If indeed, counsel for respondent could not attend the pre-trial on the scheduled date,
respondent at least should have personally appeared in order not to be declared as in default. But,
since nobody appeared for him, the order of the trial court declaring him as in default and directing
the presentation of petitioner's evidence ex parte was proper. 7
With regard to the merits of the judgment of the trial court by default, which respondent appellate
court did not touch upon in resolving the appeal, the Court holds that on the basis of the pleadings of
the parties and the evidence presented ex parte, petitioner and respondents are co-owners of
subject house and lot in equal shares; either one of them may demand the sale of the house and lot
at any time and the other cannot object to such demand; thereafter the proceeds of the sale shall be
divided equally according to their respective interests.
Private respondent and his family refuse to pay monthly rentals to petitioner from the time their
father died in 1975 and to vacate the house so that it can be sold to third persons. Petitioner alleges
that respondent's continued stay in the property hinders its disposal to the prejudice of petitioner. On

the part of petitioner, he claims that he should be paid two-thirds (2/3) of a monthly rental of
P2,400.00 or the sum of P1,600.00.
In resolving the dispute, the trial court ordered respondent to vacate the property so that it could be
sold to third persons and the proceeds divided between them equally, and for respondent to pay
petitioner one-half (1/2) of P2,400.00 or the sum of P1,200.00 as monthly rental, conformably with
their stipulated sharing reflected in their written agreement.
We uphold the trial court in ruling in favor of petitioner, except as to the effectivity of the payment of
monthly rentals by respondent as co-owner which we here declare to commence only after the trial
court ordered respondent to vacate in accordance with its order of 26 July 1979.
Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in the coownership, and that each co-owner may demand at any time partition of the thing owned in common
insofar as his share is concerned. Corollary to this rule, Art. 498 of the Code states that whenever
the thing is essentially, indivisible and the co-owners cannot agree that it be, allotted to one of them
who shall indemnify the others, it shall be sold and its proceeds accordingly distributed. This is
resorted to (1) when the right to partition the property is invoked by any of the co-owners but
because of the nature of the property it cannot be subdivided or its subdivision would prejudice the
interests of the co-owners, and (b) the co-owners are not in agreement as to who among them shall
be allotted or assigned the entire property upon proper reimbursement of the co-owners. In one
case, 8 this Court upheld the order of the trial court directing the holding of a public sale of the properties
owned in common pursuant to Art. 498 of the Civil Code.
However, being a co-owner respondent has the right to use the house and lot without paying any
compensation to petitioner, as he may use the property owned in common long as it is in accordance
with the purpose for which it is intended and in a manner not injurious to the interest of the other coowners. 9 Each co-owner of property held pro indiviso exercises his rights over the whole property and
may use and enjoy the same with no other limitation than that he shall not injure the interests of his coowners, the reason being that until a division is made, the respective share of each cannot be determined
and every co-owner exercises, together with his co-participants joint ownership over the pro
indivisoproperty, in addition to his use and enjoyment of the
same. 10
Since petitioner has decided to enforce his right in court to end the co-ownership of the house and
lot and respondent has not refuted the allegation that he has been preventing the sale of the
property by his continued occupancy of the premises, justice and equity demand that respondent
and his family vacate the property so that the sale can be effected immediately. In fairness to
petitioner, respondent should pay a rental of P1,200.00 per month, with legal interest; from the time
the trial court ordered him to vacate, for the use and enjoyment of the other half of the property
appertaining to petitioner.
When petitioner filed an action to compel the sale of the property and the trial court granted the
petition and ordered the ejectment of respondent, the co-ownership was deemed terminated and the
right to enjoy the possession jointly also ceased. Thereafter, the continued stay of respondent and
his family in the house prejudiced the interest of petitioner as the property should have been sold
and the proceeds divided equally between them. To this extent and from then on, respondent should
be held liable for monthly rentals until he and his family vacate.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 16
October 1986 is REVERSED and SET ASIDE. The decision of the trial court in Civil Case No. 69.12P dated 16 July 1979 is REINSTATED, with the modification that respondent Senen B. Aguilar is
ordered to vacate the premises in question within ninety (90) days from receipt of this and to pay
petitioner Virgilio B. Aguilar a monthly rental of P1,200.00 with interest at the legal rate from the time
he received the decision of the trial court directing him to vacate until he effectively leaves the
premises.
The trial court is further directed to take immediate steps to implement this decision conformably with
Art. 498 of the Civil Code and the Rules of Court. This decision is final and executory.
SO ORDERED.

