G.R. No.
152716 October 23, 2003 Business Permits, Realty Taxes, Municipal License fees, clearances,
ELNA MERCADO-FEHR, petitioner,
vs.
BRUNO FEHR, respondent.
DECISION
PUNO, J.:
This case arose from a petition for declaration of nullity of marriage on
the ground of psychological incapacity to comply with the essential
marital obligations under Article 36 of the Family Code filed by
petitioner Elna Mercado-Fehr against respondent Bruno Fehr before the
Regional Trial Court of Makati in March 1997.1
After due proceedings, the trial court declared the marriage between
petitioner and respondent void ab initio under Article 36 of the Family
Code and ordered the dissolution of their conjugal partnership of
property.2 The dispositive portion of the Decision dated January 30,
1998 states:
WHEREFORE, in the light of the foregoing, the marriage between
Elna D. Mercado and Bruno F. Fehr on March 14, 1985 is hereby
declared null and void on the ground of psychological incapacity on the
part of respondent to perform the essential obligations of marriage
under Article 36 of the Family Code.
Accordingly, the conjugal partnership of property existing between the
parties is dissolved and in lieu thereof, a regime of complete separation
of property between the said spouses is established in accordance with
the pertinent provisions of the Family Code, without prejudice to the
rights previously acquired by creditors.1vvphi1.nt
Custody over the two minor children, MICHAEL BRUNO
MERCADO FEHR and PATRICK FRANZ FEHR, is hereby awarded
to petitioner, she being the innocent spouse.
Let a copy of this Decision be duly recorded in the proper civil and
property registries in accordance with Article 52 of the Family Code.
SO ORDERED.3
On August 24, 1999, the trial court issued an Order resolving the
various motions4 filed by respondent after the case had been decided.
The Order pertained to the properties held by the parties, thus:
xxxxxxxxx
After a careful scrutiny of the inventory of properties submitted by both
parties, the Court finds the following properties to be excluded from the
conjugal properties, namely:
a) the Bacolod property covered by Transfer Certificate of
Title No. T-137232, considering that the same is owned by
petitioners parents, Herminio Mercado and Catalina D.
Mercado xxx and
b) Suite 204 of the LCG Condominium covered by
Condominium Certificate of Title No. 14735, considering
that the same was purchased on installment basis by
respondent with his exclusive funds prior to his marriage, as
evidenced by a Contract to Sell dated July 26, 1983. xxx
Accordingly, the conjugal properties of the petitioner and respondent
shall be distributed in the following manner:
TO PETITIONER ELNA MERCADO:
a. Ground Floor, LCG Condominium, with an area of 671.84
sq. m., covered by Condominium Certificate of Title No.
14734; and
b. Tamaraw FX (1995 model)
TO RESPONDENT BRUNO FRANZ FEHR:
a. Upper Basement, LCG Condominium, with an area of
180.81 sq. m. and covered by Condominium Certificate of
Title No. 14733; and
b. Nissan Sentra with Plate No. FDJ-533 (1994 model)
Furthermore, Suite 204, LCG Condominium with an area of 113.54 sq.
m. and covered by Condominium Certificate of Title NO. 14735 is
hereby declared the EXCLUSIVE PROPERTY of respondent, BRUNO
FRANZ FEHR. Accordingly, petitioner is hereby directed to transfer
ownership of Suite 204 in the name of respondent, covered by
Condominium Certificate of Title No. 14735, being respondents
exclusive property, acquired prior to his marriage.1awphi1.nt
Anent the monthly rentals prior to the issuance of this Order of the
subject properties, namely the Ground Floor Front (Fridays Club),
Ground Floor Rear Apartment and Upper Basement at LGC
Condominium, all leased by Bar 4 Corporation, the same shall be
shared by the parties in common, in proportion to one-half each or
share and share alike, after deducting all expenses for Income Taxes,
etc. Accordingly, petitioner is hereby directed to deliver to respondent
the following: a) the balance of his share of the monthly rentals from
February 1998 to May 1998; and b) his one-half share (1/2) of the
monthly rentals of the aforesaid properties from June 1998 up to this
date. Thereafter, the parties shall own and enjoy their respective share
of the monthly rentals derived from the properties adjudicated to them
as stated above.
The Petitioner and Respondent are further enjoined to jointly support
their minor children, Michael and Patrick Fehr, for their education,
uniforms, food and medical expenses.5
Petitioner filed a motion for reconsideration of said Order with respect
to the adjudication of Suite 204, LCG Condominium and the support of
the children. Petitioner alleged that Suite 204 was purchased on
installment basis at the time when petitioner and respondent were living
exclusively with each other as husband and wife without the benefit of
marriage, hence the rules on co-ownership should apply in accordance
with Article 147 of the Family Code. Petitioner further claimed that it
would not be in the best interests of the children if she would be made
to demand periodically from respondent his share in the support of the
children. She instead proposed that the Upper Basement and the Lower
Ground Floor of the LCG Condominium be adjudicated to her so that
she could use the income from the lease of said premises for the
support of the children.6
Resolving said motion, the trial court held in an Order dated October 5,
2000 that since the marriage between petitioner and respondent was
declared void ab intio, the rules on co-ownership should apply in the
liquidation and partition of the properties they own in common
pursuant to Article 147 of the Family Code. The court, however, noted
that the parties have already agreed in principle to divide the properties
and/or proceeds from the sale thereof proportionately among them and
their children as follows: 1/3 for petitioner, 1/3 for respondent and 1/3
for the children. It also affirmed its previous ruling that Suite 204 of
LCG Condominium was acquired prior to the couples cohabitation and
therefore pertained solely to respondent.7 1vvphi1.nt
On November 28, 2000, petitioner filed a notice of appeal questioning
the October 5, 2000 Order of the trial court.8Respondent filed an
Opposition to the Notice of Appeal.9 On January 12, 2001, petitioner
withdrew the notice of appeal10 and instead filed on the following day a
special civil action for certiorari and prohibition with the Court of
Appeals, questioning the findings of the trial court in its Order dated
October 5, 2000.11
The Court of Appeals, in its Decision dated October 26, 2001,
dismissed the petition for certiorari for lack of merit. The appellate
court stated that petitioner has not shown any reason to warrant the
issuance of a writ of certiorari as the errors she raised were mere errors
of judgment which were the proper subject of an ordinary appeal, not a
petition for certiorari.12
Petitioner filed a motion for reconsideration of said Decision, which
was also denied by the appellate court.13
Hence this petition. Petitioner raises the following arguments:
1) Petitioner correctly filed a petition for certiorari and
prohibition against the Regional Trial Court of Makati,
Branch 149 in the Court of Appeals in view of the fact that
the questioned orders were issued with grave abuse of
discretion amounting to excess of or lack of jurisdiction.
2) The Court of Appeals erred in ruling that the questioned
orders were errors of judgment and not of jurisdiction.14
We shall first address the procedural issue, whether the Court of
Appeals erred in dismissing the special civil action for certiorari filed
by petitioner.
