G.R. No.

152766

June 20, 2003

LILIA
SANCHEZ,
Petitioner,
vs.
COURT OF APPEALS, HON. VICTORINO S. ALVARO as Presiding Judge, RTC-Br. 120, Caloocan
City, and VIRGINIA TERIA, Respondents.
DECISION
BELLOSILLO, J.:
This is a Special Civil Action for Certiorari under Rule 65 of the Rules of Court to annul and set aside the Decision
of the Court of Appeals dated 23 May 2001 as well as its Resolution dated 8 January 2002 in CA-G.R. SP No.
59182.
Lilia Sanchez, petitioner, constructed a house on a 76-square meter lot owned by her parents-in-law. The lot was
registered under TCT No. 263624 with the following co-owners: Eliseo Sanchez married to Celia Sanchez,
Marilyn Sanchez married to Nicanor Montalban, Lilian Sanchez, widow, Nenita Sanchez, single, Susana Sanchez
married to Fernando Ramos, and Felipe Sanchez.1 On 20 February 1995, the lot was registered under TCT No.
289216 in the name of private respondent Virginia Teria by virtue of a Deed of Absolute Sale supposed to have
been executed on 23 June 19952 by all six (6) co-owners in her favor.3 Petitioner claimed that she did not affix
her signature on the document and subsequently refused to vacate the lot, thus prompting private respondent
Virginia Teria to file an action for recovery of possession of the aforesaid lot with the Metropolitan Trial Court
(MeTC) of Caloocan City sometime in September 1995, subsequently raffled to Br. 49 of that court.
On 12 February 1998, the MeTC-Br. 49 of Caloocan City ruled in favor of private respondent declaring that the
sale was valid only to the extent of 5/6 of the lot and the other 1/6 remaining as the property of petitioner, on
account of her signature in the Deed of Absolute Sale having been established as a forgery.
Petitioner then elevated her appeal to the Regional Trial Court of Caloocan City, subsequently assigned to Br.
120, which ordered the parties to file their respective memoranda of appeal. Counsel for petitioner did not comply
with this order, nor even inform her of the developments in her case. Petitioner not having filed any pleading with
the RTC of Caloocan City, the trial court affirmed the 27 July 1998 decision of the MeTC.
On 4 November 1998, the MeTC issued an order for the issuance of a writ of execution in favor of private
respondent Virginia Teria, buyer of the property. On 4 November 1999 or a year later, a Notice to Vacate was
served by the sheriff upon petitioner who however refused to heed the Notice.
On 28 April 1999 private respondent started demolishing petitioners house without any special permit of
demolition from the court.
Due to the demolition of her house which continued until 24 May 1999 petitioner was forced to inhabit the portion
of the premises that used to serve as the houses toilet and laundry area.
On 29 October 1999 petitioner filed her Petition for Relief from Judgment with the RTC on the ground that she
was not bound by the inaction of her counsel who failed to submit petitioners appeal memorandum. However
the RTC denied the Petition and the subsequent Motion for Reconsideration.
On 14 June 2000 petitioner filed her Petition for Certiorari with the Court of Appeals alleging grave abuse of
discretion on the part of the court a quo.
On 23 May 2001 the appellate court dismissed the petition for lack of merit.1wphi1 On 18 June 2001 petitioner
filed a Motion for Reconsideration but the Court of Appeals denied the motion in its Resolution of 8 January
2002.
The only issue in this case is whether the Court of Appeals committed grave abuse of discretion in dismissing the
challenged case before it.
As a matter of policy, the original jurisdiction of this Court to issue the so-called extraordinary writs should
generally be exercised relative to actions or proceedings before the Court of Appeals or before constitutional or
other tribunals or agencies the acts of which for some reason or other are not controllable by the Court of Appeals.
Where the issuance of the extraordinary writ is also within the competence of the Court of Appeals or the Regional
Trial Court, it is either of these courts that the specific action for the procurement of the writ must be presented.
However, this Court must be convinced thoroughly that two (2) grounds exist before it gives due course to a
certiorari petition under Rule 65: (a) The tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction; and (b) There is no appeal nor any plain, speedy and
adequate remedy in the ordinary course of law.

Despite the procedural lapses present in this case, we are giving due course to this petition as there are matters
that require immediate resolution on the merits to effect substantial justice.
The Rules of Court should be liberally construed in order to promote their object of securing a just, speedy and
inexpensive disposition of every action or proceeding.4
The rules of procedure should be viewed as mere tools designed to aid the courts in the speedy, just and
inexpensive determination of the cases before them. Liberal construction of the rules and the pleadings is the
controlling principle to effect substantial justice.5 Litigations should, as much as possible, be decided on their
merits and not on mere technicalities.6
Verily, the negligence of petitioners counsel cannot be deemed as negligence of petitioner herself in the case at
bar. A notice to a lawyer who appears to have been unconscionably irresponsible cannot be considered as notice
to his client.7 Under the peculiar circumstances of this case, it appears from the records that counsel was negligent
in not adequately protecting his clients interest, which necessarily calls for a liberal construction of the Rules.
The rationale for this approach is explained in Ginete v. Court of Appeals - 8
This Court may suspend its own rules or exempt a particular case from its operation where the appellate court
failed to obtain jurisdiction over the case owing to appellants failure to perfect an appeal. Hence, with more
reason would this Court suspend its own rules in cases where the appellate court has already obtained jurisdiction
over the appealed case. This prerogative to relax procedural rules of the most mandatory character in terms of
compliance, such as the period to appeal has been invoked and granted in a considerable number of cases x x x
x
Let it be emphasized that the rules of procedure should be viewed as mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate
rather than promote substantial justice, must always be eschewed. Even the Rules of Court reflect this principle.
The power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which this
Court itself has already declared to be final, as we are now constrained to do in the instant case x x x x
The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the
proper and just determination of his cause, free from the constraints of technicalities. Time and again, this Court
has consistently held that rules must not be applied rigidly so as not to override substantial justice.
Aside from matters of life, liberty, honor or property which would warrant the suspension of the Rules of the most
mandatory character and an examination and review by the appellate court of the lower courts findings of fact,
the other elements that should be considered are the following: (a) the existence of special or compelling
circumstances, (b) the merits of the case, (c) a cause not entirely attributable to the fault or negligence of the party
favored by the suspension of the rules, (d) a lack of any showing that the review sought is merely frivolous and
dilatory, and (e) the other party will not be unjustly prejudiced thereby.9
The suspension of the Rules is warranted in this case since the procedural infirmity was not entirely attributable
to the fault or negligence of petitioner. Besides, substantial justice requires that we go into the merits of the case
to resolve the present controversy that was brought about by the absence of any partition agreement among the
parties who were co-owners of the subject lot in question. Hence, giving due course to the instant petition shall
put an end to the dispute on the property held in common.
In Peoples Homesite and Housing Corporation v. Tiongco10 we held:
There should be no dispute regarding the doctrine that normally notice to counsel is notice to parties, and that
such doctrine has beneficent effects upon the prompt dispensation of justice. Its application to a given case,
however, should be looked into and adopted, according to the surrounding circumstances; otherwise, in the
courts desire to make a short-cut of the proceedings, it might foster, wittingly or unwittingly, dangerous
collusions to the detriment of justice. It would then be easy for one lawyer to sell ones rights down the river, by
just alleging that he just forgot every process of the court affecting his clients, because he was so busy. Under
this circumstance, one should not insist that a notice to such irresponsible lawyer is also a notice to his clients.
Thus, we now look into the merits of the petition.
This case overlooks a basic yet significant principle of civil law: co-ownership. Throughout the proceedings from
the MeTC to the Court of Appeals, the notion of co-ownership11 was not sufficiently dealt with. We attempt to
address this controversy in the interest of substantial justice. Certiorari should therefore be granted to cure this
grave abuse of discretion.
Sanchez Roman defines co-ownership as "the right of common dominion which two or more persons have in a
spiritual part of a thing, not materially or physically divided.12 Manresa defines it as the "manifestation of the

private right of ownership, which instead of being exercised by the owner in an exclusive manner over the things
subject to it, is exercised by two or more owners and the undivided thing or right to which it refers is one and the
same."13
The characteristics of co-ownership are: (a) plurality of subjects, who are the co-owners, (b) unity of or material
indivision, which means that there is a single object which is not materially divided, and which is the element
which binds the subjects, and, (c) the recognition of ideal shares, which determines the rights and obligations of
the co-owners.14
In co-ownership, the relationship of such co-owner to the other co-owners is fiduciary in character and attribute.
Whether established by law or by agreement of the co-owners, the property or thing held pro-indiviso is impressed
with a fiducial nature so that each co-owner becomes a trustee for the benefit of his co-owners and he may not do
any act prejudicial to the interest of his co-owners.15
Thus, the legal effect of an agreement to preserve the properties in co-ownership is to create an express trust
among the heirs as co-owners of the properties. Co-ownership is a form of trust and every co-owner is a trustee
for the others.16
Before the partition of a land or thing held in common, no individual or co-owner can claim title to any definite
portion thereof. All that the co-owner has is an ideal or abstract quota or proportionate share in the entire land or
thing.17
Article 493 of the Civil Code gives the owner of an undivided interest in the property the right to freely sell and
dispose of it, i.e., his undivided interest. He may validly lease his undivided interest to a third party independently
of the other co-owners.18 But he has no right to sell or alienate a concrete, specific or determinate part of the thing
owned in common because his right over the thing is represented by a quota or ideal portion without any physical
adjudication.19
Although assigned an aliquot but abstract part of the property, the metes and bounds of petitioners lot has not
been designated. As she was not a party to the Deed of Absolute Sale voluntarily entered into by the other coowners, her right to 1/6 of the property must be respected. Partition needs to be effected to protect her right to her
definite share and determine the boundaries of her property. Such partition must be done without prejudice to the
rights of private respondent Virginia Teria as buyer of the 5/6 portion of the lot under dispute.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals dated 23 May 2001 as well as
its Resolution dated 8 January 2002 in CA-G.R. SP No. 59182 is ANNULLED and SET ASIDE. A survey of the
questioned lot with TCT No. 289216 (formerly TCT No. 263624) by a duly licensed geodetic engineer and the
PARTITION of the aforesaid lot are ORDERED.
Let the records of this case be REMANDED to MeTC-Br. 49, Caloocan City to effect the aforementioned survey
and partition, as well as segregate the 1/6 portion appertaining to petitioner Lilia Sanchez.
The Deed of Absolute Sale by the other co-owners to Virginia Teria shall be RESPECTED insofar as the other
undivided 5/6 portion of the property is concerned.
SO ORDERED.
G.R. No. 133638

April 15, 2005

PERPETUA
VDA.
DE
APE,
Petitioner,
vs.
THE HONORABLE COURT OF APPEALS and GENOROSA CAWIT VDA. DE LUMAYNO,
Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. CV No.
45886 entitled, "Generosa Cawit de Lumayno, accompanied by her husband Braulio Lumayno v. Fortunato Ape,
including his wife Perpetua de Ape."
The pertinent facts are as follows:
Cleopas Ape was the registered owner of a parcel of land particularly known as Lot No. 2319 of the Escalante
Cadastre of Negros Occidental and covered by Original Certificate of Title (OCT) No. RP 1379 (RP-154 [300]).2
Upon Cleopas Ape's death sometime in 1950, the property passed on to his wife, Maria Ondoy, and their eleven

(11) children, namely: Fortunato, Cornelio, Bernalda, Bienvenido, Encarnacion, Loreta, Lourdes, Felicidad,
Adela, Dominador, and Angelina, all surnamed Ape.
On 15 March 1973, Generosa Cawit de Lumayno (private respondent herein), joined by her husband, Braulio, 3
instituted a case for "Specific Performance of a Deed of Sale with Damages" against Fortunato and his wife
Perpetua (petitioner herein) before the then Court of First Instance of Negros Occidental. It was alleged in the
complaint that on 11 April 1971, private respondent and Fortunato entered into a contract of sale of land under
which for a consideration of P5,000.00, Fortunato agreed to sell his share in Lot No. 2319 to private
respondent. The agreement was contained in a receipt prepared by private respondent's son-in-law, Andres
Flores, at her behest. Said receipt was attached to the complaint as Annex "A" thereof and later marked as Exhibit
"G" for private respondent. The receipt states:
April 11, 1971
TO WHOM IT MAY CONCERN:
This date received from Mrs. Generosa Cawit de Lumayno the sum of THIRTY PESOS ONLY as
Advance Payment of my share in Land Purchased, for FIVE THOUSAND PESOS LOT #2319.
(Signed)
FORTUNATO APE
P30.00
(Illegible)4

WITNESS:

As private respondent wanted to register the claimed sale transaction, she supposedly demanded that Fortunato
execute the corresponding deed of sale and to receive the balance of the consideration. However, Fortunato
unjustifiably refused to heed her demands. Private respondent, therefore, prayed that Fortunato be ordered to
execute and deliver to her "a sufficient and registrable deed of sale involving his one-eleventh (1/11) share or
participation in Lot No. 2319 of the Escalante Cadastre; to pay P5,000.00 in damages; P500.00 reimbursement
for litigation expenses as well as additional P500.00 for every appeal made; P2,000.00 for attorney's fees; and to
pay the costs.5
Fortunato and petitioner denied the material allegations of the complaint and claimed that Fortunato never sold
his share in Lot No. 2319 to private respondent and that his signature appearing on the purported receipt was
forged. By way of counterclaim, the defendants below maintained having entered into a contract of lease with
respondent involving Fortunato's portion of Lot No. 2319. This purported lease contract commenced in 1960 and
was supposed to last until 1965 with an option for another five (5) years. The annual lease rental was P100.00
which private respondent and her husband allegedly paid on installment basis. Fortunato and petitioner also
assailed private respondent and her husband's continued possession of the rest of Lot No. 2319 alleging that in
the event they had acquired the shares of Fortunato's co-owners by way of sale, he was invoking his right to
redeem the same. Finally, Fortunato and petitioner prayed that the lease contract between them and respondent
be ordered annulled; and that respondent be ordered to pay them attorney's fees; moral damages; and exemplary
damages.6
In their reply,7 the private respondent and her husband alleged that they had purchased from Fortunato's coowners, as evidenced by various written instruments,8 their respective portions of Lot No. 2319. By virtue of
these sales, they insisted that Fortunato was no longer a co-owner of Lot No. 2319 thus, his right of redemption
no longer existed.
Prior to the resolution of this case at the trial court level, Fortunato died and was substituted in this action by his
children named Salodada, Clarita, Narciso, Romeo, Rodrigo, Marieta, Fortunato, Jr., and Salvador, all surnamed
Ape.9
During the trial, private respondent testified that she and her husband acquired the various portions of Lot No.
2319 belonging to Fortunato's co-owners. Thereafter, her husband caused the annotation of an adverse claim on
the certificate of title of Lot No. 2319.10 The annotation states:
Entry No. 123539 Adverse claim filed by Braulio Lumayno. Notice of adverse claim filed by Braulio Lumayno
affecting the lot described in this title to the extent of 77511.93 square meters, more or less, the aggregate area of
shares sold to him on the basis of (alleged) sales in his possession. Doc. No. 157, Page No. 33, Book No. XI,
Series of 1967 of Alexander Cawit of Escalante, Neg. Occ. Date of instrument. June 22, 1967 at 8:30 a.m.
(SGD) FEDENCIORRAZ, Actg. Register of Deeds.11