[G.R. No. 124262. October 12, 1999]

TOMAS CLAUDIO MEMORIAL COLLEGE, INC., petitioner vs. COURT
OF APPEALS, HON. ALEJANDRO S. MARQUEZ, CRISANTA DE
CASTRO, ELPIDIA DE CASTRO, EFRINA DE CASTRO, IRENEO
DE CASTRO and ARTEMIO DE CASTRO ADRIANO, respondents.
DECISION
QUISUMBING, J.:

This special civil action for certiorari seeks to set aside the Decision of the Court Appeals
dated August 14, 1995, in CA-G.R. SP No. 36349, and its Resolution dated March 15, 1996,
which denied petitioners motion for reconsideration.
On December 13, 1993, private respondents filed an action for Partition before the Regional
Trial Court of Morong, Rizal. They alleged that their predecessor-in-interest, Juan De Castro,
died intestate in 1993 and they are his only surviving and legitimate heirs. They also alleged that
their father owned a parcel of land designated as Lot No. 3010 located at Barrio San Juan,
Morong, Rizal, with an area of two thousand two hundred sixty nine (2,269) square meters more
or less. They further claim that in 1979, without their knowledge and consent, said lot was sold
by their brother Mariano to petitioner. The sale was made possible when Mariano represented
himself as the sole heir to the property. It is the contention of private respondents that the sale
made by Mariano affected only his undivided share to the lot in question but not the shares of the
other co-owners equivalent to four fifths (4/5) of the property.
Petitioner filed a motion to dismiss contending, as its special defense, lack of jurisdiction
and prescription and/or laches. The trial court, after hearing the motion, dismissed the complaint
in an Order dated August 18, 1984. On motion for reconsideration, the trial court, in an Order
dated October 4, 1994, reconsidered the dismissal of the complaint and set aside its previous

order. Petitioner filed its own motion for reconsideration but it was denied in an Order dated
January 5, 1995.
Aggrieved, petitioner filed with the Court of Appeals a special civil action
for certiorari anchored on the following grounds: a) the RTC has no jurisdiction to try and take
cognizance of the case as the causes of actions have been decided with finality by the Supreme
Court, and b) the RTC acted with grave abuse of discretion and authority in taking cognizance of
the case.
After the parties filed their respective pleadings, the Court of Appeals, finding no grave
abuse of discretion committed by the lower court, dismissed the petition in a Decision dated
August 14, 1995. Petitioner filed a timely motion for reconsideration but it was denied in a
Resolution dated March 15, 1996. Hence this petition.
Petitioner submits the following grounds to support the granting of the writ of certiorari in
the present case:

FIRST GROUND
THE HON. COURT OF APPEALS AND THE REGIONAL TRIAL COURT
(BR. 79) HAD NO JURISDICTION TO TRY SUBJECT CASE (SP. PROC. NO.
118-M). THE CAUSES OF ACTION HEREIN HAVE BEEN FINALLY
DECIDED BY THE HON. COURT OF FIRST INSTANCE OF RIZAL (BR. 31)
MAKATI, METRO MANILA, AND SUSTAINED IN A FINAL DECISION BY
THE HON. SUPREME COURT.
SECOND GROUND
THE HON. COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION
AND AUTHORITY WHEN IT SUSTAINED THE ORDERS OF THE HON.
REGIONAL TRIAL COURT (BR. 79) DATED OCTOBER 4, 1994, AND THE
ORDER DATED JANUARY 5, 1995, WHEN SAID RTC (BR. 79) INSISTED IN
TRYING THIS CASE AGAINST TCMC WHEN IT HAS RULED ALREADY
IN A FINAL ORDER THAT PETITIONER IS NOT A REAL PARTY IN
INTEREST BY THE HON. REGIONAL TRIAL COURT (BR. 79) IN CIVIL
CASE NO. 170, ENTITLED ELPIDIA A. DE CASTRO, ET. AL. vs. TOMAS
CLAUDIO MEMORIAL COLLEGE, ET. AL., WHICH CASE INVOLVED
THE SAME RELIEF, SAME SUBJECT MATTER AND THE SAME PARTIES.
THIRD GROUND