Petitioner argues that the filing of a petition for certiorari with the
Court of Appeals was proper because the trial court committed grave
abuse of discretion in the issuance of its Order dated October 5, 2000,
and there were no other speedy and adequate remedies available. She
asserts that the trial court committed grave abuse of discretion when it
held that Suite 204 of the LCG Condominium was the exclusive
property of respondent, although it was established that they lived
together as husband and wife beginning March 1983, before the
execution of the Contract to Sell on July 26, 1983. Furthermore, the
trial courts ruling dividing their properties into three, instead of two as
provided under Article 147 of the Family Code, or four, as allegedly
agreed by the parties during a conference with the trial court judge on
May 3, 2000, also constituted grave abuse of discretion. 15
Respondent, on the other hand, contends that petitioner may no longer
avail of any remedy, whether an appeal or a petition for certiorari, as
she had lost all the right to appeal from the time the Decision of
January 30, 1998 became final and executory. He argues that the Order
of the trial court dated October 5, 2000 is no longer assailable because
it was merely issued to execute the final and executory Decision of
January 30, 1998. He also submits that the division of the properties
into three and the distribution of 1/3 share each to the petitioner, the
respondent, and their children was proper, in accordance with Articles
50, 51, 147 and 148 of the Family Code mandating the delivery of the
presumptive legitime of the common children upon dissolution of the
property regime. Respondent further claims Suite 204 of LCG
Condominium to be his exclusive property as it was acquired on July
26, 1983, prior to their marriage on March 14, 1985. 16
A petition for certiorari is the proper remedy when any tribunal, board
or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction and there is no appeal, nor
any plain speedy, and adequate remedy at law. Grave abuse of
discretion is defined as the capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. As a general rule, a
petition for certiorari will not lie if an appeal is the proper remedy such
as when an error of judgment or procedure is involved. As long as a
court acts within its jurisdiction and does not gravely abuse its
discretion in the exercise thereof, any supposed error committed by it
will amount to nothing more than an error of judgment reviewable by a
timely appeal and not assailable by a special civil action of certiorari.
However, in certain exceptional cases, where the rigid application of
such rule will result in a manifest failure or miscarriage of justice, the
provisions of the Rules of Court which are technical rules may be
relaxed. Certiorari has been deemed to be justified, for instance, in
order to prevent irreparable damage and injury to a party where the trial
judge has capriciously and whimsically exercised his judgment, or
where there may be danger of clear failure of justice, or where an
ordinary appeal would simply be inadequate to relieve a party from the
injurious effects of the judgment complained of.17
The exception applies to the case at bar. We reject respondents
submission that all the appellate remedies of petitioner have been
foreclosed when the Decision dated January 30, 1998 became final and
executory. What is being questioned in this petition is not the January
30, 1998 Decision of the trial court declaring the marriage between
petitioner and respondent void ab initio on the ground of psychological
incapacity, but the Order of the trial court dated October 5, 2000
dividing the common properties of petitioner and respondent into
three1/3 to petitioner, 1/3 to respondent and 1/3 to their children, and
affirming its previous ruling that Suite 204 of LCG Condominium is
the exclusive property of respondent. The issue on the validity of the
marriage of petitioner and respondent has long been settled in the main
Decision and may no longer be the subject of review. There were,
however, incidental matters that had to be addressed regarding the
dissolution of the property relations of the parties as a result of the
declaration of nullity of their marriage. The questioned Order pertained
to the division and distribution of the common properties of petitioner
and respondent, pursuant to the courts directive in its main decision to
dissolve the conjugal partnership. Said Order is a final Order as it
finally disposes of the issues concerning the partition of the common
properties of petitioner and respondent, and as such it may be appealed
by the aggrieved party to the Court of Appeals via ordinary appeal.
However, considering the merits of the case, the Court believes that a
blind adherence to the general rule will result in miscarriage of justice
as it will divest the petitioner of her just share in their common
property, and thus, deprive her of a significant source of income to
support their children whom the court had entrusted to her care. We
have held that where a rigid application of the rule that certiorari cannot
be a substitute for appeal will result in a manifest failure or miscarriage
of justice, the provisions of the Rules of Court which are technical rules
may be relaxed.18
We now go to the substantive issues. The crux of the petition is the
ownership of Suite 204 of LCG Condominium and how the properties
acquired by petitioner and respondent should be partitioned.
It appears from the facts, as found by the trial court, that in March
1983, after two years of long-distance courtship, petitioner left Cebu
City and moved in with respondent in the latters residence in Metro
Manila. Their relations bore fruit and their first child, Michael Bruno
Fehr, was born on December 3, 1983. The couple got married on March
14, 1985. In the meantime, they purchased on installment a
condominium unit, Suite 204, at LCG Condominium, as evidenced by a
Contract to Sell dated July 26, 1983 executed by respondent as the
buyer and J.V. Santos Commercial Corporation as the seller. Petitioner
also signed the contract as witness, using the name "Elna Mercado
Fehr". Upon completion of payment, the title to the condominium unit
was issued in the name of petitioner.19
In light of these facts, we give more credence to petitioners submission
that Suite 204 was acquired during the parties cohabitation.
Accordingly, under Article 147 of the Family Code, said property
should be governed by the rules on co-ownership. The Family Code
provides:
Article 147. When a man and a woman who are capacitated to marry
each other, live exclusively with each other as husband and wife
without the benefit of marriage or under a void marriage, their wages
and salaries shall be owned by them in equal shares and the property
acquired by both of them through their work or industry shall be
governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they
lived together shall be presumed to have been obtained by their joint
efforts, work or industry, and shall be owned by them in equal shares.
For purposes of this Article, a party who did not participate in the
acquisition by the other party of any property shall be deemed to have
contributed jointly to the acquisition thereof if the formers efforts
consisted in the care and maintenance of their family and of the
household.
Neither party can encumber or dispose by acts inter vivos of his or her
share in the property acquired during cohabitation and owned in
common, without the consent of the other, until after the termination of
their cohabitation.
When only one of the parties to a void marriage is in good faith, the
share of the party in bad faith in the co-ownership shall be forfeited in
favor of their common children. In case of default of or waiver by any
or all of the common children or their descendants, each vacant share
shall belong to the respective surviving descendants. (emphasis
supplied)
Article 147 applies to unions of parties who are legally capacitated and
not barred by any impediment to contract marriage, but whose marriage
is nonetheless void,20 as in the case at bar. This provision creates a co-
ownership with respect to the properties they acquire during their
cohabitation.
We held in Valdes vs. Regional Trial Court, Br. 102, Quezon City:21
This peculiar kind of co-ownership applies when a man and a woman,
suffering no legal impediment to marry each other, so exclusively live
together as husband and wife under a void marriage or without the
benefit of marriage. The term "capacitated" in the provision (in the first
paragraph of the law) refers to the legal capacity of a party to contract
marriage, i.e., any "male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in Article 37 and
38" of the Code.
Under this property regime, property acquired by both spouses through
their work and industry shall be governed by the rules on equal co-
ownership. Any property acquired during the union is prima facie
presumed to have been obtained through their joint efforts. A party who
did not participate in the acquisition of the property shall still be
considered as having contributed thereto jointly if said partys "efforts
consisted in the care and maintenance of the family household."
Thus, for Article 147 to operate, the man and the woman: (1) must be
capacitated to marry each other; (2) live exclusively with each other as
husband and wife; and (3) their union is without the benefit of marriage
or their marriage is void. All these elements are present in the case at
bar. It has not been shown that petitioner and respondent suffered any
impediment to marry each other. They lived exclusively with each
other as husband and wife when petitioner moved in with respondent in
his residence and were later united in marriage. Their marriage,
however, was found to be void under Article 36 of the Family Code
because of respondents psychological incapacity to comply with
essential marital obligations.