In addition, private respondent claimed that after the acquisition of those shares, she and her husband had the
whole Lot No. 2319 surveyed by a certain Oscar Mascada who came up with a technical description of said piece
of land.12 Significantly, private respondent alleged that Fortunato was present when the survey was conducted.13
Also presented as evidence for private respondent were pictures taken of some parts of Lot No. 2319 purportedly
showing the land belonging to Fortunato being bounded by a row of banana plants thereby separating it from the
rest of Lot No. 2319.14
As regards the circumstances surrounding the sale of Fortunato's portion of the land, private respondent testified
that Fortunato went to her store at the time when their lease contract was about to expire. He allegedly demanded
the rental payment for his land but as she was no longer interested in renewing their lease agreement, they agreed
instead to enter into a contract of sale which Fortunato acceded to provided private respondent bought his portion
of Lot No. 2319 for P5,000.00. Thereafter, she asked her son-in-law Flores to prepare the aforementioned
receipt. Flores read the document to Fortunato and asked the latter whether he had any objection
thereto. Fortunato then went on to affix his signature on the receipt.
For her part, petitioner insisted that the entire Lot No. 2319 had not yet been formally subdivided; 15 that on 11
April 1971 she and her husband went to private respondent's house to collect past rentals for their land then leased
by the former, however, they managed to collect only thirty pesos;16 that private respondent made her (petitioner's)
husband sign a receipt acknowledging the receipt of said amount of money;17 and that the contents of said receipt
were never explained to them.18 She also stated in her testimony that her husband was an illiterate and only learned
how to write his name in order to be employed in a sugar central.19 As for private respondent's purchase of the
shares owned by Fortunato's co-owners, petitioner maintained that neither she nor her husband received any notice
regarding those sales transactions.20 The testimony of petitioner was later on corroborated by her daughter-inlaw, Marietta Ape Dino.21
After due trial, the court a quo rendered a decision22 dismissing both the complaint and the counterclaim. The
trial court likewise ordered that deeds or documents representing the sales of the shares previously owned by
Fortunato's co-owners be registered and annotated on the existing certificate of title of Lot No. 2319. According
to the trial court, private respondent failed to prove that she had actually paid the purchase price of P5,000.00 to
Fortunato and petitioner. Applying, therefore, the provision of Article 1350 of the Civil Code, 23 the trial court
concluded that private respondent did not have the right to demand the delivery to her of the registrable deed of
sale over Fortunato's portion of the Lot No. 2319.
The trial court also rejected Fortunato and petitioner's claim that they had the right of redemption over the shares
previously sold to private respondent and the latter's husband, reasoning as follows:
Defendants in their counterclaim invoke their right of legal redemption under Article 1623 of the New Civil Code
in view of the alleged sale of the undivided portions of the lot in question by their co-heirs and co-owners as
claimed by the plaintiffs in their complaint. They have been informed by the plaintiff about said sales upon the
filing of the complaint in the instant case as far back as March 14, 1973. Defendant themselves presented as their
very own exhibits copies of the respective deeds of sale or conveyance by their said co-heirs and co-owners in
favor of the plaintiffs or their predecessors-in-interest way back on January 2, 1992 when they formally offered
their exhibits in the instant case; meaning, they themselves acquired possession of said documentary exhibits even
before they formally offered them in evidence. Under Art. 1623 of the New Civil Code, defendants have only
THIRTY (30) DAYS counted from their actual knowledge of the exact terms and conditions of the deeds of sale
or conveyance of their co-heirs' and co-owners' share within which to exercise their right of legal redemption.24
Within the reglementary period, both parties filed their respective notices of appeal before the trial court with
petitioner and her children taking exception to the finding of the trial court that the period within which they could
invoke their right of redemption had already lapsed.25 For her part, private respondent raised as errors the trial
court's ruling that there was no contract of sale between herself and Fortunato and the dismissal of their complaint
for specific performance.26
The Court of Appeals, in the decision now assailed before us, reversed and set aside the trial court's dismissal of
the private respondent's complaint but upheld the portion of the court a quo's decision ordering the dismissal of
petitioner and her children's counterclaim. The dispositive portion of the appellate court's decision reads:
WHEREFORE, the decision dated March 11, 1994, is hereby REVERSED and SET ASIDE insofar as the
dismissal of plaintiffs-appellants' complaint is concerned, and another one is entered ordering the
defendant-appellant Fortunato Ape and/or his wife Perpetua de Ape and successors-in-interest to execute
in favor of plaintiff-appellant Generosa Cawit de Lumayno a Deed of Absolute Sale involving the oneeleventh (1/11) share or participation of Fortunato Ape in Lot No. 2319, Escalante Cadastre, containing
an area of 12,527.19 square meters, more or less, within (30) days from finality of this decision, and in
case of non-compliance with this Order, that the Clerk of Court of said court is ordered to execute the
deed on behalf of the vendor. The decision is AFFIRMED insofar as the dismissal of defendantsappellants' counterclaim is concerned.

Without pronouncement as to costs.27

The Court of Appeals upheld private respondent's position that Exhibit "G" had all the earmarks of a valid contract
of sale, thus:
Exhibit G is the best proof that the P5,000.00 representing the purchase price of the 1/11th share of Fortunato Ape
was not paid by the vendee on April 11, 1971, and/or up to the present, but that does not affect the binding force
and effect of the document. The vendee having paid the vendor an advance payment of the agreed purchase price
of the property, what the vendor can exact from the vendee is full payment upon his execution of the final deed
of sale. As is shown, the vendee precisely instituted this action to compel the vendor Fortunato Ape to execute
the final document, after she was informed that he would execute the same upon arrival of his daughter "Bala"
from Mindanao, but afterwards failed to live up to his contractual obligation (TSN, pp. 11-13, June 10, 1992).
It is not right for the trial court to expect plaintiff-appellant to pay the balance of the purchase price before the
final deed is executed, or for her to deposit the equivalent amount in court in the form of
consignation. Consignation comes into fore in the case of a creditor to whom tender of payment has been made
and refuses without just cause to accept it (Arts. 1256 and 1252, N.C.C.; Querino vs. Pelarca, 29 SCRA 1). As
vendee, plaintiff-appellant Generosa Cawit de Lumayno does not fall within the purview of a debtor.
We, therefore, find and so hold that the trial court should have found that exhibit G bears all the earmarks of a
private deed of sale which is valid, binding and enforceable between the parties, and that as a consequence of the
failure and refusal on the part of the vendor Fortunato Ape to live up to his contractual obligation, he and/or his
heirs and successors-in-interest can be compelled to execute in favor of, and to deliver to the vendee, plaintiffappellant Generosa Cawit de Lumayno a registerable deed of absolute sale involving his one-eleventh (1/11th)
share or participation in Lot No. 2319, Escalante Cadastre, containing an area of 12,527.19 square meters, more
or less, within 30 days from finality of this decision, and, in case of non-compliance within said period, this Court
appoints the Clerk of Court of the trial court to execute on behalf of the vendor the said document.28
The Court of Appeals, however, affirmed the trial court's ruling on the issue of petitioner and her children's right
of redemption. It ruled that Fortunato's receipt of the Second Owner's Duplicate of OCT (RP) 1379 (RP-154
([300]), containing the adverse claim of private respondent and her husband, constituted a sufficient compliance
with the written notice requirement of Article 1623 of the Civil Code and the period of redemption under this
provision had long lapsed.
Aggrieved by the decision of the appellate court, petitioner is now before us raising, essentially, the following
issues: whether Fortunato was furnished with a written notice of sale of the shares of his co-owners as required
by Article 1623 of the Civil Code; and whether the receipt signed by Fortunato proves the existence of a contract
of sale between him and private respondent.
In her memorandum, petitioner claimed that the Court of Appeals erred in sustaining the court a quo's
pronouncement that she could no longer redeem the portion of Lot No. 2319 already acquired by private
respondent for no written notice of said sales was furnished them. According to her, the Court of Appeals unduly
expanded the scope of the law by equating Fortunato's receipt of Second Owner's Duplicate of OCT (RP) 1379
(RP-154 ([300]) with the written notice requirement of Article 1623. In addition, she argued that Exhibit "G"
could not possibly be a contract of sale of Fortunato's share in Lot No. 2319 as said document does not contain
"(a) definite agreement on the manner of payment of the price."29 Even assuming that Exhibit "G" is, indeed, a
contract of sale between private respondent and Fortunato, the latter did not have the obligation to deliver to
private respondent a registrable deed of sale in view of private respondent's own failure to pay the full purchase
price of Fortunato's portion of Lot No. 2319. Petitioner is also of the view that, at most, Exhibit "G" merely
contained a unilateral promise to sell which private respondent could not enforce in the absence of a consideration
distinct from the purchase price of the land. Further, petitioner reiterated her claim that due to the illiteracy of
her husband, it was incumbent upon private respondent to show that the contents of Exhibit "G" were fully
explained to him. Finally, petitioner pointed out that the Court of Appeals erred when it took into consideration
the same exhibit despite the fact that only its photocopy was presented before the court.
On the other hand, private respondent argued that the annotation on the second owner's certificate over Lot No.
2319 constituted constructive notice to the whole world of private respondent's claim over the majority of said
parcel of land. Relying on our decision in the case of Cabrera v. Villanueva,30 private respondent insisted that
when Fortunato received a copy of the second owner's certificate, he became fully aware of the contracts of sale
entered into between his co-owners on one hand and private respondent and her deceased husband on the other.
Private respondent also averred that "although (Lot No. 2319) was not actually partitioned in a survey after the
death of Cleopas Ape, the land was partitioned in a 'hantal-hantal' manner by the heirs. Each took and possessed
specific portion or premises as his/her share in land, farmed their respective portion or premises, and improved
them, each heir limiting his/her improvement within the portion or premises which were his/her respective
share."31 Thus, when private respondent and her husband purchased the other parts of Lot No. 2319, it was no
longer undivided as petitioner claims.

The petition is partly meritorious.

Article 1623 of the Civil Code provides:
The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in
writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale shall not be recorded
in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice
thereof to all possible redemptioners.
Despite the plain language of the law, this Court has, over the years, been tasked to interpret the "written notice
requirement" of the above-quoted provision. In the case Butte v. Manuel Uy & Sons, Inc.,32 we declared that
In considering whether or not the offer to redeem was timely, we think that the notice given by the vendee (buyer)
should not be taken into account. The text of Article 1623 clearly and expressly prescribes that the thirty days
for making the redemption are to be counted from notice in writing by the vendor. Under the old law (Civ. Code
of 1889, Art. 1524), it was immaterial who gave the notice; so long as the redeeming co-owner learned of the
alienation in favor of the stranger, the redemption period began to run. It is thus apparent that the Philippine
legislature in Article 1623 deliberately selected a particular method of giving notice, and that method must be
deemed exclusive. (39 Am. Jur., 237; Payne vs. State, 12 S.W. 2(d) 528). As ruled in Wampler vs. Lecompte,
150 Atl. 458 (affd. in 75 Law Ed. [U.S.] 275)
why these provisions were inserted in the statute we are not informed, but we may assume until the
contrary is shown, that a state of facts in respect thereto existed, which warranted the legislature in so
legislating.
The reasons for requiring that the notice should be given by the seller, and not by the buyer, are easily
divined. The seller of an undivided interest is in the best position to know who are his co-owners that under the
law must be notified of the sale. Also, the notice by the seller removes all doubts as to fact of the sale, its
perfection; and its validity, the notice being a reaffirmation thereof, so that the party notified need not entertain
doubt that the seller may still contest the alienation. This assurance would not exist if the notice should be given
by the buyer.33
The interpretation was somehow modified in the case of De Conejero, et al. v. Court of Appeals, et al.34 wherein
it was pointed out that Article 1623 "does not prescribe a particular form of notice, nor any distinctive method for
notifying the redemptioner" thus, as long as the redemptioner was notified in writing of the sale and the particulars
thereof, the redemption period starts to run. This view was reiterated in Etcuban v. The Honorable Court of
Appeals, et al.,35 Cabrera v. Villanueva,36 Garcia, et al. v. Calaliman, et al.,37 Distrito, et al. v. The Honorable
Court of Appeals, et al.,38 and Mariano, et al. v. Hon. Court of Appeals, et al.39
However, in the case of Salatandol v. Retes,40 wherein the plaintiffs were not furnished any written notice of sale
or a copy thereof by the vendor, this Court again referred to the principle enunciated in the case of Butte. As
observed by Justice Vicente Mendoza, such reversion is only sound, thus:
Art. 1623 of the Civil Code is clear in requiring that the written notification should come from the vendor or
prospective vendor, not from any other person. There is, therefore, no room for construction. Indeed, the
principal difference between Art. 1524 of the former Civil Code and Art. 1623 of the present one is that the former
did not specify who must give the notice, whereas the present one expressly says the notice must be given by the
vendor. Effect must be given to this change in statutory language.41
In this case, the records are bereft of any indication that Fortunato was given any written notice of prospective or
consummated sale of the portions of Lot No. 2319 by the vendors or would-be vendors. The thirty (30)-day
redemption period under the law, therefore, has not commenced to run.
Despite this, however, we still rule that petitioner could no longer invoke her right to redeem from private
respondent for the exercise of this right "presupposes the existence of a co-ownership at the time the conveyance
is made by a co-owner and when it is demanded by the other co-owner or co-owners."42 The regime of coownership exists when ownership of an undivided thing or right belongs to different persons. 43 By the nature of
a co-ownership, a co-owner cannot point to specific portion of the property owned in common as his own because
his share therein remains intangible.44 As legal redemption is intended to minimize co-ownership,45 once the
property is subdivided and distributed among the co-owners, the community ceases to exist and there is no more
reason to sustain any right of legal redemption.46
In this case, records reveal that although Lot No. 2319 has not yet been formally subdivided, still, the particular
portions belonging to the heirs of Cleopas Ape had already been ascertained and they in fact took possession of
their respective parts. This can be deduced from the testimony of petitioner herself, thus:
Q

When the plaintiffs leased the share of your husband, were there any metes and bounds?

It was not formally subdivided. We have only a definite portion. (hantal-hantal)

Q
This hantal-hantal of your husband, was it also separate and distinct from the hantal-hantal or the
share of the brothers and sisters of your husband?
A

Well, this property in question is a common property.

To the north, whose share was that which is adjacent to your husband's assumed partition?

I do not know what [does] this "north" [mean].

COURT
(To Witness)
Q

To the place from where the sun rises, whose share was that?

The shares of Cornelia, Loreta, Encarnacion and Adela.

How could you determine their own shares?

They were residing in their respective assumed portions.

How about determining their respective boundaries?

It could be determined by stakes and partly a row of banana plantations planted by my son-in-law.

Who is this son-in-law you mentioned?

Narciso Ape.

ATTY. CAWIT
(Continuing)
Q
You said that there were stakes to determine the hantal-hantal of your husband and the hantalhantal of the other heirs, did I get you right?
ATTY. TAN
Admitted, Your Honor.

ATTY. CAWIT
Q

Mrs. Ape, in 1960, Cleopas Ape was already dead, is that correct?

Certainly, since he died in 1950.

Q
By the manifestation of your counsel that the entire land (13 hectares) of your father-in-law,
Cleopas Ape, was leased to Generosa Lumayno, is this correct?
A

No, it is only the assumed portion of my husband [which] was leased to Generosa Lumayno.

Q
For clarification, it was only the share of your husband [which] was leased to Generosa Cawit
Lumayno?
A

Yes.47

ATTY. CAWIT
Q
My question: is that portion which you said was leased by your husband to the Lumayno[s] and
which was included to the lease by your mother-in-law to the Lumayno[s], when the Lumayno[s] returned
your husband['s] share, was that the same premises that your husband leased to the Lumayno[s]?
A

The same.

Q
In re-possessing this portion of the land corresponding to the share of your husband, did your
husband demand that they should re-possess the land from the Lumayno[s] or did the Lumayno[s] return
them to your husband voluntarily?
A

They just returned to us without paying the rentals.