THE HON. COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION

AND AUTHORITY WHEN IT CAPRICIOUSLY AND WHIMSICALLY
DISREGARDED THE EXISTENCE OF RES JUDICATA IN THIS CASE.
The pivotal issues to be resolved in this case are: whether or not the Regional Trial Court
and/or the Court of Appeals had jurisdiction over the case, and if so, whether or not the Court of
Appeals committed grave abuse of discretion in affirming the decision of the Regional Trial
Court.
In assailing the Orders of the appellate court, petitioner invokes Rule 65 of the Rules of
Court as its mode in obtaining a reversal of the assailed Decision and Resolution. Before we
dwell on the merits of this petition, it is worth noting, that for a petition for certiorari to be
granted, it must be shown that the respondent court committed grave abuse of discretion
equivalent to lack or excess of jurisdiction and not mere errors of judgment, for certiorari is not
a remedy for errors of judgment, which are correctible by appeal. [1] By grave abuse of discretion
is meant such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, and mere abuse of discretion is not enough -- it must be grave.[2]
In the case at hand, there is no showing of grave abuse of discretion committed by the public
respondent. As correctly pointed out by the trial court, when it took cognizance of the action for
partition filed by the private respondents, it acquired jurisdiction over the subject matter of the
case.[3] Jurisdiction over the subject matter of a case is conferred by law and is determined by the
allegations of the complaint irrespective of whether the plaintiff is entitled to all or some of the
claims asserted therein.[4] Acquiring jurisdiction over the subject matter of a case does not
necessarily mean that the lower court meant to reverse the decision of the Supreme Court in the
land registration case mentioned by the petitioner.
Moreover, settled is the rule that the jurisdiction of the court over the subject matter is
determined by the allegations of the complaint, hence the courts jurisdiction cannot be made to
depend upon defenses set up in the answer or in a motion to dismiss. [5] This has to be so, for were
the principle otherwise, the ends of justice would be frustrated by making the sufficiency of this
kind of action dependent upon the defendant in all cases.
Worth stressing, as long as a court acts within its jurisdiction any alleged errors committed
in the exercise thereof will amount to nothing more than errors of judgment which are revisable
by timely appeal and not by a special civil action of certiorari.[6] Based on the foregoing, even
assuming for the sake of argument that the appellate court erred in affirming the decision of the
trial court, which earlier denied petitioners motion to dismiss, such actuation on the part of the
appellate court cannot be considered as grave abuse of discretion, hence not correctible
by certiorari, because certiorari is not available to correct errors of procedure or mistakes in the
judges findings and conclusions.

In addition, it is now too late for petitioner to question the jurisdiction of the Court of
Appeals. It was petitioner who elevated the instant controversy to the Court of Appeals via a
petition for certiorari. In effect, petitioner submitted itself to the jurisdiction of the Court of
Appeals by seeking affirmative relief therefrom. If a party invokes the jurisdiction of a court, he
cannot thereafter challenge that courts jurisdiction in the same case. [7] To do otherwise would
amount to speculating on the fortune of litigation, which is against the policy of the Court.
On the issue of prescription, we have ruled that even if a co-owner sells the whole property
as his, the sale will affect only his own share but not those of the other co-owners who did not
consent to the sale.[8] Under Article 493 of the Civil Code, the sale or other disposition affects
only the sellers share pro indiviso, and the transferee gets only what corresponds to his grantors
share in the partition of the property owned in common. Since a co-owner is entitled to sell his
undivided share, a sale of the entire property by one co-owner without the consent of the other
co-owners is not null and void. However, only the rights of the co-owner/seller are transferred,
thereby making the buyer a co-owner of the property. The proper action in a case like this, is not
for the nullification of the sale, or for the recovery of possession of the property owned in
common from the third person, but for division or partition of the entire property if it continued
to remain in the possession of the co-owners who possessed and administered it. [9] Such partition
should result in segregating the portion belonging to the seller and its delivery to the buyer.
In the light of the foregoing, petitioners defense of prescription against an action for
partition is a vain proposition. Pursuant to Article 494 of the Civil Code, no 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. In Budlong vs. Bondoc,[10] this
Court has interpreted said provision of law to mean that the action for partition is
imprescriptible. It 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-heirs as long as he expressly or
impliedly recognizes the co-ownership.
WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of
Appeals is hereby AFFIRMED. Costs against petitioners.
SO ORDERED.