The disputed property, Suite 204 of LCG Condominium, was
purchased on installment basis on July 26, 1983, at the time when
petitioner and respondent were already living together. Hence, it should
be considered as common property of petitioner and respondent.
As regards the settlement of the common properties of petitioner and
respondent, we hold that the Civil Code provisions on co-ownership
should apply. There is nothing in the records that support the
pronouncement of the trial court that the parties have agreed to divide
the properties into three1/3 share each to the petitioner, the
respondent and their children. Petitioner, in fact, alleges in her petition
before this Court that the parties have agreed on a four-way division of
the properties1/4 share each to the petitioner and the respondent, and
1/4 share each to their two children. Moreover, respondents argument
that the three-way partition is in accordance with Articles 50 and 51 of
the Family Code does not hold water as said provisions relate only to
voidable marriages and exceptionally to void marriages under Article
40 of the Family Code, i.e., the declaration of nullity of a subsequent
marriage contracted by a spouse of a prior void marriage before the
latter is judicially declared void.22
In sum, we rule in favor of the petitioner. We hold that Suite 204 of
LCG Condominium is a common property of petitioner and respondent
and the property regime of the parties should be divided in accordance
with the law on co-ownership.
IN VIEW WHEREOF, the petition is GRANTED. The case is hereby
REMANDED to the Regional Trial Court of Makati, Branch 149 for
liquidation of the properties of petitioner and respondent in accordance
with this Courts ruling.
SO ORDERED.
G.R. No. 122047 October 12, 2000
SPOUSES SERAFIN SI AND ANITA BONODE SI, petitioners,
vs.
COURT OF APPEALS, SPOUSES JOSE ARMADA and
REMEDIOS ALMANZOR (deceased, and substituted by heirs:
Cynthia Armada, Danilo Armada and Vicente
Armada) respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari under Rule 45 assails the Decision1 dated
March 25, 1994, of the Court of Appeals and its Resolutions2 dated
March 24, 1995 and September 6, 1995 in CA-G.R. CV No. 30727.
The Court of Appeals reversed the decision of the Regional Trial Court
of Pasig City, Branch 113, and nullified the sale of the subject lot by
the spouses Crisostomo and Cresenciana Armada to spouses Serafin
and Anita Si. The dispositive portion of the respondent court's decision
reads:
"WHEREFORE, in view of the foregoing, the decision appealed from
is hereby REVERSED, and a new one is rendered:
1) Annulling and declaring as invalid the registration of the
Deed of Absolute Sale dated March 27, 1979 executed by
Cresenciana V. Alejo in favor of Anita Bonode Si.
2) Ordering the Register of Deeds of Pasay City to annul and
cancel Transfer Certificate of Title No. 24751, issued in the
name of Anita Bonode Si, married to Serafin D. Si., Jose R.
Armada, married to Remedios Almanzor and Dr. Severo R.
Armada Jr., single.
3) Ordering the Register of Deeds of Pasay City to
reconstitute and revive Transfer Certificate of Title No.
16007 in the names of Jose, Crisostomo and Severo, Jr.
4) That plaintiffs be allowed to repurchase or redeem the
share corresponding to the share of Crisostomo Armada
within thirty (30) days from notice in writing by Crisostomo
Armada.
5) The defendants-appellees are jointly and severally ordered
to pay the plaintiffs-appellants the sum of P10,000.00 as
moral damages.
6) The defendants-appellees are jointly and severally ordered
to pay the plaintiff-appellants the sum of P10,000.00 as
attorney's fees and litigation expenses and costs of suit.
SO ORDERED."3
The factual background of the case is as follows:
The 340 square meters of land, situated in San Jose District, Pasay
City, the property in dispute, originally belonged to Escolastica, wife of
Severo Armada, Sr. This was covered by Transfer Certificate of Title
(TCT) No. (17345) 2460. During the lifetime of the spouses, the
property was transferred to their children and the Registry of Deeds,
Pasay City, issued TCT No. 16007 in the names of the three sons, as
follows : "DR. CRISOSTOMO R. ARMADA, married to Cresenciana
V. Alejo, 113.34 Square Meters; JOSE R. ARMADA, married to
Remedios Almanzor, 113.33 Square Meters; and DR. SEVERO R.
ARMADA, Jr., single, all of legal age, Filipinos."4 Annotated also in
the title is the total cancellation of said title "... by virtue of the Deed of
Sale, (P.E. 77952/T-24751), dated March 28, 1979, executed by
CRESENCIANA V. ALEJO, as attorney-in-fact of CRISOSTOMO R.
ARMADA, conveying 113.34 square meters of the property herein, in
favor of ANITA BONODE SI, married to Serafin D. Si, for the sum of
P75,000.00, issuing in lieu thereof Transfer Certificate of Title No.
24751, Reg. Book T-102. (Doc. No. 17, Page No. 5, Book No. 253 of
Notary Public of Pasay City, Manila, Julian Florentino)."5
On April 15, 1980, herein spouses Jose Armada and Remedios
Almanzor, filed a complaint for Annulment of Deed of Sale and
Reconveyance of Title with Damages, against herein petitioners Anita
and Serafin Si and Conrado Isada, brother-in-law of Cresenciana. Isada
brokered the sale.
The complaint alleged that Conrado Isada sold Crisostomo's share by
making it appear that Cresenciana, the attorney-in-fact of her husband,
is a Filipino citizen, residing with Isada at No. 13-4th Camarilla Street,
Murphy, Cubao, Quezon City. By this time, Crisostomo and
Cresenciana had migrated and were already citizens of the United
States of America. It also stated that when petitioners registered the
deed of absolute sale they inserted the phrase "... and that the co-
owners are not interested in buying the same in spite of notice to
them.", and that petitioners knew of the misrepresentations of Conrado.
Further, the complaint alleged that the other owners, Jose and Severo,
Jr., had no written notice of the sale; and that all upon learning of the
sale to the spouses Si, private respondents filed a complaint for
annulment of sale and reconveyance of title with damages, claiming
they had a right of redemption.
Petitioners, on the other hand, alleged that on October 2, 1954,
Escolastica, with the consent of her husband executed three separate
deeds of sale (Exhibits 1, 2, and 3)6 conveying 113.34 square meters of
the property to Severo, and 113.33 square meters each to Crisostomo
and Jose. The three deeds of sale particularly described the portion
conveyed to each son in metes and bounds. Petitioners contend that
since the property was already three distinct parcels of land, there was
no longer co-ownership among the brothers. Hence, Jose and Severo,
Jr. had no right of redemption when Crisostomo sold his share to the
spouses Si. Petitioners point out that it was only because the Armada
brothers failed to submit the necessary subdivision plan to the Office of
the Register of Deeds in Pasay City that separate titles were not issued
and TCT No. 16007 was issued and registered in the names of Jose,
Crisostomo, and Severo, Jr.
After trial on the merits, the court ruled for petitioners:
"IN VIEW OF ALL THE FOREGOING, the complaint is hereby
DISMISSED. With costs against the plaintiffs."7
Private respondents appealed to the Court of Appeals. On March 25,
1994, the appellate court issued the decision now assailed by
petitioners. In reversing the decision of the trial court and ruling for
private respondents, the Court of Appeals found that:
"A careful examination of TCT No. 16007 (Exh. 'A') shows that the
portion sold by virtue of the Deeds of Sale (Exh. 1, 2, & 3) to the
Armada brothers do not appear in the said title, neither does it indicate
the particular area sold. Moreover, no evidence was presented to show
that the Register of Deeds issued TCT No. 16007 (Exh. 'A') on the
basis of the said deeds of Sale. In fact, TCT No. 16007 (Exh. 'A') shows
that the lot is co-owned by Jose, Crisostomo and Severo, Jr. in the
proportion of 113.33, 113.34 and 113.33 sq. m. respectively.