COURT
Q
Was the return the result of your husband's request or just voluntarily they returned it to your
husband?
A
No, sir, it was just returned voluntarily, and they abandoned the area but my husband continued
farming.48
Similarly telling of the partition is the stipulation of the parties during the pre-trial wherein it was admitted that
Lot No. 2319 had not been subdivided nevertheless, "Fortunato Ape had possessed a specific portion of the land
ostensibly corresponding to his share."49
From the foregoing, it is evident that the partition of Lot No. 2319 had already been effected by the heirs of
Cleopas Ape. Although the partition might have been informal is of no moment for even an oral agreement of
partition is valid and binding upon the parties.50 Likewise, the fact that the respective shares of Cleopas Ape's
heirs are still embraced in one and the same certificate of title and have not been technically apportioned does not
make said portions less determinable and identifiable from one another nor does it, in any way, diminish the
dominion of their respective owners.51
Turning now to the second issue of the existence of a contract of sale, we rule that the records of this case betray
the stance of private respondent that Fortunato Ape entered into such an agreement with her.
A contract of sale is a consensual contract, thus, it is perfected by mere consent of the parties. It is born from the
moment there is a meeting of minds upon the thing which is the object of the sale and upon the price. 52 Upon its
perfection, the parties may reciprocally demand performance, that is, the vendee may compel the transfer of the
ownership and to deliver the object of the sale while the vendor may demand the vendee to pay the thing sold.53
For there to be a perfected contract of sale, however, the following elements must be present: consent, object, and
price in money or its equivalent. In the case of Leonardo v. Court of Appeals, et al.,54 we explained the element
of consent, to wit:
The essence of consent is the agreement of the parties on the terms of the contract, the acceptance by one of the
offer made by the other. It is the concurrence of the minds of the parties on the object and the cause which
constitutes the contract. The area of agreement must extend to all points that the parties deem material or there
is no consent at all.
To be valid, consent must meet the following requisites: (a) it should be intelligent, or with an exact notion of the
matter to which it refers; (b) it should be free and (c) it should be spontaneous. Intelligence in consent is vitiated
by error; freedom by violence, intimidation or undue influence; spontaneity by fraud.55
In this jurisdiction, the general rule is that he who alleges fraud or mistake in a transaction must substantiate his
allegation as the presumption is that a person takes ordinary care for his concerns and that private dealings have
been entered into fairly and regularly.56 The exception to this rule is provided for under Article 1332 of the Civil
Code which provides that "[w]hen one of the parties is unable to read, or if the contract is in a language not
understood by him, and mistake or fraud is alleged, the person enforcing the contract must show that the terms
thereof have been fully explained to the former."
In this case, as private respondent is the one seeking to enforce the claimed contract of sale, she bears the burden
of proving that the terms of the agreement were fully explained to Fortunato Ape who was an illiterate. This she
failed to do. While she claimed in her testimony that the contents of the receipt were made clear to Fortunato,
such allegation was debunked by Andres Flores himself when the latter took the witness stand. According to
Flores:
ATTY. TAN
Q

Mr. Witness, that receipt is in English, is it not?

Yes, sir.

Q
When you prepared that receipt, were you aware that Fortunato Ape doesn't know how to read and
write English?

Yes, sir, I know.

Q
Mr. Witness, you said you were present at the time of the signing of that alleged receipt of P30.00,
correct?
A

Yes, sir.

Where, in what place was this receipt signed?

At the store.

Q
At the time of the signing of this receipt, were there other person[s] present aside from you, your
mother-in-law and Fortunato Ape?
A

In the store, yes, sir.

Q
law?

When you signed that document of course you acted as witness upon request of your mother-in-

No, this portion, I was the one who prepared that document.

Q
Without asking of (sic) your mother-in-law, you prepared that document or it was your mother-inlaw who requested you to prepare that document and acted as witness?
A
She requested me to prepare but does not instructed (sic) me to act as witness. It was our opinion
that whenever I prepared the document, I signed it as a witness.
Q
Did it not occur to you to ask other witness to act on the side of Fortunato Ape who did not know
how to read and write English?
A

It occurred to me.

Q
But you did not bother to request a person who is not related to your mother-in-law, considering
that Fortunato Ape did not know how to read and write English?
A
The one who represented Fortunato Ape doesn't know also how to read and write English. One a
maid.
Q
You mentioned that there [was another] person inside the store, under your previous statement,
when the document was signed, there [was another] person in the store aside from you, your mother-inlaw and Fortunato Ape, is not true?
A

That is true, there is one person, but that person doesn't know how to read also.

Q
Of course, Mr. Witness, since it occurred to you that there was need for other witness to sign that
document for Fortunato Ape, is it not a fact that the Municipal Building is very near your house?
A

Quite (near).

Q
But you could readily proceed to the Municipal Building and request one who is knowledgeable
in English to act as witness?
A

I think there is no need for that small receipt. So I don't bother myself to go.

You did not consider that receipt very important because you said that small receipt?

Yes, I know.57

As can be gleaned from Flores's testimony, while he was very much aware of Fortunato's inability to read and
write in the English language, he did not bother to fully explain to the latter the substance of the receipt (Exhibit
"G"). He even dismissed the idea of asking somebody else to assist Fortunato considering that a measly sum of
thirty pesos was involved. Evidently, it did not occur to Flores that the document he himself prepared pertains to
the transfer altogether of Fortunato's property to his mother-in-law. It is precisely in situations such as this when
the wisdom of Article 1332 of the Civil Code readily becomes apparent which is "to protect a party to a contract
disadvantaged by illiteracy, ignorance, mental weakness or some other handicap."58

In sum, we hold that petitioner is no longer entitled to the right of redemption under Article 1632 of the Civil
Code as Lot No. 2319 had long been partitioned among its co-owners. This Court likewise annuls the contract of
sale between Fortunato and private respondent on the ground of vitiated consent.
WHEREFORE, premises considered, the decision dated 25 March 1998 of the Court of Appeals is hereby
REVERSED and SET ASIDE and the decision dated 11 March 1994 of the Regional Trial Court, Branch 58, San
Carlos City, Negros Occidental, dismissing both the complaint and the counterclaim, is hereby
REINSTATED. No costs.
SO ORDERED.
EN BANC
G.R. No. L-4656

November 18, 1912

RICARDO
PARDELL
Y
CRUZ
and
VICENTA
ORTIZ
Y
FELIN
DE
PARDELL,
plaintiffs-appellees,
vs.
GASPAR
DE
BARTOLOME
Y
ESCRIBANO
and
MATILDE ORTIZ Y FELIN DE BARTOLOME, defendants-appellants.
Gaspar
de
Bartolome,
B. Gimenez Zoboli, for appellees.

in

his

own

behalf.

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,
P6,000.00
Vigan, and valued at
2. A house of mixed material, with the lot on which it stands, at No. 88 Washington Street,
1,500.00
Vigan; valued at
3. A lot on Magallanes Street, Vigan; valued at

100.00

4. A parcel of rice land, situated in the barrio of San Julian, Vigan; valued 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 indiviso
property 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 indiviso
property, 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.
G.R. No. L-2812

October 18, 1906

LONGINOS
JAVIER,
vs.
SEGUNDO JAVIER, ET AL., defendants-appellants.
Hartigan,
Rohde
and
Chicote, Miranda and Sierra, for appellee.

plaintiff-appellee,

Gutierrez,

for

appellants.

WILLARD, J.:
This case relates to the ownership of the lot, and of the house standing thereon, No. 521 Calle Real, Malate,
Manila. The court below found that the land belonged to the plaintiff as administrator of the estate of his father,
Manuel Javier, and that the defendant Isabel Hernandez and Manuel Ramon Javier, her son, are the owners of the
house standing on the lot. Judgment was rendered in favor of the plaintiff for the possession of the property, but
giving the defendants a reasonable opportunity to remove the house.
The evidence sustains the findings of fact to the effect that the land belongs to the estate represented by the
plaintiff. There was evidence to show that the land was, in 1860, in the possession of Manuel Javier, the father of
the defendant Segundo Javier, and that since that time it has been occupied by his children and that no one of
these children ever made any claim to the ownership thereof, and no one them ever occupied the property as
owner.
Manuel Ramon Javier, testifying as a witness, made no claim to the ownership of the land, and testified simply
that the result of his investigations into the question of ownership showed that there was a great confusion in
regard thereto.
The appellants claim that this action can not be maintained by the administrator of the estate of Manuel Javier,
but that it should be maintained by all the heirs of the deceased. The right of judicial administrator to recover the
possession of real property belonging to the estate of the deceased was recognized in the case of Alfonso vs.
Natividad 1 (4 Off. Gaz., 461; secs. 702, 703, and 704 of the Code of Civil Procedure).
The appellants claim in their brief that they were possessors in good faith, and by reason thereof and of the
provisions of article 451 of the Civil Code they can not be compelled to pay rent. It is to be observed, however,
that the appellants do not come within the definition of a possessor in good faith found in article 433 of the Civil
Code cited in their brief. As said by the appellants themselves in that brief, the two defendants, Segundo Javier
and his wife, Isabel Hernandez, always believed that the land did not belong to them but belonged to the estate of
Manuel Javier. It is to be observed, moreover, that the judgment of the court does not allow any recovery at all
for the use or occupation of the house, and the recovery of rent for the use of the land is limited to the time elapsed
since April 24, 1904, when a demand was made upon the defendants for the possession of the property.
It is also claimed by the appellants that, in accordance with article 453 of the Civil Code, they are entitled to be
reimbursed for the expenses of constructing the house. These expenses are only allowed in accordance with the
article cited by the appellants to a possession in good faith, and the appellants were not such possessors.
lawphil.net
It is claimed finally by the appellants that the case should be decided by an application of the principles of law
meant that community of property existed because the house was owned by the appellants and the land by the
plaintiff, the contention can not be maintained, for such a condition of affairs does not create a community of
property within the meaning of that term as it is used in title 3, book 2 of the Civil Code. If, on the other hand, it
is itself belonged to the heirs of Manuel Javier, and that two of the defendants were such heirs, it can be said that
the decision of the court below was fully as favorable to the appellants as it could be.

Article 397 of the Civil Code relates to improvements made upon the common property by one of the coowners.
The burden of proof was on the appellants to show that the house was built with the consent of their cotenants.
Even if a tacit consent was shown this would not require such cotenants to pay for the house. (8 Manresa,
Commentaries on Civil Code, p. 396.)
The judgment of the court below allowed the appellants to remove the house within a reasonable time. Whether
this judgment was erroneous as far as the appellee is concerned, we need not inquire, because he has not appealed
from the judgment.
The judgment of the court below is affirmed, with the costs of this instance against the appellants.
After the expiration of twenty days from the date hereof let judgment be entered in accordance herewith and ten
days thereafter let the case remanded to the court below for proper action. So ordered.
G.R. No. L-7180

March 30, 1912

RAFAEL
ENRIQUEZ,
vs.
A.S. WATSON & CO. LTD., defendant-appellee.

ET

Rohde
and
Wright
W. A. Kincaid and Thomas L. Hartigan for appellee.

AL.,

plaintiffs-appellants,

for

appellants.

TRENT, J.:
This action was brought on April 12, 1911, by Rafael, Antonio, Trinidad, Cayetano, Rosario, Gertrudis and
Carmen Enriquez, and Antonio Gascon (the latter being a minor, was represented by his guardian ad litem), as
owners and lessors of the property Nos. 72, 74, an 76 Escolta, city of Manila, against A. S. Watson & Company,
Ltd., as lessee of said property. The plaintiffs allege that on June 22, 1906, Rafael, Carmen, Antonio, and Trinidad
Enriquez and Antonio Gascon executed to the defendant a contract of mortgage and lease upon their participation
in that property; that on January 19, 1907, the other plaintiffs executed the same mortgage and lease in favor of
the defendant upon their interest in the same property; that the said contract of lease has been terminated by the
payment by the plaintiffs to the defendant of the principal and interest of the mortgage; that the said contract of
lease is null and of no effect by reason of the minority of the plaintiff Antonio Gascon, who is still a minor; that
the defendant, after June 22, 1906, made all the repairs necessary to its business with the approval of the plaintiffs.
The plaintiffs further allege that there exists in that building a principal wall about one meter in thickness and five
meters in height, which extends from the front of the building on the Escolta to the rear of the same; that upon
this wall rests the second floor of the building and that it is necessary to safely maintain the building against
earthquakes and typhoons; that on 11th of April, 1911, the defendant commenced to destroy and remove the said
wall and was on the date of the filing of this complaint actually engaged in the destruction and removal of the
same; and unless restrained, would continue such destruction and removal, to the irreparable injury of the
plaintiffs; and that the defendant has varied the form and substance of the leased premises. The plaintiffs therefore
prayed that the defendant be prohibited from destroying and removing said wall; that it be ordered to rebuild or
replace that part which it had removed or destroyed; and that the contract of lease be declared terminated and
rescinded.
On the 12th day of April, 1911, a preliminary injunction was issued by the Court of First Instance, prohibiting
and restraining the defendant from continuing the removal and destruction of the wall in question, and requiring
it to appear in court on the 17th of that month to show cause why such preliminary injunction should not be
continued in force during the pendency of this action.
On the 21st of that month, the defendant company answered, admitting the allegations as to the ownership,
mortgage, and lease, contained in paragraphs 1, 2, an 3 of the complaint, and denying all the other allegations
therein. The defendant set up by way of special defense that the wall in question was not a principal wall and did
not extend the entire length of the building; that said wall consisted of two shells filled with mortar; that it was
very old, deteriorated, and weak; that it was necessary, in order to conserve the property, to remove said wall and
to substitute it with other material; that the wall in question is so located that it and its subtenant are deprived of
the use of a large part of the ground floor fronting on the Escolta; that under Clause M of the contract of lease,
the defendant has the right to remove the wall, substituting in lieu thereof other material, this being required by
the business established in said building.
As a second special defense, the defendant admits the payment of the mortgage by the plaintiffs, but alleges that
the contract of lease is independent of the mortgage contract, and that in satisfying the mortgage of the defendant,
the leasehold was specifically continued in force by all parties.

As a third special defense, the defendant alleges that under the provisions of Paragraph M of the contract of lease,
it has expended the sum of over sixty thousand pesos in improving the leased premises, and that on making such
expenditure it believed that it would be reimbursed by enjoying the occupancy and subrenting of the premises.
On the 24th day of May, 1911, The Philippines Drug Company, a corporation organized under the laws of the
Philippine Islands, appeared and asked leave to intervene as an interested party. This leave being granted, it
alleged that it is the actual owner of the pharmacy situated in the leased premises, which formerly belonged to the
defendant A. S. Watson & Company, Ltd.; and that the defendant sublet to it the ground floor of the leased
property under the same conditions as are expressed in the original contract of lease. The intervener further
alleged, as did the defendant, the necessity for the removal of the wall in question in order to give it more space
as required by its business, and that the removal of this wall was authorized in Paragraph M of the original lease.
The trial court, after considering the evidence presented, making a personal inspection of the leased premises, and
hearing the arguments of counsel for both parties, and after making its findings of facts and conclusions of law,
entered the following decree, to wit:
The court denies the rescission and declaration of nullity of the contract of lease demanded by the
plaintiffs, declaring such contract of lease to be valid and subsisting and binding upon the parties thereto,
and upon the sublessee and intervener, the Philippine Drug Company, and continues and declares final
the preliminary writ of injunction issued herein on the 12th day of April, 1911, but modifying the same
by permitting the defendant, A. S. Watson & Co. Ltd., or the intervener, the Philippines Drug Company,
to remove the wall in question on the condition that they substitute it with properly constructed concrete
pillars and arches and such other work as may be necessary as specified in Finding No. 17 of this judgment
using such temporary shoring and bracing as shall be necessary to insure the safety of the building while
such change is being made, which work of removal and substitution may be commenced and carried out
upon the defendant or intervener, or both, filing herein an undertaking in the sum of P10,000 with sureties
approved by the court, conditioned that it or they will reimburse the plaintiff lessors for any and all damage
that may be caused the leased premises by a failure to take proper precautions and employ proper means
to safeguard and protect the building while such work of removal and substitution is being accomplished.
From this judgment the plaintiffs appealed and make the following assignment of errors:
1. The judgment is erroneous in not having declared rescinded the contract of lease.
2. The judgment is erroneous in finding that the lessee and sublessee have the right to change the form
and substance of the property leased.
3. The judgment is erroneous in finding that the lessee acted in good faith in beginning the destruction of
the wall. believing that under the contract of lease it had the right to do this.
4. The judgment is erroneous in not finding that the building is weakened by the destruction of the wall.
5. The judgment is erroneous is so far as it modifies the preliminary injunction.
6. The judgment is erroneous in not declaring perpetual the preliminary injunction.
7. The judgment is erroneous in the dispositive part thereof relating to the form and manner of making the
modifications in the property because it does not relate to anything at issue in the case.
8. The judgment is erroneous in the part relating to the form and manner of making the modifications in
the property because it does not dispose of anything judicially, but, on the contrary, gives permission to
the opposing parties without commanding them to do anything.
9. The judgment is erroneous because it does not order the repair of the destruction made in the wall.
10. The judgment is erroneous because it declares valid the contract of lease.
11. The court erred in denying the motion for a new trial.
All the questions in this case may be merged into one, and that is: Did the trial court err in failing to declare the
contract of lease voidable or rescinded for one of two reasons: first, because of the minority of one of the lessors;
and second, because neither the defendant nor intervener had authority under the contract of lease to remove the
wall in question? Plaintiffs do not now insist that the contract of lease was terminated on the payment of the
mortgage.
The eight plaintiffs each have a one-eight undivided interest in the leased premises. The property was leased to
the defendant for a period of twelve years with permission to renew the lease for a further period of six years.