Furthermore, the evidence on record shows that the Deed of Absolute
Sale (Exh. 'B'), executed by Cresencia Armada in favor of defendants
Si, stated that the portion sold was the 'undivided one hundred thirteen
& 34/100 (113.34) square meters' of the parcel of land covered by TCT
NO. 16007 of the Registry of Deeds for Pasay City, which means that
what was sold to defendants are still undetermined and unidentifiable,
as the area sold remains a portion of the whole.
Moreover, plaintiff Remedi[o]s Armada testified that on March 27,
1979, Crisostomo Armada, thru his attorney-in-fact and co-defendant,
Cresenciana Alejo, sold his undivided 113.34 share to defendants, Sps.
Si as evidenced by a Deed of Absolute Sale (Exh. 'B'), and presented
for registration with the Register of Deeds (Exh. 'B-1') without
notifying plaintiffs of the sale (TSN, pp. 6-8, December 20, 1988).
Instead, it appears that the phrase 'and that the co-owners are not
interested in buying the same inspite of notice to them', was inserted in
the Deed of Sale (Exh. 'B').
xxx
Otherwise stated, the sale by a (sic) co-owner of his share in the
undivided property is not invalid, but shall not be recorded in the
Registry Property, unless accompanied by an affidavit of the Vendor
that he has given written notice thereof to all possible redemptioners."8
On August 29, 1994, petitioners' counsel on record, Atty. Roberto B.
Yam received a copy of the CA decision. On October 14, 1994, he filed
a motion for reconsideration, but it was denied by the Court of Appeals
on November 21, 1994, for being filed out of time.
On December 5, 1994, petitioners filed their motion for new trial under
Section 1, Rule 53 of the Revised Rules of Court.9 Petitioners presented
new evidence, TCT No. (17345) 2460, registered in the name of
Escolastica de la Rosa, married to Severo Armada, Sr., with annotation
at the back stating that the cancellation was by virtue of three deeds of
sale in favor of Escolastica's sons. On March 24, 1995, respondent
court denied the motion, reasoning that when the motion was filed, the
reglementary period had lapsed and the decision had become final and
executory. Petitioners' motion for reconsideration of said resolution
was denied.
Hence, the present petition, alleging that:
"1. Respondent Court of Appeals committed a reversible
error in ruling that a co-ownership still existed.
"2. Respondent Court of Appeals committed a reversible
error in denying the Motion for Reconsideration of its
Decision of 25 March 1994 on purely technical grounds.
"3. Respondent Court of Appeals committed a reversible
error in denying the Motion for New Trial.
"4. Respondent Court of Appeals committed a reversible
error in ordering petitioners to pay moral damages, attorney's
fees, litigation expenses and the costs of the suit."10
In essence, this Court is asked to resolve: (1) whether respondent court
erred in denying petitioners' motion for reconsideration and/or the
Motion for New Trial; (2) whether private respondents are co-owners
who are legally entitled to redeem the lot under Article 1623 of the
Civil Code;11 and (3) whether the award of moral damages, attorney's
fees and costs of suit is correct.
The pivotal issue is whether private respondents may claim the right of
redemption under Art. 1623 of the Civil Code. The trial court found
that the disputed land was not part of an undivided estate. It held that
the three deeds of absolute sale12 technically described the portion sold
to each son. The portions belonging to the three sons were separately
declared for taxation purposes with the Assessor's Office of Pasay City
on September 21, 1970.13 Jose's testimony that the land was undivided
was contradicted by his wife when she said they had been receiving
rent from the property specifically allotted to Jose.14 More significantly,
on January 9, 1995, the Registry of Deeds of Pasay City cancelled TCT
24751 and issued three new titles as follows: (1) TCT 134594 15 in favor
of Severo Armada, Jr.; (2) TCT 13459516 under the name of Anita
Bonode Si, married to Serafin Si; and (3) TCT 134596 17 owned by Jose
Armada, married to Remedios Almanzor. All these are on record.
However, the Court of Appeals' decision contradicted the trial court's
findings.18
In instances when the findings of fact of the Court of Appeals are at
variance with those of the trial court, or when the inference drawn by
the Court of Appeals from the facts is manifestly mistaken, this Court
will not hesitate to review the evidence in order to arrive at the correct
factual conclusion.19 This we have done in this case. It is our considered
view now, that the trial court is correct when it found that:
"Rightfully, as early as October 2, 1954, the lot in question had already
been partitioned when their parents executed three (3) deed of sales
(sic) in favor of Jose, Crisostomo and Severo, all surnamed Armada
(Exh. 1, 2, & 3), which documents purports to have been registered
with the Register of Deeds of Pasay City, on September 18, 1970, and
as a consequence TCT No. 16007 (Exh. A) was issued. Notably, every
portion conveyed and transferred to the three sons was definitely
described and segregated and with the corresponding technical
description (sic). In short, this is what we call extrajudicial partition.
Moreover, every portion belonging to the three sons has been declared
for taxation purposes with the Assessor's Office of Pasay City on
September 21, 1970. These are the unblinkable facts that the portion
sold to defendant spouses Si by defendants Crisostomo Armada and
Cresenciana Armada was concretely determined and identifiable. The
fact that the three portions are embraced in one certificate of title does
not make said portions less determinable or identifiable or
distinguishable, one from the other, nor that dominion over each
portion less exclusive, in their respective owners. Hence, no right of
redemption among co-owners exists."20 (citation omitted)
". . . [T]he herein plaintiffs cannot deny the fact that they did not have
knowledge about the impending sale of this portion. The truth of the
matter is that they were properly notified. Reacting to such knowledge
and notification they wrote defendant Dr. Crisostomo Armada on
February 22, 1979, a portion of said letter is revealing: 'Well you are
the king of yourselves, and you can sell your share of
Levereza."21 (emphasis omitted)
After the physical division of the lot among the brothers, the
community ownership terminated, and the right of preemption or
redemption for each brother was no longer available.22
Under Art. 484 of the Civil Code,23 there is co-ownership whenever the
ownership of an undivided thing or right belongs to different persons.
There is no co-ownership when the different portions owned by
different people are already concretely determined and separately
identifiable, even if not yet technically described.24 This situation
makes inapplicable the provision on the right of redemption of a co-
owner in the Civil Code, as follows:
"Art. 1623. The right of legal pre-emption or redemption shall not be
exercised except within thirty days from the notice in writing by the
prospective vendor, or by the vendor, as the case may be. The deed of
sale shall not be recorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given written
notice thereof to all possible redemptioners.
The right of redemption of co-owners excludes that of adjoining
owners."
Moreover, we note that private respondent Jose Armada was well
informed of the impending sale of Crisostomo's share in the land. In a
letter dated February 22, 1979, Jose told his brother Crisostomo: "Well
you are the king of yourselves, and you can sell your share of
Leveriza."25 Co-owners with actual notice of the sale are not entitled to
written notice. A written notice is a formal requisite to make certain
that the co-owners have actual notice of the sale to enable them to
exercise their right of redemption within the limited period of thirty
days. But where the co-owners had actual notice of the sale at the time
thereof and/or afterwards, a written notice of a fact already known to
them, would be superfluous. The statute does not demand what is
unnecessary.26
Considering that respondent Court of Appeals erred in holding that
herein private respondent could redeem the lot bought by petitioners,
the issue of whether the appellate court erred in denying petitioners'
motions for reconsideration and new trial need not be delved
into.1wphi1 The same is true with respect to the questioned award of
damages and attorney's fees. Petitioners filed their complaint in good
faith and as repeatedly held, we cannot put a premium on the right to
litigate.
WHEREFORE, the petition is GRANTED, the Decision of the Court
of Appeals dated March 25, 1994 and its Resolutions dated March 24,
1995 and September 6, 1995 in CA-G.R. CV No. 30727 are
ANNULLED and SET ASIDE. Civil Case No. 8023-P is DISMISSED
for lack of merit. The decision of the Regional Trial Court of Pasay
City, Branch 113, promulgated on August 29, 1989, is REINSTATED.
SO ORDERED.
G.R. No. 150707 April 14, 2004
APOLONIA LL. OCAMPO Now Substituted by MARIANO O.
QUIEN, AMELITA Q. TAN, MILOVAN O. QUIEN, LUISA
OCAMPO-LLORIN, MELITA F. OCAMPO, FELIX OCAMPO
JR., RAMON OCAMPO, MIGUEL OCAMPO, JUANA
OCAMPO, ANDRES OCAMPO SR., VIOLETA OCAMPO,
MERCEDITA OCAMPO, ANTONIA OCAMPO, ELISA
OCAMPO, BEATRIZ OCAMPO, JUAN JOHNNY OCAMPO,
JONAS OCAMPO, MARIA DOLORES OCAMPO, REBECCA
OCAMPO, FIDELA OCAMPO, LUIS OCAMPO JR. and
ERNESTO O. FORTUNO,petitioners,
vs.
FIDELA LL. OCAMPO, FELICIDAD LL. OCAMPO, BELEN
OCAMPO-BARRITO, VICENTE BARRITO, NEMESIO LL.
OCAMPO, IMELDA OCAMPO and JOSE
OCAMPO, respondents.
DECISION
PANGANIBAN, J.:
Basic is the rule that the party making an allegation in a civil case has
the burden of proving it by a preponderance of evidence. In an action
involving property, petitioners should rely on the strength of their own
title and not on the alleged weakness of respondents claim.
The Case
Before this Court is a Petition for Review1 under Rule 45 of the Rules
of Court, assailing the October 31, 2001 Decision 2 of the Court of
Appeals (CA) in CA-GR CV No. 56941. The decretal portion of the
Decision reads as follows:
"WHEREFORE, with the sole modification that the awards
for damages and attorneys fees are hereby deleted, the
judgment appealed from is, in all other
respects, AFFIRMED. Without costs."3
The CA affirmed the Regional Trial Court (RTC) Decision,4 rendered
on October 30, 1996, which decreed thus:
"WHEREFORE, premises considered, the Court finds, holds
and declares that defendant Belen Ocampo-Barrito, married
to Vicente Barrito, are the true and lawful exclusive owners
of the following properties, namely:
(a) A parcel of residential/commercial land situated
in the poblacion of Nabua, Camarines Sur, bounded
on the NE by Carmen Ocampo and Alberto
Espiritu, on the SE by the Burgos Street, on the SW
by a street, and on the NW by Julian Ocampo and
Carmen Ocampo, containing an area of 1,119
 square meters, more or less, presently covered by
TCT No. 13654 in the name of Belen Ocampo-
Barrito, married to Vicente Barrito and previously
covered by TCT No. RT-4389(983) in the name of
Fidela Ocampo, declared under TD No. 18856 and
assessed at 17,240.00.
(b) A parcel of residential land situated at San Luis,
Nabua, Camarines Sur, bounded on the North and
East by a barrio road, on the South by a creek, and
on the West by Lot 237, with an area of about 300
square meters, declared under TD No. 19639 with
an assessed value of 6,240.00.
(c) A parcel of land situated at Sto. Domingo,
Nabua, Camarines Sur, bounded on the North by
Lot 10323, on the East by Lot 9543, on the South
by Lot 10325, and on the West by Lot 10322, with
an area of about 4884 square meters, declared
under TD No. 35122 and assessed at 6780.00
as described and referred to in paragraph 9, sub-
paragraphs (a), (b) and (c) of the original complaint
and it is hereby ordered that:
1. The complaint and supplemental
complaint are dismissed for failure of the
plaintiffs to prove their cause/causes of
action by preponderance of evidence and
on the added ground of prescription;
2. The plaintiffs are ordered to pay as
their joint and several obligation, to
defendants Fidela Ll. Ocampo, Belen
Ocampo-Barrito and Vicente Barrito, the
total sum of 15,000.00 for attorneys
fees and other expenses of litigation and
50,000.00 for moral damages;
3. The plaintiffs jointly and severally pay
the cost of this suit.
4. Upon the finality of this decision, the
notice of lis pendens annotated at
plaintiffs behest in the Certificates of
Title covering the properties in question,
of defendants be cancelled; and the
plaintiffs, their agents and representatives
as well as successors-in-interest are
ordered to respect the right of ownership
of said defendants thereto, and to vacate
and restore the lawful possession of all
portions of said properties to herein
defendants, their agents, representatives
and successors-in-interest."5
The Facts
The CA adopted the RTCs summation of facts as follows:
"Notwithstanding its somewhat deficient grammar and
syntax, the following summation of the relevant and material
antecedents of the case by the court a quo, is substantially
correct --
This is a civil suit for partition and damages filed
by plaintiffs against the defendants.
The complaint alleges that during the lifetime of
the spouses Jose Ocampo and Juana Llander-
Ocampo, they begot ten (10) children, namely:
Fidela, Felix, Andres, Nemesio, Jose, Apolonia,
Felicidad, Luisa, Rosario, and Luis. Of the
aforementioned children, the following are already
dead, namely: Felix, who is survived by his widow,
Melita F. Ocampo and children Felix, Jr., Ramon
and Miguel; Andres, who is survived by Juana
Ocampo and children Jose, Andres, Imelda, Violeta
and Mercedita; Jose, who is survived by his
children Antonia, Elias and Juan (Johnny); Rosario,
who is survived by Ernesto O. Fortuno; Luis, who
is survived by his children Rose, Ricardo, Jonas,
Maria Dolores, Rebecca, Fidela and Luis, Jr.; and
Luisa, who is survived by Carlos Llorin and
children Mecita, Manuel, Carlos, Jr., Carmelita and
Marilou L. Arellano.
The complaint further alleges that during the
lifetime of the spouses Jose Ocampo and Luisa
Llander-Ocampo, they acquired several parcels of
land and, upon their death, left the following
properties, namely:
(a) A parcel of residential/ commercial
land situated in the poblacion of Nabua,
Camarines Sur, bounded on the NE by
Carmen Ocampo and Alberto Espiritu, on
the SE by the Burgos Street, on the SW
by a Street, and on the NW by Julian
Ocampo and Carmen Ocampo,
containing an area of 1,119 square
meters, more or less, presently covered
by TCT No. RT-4389(983) in the name
of Fidela Ocampo, declared under TD
No. 18856 and assessed at 17,240.00;
(b) A parcel of residential land situated at
San Luis, Nabua, Camarines Sur,
bounded on the North and East by a
barrio road, on the South by a creek, and
on the West by Lot 237, with an area of
about 300 square meters, declared under
TD No. 19639 with an assessed value of
6,240.00; and
(c) A parcel of land situated at Sto.