Seven of these plaintiffs were of age when they executed this contract of lease. The other, Antonio Gascon, was
a minor. At the time this contract of lease was executed, the minor was represented by his judicial guardian. The
guardian having obtained authority or permission of the court to enter into this contract of lease for and on behalf
of his ward, the action of the guardian in executing said contract was approved by the probate court.
Article 1548 of the Civil Code reads:
ART. 1548. The husband can not give in lease the property of the wife, the father and guardian, that of
the son or minor, and the administrator of property, not having a special power, for a period exceeding six
years.
Article 398 of the same code provides:
ART. 398. The decision of a majority of the coowners as to the management and better enjoyment of the
thing owned in common shall be obligatory.
There shall be no majority, unless the resolution has been adopted by the coowners representing a majority
of the interests which constitute the object of the community.
Should there be no majority, or the resolution of the latter is seriously prejudicial to the parties interested
in the thing owned in common, the judge, at the instance of a party, shall decree what may be proper,
including the appointment of an administrator.
xxx

xxx

xxx

Counsel for the plaintiffs do not claim that the contract of lease which was made for a period of more than six
years is seriously prejudicial to the interests of the minor, nor do they claim that said contract, of itself, prejudices
in any way the minor's interest.
The supreme court of Spain had under consideration this very question in its resolution of April 26, 1907 (vol. 15
Jurisprudencia referente al Codigo Civil, p. 194). In this case, a contract of lease for twelve years, executed by
one of the coowners of a certain property, one of whom was a minor, had been presented for registry. Registry
was refused for the reason, among others, the majority of the coowners lacked authority to execute said contract
of lease. It was argued that the majority of the coowners, in their enjoyment of the control of the management and
administration of the thing, acted in a representative or an administrative capacity in regard to the minority. In
determining the questions presented in this case, the court said:
That for the administration and better enjoyment of the thing, the decision of the majority of the coowners
is obligatory, and that there is no majority, unless the decision is made by the coowners, that represent the
majority of the interests that constitute the object of the community, are general rules laid down in article
398 of the Civil Code, governing community of property.
The contract of lease is by its nature and purpose one of the means of enjoyment or development of
nonfungible property, and, in this concept, may be agreed upon by the coowners of a thing, provided
always that they represent a majority of the interests of the community, the decision being obligatory for
all by virtue of the powers that are expressly conferred upon them by virtue of said provisions.
If, indeed, the contract of lease of real property for a period exceeding six years, or in which the rents are
advanced for more than three years, constitutes a real right inasmuch as it is subject to registry, according
to the decision of this court in various resolutions, this principle of law, which has been applied in the
sense of not permitting the execution of such a contract to those who administer the goods of others, and
especially to prevent agents from executing such a contract without special authority for the same, in
accordance with the provisions of article 1713 of the said code, is not opposed to the principle of law laid
down in said article 398; taking into consideration the legal character and peculiar attributes of community
of property, which makes it convenient and necessary that those who have less interest therein should
submit to those who have a greater participation therein, in all that refers to the exploitation and ordinary
enjoyment of the same, the rule is established that the enjoyment of the common thing must be subject to
the will of the majority, without distinguishing and limiting the period or the form of the enjoyment;
therefore, the contract of lease being the same in essence whatever the term for which it is constituted,
such a contract must be considered as an act of mere administration, and subject to contract by the decision
of the majority of coowners, the other interested parties always having the right to appeal to the court
when the decision is gravely prejudicial to them according to the provisions of the same article 398.
This doctrine was recognized by the supreme court in its decision of June 30, 1897, and of the 8th of July,
1902, and by this court in its resolution of May 29, 1906, considering as included in the powers conferred
in said article, leases exceeding a period of six years, decided upon by a majority of the coowners of a
property possessed in common.

The contract of lease of the property referred to in these proceedings, having been agreed upon by the
coowners representing the majority of the interests in the same, they were possessed of sufficient legal
capacity by virtue of what is already said, and it is, therefore, subject to registry.
In the execution of the contract of lease under consideration, the minor was, as we have said, represented by his
judicial guardian, who not only asked the court for and obtained authority to execute this contract of lease on
behalf of this ward, but his act, after the execution, was approved by the court. The interest of the minor has not
been prejudiced by reason of the fact that this contract of lease was executed for a term of more than six years.
Under the doctrine laid down by the supreme court of Spain, it would appear that this contract of lease would be
valid if the minor had not been represented by his guardian. The minor having been represented by his duly
appointed guardian, there can be no question about the validity of this contract of lease.
The principal question is whether or not the appellees have violated the terms of the contract of lease and thereby
entitle appellants to have said contract of lease rescinded.
Before considering the contract in question, it might be well to examine the right of the lessee to make changes
in the property leased, if there were no express stipulation therefor in the contract.
Article 1573 of the Civil Code provides:
A lessee shall have, with regard to the useful and voluntary improvements, the same rights which are
granted the usufructuary.
Article 487 of the same code reads:
The usufructuary may make on the property which is the object of the usufruct any improvements, useful
or for recreation, which he may deem proper, provided he does not change its form or substance; but he
shall have no right to be indemnified therefor. He may, however, remove said improvements, should it be
possible to do so without injury to the property.
The result is that the lessee may make any improvements, useful or for recreation, in the property leased that he
may deem proper, provided that he does not change its form or substance. The same obligation is expressed in
articles 487 and 489, and in so far as the form of the thing is concerned, in article 1557. According to article 487
and 1557, the obligations of the lessee and the lessor are the same in the absence of any agreement to the contrary,
in so far as the conservation of the form of the thing leased is concerned. This question of conserving the form
and substance of the thing leased or the object of the usufruct has been passed upon at various times by the courts.
In the case of the Manila Building and Loan Association and Pealosa (13 Phil. Rep., 575), this court said:
If the object leased were a house, it is evident that the lessee might effect such improvements for use,
recreation or comfort as would not change its form or substance as he deemed fit; he could build a tower
or luxurious pavilion more expensive than the house itself, to which, at the expiration of the lease, the
owner of the house would have no right whatever, unless the lessee could not remove the same without
injury to the house to which it was attached as an improvement, excepting of course the right to cause the
same to be demolished so that the house might be returned to him in the same condition that the lessee
received it; . . . .
The supreme court of Spain, in its judgment of June 24, 1905, volume 14 of the Jurisprudencia referente al Codigo
Civil, page 38, had under consideration the interpretation of this phrase in a case in which the lessee asked for the
rescission of the lease because the lessor had altered the form of the thing leased. The facts were that the lessee
had leased the house for the period of ten years, and at the time of the execution of the contract of lease, there
was a vacant lot next to the house and 13 windows of the house lease overlooked this lot. Thereafter the owner
of the adjacent lot constructed an edifice thereon which gave rise to litigation between the lessor and the owner
of the adjacent lot, which litigation was settled by the lessor and the owner of the said lot, the latter being permitted
to cover the windows of the leased property, and the former allowed to open in the partition wall of the latter's
garden two large and two small windows of specified dimensions, under certain conditions. The construction was
continued, with the result that such construction effectually closed and covered the 13 windows and the balcony,
depriving the property leased of the light previously received by the same. For the purpose of obtaining better
light, many changes were made and much work done in the interior of the leased house, the final result being that
some of the rooms of the house were darkened completely, others receiving poor and indirect ventilation. The
court, in refusing to rescind the contract of lease, said:
It does not appear that there is error committed by the trial court in its decision as set out in the first assignment
of error, because, even though the noncompliance by the lessor of his obligations, among which was that of
maintaining the lessee in the peaceable enjoyment of the lease during the period of the contract, and the prohibition
to change the form of the thing leased, confers upon the lessee the right to ask for the rescission of the contract,
such circumstances are not found in the present case since the trial court says that the appellant was not disturbed

in the possession of the house, the object of the lease, nor was he impeded from using the premises as a tavern,
for which use he had intended the same, and these findings of fact have not been legally impugned.
The decision also states that the changes made in the property did not change the form of the same in the sense
and concept covered by article 1557 of the Civil Code. Notwithstanding that the findings on the point contain
legal reasoning now corresponding to this court, the interpretation of this article can not be made in general and
absolute terms not defined by law, because as a circumstantial fact depending in each case on the peculiar
conditions of the thing leased, there exists no reason in the case at bar upon which to base the conclusion that the
trial court erred, having in mind that the particular use of the same as a tavern was not interfered with, as held in
its decision, and also the fact set out in its decision, and not contradicted in any manner, namely, that the changes
and alterations made were beneficial, tolerated by Sabay, and consented to by the person to whom Sabay
transferred his rights under the contract of sublease.
The two last reasons given for the rescission of the contract lack force and weight, because, in accordance
with the sense and concept of article 1561 of the said Civil Code, the property must be returned at the
expiration of the term of lease with the changes made in the same, and these do not involve, as has already
been said, any variation or change of form or any interruption of the peaceable enjoyment of the lease and
because it does not appear from the facts that the trial court accepted as proven that the appellant suffered
disturbance of his rights for which he had been compelled to become responsible to the lessor, and he, not
having done so, there is no legal reason to apply, as is attempted, the provisions of article 1560 of the code
referred to.
Manresa, in volume 10 of his commentaries on the Civil Code, pages 534, 535, [488, 489] says:
The question was discussed very energetically as to whether the lessee of a city property leased for a stated
industrial purpose, could install machinery propelled by steam in substitution for the utilities, implements,
and contrivances which were used before the general adoption of such machinery. The installation of
modern machinery and its ordinary operation, at once caused a deterioration to the estate much greater
than the use of the former apparatus, besides the accidents which might occur and which produce very
great damage to the thing leased. Therefore, based upon this consideration, it was said that the lessee could
not make this substitution because it implied a bad and prejudicial use of the thing and therefore very
different from that diligence of a good father in its use to which he had obligated himself.
As Laurent says, there arise here two contrary interests and two diverse tendencies. The owner has in view
the stability of the structure and fears every innovation which may compromise its preservation. The
manufacturer finds himself obliged to keep abreast of the development of his industry, to make changes,
if he does not wish to perish, and his interests demand that he put into practice the inventions which
increase his profits, even though the edifice may suffer. The owner commences to resist, adds this writer,
but competition forces the manufacturer, and the owner ends by yielding, if he does not wish to remain
unproductive.
This is the essence of the policy pursued by foreign decisions, where the question has been so much more
important than in our own country. Until the year 1860, judicial decisions were inclined to favor the owner
of the property. But from that year the rights of industry have been recognized with ever increasing
clearness. It has been considered that from the moment the lease is drawn up, in which is stated the
industrial use to which the lessee desires to put the thing leased, the claims of the industry to which the
object of the lease is to be devoted have been determined, and the lessee can not be condemned to a
stagnation which would be uneconomical, and, these facts admitted, the logical consequences must
necessarily follow: the lessor can not prevent the lessee from adopting the improvements of his industry;
the acts of the parties in making the stipulations in the lease will do the rest.
The lessee may make on the property which is the object of the lease any improvements, useful or for recreation,
which may be deem proper, provided he does not change its form or substance. He is obligated to use the thing
leased as a diligent father of a family would, and to return the thing leased at the expiration of the lease in the
same condition in which he received it, except what may have been destroyed or impaired by time or unavoidable
reasons. (Arts. 1573, 487, 1555, and 1561, Civil Code.)
The supreme court of Spain recognizes the fact that no ironclad rules for the interpretation of these articles can
be laid down which would govern all cases. These provisions must be applied according to the facts and
circumstances of each case. Manresa is inclined to the view that industrial development should be taken into
consideration in the determination of questions involved in the application of said articles. The provisions of these
articles are general rules of law, and, like most general propositions, are not to be accepted without limitation or
reserve, under any and all circumstances. They must be interpreted in the light of the growth of civilization and
varying conditions. Certain obligations are placed upon the lessee to prevent lawless acts which would result in
waste or destruction. The importance of these obligations to the lessor cannot be denied. Especially are they
valuable and essential to the protection of a landlord who rents his premises for a short time. Suppose he has fitted
his premises for certain uses and leases them for such uses for a short term. He would then be entitled to receive

them back at the end of the term still fitted for those same uses, and he may well say that he does not choose to
have a different property returned to him from that which he leased, even if it be found to be of greater value of
reason of the change. But suppose that a usufructuary who has a life interest in an estate should receive as such a
hemp hacienda, and that in a short time this hacienda should become permanently unproductive through disease
or death of the plants, or by change of the market conditions, and the land to have become far more valuable, by
reason of new conditions, as rice or sugar land. Is the usufructuary to be compelled to preserve or renew the
useless hemp fields and forego the advantages to be derived from a different use? Or, suppose a life tenant should
change warehouses into dwelling houses on the ground that by change of conditions the demand for warehouses
had ceased and the property had become worthless, whereas it would be very valuable when fitted for dwelling
houses. Would this be such a change in the form or substance of the thing leased as to forfeit the interest of the
tenant? Again, a lessee for a long term received, during very prosperous times, a hemp hacienda upon which were
constructed large and valuable storehouses in which were the old style hand-presses, but new. Later, on account
of a complete change in conditions due to the market and the method of pressing hemp by steam, the lessee
allowed the buildings and presses, which had become useless, to fall into decay rather than incur the expense of
repair. Would a prudent owner of the fee, if in possession, have done the same? These questions naturally suggest
their own answer. The radical and permanent changes of surrounding conditions must always be an important
consideration in the determination of such questions. The interpretation that "if the man is too long for the bed
his head should be chopped off rather than enlarge the old bed or purchase a new one" should not be given those
provisions of the Civil Code regarding the obligations of lessees.
Let us now turn to the contract of lease and the evidence presented. In this contract of lease there are two clauses
which deserve careful consideration.
Clause K:
All the expenditures for cleaning, painting, and repairs which the building may require and all that is
ordered done by the Board of Health, will be at the expense of the lessee, A. S. Watson and Company,
Limited.
Clause M:
The lessee may make such works on the building as the business which it has established therein requires,
provided always that neither the strength nor the value of the said building is impaired.
It will be noted that the word "reparaciones" is used in Clause K, and the word "obras" in Clause M. Counsel for
the appellants insist that the word "obras" as thus used means the same as "reparaciones." The Encyclopedic
Dictionary of the Castilian Language (Diccionario Enciclopedico de la Lengua Castellana) defines these words
as follows:
OBRA:
1. A thing made or produce by an agent.
xxx

xxx

xxx

4. A building in course of construction.

REPARACION:
1. The action an effect of repair. (Reparar-verb: To mend, to straighten, or correct the damage suffered
by something.)
The New Dictionary of the Castilian Language (Nuevo Diccionario de la Lengua Castellana) defines the same
words as follows:
OBRA:
Anything made, created, or produced by the some power or agent. Any construction of architecture,
masonry, or carpentry, applied especially to buildings in course of construction or repair, as: "There are
three jobs in Calle Hortaleza. Everything in my house is disordered and topsy-turvy because of the work."
REPARACION:
The act or effect of repairing or of being repaired. The fact of the repairing, in the sense of renewing or
improving something.
The only synonym given in this work for "obra" is produccion."

It may be that repairs are included in the definition of "obras." Nevertheless, it cannot be denied that the word
"obras," used in its general sense, has a far more comprehensive meaning than just simple repairs.
Sections 290 and 293 of the Code of Civil Procedure, provide:
SEC. 290. Terms of a writing presumed to be in their ordinary sense. The terms of a writing are
presumed to have been used in their primary and general acceptation, but evidence is nevertheless
admissible that they have a local, technical or otherwise peculiar signification, and were so used and
understood in the particular instance, in which case the agreement must be construed accordingly.
SEC. 293. Where intention of different parties to instrument not the same. When the terms of an
agreement have been intended in a different sense by the different parties to it, that sense is to prevail
against either party in which he supposed the other understood it; and when different constructions of a
provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose
favor the provision was made.
In the case at bar no proof has been presented tending to show that the word "obras" was used in a technical or
special sense, or that it has a local signification, and therefore, it must be considered as used in its ordinary and
general sense. If there exist any ambiguity and if the meaning that the appellants give to the word "obras" is
proper, the meaning given by the appellees is likewise proper, consequently, we must apply the rule laid down in
section 293, above quoted, for the reason that the stipulation contained in Clause M of the contract is a stipulation
in the favor of the lessee.
Counsel for appellants insist that in order to define the meaning of the word "obras" we should refer to the articles
of the Civil Code that deal with contracts of lease. This might be done in those cases where the intention of the
parties could not be ascertained from either the contract itself or from the conduct of the parties in executing and
carrying out the same. In the case at bar, all that is necessary is to give a fair and reasonable interpretation to the
meaning of clause M of the contract of lease. This clause contains certain limitations on the exercise of the right
to make alterations (obras): first, the alterations (obras) proposed to be made must be required by the business;
second, such alterations must not injure the solidity of the building; and third, the same must not prejudice the
value of the building. But it is insisted, as we have said, that the word "obras" in clause M must be interpreted to
mean "reparaciones" as used in Clause K. Clause K imposes upon the lessee the obligation to make the repairs
required by the building for its conservation. If the words have exactly the same meaning and were intended by
the parties to mean the same thing, then the insertion of clause M would only have had the effect of giving to the
lessee the right to keep the building in repair, when, as a matter of fact, Clause K made it its duty to repair the
building. As we understand the contract, in Clause K a duty is imposed upon the lessee, while in Clause M a right
is given to it. In Clause K the word "reparaciones" is used in connection with the duty, and in clause M the word
"obras" is used in connection with the right. If the contracting parties had intended that the two words be used in
the same sense they would have so stated, or they would have eliminated Clause M entirely as being useless, as
it is meaningless to say that when a duty is imposed upon a person it is necessary to expressly give him a right to
perform that duty. If he did not have the right to perform that duty, the same would not have been imposed upon
him. The stipulations in Clause M are expressed as clearly and explicitly as they could have been under the
circumstances. At the time of the execution of this contract of lease, it was impossible to know what would be the
requirements of the business during its term of eighteen years. It was likewise impossible for the parties to have
then agreed in detail as to the changes that might be necessary. The lessee wished to reserve to itself the right to
make the changes in the property required by its business, and none of the parties could anticipate what might be
required during this long period of time. This right was conferred upon the lessee by the lessors, but the right, as
we have said, had its limitations: that is, the lessee could not prejudice the solidity or the value of the building
without breaking the contract.
The question was raised as to whether the conduct of the parties in carrying out the terms of this lease has been
such as to show or indicate their intention or understanding of the meaning of the word "obras" when they inserted
this word in Clause M. Upon this point the trial court said:
That under and by virtue of the said contract of lease, the defendant company entered into possession of
the leased premises, making therein alterations and repairs at a cost of some P60,000, including the
removal of the whole front of the building facing upon the Escolta and replacing the same upon the new
street line, established by the city of Manila, with a modern and a decorative commercial front; the removal
of the heavy tiled roof and the replacing of the same with a light galvanized roof; the removal of various
walls and replacing the same with steel columns and girders; the tearing down and rebuilding of a part of
the building and the adding thereto of a camarin upon the Pasig River; and the building of a river wall and
reclamation of a considerable amount of ground; and which alteration included the removal of that part of
the wall in question which extended from point A to point G on the plan of the premises introduced in
evidence as defendant's Exhibit No. 9, all of which repairs, alterations and improvements, were made with
final approval of the plaintiffs, although after much controversy and many disagreements, and to which
alterations and improvements the plaintiffs contributed the sum of about eighteen hundred pesos paid by

the city of Manila for the expropriation for street purposes of the small strip along the front of the building
heretofore mentioned.
These findings of fact are, we think, fully supported by the evidence. The result is that these important and material
changes, which include the removal of a great portion of the very wall in question, were made by virtue of the
contract of lease itself. It is true that the owners objected at first, but afterwards consented in accordance with the
provisions of Clause M, and not by reason of any subsequent specific agreement. After all, that the defendants
have the right under the law and the provisions of Clause M of the contract of lease to remove the wall in question,
cannot be seriously doubted, provided always that neither the solidity of the building nor its value be impaired.
Let us now determine whether or not a removal of the wall in question (1) will prejudice either the solidity of the
building or its value, and (2) if it is required by the business of the defendants.
The walls which the defendants and interveners propose to remove and substitute in lieu thereof other material is
composed of two outer shells of Guadalupe or Meycauayan stone, filled with lime, plaster and rubber, the two
shells being bound together by stones laid transversely, the whole wall was so formed being about one meter thick
and extending from the front of the building a distance of about 38 meters toward the Pasig River. This wall is
about four meters high, extending from the ground floor to the second floor. The joists and girders supporting the
second floor are embedded in said wall. There are two actual openings in this wall, with three doors and an arch,
which have been walled up. The wall is in good condition, except that part removed by the defendants before the
commencement of this action, and said wall is one of the longitudinal walls, all being approximately of the same
thickness. The wall in question divides the east half of the ground floor of the building approximately in its center
and sustains a part of the weight of the second floor of this east half, together with a partition forming one of the
divisions of the second floor. But it does not sustain any of the weight of the roof, this weight being distributed
by means of trusses to the outer walls of the building. About one-third of this wall, or that part nearest the Pasig
has already been removed, and the removal of the same was approved by the owners. The interveners now propose
to remove the remaining two-thirds and substitute in lieu thereof other material, using the material of the old wall
for filing up certain openings in other walls of the building. This old wall, according to the experts, offers very
little resistance to lateral shocks or motions. Practically all of the resistance of lateral shocks or motions is
furnished by the cross-walls. Again, according to the opinion of the experts the building will be greatly
strengthened against earthquakes or unusual shocks or force, and its durability increased by the removal of the
remaining part of the wall in question and the substitution in lieu thereof of reinforced concrete posts or pillars
and arches, taking the material and filing, as the interveners propose to do, the openings in some of the other
walls. Such proposed removal, if carried out, will practically double the floor space of the drug store and greatly
increase its rental value, and also greatly increase the actual value of the building. This extra floor space is
absolutely essential to the business carried on in this part of the building. The foregoing are substantially the
findings of the trial court, based upon the testimony of expert witnesses, and an ocular inspection of the premises.
These facts show clearly and beyond a question that the removal of the remainder of this old wall will not only
prejudice the solidity of the building, but greatly increase its solidity and durability, as, according to the opinion
of the experts, the reinforced concrete posts and arches will offer greater resistance to earthquakes or bagious than
the old wall; that both the intrinsic and rental value of the building will be increased; and that this removal is
required by the business.
Lastly, counsel for the appellants say:
The plaintiffs contend that a contract is only binding on the parties thereto as provided in article 1257 of
the Civil Code and that, although a sublessee is bound to the lessor as provided in articles 1551 and 1552
yet this is not an obligation arising out of contract but one founded in law and the relation of the parties to
property, and that the lessor has no obligation towards the sublessee as such at all either legal or of contract
and that therefore even if by clause (m) of the lease of the plaintiffs had the obligation to permit the
defendant to take out the wall to suit the convenience of its own business, that such an obligation was
purely personal between the parties to the lease and since the contract of lease is not assignable this right
could not be transferred by the defendant or made use of by the defendant for the benefit of other persons.
A lease may be of things, works, or services. (Art. 1542, Civil Code.) In a lease of things, one of the parties thereto
binds himself to give to the other the enjoyment or use of a thing for a specified time and for a fixed price. (Art.
1543, idem.)
Article 1550 of the Civil Code reads:
Should it not be expressly forbidden in the contract of the lease of things, the lessee may sublet the whole
or a part of the things leased without prejudice to his liability for the fulfillment of the contract executed
with the lessor.
There is nothing in the contract of lease in the case at bar which even tends to prohibit the lessee from subletting
the whole or any part of the leased premises. The lessee's right to do this cannot be questioned, and his subtenant
is not only obligated to carry out his part of the contract with the sublessor, but he is also bound to the lessors for

all of the acts which refer to the use and preservation of the premises, in the manner agreed upon between the
lessors and the lessee. The lessors can compel the subtenant to comply with these conditions. This sets up the
privity between the lessors and the subtenant. But it is said that the contract of lease in question is not assignable.
This contract is an ordinary one, under which the lessee as we have said, has a perfect right to sublet the whole
of the premises for the entire time. Should the lessee do this, would it not amount to an assignment of the contract
of the lease? The power of assignment is incident to the state of every lessee of things, unless he has been
restrained by the terms of his lease. In the contract of lease in question, the lessors, by Clause M, agree that the
lessee may make such changes as its business requires, provided that neither the solidity nor the value of the
building is prejudiced. This is a specific right granted to the lessee. This right is a part of the lease itself and affects
directly the thing leased. It is not, therefore, a personal obligation between the lessors and the lessee.
We are, therefore, of the opinion that the judgment appealed from should be affirmed with costs against the
appellant.
G.R. No. 2426

January 24, 1906

FERNANDO
MONTAO
vs.
PEDRO MARTINEZ ILUSTRE, defendant-appellant.
Hartigan,
Marple,
Carlos Casademunt for appellee.

Rohde

and

LOPEZ,

Gutierrez

plaintiff-appellee,

for

appellant.

WILLARD, J.:
On the 26th day of December, 1902, Francisco Martinez and the defendant, Pedro Martinez, his son, were the
owners as tenants in common of two separate parcels of land in Calle Dulumbayan, in the city of Manila, each
being the owner of an undivided one-half of each of said tracts of land. On the 26th day of December, 1902,
Francisco Martinez conveyed to the plaintiff his undivided half interest in both said tracts of land. This deed
contained a clause giving Martinez the right to repurchase the property within one year from December 26, 1902.
He did not repurchase it, and on the 28th of December, 1903, the plaintiff caused the proper marginal entry to be
made upon the books in the registry of property in which registry the conveyance had been recorded, and
afterwards brought this action in March, 1904, asking for a partition of the two lots of land, between himself and
the defendant, and that defendant account for and pay to the plaintiff his part of the rents of the said properties
from the 26th day of December, 1903.
It appeared that Francisco Martinez and the defendant, his son, were the owners as tenants in common of twentysix other parcels of land; that in June, 1903, before the expiration of the year in which Francisco Martinez had the
right to repurchase the property so conveyed to the plaintiff, he and the defendant, his son, made a voluntary
partition of these twenty-eight tracts of land, which partition was approved by the Court of First Instance of manila
on the 15th day of June, 1903. These twenty-eight tracts of land had been acquired by Francisco Martinez during
his marriage with his wife, Doa Germana Ilustre. The wife having died, her estate was in process of
administration in the Court of First Instance of Manila, and the partition above mentioned was made on the theory
that these lands were the property of the conjugal partnership existing between Francisco Martinez and his wife.
In this partition the two parcels of land in question in this case fell to the defendant, and his claim is that by this
partition plaintiff lost all his interest in the property. Judgment was entered in the court below in favor of plaintiff
as prayed for in his complaint, and the defendant has brought the case here by bill of exceptions.
Article 399 of the Civil Code is as follows:
Every coowner shall have full ownership of his part and in the fruits and benefits derived therefrom, and
he therefore may alienate, assign, or mortgage it, and even substitute another person in its enjoyment,
unless personal rights are in question. But the effect of the alienation or mortgage, with regard to the
coowners, shall be limited to the share which may be awarded him in the division on the dissolution of
the community.
This article gives the owner of an undivided interest in the property the right to freely sell and dispose of it
that is, of his undivided interest. he has no right to sell a divided part of the real estate. If he is the owner of an
undivided half of a tract of land, he has a right to sell and convey an undivided half, but he has no right to divide
the lot into two parts, and convey the whole of one part by metes and bounds. All that Francisco Martinez
undertook to do in this case was to convey his undivided interest in these two properties. This he had a perfect
right to do, in accordance with the terms of said article. There is nothing in the last clause of the article inconsistent
with this position. That declares simply that when the property is divided the purchaser gets an interest only in
that part which may be assigned to him. For the purposes of this case we see no difference between it and a case
in which the tenant in common makes an absolute conveyance of his undivided interest in the property, without
reserving the right to repurchase. In the case of an absolute conveyance of that character, the relation between the
grantor in the deed and his cotenant is terminated. They are no longer cotenants. The grantee in the deed takes the

place of the grantor, and he and the other owner of the property become cotenants. In such a case the grantor loses
all interest in the property, and of course has no right to take any part in the partition of it. It would be absurd to
say that after such conveyance the grantor, who had lost all his interest in the property, could by agreement with
the other owner make a partition of property in which he had no interest that would be binding upon his grantee.
We do not see how the fact that Francisco Martinez and his son were the owners of other pieces of property as
tenants in common can affect the question presented in this case. Each tract was separate and distinct from all the
others. The parties had a right to deal with one lot without any reference to the other twenty-seven. The fact that
the defendant acquired title to all of them by inheritance from his mother did not make them physically one tract
of land, so that a conveyance by the son of his undivided half interest in one of these lots would amount to a
conveyance of a divided part of a tract of land held by him in common with this father.
The judgment of the court below is affirmed, with the costs of this instance against the appellant, and after the
expiration of twenty days judgment should be entered in accordance herewith and the case remanded to the court
below for execution. So ordered.
G.R. No. L-5075 December 1, 1909
MAURICIO RAMIREZ, administrator of the estate of MOISES RAMIREZ, deceased, plaintiff-appellee,
vs.
SIMEON BAUTISTA, ET AL., defendants-appellants.
Perfecto
J.
Teodoro Gonzalez for appellee.

Salas

Rodriguez

for

appellants.

ARELLANO, C. J.:
The subject of this complaint is two fish ponds, left by Moises Ramirez on his demise, and subsequently illegally
sold. This action was brought for the purpose of having the sale declared to be void, to secure the recovery of
possession of the fish ponds, their restitution to the administrator of the estate of the deceased owner, and
indemnity for damages.
Moises Ramirez, who died intestate in February, 1900, was married twice. By the first marriage he had five
children, named Rosa, Carmen, Francisco, Mauricia, and Ignacia; by the second marriage three, to wit, Cirila,
Isabel, and Serapio, of whom Isabel alone survives. At the time of his death he left two fish ponds in the sitio of
Tagalag, in the municipality of Polo, Province of Bulacan, the specific details of which are described and admitted
in the case. The two wives are also dead.
The children of the first marriage, Rosa, Carmen, Francisco, Mauricia, and Ignacia, sold the two fish ponds on
the 28th of November, 1901, to Simeon Bautista and Raymundo Duran for the sum of 1,100 pesos. The only
surviving child of the second marriage, Isabel, was not a party to said sale, hence the suit now filed by the
administrator of the intestate estate to have the sale declared null and void and the fish ponds restored to the
intestate estate of Moises Ramirez.
The two purchasers proved their purchase by two documents, one of which was a private and other a notarial one
executed for the purpose. When summoned to answer the complaint they requested that the vendors be cited also,
but the latter although so summoned did not appear at trial.
The action was proceeded with against the purchasers and the Court of First Instance of Bulacan, before whom
the matter was heard, rendered judgment holding that the fish ponds in question pertained to the intestate estate
of the late Moises Ramirez, and that the sale effected by the said Rosa, Carmen, Francisco, Mauricia, and Ignacia
to the defendants, Simeon Bautista and Raymundo Duran, was null and void. The court decreed that possession
of the fish ponds be restored to the plaintiff, Mauricio Ramirez as administrator of the property of the late Moises
Ramirez, and accorded him the right to recover from the defendants 200 pesos per annum, as loss and damages,
to commence from the day they were notified of the complaint, without prejudice to their right, which was
reserved to them, of action against the said vendors; the court also sentenced the defendants to pay the costs.
From the above judgment the defendants appealed. The appeal having been heard before this court, together with
the respective allegations of the parties, it appears that the appellants have made the following assignments of
error to the judgment of the lower court:
I. In that it was not in the judgment the children of the late Moises Ramirez, of both the first and the second
marriage, had become owners in common of the two fish ponds in question by reason of the death of their ancestor.