Domingo, Nabua, Camarines Sur,
bounded on the North by Lot 10323, on
the East by Lot 9543, on the South by Lot
10325, and on the West by Lot 10322,
with an area of about 4,884 square
meters, declared under TD No. 35122
and assessed at 6,780.00.
that all the above named parcels of land are
actually owned in common by the children of the
late spouses Jose Ocampo and Juana Llander
Ocampo although the land denominated as parcel
(a) of the complaint is ostensibly registered in the
name of Fidela Ocampo alone but acknowledged
by her as a property owned in common by all of
them, brothers and sisters; that plaintiffs desire to
partition said properties but defendants Fidela
Ocampo and Felicidad unlawfully and
unreasonably refuse to do so and moved by a
common purpose, both of them mortgaged to the
PNB the land denominated as parcel (a) of the
complaint to secure the payment of a 110,000.00
loan, the proceeds of which were x x x exclusively
to the benefit of said defendants only; that the same
defendants Fidela Ocampo and Felicidad Ocampo
have been receiving the fruits of the properties to
the exclusion of their co-heirs amounting to not less
than 2,000.00 a year; and, that because of their
relationship, they undertook earnest efforts to
amicably settle this controversy but because of
defendants Fidela Ocampo and Felicidad
Ocampo[s] utterly unreasonable and unjustified
actuations, the same failed.
xxx xxx xxx
In their complaint, plaintiffs pray that judgment be
rendered ordering the partition of the properties
described in paragraph 9 of the complaint; ordering
defendants Fidela Ocampo and Felicidad Ocampo,
to release or otherwise cancel any and all
encumbrances on TCT No. RT-4389(983) which
they had caused to be annotated thereon,
particularly, the mortgage in favor of the PNB;
requiring Fidela Ocampo and Felicidad Ocampo to
refrain from further encumbering said properties or
otherwise subjecting the same to any lien and for
that purpose, a writ of preliminary injunction to be
issued against them to enjoin the commission of
such acts; ordering defendants Fidela Ocampo and
Felicidad Ocampo to submit an accounting of the
fruits and other produce they had received from
said properties; further ordering Fidela Ocampo
and Felicidad Ocampo to indemnify plaintiffs the
sum of not less than 15,000.00 by way of
attorneys fees and related expenses of litigation,
plus the costs of the suit; and, further granting
plaintiffs such other remedies as may be just and
equitable in the premises.
xxx xxx xxx
On 17 December 1987, counsel for plaintiffs filed
a Motion to Admit Supplemental Complaint dated
2 December 1987 which was granted by the Court
as there was no opposition to it.
The Supplemental Complaint alleges that
defendants Helen Ocampo-Barrito and Vicente
Barrito are spouses; that on 30 September 1987,
TCT No. RT-4389(983) in the name of defendant
Fidela Ocampo and covering the lot described as
parcel (a) in paragraph 9 of the original complaint
was cancelled and, in lieu thereof, TCT No. 1364
was issued to defendant Belen Ocampo-Barrito,
married to defendant Vicente Barrito, on the
strength of an allege[d] Deed of Donation Inter
Vivos ostensibly executed by defendant Fidela Ll.
Ocampo in their favor on 13 January 1984; that at
the time the Deed of Donation Inter Vivos was
presented for registration and when TCT No. 1364,
Registry of Camarines Sur, was issued to defendant
Belen Ocampo-Barrito, both the donor and donees
were notoriously aware that said parcel of land was
among the lots subject of this Civil Case No. IR-
1867 of which the donor Fidela Ll. Ocampo and the
mother of the donees, Felicidad Ll. Ocampo, are
defendants, that said properties were owned by the
Ocampo brothers and sisters, and that the donor
Fidela Ll. Ocampo was not the exclusive owner
thereof; that the transfer of defendants Fidela Ll.
Ocampo and Belen Ocampo-Barrito of the
ownership over said property now subject of this
partition is tainted with fraud, actual and deliberate,
to deprive plaintiffs of their legitimate share
therein, knowing as they do that the same are a co-
ownership of the original parties plaintiffs and
defendants herein; that defendants Fidela Ll.
Ocampo and the spouses Belen Ocampo-Barrito
and Vicente Barrito have not acted in good faith,
deliberately causing damage and injury to the
plaintiffs by their avaricious desire to obtain sole
ownership of said properties through dubious and
illegal means that the defendant spouses Belen
Ocampo-Barrito and Vicente Barrito, through
dubious means and undue influence over Fidela Ll.
Ocampo, a very old spinster whom they have lately
taken into their custody, succeeded in having the
latter execute this supposed deed of donation inter
vivos; that defendants have not acted with justice,
honesty and good faith, causing injury to plaintiffs
rights in a manner inconsistent with morals and
good customs, hence, are liable for moral damages
of not less than 50,000.00; and that to set an
example for the public good and to deter others
similarly minded from doing so, defendants should
be assessed exemplary damages of not less than
50,000.00.
Plaintiffs pray that judgment be rendered (a)
declaring the Deed of Donation Inter Vivos
allegedly executed by Fidela Ll. Ocampo in favor
of Belen Ocampo-Barrito and Vicente Barrito be
declare[d] null and void, (b) ordering defendants
Belen Ocampo-Barrito and Vicente Barrito to
reconvey so much of the property subject thereof as
pertain to the plaintiffs, (c) directing defendants,
jointly and severally, to indemnify plaintiffs such
amounts as this Honorable Court may consider fair
and reasonable by way of actual, moral and
exemplary damages, inclusive of attorneys fees
and related expenses of litigation, and (d) granting
plaintiffs such other remedies as may be just and
equitable in the premises.
xxx xxx xxx
As Special Defenses, defendant Belen Ocampo-
Barrito allege that the original defendant Fidela Ll.
Ocampo, her predecessor-in-interest, since 1949
has been the absolute owner in fee simple of the
property by virtue of the issuance of the certificate
of title in her name; that her predecessor-in-interest
held the same certificate of title to the same parcel
of land (TCT No. RT-4389(983) free of all
encumbrances and adverse claims and was in
notorious, public, and actual possession of the
property in concept of absolute owner from 1949
until 13 January 1984, when said predecessor-in-
interest validly conveyed the property by donation
inter vivos which she accepted in the same public
instrument; that TCT No. 1364 was issued to
defendant Belen Ocampo-Barrito on the strength of
the donation inter vivos executed in her favor by
her predecessor-in-interest and has since 30
September 1987, been the absolute owner thereof;
that since 1949 none of the plaintiffs ever
questioned the absolute ownership and title of
defendant Belen Ocampo-Barritos predecessor-in-
interest over the property making the decree of
registration incontrovertible; that it is fatal for
plaintiffs cause of action to allege that defendants
exerted undue influence over Fidela Ll. Ocampo
for the latter to execute the deed of donation
while clearly admitting in both the original and
supplemental complaints that defendants are
residents of Mindoro Occidental a far away place
from Nabua, Camarines Sur, the place where the
same predecessor-in-interest admittedly resides;
and, that Belen Ocampo-Barritos title cannot be
collaterally attacked in these supposed partition
proceedings.