II. In that it was found therein that, without a partition having been made of the property left by Moises Ramirez,
the children of his first marriage could not validly have transmitted their rights of partition in common to the
property which is the subject of this suit.
III. In that sale of the thirteen-sixteenths of the two parcels of land in question was not declared valid, and void
as to three-sixteenths thereof.lawphi1.net
IV. In that it was not found that, as a result of the evidence, the plaintiff had no legal capacity to bring suit.
The appeal having been heard and the evidence reviewed, the following facts must be held to have been proven:
That Moises Ramirez was first married to Apolinaria Guillermo and by her had the above-mentioned five children,
Rosa, Carmen, Francisco, Mauricia, and Ignacia Ramirez.
That by his second wife, Alejandra Capistrano, he had three children, as already stated, named Cirila, Isabel, and
Serapio Ramirez.
That Moises Ramirez and his two wives are now dead, as are also the two children of the second marriage, Cirila
and Serapio. Isabel, a girl of about eight years of age, alone survives.
That the two fish ponds in question were acquired by Moises Ramirez during the time of his first marriage with
Apolinaria Guillermo, on the 17th of March, 1895, which is the date of the title by composition with the Spanish
Government that constitutes his title of ownership.
On this supposition, the two fish ponds in litigation belonged to the conjugal partnership between Moises Ramirez
and Apolinaria Guillermo. (Civil Code, art. 1401, par. 1.)
By virtue of the conjugal partnership, these two fish ponds belonged half to the husband and half to the wife upon
the dissolution of the marriage by reason of the death of either of them.itc@alf (Civil Code, art. 1392.)
Consequently, upon the death of Apolinaria Guillermo one-half of the fish ponds belonged to Moises Ramirez,
and the other half, that belonging to Apolinaria Guillermo, to the children of the said married couple, Rosa,
Carmen, Francisco, Mauricia, and Ignacia, as the lawful heirs of their mother. (Civil Code, art. 931.)
Inasmuch as the said property continued undivided between the father on the one hand and the children on the
other, and as the conjugal partnership had terminated, a community of property maintained the father and the
children in the joint dominion. (Civil Code, art. 392.)
By the second marriage three additional children survived the father, and upon his death the first five children,
together with the latter three, became his heirs, and all are entitled to divide the said half share belonging to their
father into eight parts.
By the death of two of these last three children, their respective shares fell to Isabel sole heir, inasmuch as they
were children of the same parents. (Civil Code art. 947.)
In view of these considerations, the claim of the appellants is entirely legal that thirteen-sixteenths should be
apportioned among the children of the first marriage to wit, eight as their own, already inherited from their
mother, Apolinaria Guillermo, and five subsequently inherited from their deceased father, Moises Ramirez
and three-sixteenths should be the share of the three children of the second marriage, which accrued to Isabel
Ramirez.
Therefore, in the succession of Moises Ramirez that is now opened the whole of these fractional parts can not be
included, but only the eight which actually constitute his share in the community of property maintained by him
with his children of the first marriage, Rosa, Carmen, Francisco, Mauricia, and Ignacia, since the death of his first
wife.
The above children of the first marriage, upon the death of Moises Ramirez, continued the aforesaid community
of property with their three half sisters and brother, Cirila, Isabel, and Serapio; that is to say, now with Isabel,
their share being thirteen-sixteenths, and that of Isabel three sixteenths.
The present status of the two fish ponds in question is that of community of property.
It is certain that when two or more heirs appear at the opening of a testamentary succession, or during the
progress of the settlement of an intestate estate, and each turns out to be an owner pro indiviso of the
inheritance, by reason of the share he may be entitled to receive, a community of property then exists
between the participants as long as the estate remains undivided . . . and nothing more tangible can be
imagined than this necessary community, which arose at the moment when the coheirs assumed the entire

representation of the person of the deceased with respect to all of his property, rights, and actions, both
active and passive. (3 Manresa, 357.)
With regard to the community of property the Civil Code provides that
Every coowner shall have full ownership of his part and in the fruits and benefits derived therefrom, and
he therefore may alienate, assign, or mortgage it, and even substitute another person in its enjoyment,
unless personal rights are in question. But the effect of the alienation or mortgage, with regard to the
coowners, shall be limited to the share which may be awarded him in the division on the dissolution of
the community. (Art. 399, Civil Code.)
If Rosa, Carmen, Francisco, Mauricia, and Ignacia Ramirez could lawfully alienate their respective shares in the
joint ownership of the two parcels of land sold to the defendants, Simeon Bautista and Raymundo Duran, it is
evident that the sale of thirteen-sixteenths of the said two lands could not be void; the sale of the three-sixteenths
which belonged to Isabel alone is illegal, as alleged in the third assignment of error.
Therefore, the sale described in the public instrument of the 29th of November, 1901, of the thirteen-sixteenths
which belonged to the vendors is valid, and that of the three-sixteenths which pertain to Isabel, who neither by
herself nor by means of another took part in said sale is null.
Simeon Bautista and Raymundo Duran succeed to the vendors and are subrogated thereto in the joint ownership
of the two fish ponds sold; their shares are the same that were owned by the vendors, that is, thirteen-sixteenths.
The whole of the two fish ponds can not pertain to the intestate estate of Moises Ramirez, but merely the half that
belonged to him and which at his death became a part of his intestate estate.
Intestate succession can not disturb the lawful holder in his possession of property, which it is thought should
constitute a part of the hereditary property.
Only in the event of a division of the common property, or upon dissolution of the community of property now
existing between the purchasers, Simeon Bautista and Raymundo Duran, on the one hand and Isabel Ramirez on
the other, can the fruits, rents, or benefits received, and the part thereof, as well as of the expenses, corresponding
to the coowner Isabel Ramirez in maintaining the community, be considered, as well as of the rights and actions
that may pertain to the purchasers as against the vendors (who have taken no part in these proceedings), by reason
of the total consideration paid for the two properties, and other obligations which may have arisen because of the
sale.
The present cause of action and the complaint based thereon being limited to the recovery of the two properties
in question, and the restitution of the possession thereof to the administrator of the intestate estate of Moises
Ramirez, in consequence of the latter's hereditary succession, it is evident that neither recovery of possession nor
the restitution asked for can be granted, as the defendants are the legitimate proprietors and possessors in joint
ownership of the greater portion of the common property claimed.
While the question of the nullity of the entire sale was previously raised in the action, the illegality of the sale of
three-sixteenths of the common property made by the vendors is evident.
In view of the foregoing, it is our opinion that the judgment appealed from should only be affirmed in so far as it
declares that the sale made by Rosa, Carmen, Francisco, Mauricia, and Ignacia Ramirez of the three-sixteenths
parts belonging to Isabel Ramirez in the two fish ponds claimed is null and void; in all other respects the said
judgment is hereby reversed, without any special ruling as to the costs of both instances. So ordered.
G.R. No. L-3404

April 2, 1951

ANGELA
I.
TUASON,
vs.
ANTONIO TUASON, JR., and GREGORIO ARANETA, INC., defendants-appellees.
Alcuaz
&
Araneta & Araneta for appellees.

Eiguren

for

plaintiff-appellant,

appellant.

MONTEMAYOR, J.:
In 1941 the sisters Angela I. Tuason and Nieves Tuason de Barreto and their brother Antonio Tuason Jr., held a
parcel of land with an area of 64,928.6 sq. m. covered by Certificate of Title No. 60911 in Sampaloc, Manila, in
common, each owning an undivided 1/3 portion. Nieves wanted and asked for a partition of the common property,
but failing in this, she offered to sell her 1/3 portion. The share of Nieves was offered for sale to her sister and her
brother but both declined to buy it. The offer was later made to their mother but the old lady also declined to buy,

saying that if the property later increased in value, she might be suspected of having taken advantage of her
daughter. Finally, the share of Nieves was sold to Gregorio Araneta Inc., a domestic corporation, and a new
Certificate of Title No. 61721 was issued in lieu of the old title No. 60911 covering the same property. The three
co-owners agreed to have the whole parcel subdivided into small lots and then sold, the proceeds of the sale to be
later divided among them. This agreement is embodied in a document (Exh. 6) entitled "Memorandum of
Agreement" consisting of ten pages, dated June 30, 1941.
Before, during and after the execution of this contract (Exh. 6), Atty. J. Antonio Araneta was acting as the
attorney-in-fact and lawyer of the two co-owners, Angela I. Tuason and her brother Antonio Tuason Jr. At the
same time he was a member of the Board of Director of the third co-owner, Araneta, Inc.
The pertinent terms of the contract (Exh. 6) may be briefly stated as follows: The three co-owners agreed to
improve the property by filling it and constructing roads and curbs on the same and then subdivide it into small
lots for sale. Araneta Inc. was to finance the whole development and subdivision; it was prepare a schedule of
prices and conditions of sale, subject to the subject to the approval of the two other co-owners; it was invested
with authority to sell the lots into which the property was to be subdivided, and execute the corresponding
contracts and deeds of sale; it was also to pay the real estate taxes due on the property or of any portion thereof
that remained unsold, the expenses of surveying, improvements, etc., all advertising expenses, salaries of
personnel, commissions, office and legal expenses, including expenses in instituting all actions to eject all tenants
or occupants on the property; and it undertook the duty to furnish each of the two co-owners, Angela and Antonio
Tuason, copies of the subdivision plans and the monthly sales and rents and collections made thereon. In return
for all this undertaking and obligation assumed by Araneta Inc., particularly the financial burden, it was to receive
50 per cent of the gross selling price of the lots, and any rents that may be collected from the property, while in
the process of sale, the remaining 50 per cent to be divided in equal portions among the three co-owners so that
each will receive 16.33 per cent of the gross receipts.
Because of the importance of paragraphs 9, 11 and 15 of the contract (Exh. 6), for purposes of reference we are
reproducing them below:
(9) This contract shall remain in full force and effect during all the time that it may be necessary for the
PARTY OF THE SECOND PART to fully sell the said property in small and subdivided lots and to fully
collect the purchase prices due thereon; it being understood and agreed that said lots may be rented while
there are no purchasers thereof;
(11) The PARTY OF THE SECOND PART (meaning Araneta Inc.) is hereby given full power and
authority to sign for and in behalf of all the said co-owners of said property all contracts of sale and deeds
of sale of the lots into which this property might be subdivided; the powers herein vested to the PARTY
OF THE SECOND PART may, under its own responsibility and risk, delegate any of its powers under
this contract to any of its officers, employees or to third persons;
(15) No co-owner of the property subject-matter of this contract shall sell, alienate or dispose of his
ownership, interest or participation therein without first giving preference to the other co-owners to
purchase and acquire the same under the same terms and conditions as those offered by any other
prospective purchaser. Should none of the co-owners of the property subject-matter of this contract
exercise the said preference to acquire or purchase the same, then such sale to a third party shall be made
subject to all the conditions, terms, and dispositions of this contract; provided, the PARTIES OF THE
FIRST PART (meaning Angela and Antonio) shall be bound by this contract as long as the PARTY OF
THE SECOND PART, namely, the GREGORIO ARANETA, INC. is controlled by the members of the
Araneta family, who are stockholders of the said corporation at the time of the signing of this contract
and/or their lawful heirs;
On September 16, 1944, Angela I. Tuason revoked the powers conferred on her attorney-in-fact and lawyer, J.
Antonio Araneta. Then in a letter dated October 19, 1946, Angela notified Araneta, Inc. that because of alleged
breach of the terms of the "Memorandum of Agreement" (Exh. 6) and abuse of powers granted to it in the
document, she had decided to rescind said contract and she asked that the property held in common be partitioned.
Later, on November 20, 1946, Angela filed a complaint in the Court of First Instance of Manila asking the court
to order the partition of the property in question and that she be given 1/3 of the same including rents collected
during the time that the same including rents collected during the time that Araneta Inc., administered said
property.
The suit was administered principally against Araneta, Inc. Plaintiff's brother, Antonio Tuason Jr., one of the coowners evidently did not agree to the suit and its purpose, for he evidently did not agree to the suit and its purpose,
for he joined Araneta, Inc. as a co-defendant. After hearing and after considering the extensive evidence introduce,
oral and documentary, the trial court presided over by Judge Emilio Pea in a long and considered decision
dismissed the complaint without pronouncement as to costs. The plaintiff appealed from that decision, and
because the property is valued at more than P50,000, the appeal came directly to this Court.

Some of the reasons advanced by appellant to have the memorandum contract (Exh. 6) declared null and void or
rescinded are that she had been tricked into signing it; that she was given to understand by Antonio Araneta acting
as her attorney-in-fact and legal adviser that said contract would be similar to another contract of subdivision of
a parcel into lots and the sale thereof entered into by Gregorio Araneta Inc., and the heirs of D. Tuason, Exhibit
"L", but it turned out that the two contracts widely differed from each other, the terms of contract Exh. "L" being
relatively much more favorable to the owners therein the less favorable to Araneta Inc.; that Atty. Antonio Araneta
was more or less disqualified to act as her legal adviser as he did because he was one of the officials of Araneta
Inc., and finally, that the defendant company has violated the terms of the contract (Exh. 6) by not previously
showing her the plans of the subdivision, the schedule of prices and conditions of the sale, in not introducing the
necessary improvements into the land and in not delivering to her her share of the proceeds of the rents and sales.
We have examined Exh. "L" and compared the same with the contract (Exh. 6) and we agree with the trial court
that in the main the terms of both contracts are similar and practically the same. Moreover, as correctly found by
the trial court, the copies of both contracts were shown to the plaintiff Angela and her husband, a broker, and both
had every opportunity to go over and compare them and decide on the advisability of or disadvantage in entering
into the contract (Exh. 6); that although Atty. Antonio Araneta was an official of the Araneta Inc.; being a member
of the Board of Directors of the Company at the time that Exhibit "6" was executed, he was not the party with
which Angela contracted, and that he committed no breach of trust. According to the evidence Araneta, the
pertinent papers, and sent to her checks covering her receive the same; and that as a matter of fact, at the time of
the trial, Araneta Inc., had spent about P117,000 in improvement and had received as proceeds on the sale of the
lots the respectable sum of P1,265,538.48. We quote with approval that portion of the decision appealed from on
these points:
The evidence in this case points to the fact that the actuations of J. Antonio Araneta in connection with
the execution of exhibit 6 by the parties, are above board. He committed nothing that is violative of the
fiduciary relationship existing between him and the plaintiff. The act of J. Antonio Araneta in giving the
plaintiff a copy of exhibit 6 before the same was executed, constitutes a full disclosure of the facts, for
said copy contains all that appears now in exhibit 6.
Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing the terms of the contract in that the
defendant corporation has failed (1) to make the necessary improvements on the property as required by
paragraphs 1 and 3 of the contract; (2) to submit to the plaintiff from time to time schedule of prices and
conditions under which the subdivided lots are to be sold; and to furnish the plaintiff a copy of the
subdivision plans, a copy of the monthly gross collections from the sale of the property.
The Court finds from the evidence that he defendant Gregorio Araneta, Incorporated has substantially
complied with obligation imposed by the contract exhibit 6 in its paragraph 1, and that for improvements
alone, it has disbursed the amount of P117,167.09. It has likewise paid taxes, commissions and other
expenses incidental to its obligations as denied in the agreement.
With respect to the charged that Gregorio Araneta, Incorporated has failed to submit to plaintiff a copy of
the subdivision plains, list of prices and the conditions governing the sale of subdivided lots, and monthly
statement of collections form the sale of the lots, the Court is of the opinion that it has no basis. The
evidence shows that the defendant corporation submitted to the plaintiff periodically all the data relative
to prices and conditions of the sale of the subdivided lots, together with the amount corresponding to her.
But without any justifiable reason, she refused to accept them. With the indifferent attitude adopted by the
plaintiff, it was thought useless for Gregorio Araneta, Incorporated to continue sending her statement of
accounts, checks and other things. She had shown on various occasions that she did not want to have any
further dealings with the said corporation. So, if the defendant corporation proceeded with the sale of the
subdivided lots without the approval of the plaintiff, it was because it was under the correct impression
that under the contract exhibit 6 the decision of the majority co-owners is binding upon all the three.
The Court feels that recission of the contract exhibit 6 is not minor violations of the terms of the agreement,
the general rule is that "recission will not be permitted for a slight or casual breach of the contract, but
only for such breaches as are so substantial and fundamental as to defeat the object of the parties in making
the agreement" (Song Fo & Co. vs. Hawaiian-Philippine Co., 47 Phil. 821).
As regards improvements, the evidence shows that during the Japanese occupation from 1942 and up to 1946, the
Araneta Inc. although willing to fill the land, was unable to obtain the equipment and gasoline necessary for filling
the low places within the parcel. As to sales, the evidence shows that Araneta Inc. purposely stopped selling the
lots during the Japanese occupantion, knowing that the purchase price would be paid in Japanese military notes;
and Atty. Araneta claims that for this, plaintiff should be thankfull because otherwise she would have received
these notes as her share of the receipts, which currency later became valueles.
But the main contention of the appellant is that the contract (Exh. 6) should be declared null and void because its
terms, particularly paragraphs 9, 11 and 15 which we have reproduced, violate the provisions of Art. 400 of the
Civil Code, which for the purposes of reference we quote below:

ART. 400. No co-owner shall be obliged to remain a party to the community. Each may, at any time,
demand the partition of the thing held in common.
Nevertheless, an agreement to keep the thing undivided for a specified length of time, not exceeding ten
years, shall be valid. This period may be a new agreement.
We agree with the trial court that the provisions of Art. 400 of the Civil Code are not applicable. The contract
(Exh., 6) far from violating the legal provision that forbids a co-owner being obliged to remain a party to the
community, precisely has for its purpose and object the dissolution of the co-ownership and of the community by
selling the parcel held in common and dividing the proceeds of the sale among the co-owners. The obligation
imposed in the contract to preserve the co-ownership until all the lots shall have been sold, is a mere incident to
the main object of dissolving the co-owners. By virtue of the document Exh. 6, the parties thereto practically and
substantially entered into a contract of partnership as the best and most expedient means of eventually dissolving
the co-ownership, the life of said partnership to end when the object of its creation shall have been attained.
This aspect of the contract is very similar to and was perhaps based on the other agreement or contract (Exh. "L")
referred to by appellant where the parties thereto in express terms entered into partnership, although this object is
not expressed in so many words in Exh. 6. We repeat that we see no violation of Art. 400 of the Civil Code in the
parties entering into the contract (Exh. 6) for the very reason that Art. 400 is not applicable.
Looking at the case from a practical standpoint as did the trial court, we find no valid ground for the partition
insisted upon the appellant. We find from the evidence as was done by the trial court that of the 64,928.6 sq. m.
which is the total area of the parcel held in common, only 1,600 sq. m. or 2.5 per cent of the entire area remained
unsold at the time of the trial in the year 1947, while the great bulk of 97.5 per cent had already been sold. As
well observed by the court below, the partnership is in the process of being dissolved and is about to be dissolved,
and even assuming that Art. 400 of the Civil Code were applicable, under which the parties by agreement may
agree to keep the thing undivided for a period not exceeding 10 years, there should be no fear that the remaining
1,600 sq. m. could not be disposed of within the four years left of the ten-years period fixed by Art. 400.
We deem it unnecessary to discuss and pass upon the other points raised in the appeal and which counsel for
appellant has extensively and ably discussed, citing numerous authorities. As we have already said, we have
viewed the case from a practical standpoint, brushing aside technicalities and disregarding any minor violations
of the contract, and in deciding the case as we do, we are fully convinced that the trial court and this Tribunal are
carrying out in a practical and expeditious way the intentions and the agreement of the parties contained in the
contract (Exh. 6), namely, to dissolve the community and co-ownership, in a manner most profitable to the said
parties.
In view of the foregoing, the decision appealed from is hereby affirmed. There is no pronouncement as to costs.
So ordered.
G.R. No. L-10104

February 10, 1916

ROMANA
CORTES,
vs.
FLORENCIO G. OLIVA, defendant-appellee.
Leodegario
Jose Agoncillo for appellee.

Azarraga

ET

AL.,

for

plaintiffs-appellants,

appellants.

CARSON, J.:
This is an action for the recovery of personal property and for the damages incident to its alleged unlawful
conversion.
The plaintiffs are the heirs of one Pio Oliva, deceased, who during his lifetime was the owner of a large machine
used for grinding sugar cane; he was also the joint owner with his brother, Florencio Oliva, the defendant herein,
of another smaller machine used for the same purpose. Throughout the record the machine owned outright by Pio
Oliva is referred to as the large machine or mill (trapiche grande) while the other is referred to as the small or
partnership machine.
In 1896 defendant was the manager of an hacienda in Nasugbu, Batangas, and Pio Oliva was a tenant on the
hacienda. The two machines in question were installed and in use on the hacienda at the time of the breaking out
of the revolution against Spain. Owing to the unsettled conditions incident to the revolution, the hacienda was
abandoned together with the two machines in question and various other agricultural implements. Pio Oliva died
in 1898 in the pueblo of Calawang, Laguna, P. I., leaving as his heirs the plaintiffs herein. The defendant,
Florencio Oliva, returned to Nasugbu in 1899. In 1901 he took them in an abandoned condition and badly in need

of repairs. On the large machine he expended approximately P163 and a less amount on the smaller machine, and
he kept both machines under shelter until work was received on the hacienda. In 1906 the large machine was
again used for grinding cane and it appears to have been used for that purpose ever since. The smaller machine,
the one owned in partnership, has never been used since 1896, and unsuccessful efforts have been made to sell it.
The record is very unsatisfactory and inconclusive as to the value of the two machines. One of the plaintiffs
testified that the large machine was worth P1,200, while the defendant put its value at P400. There is no direct
evidence in the record as to what the value of the smaller machine is, but it is very clear that its market value must
be small indeed.
The plaintiffs contend that the defendant unlawfully took possession of these machines in the year 1906 without
their knowledge or consent; that from that date until the year 1912 he had ground cane in the large machine to the
value of P42,000, and that they, as the heirs of the true owner of the machine, are entitled to P14,000 for the use
of this machine, that being one third the estimated value of the output; that the profits which would have accrued
to them from the use of the small machine during that period amounts to P3,500; that they are entitled to a
judgment for the recovery of the machines of their value; and further to a judgment for the sum of P17,500 for
the profits which should have accrued to them for the use of these machines from the year 1906 to the year 1912.
The defendant contends that he took possession of the machines in 1901, and has them in his possession since
that date under a claim of ownership; that he took possession because his brother, Pio Oliva, was indebted to him
at the time of his death, and in view of conditions existing at that time, 1901, he took this mode of indemnity
himself against loss of the amount of the indebtedness which exceeded the value of both machines at the time
when he took possession.
This action was instituted on the 6th day of June, 1913, and the trial judge was of opinion that it had prescribed
under the provisions of section 43 of the new Code of Civil Procedure (Act No. 190), the evidence of record
disclosing that the defendant had been in possession of both the mills under a claim of ownership for a period of
more than four years prior to the date of the institution of the action.
As to larger machine, we are of opinion that the ruling of the trial judge was unquestionably correct. We find
nothing in the record which would justify us in disturbing the findings of fact by the trial judge and there can be
no doubt that accepting his finding of facts as correct, the plaintiff's action for possession had prescribed long
before the action was instituted (sec. 43 Act No. 190).
The plaintiff contend that the defendant did not take and keep possession of this machine under a claim of
ownership; and that in truth and in fact he originally took possession of this machine in the year 1906, and that
since that time he has kept possession merely as security for his claim of indebtedness against their father. In
support of their contentions, they rely on certain statements made by the defendant in a letter written to one of the
plaintiffs. This letter appears to have been written partly with a view to secure some compromise of the threatened
litigation over the machines, and partly by way of justification and defense of the defendant's conduct in taking
possession of the machines after his brother's death. In the course of the letter he insists that the plaintiffs were
not wronged by his action in taking possession, because, as he indicates, their claim of ownership in the machine
and of profits from its operation is fully met by his claim of indebtedness and of interest on the debt. Plaintiffs
insist that this statement demonstrates that the defendant was not asserting a right of ownership in the machine at
the time when the letter was written, but only the right to payment of the amount of the alleged indebtedness with
interest.
Without stopping to consider the question of the admissibility in evidence of the contents of his letter, which
seems to have been written with some view to a compromise of threatened litigation, we hold that, read in
connection with all the evidence of record, it falls far short of sustaining the contentions of the plaintiffs. We
agree with the trial judge, who carefully reviewed the letter together with all the rest of the evidence, and held
that the letter, as a whole, clearly discloses that defendant regarded himself as the lawful owner of the machine at
the time when the letter was written; and that the references to the principal and interest of the debt for which it
was taken was made by the defendant merely for the sake of showing that he had not wronged his brother or his
brother's heirs by taking the machines for the debt.
With reference to the smaller machine, which was originally owned jointly by the defendant and his brother, the
claim of prescription of the action brought by the plaintiffs is not satisfactorily established.
This machine having been originally the joint property of the defendant and his brother, the fact that he held it in
his possession for a long period of years, and exercised acts of ownership with reference to it does not afford a
sufficient ground for the inference he had possession under a claim of exclusive ownership, and adverse to the
claims of his brother's estate. Ordinarily possession by one joint owner will not be presumed to be adverse to the
others, but will, as a rule, be held to be for the benefit of all. Much stronger evidence is required to show an
adverse holding by one of several joint owners than by a stranger; and in such cases, to sustain a plea of
prescription, it must always clearly appear that one who was originally a joint owner has repudiated the claims of
his coowners, and that his coowners were apprised or should have been apprised of his claim of adverse and

exclusive ownership before the alleged prescriptive period began to run. We do not think that the evidence or
record is sufficient to sustain a finding to that effect with reference to the small machine.
On their own allegations, however, plaintiffs cannot maintain an action for possession of this machine against the
defendant, who was originally a joint with his brother, their predecessor in interest. Doubtless they have a right
to have the machine sold and to a partition of the proceeds of the sale, and an accounting for profits while in the
exclusive possession of the defendant; and liberally construed, the allegations of their complaint would seem to
be sufficient, if supported by competent evidence to entitle them to a judgment for such profits.
But there is no direct evidence in the record as to profits gained by the defendant from the use of this machine,
though there are indications in the record that in fact he made no such profits, and that the machine, which was
practically worthless, has lain idle ever since it came into his possession.
The judgment entered in the court below dismissing the complaint at costs of the plaintiffs should be affirmed
with the costs of this instance against the appellants, without prejudice, nevertheless, to the right of the plaintiffs
to bring another action asserting any right they may have in the small machine, originally owned jointly by the
defendant and his brother, their predecessor in interest, or in profits arising from the use of this machine since the
date of the institution of this action. So ordered.
G.R. No. L-38544

November 18, 1933

PAZ DE SANTOS, CONSUELO DE SANTOS and JOSE MARIANO DE SANTOS, petitioners-appellants,

vs.
BANK OF THE PHILIPPINE ISLANDS, oppositor-appellee.
Vicente
J.
Feria and La O for appellee.

Francisco

for

appellants.

VILLA-REAL, J.:
This is an appeal taken by the petitioners herein Paz, Consuelo and Jose Mariano de Santos, from the order of the
Court of First Instance of Manila, which reads as follows:
Upon consideration of the petition filed by Paz, Consuelo and Jose Mariano de Santos praying that this
court order the cancellation of the lien annotated on their certificates of title consisting in the preliminary
attachment of the properties described therein, in favor of the Bank of the Philippine Islands; it appearing
that this same motion had already been previously filed, that is on July 6, 1931, and denied by this same
court; it appearing likewise, that a similar petition had been filed in civil case No. 39435 of the Court of
First Instance of Manila, entitled "Bank of the Philippine Islands vs. Isidoro de Santos et al., which petition
was also denied by the said court which heard the motion in question on September 30, 1931; and it
appearing further that aid order have not been appealed from and have therefore become final on the
ground that the period fixed by law within which they might have been again considered by this court has
elapse; and it appearing furthermore that the provisions of the Civil Code and of the Code of Civil
Procedure cited by the petitioners in their motion under consideration by this court are not applicable to
nor can serve as a ground for the aforesaid motion filed by them, inasmuch as they contain nothing with
reference to liens in favor of third persons who are not a party to the partition in question;
Wherefore, the petition of the aforesaid petitioners herein is hereby denied. It is so ordered.
In support of their appeal, the petitioner-appellants assign the following alleged errors in the decision of the court
a quo, to wit:
1. In not ordering the cancellation of the preliminary attachment noted at the back of the new certificates
of title Nos. 39885, 39879 and 39880 issued respectively to each of the three herein appellants for their
respective shares in the community property.
2. In holding the orders of the court of July 31, and of September 30, 1931 mentioned in the appealed
order, as binding and conclusive in the instant case.
3. In ordering the appellants to include in their bill of exceptions the aforementioned order of September
30, 1931, which was issued in the case of the Bank of the Philippine Islands vs. Isidoro de Santos et al.,
No. 39435, by the judge of the Sala other than the one in which the present case was heard.
The following pertinent facts are necessary for the solution of the questions raised in this appeal:

The petitioner-appellants herein Paz, Consuelo and Jose Mariano de Santos, together with their brothers Felipe
and Isidoro de Santos, were owners pro indiviso of nine parcels of land described in the transfer certificates of
title Nos. 34394, 34395, 34396, 34397, 34398, 34399, 34400, 34403 and 34530.
On March 26, 1930, Isidoro de Santos and Paulino Candelaria executed jointly and severally in favor of the herein
oppositor-appellee, Bank of the Philippine Islands, a promissory note for the sum of P45,000 payable within
ninety days with interest at the rate of 9 per cent per annum, delivering the promissory note in question (Appendix
B) to the aforesaid bank.
Inasmuch as Isidoro de Santos and Paulino Candelaria failed to pay the amount of the said promissory note upon
maturity and after demand had been made upon them therefore the aforesaid oppositor-appellee, Bank of the
Philippine Islands, on April 18, 1931, filed a complaint against Isidoro de Santos and Paulino Candelaria with the
Court of First Instance of Manila, praying for the issuance of a writ of preliminary attachment against their
properties, which was issued and annotated on the back of each and every one of the transfer certificates of the
hereinbefore enumerated.
Three days after the issuance of said writ of attachment and the annotation thereof on the back of the aforesaid
transfer certificates of title, that is on April 21, 1931, the herein petitioner-appellants, together with Isidoro and
Felipe de Santos executed an extrajudicial partition of the parcels of land in question.
On July 6, 1931, Felipe de Santos filed a motion in Cadastral Case No. 3 and others, G.L.R.O. Record No. 63 and
others, of the Court of First Instance of Manila, praying among other things, (1) that the aforesaid extrajudicial
partition be approved by the court, and (2) that the preliminary attachment of the interest of Isidoro de Santos in
each and every one of the nine parcels of land described in the transfer certificates of the title hereinbefore
enumerated, be consolidated into parcels of land adjudicated to him by virtue of the aforesaid extrajudicial
partition.
Although the petitioner-appellants herein and Isidoro de Santos were duly notified of the hearing of the aforesaid
motion which was set for July 14, 1931, as evidenced by the notice and the note of Attorney Javier appearing at
the foot thereof, none of them appeared at the hearing.
On July 31, 1931, the Court of First Instance of Manila, in deciding the aforesaid motion of Felipe de Santos,
stated the following:
The petition is hereby denied with respect to the properties described in the transfer certificates of title
Nos. 34396, 34398 and 34403, on the ground that the first two properties are mortgaged to Luis Mirasol
and the last to the Philippine Guaranty Co., Inc., inasmuch as the mortgage constituted thereon is
subscribed to jointly and severally by all the coowners thereof. The motion to the effect that all the
attachments issued against Isidoro de Santos be consolidated exclusively on the properties adjudicated to
him by virtue of the aforesaid deed of partition is, likewise hereby denied.
Neither the petitioner Felipe de Santos nor the herein petitioner-appellants Paz, Consuelo and Jose Mariano de
Santos, nor Isidoro de Santos excepted to nor appealed from the order above-mentioned.
On September 30, 1931, the Court of First Instance of Manila denied the motion filed by Felipe de Santos in civil
case No. 39435 of the said court, wherein he prayed, among other things, that the said court order the register of
deeds of the City of Manila to note on the back of transfer certificates of title Nos. 34397 and 34530 the
preliminary attachment in favor of the Bank of the Philippine Islands, referring to that portion of the property
described in subdivision plan Psd 7299, and to cancel the preliminary attachments noted on the back of transfer
certificates of title Nos. 34394, 34395, 34396, 34398, 34400 and 34403, and on the back of transfer certificate of
title No. 34530 with respect to the portion of the property described therein, which was ]adjudicated to the said
petitioner. The court has based its aforesaid decision of the ground that neither the said petitioner Felipe de Santos
nor the defendant therein, Isidoro de Santos, has the right to compel the plaintiff Bank of the Philippine Islands
to conform to the attachment of only those properties adjudicated to the said defendant Isidoro de Santos by virtue
of the deed of partition, in lieu of his right to an undivided one-fifth of each of the nine parcels of land hereinbefore
enumerated.lawphil.net
Neither the petitioner Felipe de Santos nor the defendant therein, Isidoro de Santos, appealed from the above
order.
On August 3, 1932, one-year after the motion of Felipe de Santos was filed in the said civil case No. 39435, the
herein petitioner-appellants filed a motion in the cadastral cases aforementioned, praying for the cancellation of
the annotation of the preliminary attachments levied on the interest of Isidoro de Santos before the partition,
appearing on the back of the new transfer certificates of title issued in their name after the partition, said annotation
having been made pursuant to the order of the court issued in said cadastral cases on July 31, 1931.