xxx xxx xxx
Defendants pray that the case be dismissed for
utter lack of merit and plaintiffs be ordered to pay
defendants the sum of 200,000.00 for moral
damages, 50,000.00 for exemplary damages,
100,000.00 as compensatory damages, to pay
attorneys fees in the amount of 15,000.00, and
for other just and equitable remedies.
xxx xxx xxx
As the Special and/or Affirmative Defenses,
defendant Fidela Ll. Ocampo alleges that she is the
true and absolute owner of the real properties
described in paragraph 9 of the original complaint
having acquired the same by lucrative title and has,
since becoming owner thereof, been in actual
possession thereof excepting the portion of the lot
described in paragraph 9 (a) of the complaint and
covered by Torrens title which was and is still
being unlawfully occupied by plaintiffs Quiens;
that the properties have been declared for
assessment in defendants name as exclusive owner
thereof and since her acquisition of said properties,
has paid the taxes thereon; that defendant had
exercised continuously all the legal incidents of
ownership on said lands to the exclusion of and
adversely to the public, plaintiffs herein included;
that the [D]eed of Donation Inter Vivos and the
subsequent transfer of the property mentioned in
paragraph 9 of the complaint to other defendants
Belen Ocamp[o]-Barrito is valid conveyance which
binds the said property; and, that assuming that
plaintiffs have a cause of action, the same is barred
by laches.
xxx xxx xxx
Defendant Fidela Ll. Ocampo prays that judgment
be rendered dismissing the complaint and ordering
plaintiffs to indemnify such sum as will be proved
as well as [s]uch amount as this Court may assess
by way of moral and exemplary damages and costs,
including necessary expenses for litigation, and for
just and equitable reliefs."6
Ruling of the Court of Appeals
According to the appellate court, other than the Acknowledgment of
Co-ownership7 executed by Respondent Fidela Ocampo, no
documentary evidence was offered to establish petitioners claim of co-
ownership. The CA held that this piece of documentary evidence could
not prevail over the array of testimonial and documentary evidence that
had been adduced by respondents to prove their defenses. Communal
ownership of the property in question was supposedly not proven,
either, by the ancient photograph showing Spouses Chino Jose and
Juana Llander Ocampo with their ten children in front of the disputed
property; or by another picture showing the name "Oniang Ocampo --
1-15-61" engraved on the said house or building.
The court a quo rejected the argument of petitioners that the title to the
subject property had been placed in the name of Fidela, because their
parents followed the Chinese custom of placing properties in the name
of the eldest son or daughter who was single. Petitioners explained that
upon the death of the eldest sibling, the properties would revert to the
younger brothers and sisters. According to the CA, however, not a
shred of evidence was adduced to prove that such a Chinese custom
existed or was observed in that place.
The CA also dismissed petitioners contention that common ownership
was indicated by the fact that some of the children of Spouses Ocampo
stayed and lived on the subject property. It ruled that fraternal affection
could have been the motive that impelled respondents to allow their
relatives to use it.
In contrast to the arguments of petitioners, the CA said that respondents
were able to give clear proof of their ownership of the property: the
Transfer Certificate of Title and the corresponding Tax Declaration in
the name of Fidela, and later of Belen Ocampo-Barrito.
Nevertheless, the CA eliminated the awards for damages and attorneys
fees, because the trial court had failed to cite the factual, the legal and
the equitable bases therefor.
Hence, this Petition.8
The Issues
Petitioners raise the following issues for our consideration:
"1. Where the evidence presented, oral and documentary, on
the question of co-ownership, is overwhelming as it is
unopposed, unrebutted and unimpeached, has co-ownership
been proved?
"2. Where co-ownership is confirmed by long, public
possession by co-owners, did the courts commit grave abuse
of discretion in holding that there is no co-ownership?
"3. Where the evidence of respondents is weak, puerile and
inconsistent, did the courts commit a grave misapprehension
of facts when they gave credence to it?
"4. Where a deed of donation intervivos entered in bad faith
deprives the heirs of their hereditary shares, is said deed
valid?
"5. Where a declaration against interest has not been
opposed, assailed, rebutted or impeached, did the courts
commit grave abuse of discretion in holding there is no such
declaration?"9
At bottom, the question to be resolved in this case is who owns the
disputed property?
The Court's Ruling
The Petition has no merit.
Main Issue:
Ownership of the Subject Property
At the outset, we clarify that although there were three (3) properties
originally involved in the litigation brought before the RTC,
petitioners appeal dealt only with the first one, referred to in the
Statement of Facts above -- a parcel of residential/commercial land
situated in the poblacion of Nabua, Camarines Sur. In their CA appeal,
petitioners declared that "the focus of this case is on the first [property]
which is located at downtown Poblacion of Nabua and therefore a
valuable piece of property, 1,119 square meters in all."10 Because
petitioners had not questioned the RTC Decision with regard to the
other properties, then the adjudication of these matters became final.
Thus, only one property is left for resolution in the present
proceedings.11
Since the original Complaint was an action for partition, this Court
cannot order a division of the property, unless it first makes a
determination as to the existence of a co-ownership.12 The settlement of
the issue of ownership is the first stage in an action for partition. 13 This
action will not lie if the claimant has no rightful interest in the subject
property. Parties filing the action are in fact required by the Rules of
Court14 to set forth in their complaint the nature and the extent of their
title to the property. It would be premature to effect a partition thereof
until and unless the question of ownership is first definitely resolved. 15
Basic is the rule that the party making an allegation in a civil case has
the burden of proving it by a preponderance of evidence. 16 Petitioners
chief evidence of co-ownership of the property in question is simply the
Acknowledgement of Co-ownership executed by Fidela. As mentioned
earlier, both the trial and the appellate courts were correct in finding
that this piece of documentary evidence could not prevail over the array
of testimonial and documentary evidence that were adduced by
respondents, as will be expounded below.
Petitioners failed to trace the successive transfers of ownership of the
questioned property that eventually led to them. Allegedly, it was
originally owned by their parents -- Spouses Ocampo -- whose deaths
passed it on to the children. Petitioners, however, presented absolutely
no proof of ownership of their predecessors-in-interest. In insisting that
it was so transferred and thus co-owned, the former rely on the
Acknowledgement of Co-ownership executed by Fidela, their eldest
sibling.
On the other hand, Belen clearly traced the basis of her alleged sole
ownership of the property and presented preponderant proof of her
claim.
First, she presented a Deed of Absolute Sale of Residential
Land,17 referring to the subject property, executed between Adolfo
Ocampo as seller and Felix Ocampo as buyer. The document dated July
6, 1948, was signed in the presence of two witnesses and acknowledged
before Juan B. Ballecer, a notary public.
The theory of petitioners is completely demolished by this document,
which they never contested. According to them, the land in question
was the conjugal property of their parents; and that upon the latters
deaths, the former inherited it in common. If indeed the land was the
conjugal property of Spouses Ocampo, then petitioners should have
presented evidence to prove such ownership by their alleged
predecessors-in-interest. Since the former failed to do so, how then can
they prove the transfer to them of ownership that has not been
established in the first place? It is axiomatic that no one can transfer to
another a right greater than that which one has;18 thus, the legal truism
that the spring cannot rise higher than its source.19
Likewise, in this Deed of Absolute Sale, Adolfo Ocampo declared his
"exclusive ownership" of the property, "having been acquired by
purchase[;] and [having] been in [his] continuous, public, peaceful,
adverse and material possession for more than 50 years together with
[his] predecessors in rights and interest, in [the] concept of owner
without any claim of other persons."20
Second, Respondent Belen proved that on February 10, 1953, this
property had been sold to Fidela by Felix Ocampo for a valuable
consideration; and that Fidela had entered the property, actually
occupied it, and exercised all powers of dominion over it to the
exclusion of petitioners.