On September 17, 1932, the court denied the motion in question by the aforesaid order from which this appeal
was taken.
It being procedural in nature, we shall first pass upon the question raised in the second assignment of error, to
wit; that the trial court erred in holding the orders of the court of July 31, and September 30, 1931, as binding and
conclusive in the instant case.
It can be inferred from the order of September 17, 1932, appealed from, that in denying the motion for the
cancellation of the preliminary attachments filed by the herein petitioner-appellants on August 5, 1932, the court
a quo based its decision on the ground that a similar motion for the cancellation of the preliminary attachments
in question had already been filed in the said case on July 6, 1931, and denied by the order of July 31, 1931; and
another in civil case No. 39435 of the Court of First Instance of Manila, entitled "Bank of the Philippine Islands
vs. Isidoro de Santos et al.", which was likewise denied on September 30, 1931. Inasmuch as the orders denying
the aforesaid motions have not been appealed from, they have therefore become final and conclusive.
The order of the court a quo denying the motions in question is based, therefore, on the assumption that the
question regarding the cancellation of the preliminary attachment sought by the petitioner-appellants has become
res judicata. This court has constantly held that in order that res judicata may exist, it is necessary that there be
identity of parties, of grounds or causes of action and of things or subject matter under litigation (Aquino vs.
Director of Lands, 39 Phil., 850; Isaac vs. Padilla, 31 Phil., 496; Donato vs. Mendoza, 25 Phil., 57; Roman
Catholic Archbishop of Manila vs. Director of Lands, 35 Phil., 339).
The motion for cancellation dated July 6, 1931, was filed by Felipe de Santos alone, and the fact that the herein
petitioner-appellants were notified thereof has not made them parties to the said motion, inasmuch as they were
not included in the motion in question in accordance with section 114 of the Code of Civil Procedure.
Neither were the herein petitioner-appellants made parties to the motion for cancellation of the preliminary
attachment filed by Felipe de Santos in civil case No. 39435 of the Court of First Instance of Manila, on August
5, 1931, wherein the Bank of the Philippine Islands was plaintiff and Isidoro de Santos et al. were defendants.
In the motion under consideration, the denial of which is the subject matter of this appeal, Felipe de Santos is not
a party-petitioner. Therefore, there is no identity between the petitioner in the motions of July 6, and of August
5, 1931, respectively, and the parties to the motion under consideration.
In the two motions of July 6, and August 5, 1931, mentioned above, wherein Felipe de Santos alone was the
petitioner, the subject matter thereof could not be other that the properties adjudicated to him by virtue of the deed
of partition, which properties he wished to free from the attachment, inasmuch as he neither acted nor could act
in representation of his coowners for the reason that he was not authorized to do so. In the motion under
consideration, the petitioner-appellants pray for the cancellation of the annotation of the preliminary attachment
on the back of the new transfer certificates of title issued in their respective names, by virtue of the order of the
court in the cadastral case, on July 31, 1931. If the properties which Felipe de Santos sought to free from the
preliminary attachment in his motions of July 6, and of August 5, 1931, were those which had been adjudicated
to him by virtue of the partition, and the properties which the herein petitioner-appellants seek to free from the
same attachment in their motion to that effect are those which corresponded to them by virtue of the aforesaid
partition, which properties are separate and distinct from those adjudicated to Felipe de Santos, neither is there
identity of subject matter under litigation herein. The only point where there is identity is in the cause or ground
of action for cancellation, which is the same in the aforestated motions of July 6, and of August 5, 1931, as well
as in the motion under consideration, which ground consists in the partition of the properties owned in
common.lawphi1.net
Therefore, there being no identity either of parties, or of subject matter or thing under litigation, there is no res
judicata.
The second question to decide in this appeal, which is raised in the first assignment of error, is whether or not it
is proper to order the cancellation of the preliminary attachment annotated on the back of the new transfer
certificates of title Nos. 39885, 39879 and 39880, issued respectively in the names of the herein petitionerappellants for their respective shares in the community property.
Inasmuch as article 403 of the Civil Code authorizes creditors to contest a partition already made in case of fraud,
or when it has been made to the prejudice of existing rights and interest, and inasmuch as the oppositor-appellee
herein, bank of the Philippine Islands, was not notified of the partition made among the herein petitionerappellants and their coowners Felipe de Santos and Isidoro de Santos, and was not given an opportunity to contest
the partition already made, nor the approval thereof by the cadastral court, the case should be remanded to the
court a quo in order to permit the said oppositor-appellee, Bank of the Philippine Islands, to file the objection it
may deem convenient, in accordance with the provisions of article 403 of the Civil Code cited above.

In view of the foregoing considerations, we are of the opinion and so hold that inasmuch as the partition of the
properties held under title of common ownership was made without notifying the creditors thereof, said creditors
may contest the partition in question in case of fraud, or when it has been made to the prejudice of existing rights
or interests.
Wherefore, the order appealed from is hereby reversed and the case ordered remanded to the court a quo in order
to give the herein oppositor-appellee, Bank of the Philippine Islands, and opportunity to contest the partition in
accordance with the provisions of article 403 of the Civil Code, without special pronouncement as to costs. So
ordered.
G.R. No. 1111

May 16, 1903

FELICIDAD
GARCIA
DE
LARA,
vs.
JOSE GONZALEZ DE LA RAMA, ET AL., defendants-appellees.
Emilio
Martinez
No appearance for appellees.

Llanos

plaintiff-appellant,

for

appellant.

COOPER, J.:
This is an appeal by the plaintiff from a judgment of the Court of First Instance, brought here by bill of exceptions
which purports to have been prepared under section 143 of the Code of Civil Procedure of 1901, but which in
reality bears a very small resemblance to a bill of exceptions properly prepared under the Code. It contains
arguments of counsel, unintelligible statements, and sets forth much that is irrelevant. The real nature of the suit,
the rulings of the court from which the appeal has been taken, and the character of the judgment rendered, after a
careful reading of the bill of exceptions, are left in doubt and largely to conjecture.
The Code of Civil Procedure is based upon American practice and has superseded the Spanish Code of Procedure,
and since the practice now in force is in a large measure different from that under the Spanish practice, many
difficulties present themselves to those not familiar with the American practice.
As a general rule, excepting which are not presented in the course of the proceedings in the Court of First Instance
can not be presented and urged on appeal to this court. The purpose of the rule is to require a party desiring to
review in the appellate court the action of the trial court to call the attention of the trial court by timely objections
to the proceedings complained of. This rule serves the interest of litigants and conduces to produce the orderly
administration of justice in the courts.
An exception has been defined as an objection taken to the decision of the trial court upon a matter of law, and is
a notice that the party taking it preserves for the consideration of the appellate court a ruling deemed erroneous.
(8 Am. Enc. P. and P., 157.)
An objection alone is not sufficient to preserve the question for review on appeal. To save the objection an
exception is necessary.
We will indicate briefly when and how objections are made and exceptions taken. This will depend upon the
character of the question.
They are taken sometime by demurrer, sometimes by answer, or by some objection raised during the progress of
the trial, or by objections to the judgment after its rendition. The defendant may demur to the complaint when it
appears upon the face thereof, either
1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or
2. That the plaintiff has no legal capacity to sue; or
3. That there is another action pending between the same parties for the same cause; or
4. That there is a defect or misjoinder of parties, plaintiff or defendant; or
5. That the complaint does not state facts sufficient to constitute a cause of action; or
6. That the complaint is ambiguous, unintelligible, or uncertain.
The demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken.
(Sec. 91 Code of Civil Procedure.)

When any of the matters enumerated in this section do not appear upon the fact of the complaint, the objection to
the complaint can only be taken by answer. (Sec. 92.)
If no objection be taken to the complaint, either by demurrer or answer, the defendant shall be deemed to have
waived all the above-named objections, excepting only the objection to the jurisdiction of the court over the
subject-matter, and that the complaint does not state facts sufficient to constitute a cause of action. (Sec. 93, Code
of Civil Procedure.)
If the ruling of the court upon a demurrer be adverse to the party making the same, he should except to the ruling
of the court, and, in order that the court may determine the force of the objection, it will be necessary to incorporate
in the bill of exceptions the complaint demurred to, the demurrer, and the judgment or ruling of the court upon
the demurrer.
If the objection is raised by the answer, the exception must necessarily come after proofs which are made in
support of it. The sufficiency and the validity of the objection thus raised must be determined by the sufficiency
of the evidence which has been offered in support of the allegation contained in the answer. This requires a review
or retrial of the questions of fact and can only be made in the cases which are provided for in section 497 of the
Code of Civil Procedure.
The manner of making objections and taking exceptions to rulings, such as rulings upon admissibility or exclusion
of evidence and other questions arising during the course of the trial, is provided for in section 142, which reads
as follows:
The party excepting to the ruling, order, or judgment shall forthwith inform the court that he excepts to
the ruling, order, or judgment, and the judge shall thereupon minute the fact that the party has so excepted;
but the trial shall not be delayed thereby. The exception shall also be recorded by the stenographer, if one
is officially connected with the court.
The Code has not made any specific provisions as to the manner and time of taking exceptions to the final
judgment which has been rendered in a case. It would seem that the objection should be taken at the time of the
rendition of the final judgment, or as soon thereafter as may be practicable, and before the ending of the term of
court at which the final judgment is rendered.
With reference to the character of objections which may be taken to a judgment of the court, the American rule
is stated as follows:
Errors in a judgment or decree will not be noticed on appeal in the absence of objections and exceptions
taken below, and they should be sufficiently specific to direct the attention of the court to the alleged
defects. (8 Enc. Pl. and Pr., 289.)
If objection to the judgment arises upon the insufficiency of the proof to support the judgment or the findings of
fact made by the judge, it will also be necessary to bring the case within the first or third clause of section 497 of
the Code of Civil Procedure, and if under the latter clause, the excepting party should file a motion in the Court
of First Instance for a new trial based upon the ground that the findings of fact are plainly and manifestly against
the weight of evidence.
The manner of perfecting a bill of exceptions is governed by section 143 of the Code and need no be here repeated.
In preparing and presenting a bill of exceptions under this section it is necessary that counsel should carefully
read and follow the plain directions of the statute. These directions are sufficiently explicit to enable those who
will carefully consider the section to comply with them.
In preparing a case for this court, counsel should also carefully consider the rules of the Supreme Court for sending
up the bill of exceptions and for the making of briefs and assignments of errors.
By reason of the failure of the appellants in this case to comply with the plain statutory provisions with reference
to bills of exceptions, it is largely a matter of conjecture to determine the nature of the suit, the rulings of the court
complained of, or the character of the judgment which has been rendered. For this failure we might well refuse to
consider the case.
It seems probable that the suit was an action for the partition of a tract of land, being the undivided half of the
hacienda de Angono, situated in the Province of Rizal, and which the plaintiff and defendants in the suit has
inherited from their deceased father, Don Eugenio Gonzalez de Lara; that Eugenio Gonzalez de Lara had acquired
this undivided half interest by purchase from Doa Dominga Santa Ana; that the court refused to partition the
land because the tract sought to be partitioned was itself an undivided interest, the other being owned by the
parties the names of whom are not disclosed in the record; that the court declined to make the partition on the

ground that the demarcation and boundaries of the land sought to be partitioned had not been set forth in the
partition, and by reason of the interest which is sought to be partitioned being an undivided interest.
If this was the character of the suit, the Court of First Instance did not err in so holding.
Partition proceedings are now governed, and were at the time of the institution of this suit, by the Code of Civil
Procedure, 1901, and must be determined by the provisions of this Code. Section 183 requires that the complaint
in an action for partition shall set forth the nature and extent of the plaintiff's title, and shall contain an adequate
description of the real estate of which partition is demanded, and name each tenant in common, coparcener, or
other person interested therein as defendants.
This provision requires that all persons interested in the land sought to be partitioned must be made a party to the
suit. If the land sought to be partitioned was an undivided interest held by the father of the plaintiffs and
defendants, in order to comply with the requirements of statute those who were interested in the other half interest
should have been made parties to the suit.
This is not according to the requirements of the Code, but the very nature of a partition suit renders it necessary;
otherwise the proceedings in the suit may become wholly ineffectual.
This proceeds from the general principle of law that a litigation can never result in an adjudication which will be
binding upon others than the parties to the suit and their privies in blood or in estate. The other owners were
persons who not only had an interest in the controversy but an interest of such a nature that a final decree could
not be made without affecting that interest. The decree, therefore, would not bind such parties, and upon another
suit for partition brought by them the very half that had been partitioned in this case might be assigned as the
portion belonging to such other joint owners.
The Code provides that if, upon trial in a partition suit, the court finds that the plaintiff has a legal right to any
part of such estate, it shall order partition thereof in favor of the plaintiff, among all parties in interest, and if the
parties to the suit are not able to agree amongst themselves to the making of partition, the court shall appoint three
commissioners to make the partition and set off to the plaintiff and each party in interest such part and proportion
of the estate as the court shall order.
When it is made to appear to the commissioner that the estate, or a portion thereof, can not be divided without
great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided he
pays to the other party sum of money as the commissioners judge equitable. But if no one of the parties interested
will take such assignment and pay such sum, the court shall order the commissioners to sell such estate at public
or private sale. Where the estate can not be divided, the court may direct the sale of the property at public or
private sale. At this public or private sale third parties may become the purchasers.
A suit brought by the persons interested who were not made parties to the suit, and who are not bound by the
partition proceedings, would deprive such purchaser of the title to the land acquired at public sale under the
judgment of a court. Both the purchaser at such sale and the heirs who had received their specific portion by metes
and bounds, or the heirs who had compensated the other heirs by the payment of the value of the land, by reason
of land not being divisible, would be deprived of the rights which they had acquired under the proceedings. This
would not only create confusion and inconvenience but the time of the court would have been uselessly consumed
in the proceedings thus rendered ineffectual, at the suit of the persons who were not made parties to the action.
Such result is avoided by the provision of the statute which requires each tenant in common, coparcener, or other
person interested in the land to be made a party to the suit.
The judgment will be affirmed with costs of both instances against appellants. This affirmance, however, will be
without prejudice to the rights of the plaintiff should he desire to institute a partition proceeding against all parties
at interest and effect a partition of the lands.
By the provisions of section 181 of the Code of Civil Procedure, a person having or holding real estate with others,
in any form of joint tenancy or tenancy in common, may compel partition thereof.