As proofs of ownership of the property by Fidela, Belen presented
Transfer Certificate of Title No. RT-4389 (983),21which named the
former as owner in fee simple; and a Declaration of Real
Property,22 evidencing payment of real property taxes, also by Fidela as
owner.
To prove further that Fidela had exercised dominion over the property,
Belen also presented a Real Estate Mortgage23 executed by the former
as absolute owner. Fidela had executed it in favor of her sister Apolonia
Ocampo, one of the original petitioners in this case, who is now
represented by her heirs. Belen correctly argues that in agreeing to be a
mortgagee, Apolonia admitted and recognized Fidela as the true owner
of the land in question.
The Civil Code provides that an essential requisite of a contract of
mortgage is that the mortgagor be the absolute owner of the thing
mortgaged.24 Co-ownership cannot be presumed even if only a portion
of the property was mortgaged to Apolonia, because a co-owner may
dispose only of ones interest in the ideal or abstract part of the
undivided thing co-owned with others.25 The effect of a mortgage by a
co-owner shall be limited to the portion that may be allotted to that
person upon the termination of the co-ownership.26 In this case, Fidela
mortgaged a definiteportion of the property and thus negated any
acknowledgement of co-ownership.
Third, Belen then presented a Deed of Donation Inter Vivos27 executed
on January 13, 1984, between herself as donee and Fidela as donor.
This act shows the immediate source of the formers claim of sole
ownership of the property.
A donation as a mode of acquiring ownership results in an effective
transfer of title to the property from the donor to the
donee.28 Petitioners stubbornly rely on the Acknowledgement of Co-
ownership allegedly executed by Fidela in favor of her siblings. What
they overlook is the fact that at the time of the execution of the
Acknowledgement -- assuming that its authenticity and due execution
were proven -- the property had already been donated to Belen. The
Deed of Donation, which is the prior document, is clearly inconsistent
with the document relied upon by petitioners. We agree with the RTCs
ratiocination:
"On the claim of plaintiffs that defendant Fidela Ll. Ocampo
herself made a written acknowledgement for her co-
ownership over all the properties disputed with plaintiffs in
this case, the same cannot be considered as a declaration
 against Fidelas interest since the alleged acknowledgement
was written and executed on 24 December 1985 when she
was no longer the owner of the property as the year previous,
on 13 January 1984, she had already donated all her
properties to defendant Belen Ocampo-Barrito, so that, in
effect, she had no more properties with which she can have
an interest to declare against."29
Petitioners argue that the Acknowledgement of Co-ownership may be
considered as a declaration against interest. A statement may be
admissible as such a declaration if it complies with the following
requisites: 1) the declarant is dead or unable to testify; 2) it relates to a
fact against the interest of the declarant; 3) at the time of the
declaration, the declarant was aware that it was contrary to his or her
interest; and 4) the declarant had no motive to falsify and believed the
declaration to be true.30
As correctly found by the trial court, however, the Acknowledgement
of Co-ownership could not be a fact against the interest of the
declarant, since her right over the property had already been
extinguished by the prior act of donation. Thus, at the time of the
declaration, Fidela could not have acknowledged co-ownership, as she
had no more property against which she had an interest to declare.
Finally, Belen presented Transfer Certificate of Title No. 1365431 as
proof of her ownership of the property. To be sure, the best proof of
ownership of the land is the Certificate of Title (TCT). Hence, more
than a bare allegation is required to defeat the face value of
respondents TCT, which enjoys a legal presumption of regularity of
issuance.32It is quite surprising that despite the process of transfers and
titling of the subject property -- commencing in 1948 and eventually
leading to the sole ownership of Belen in 1984 33 -- it was only after
1984 that petitioners started asserting their claim of co-ownership
thereof.
We are not unmindful of our ruling that the mere issuance of a
certificate of title does not foreclose the possibility that the real
property may be under co-ownership with persons not named
therein.34 But given the circumstances of this case, the claim of co-
ownership by petitioners has no leg to stand on. Again, we stress, Belen
clearly traced the source of her sole ownership of the property in
question and thereby foreclosed the unproven and unsubstantiated
allegation of co-ownership thereof.
In addition to the TCT presented, Belen offered as evidence the Tax
Declaration35 indicating that she, as owner, had been paying real estate
taxes on the property, all to the exclusion of petitioners.
On the other hand, petitioners could not show any title, tax receipt or
document to prove their ownership. Having filed an action involving
property, they should have relied on the strength of their own title and
not on the alleged weakness of respondents claim.36
Petitioners assert that their claim of co-ownership of the property was
sufficiently proved by their witnesses -- Luisa Ocampo-Llorin and
Melita Ocampo. We disagree. Their testimonies cannot prevail over the
array of documents presented by Belen. A claim of ownership cannot
be based simply on the testimonies of witnesses; much less on those of
interested parties, self-serving as they are.
As to the photographs presented by petitioners to bolster their claim of
co-ownership, we affirm the CAs disposition showing the flimsiness
of their claim as follows:
"The other piece of documentary evidence presented by
appellants really proved nothing. The ancient photograph
showing the spouses Chino Jose and Juana Llander Ocampo
together with their ten children, simply proved that there was
such a picture taking of the spouses with their children. But
the photograph does not prove communal ownership by
appellants over the disputed parcels of land; neither does it
prove that the said properties were indeed owned by the
spouses Chino Jose and Juana Ocampo, and then later on
transferred to and commonly owned by their children. By the
same token, the picture exhibited by appellant showing the
name Oniang Ocampo -- 1-15-61 (or Apolonia Ocampo,
one of the children of the spouses Chino Jose and Juana)
engraved in the house or building, does not prove communal
ownership of the properties in question. At best, it is
susceptible of various meanings, like: that of Oniang Ocampo
was born on 1-15-61, or that she got married on that date, or
that she was celebrating a special event on the date
mentioned, or that she even died on the date mentioned. And
even assuming ex gratia argumenti, that the said engraving
proved ownership over the disputed building, some such fact
can only work to the prejudice of herein appellants. Why?
Because it would mean that only Oniang (or Apolonia) was
the owner of the building and that the building is not,
therefore, a communal property of the children of the late
spouses Chino Jose and Juana. Adverting to this piece of
evidence, the Trial Court postulated --
The engravings on the house ONIANG
OCAMPO BLDG. -- 1-15-61 cannot serve as
evidence that the property is of common
ownership. At most, this can only establish the fact
that said building was constructed for a certain
Oniang on 15 January 1961. If, indeed, the
property is of common ownership, there could not
have been any difficulty to engrave thereon
HEIRS OF JOSE OCAMPO and JUANA
LLANDER-OCAMPO -- 1-15-61 instead of
ONIANG OCAMPO BLDG. -- 1-15-61."37
Neither can we accept petitioners contention that co-ownership is
shown by the fact that some of the children of Spouses Ocampo stayed,
lived, and even put up businesses on the property. The appellate court
correctly found that since the litigants in this case were blood relatives,
fraternal affection could have been a good motive that impelled either
Belen or Fidela to allow petitioners to use the property. Without any
proof, however, co-ownership among the parties cannot be presumed.
Neither are we persuaded by the contention that Spouses Ocampo
placed the subject property in the name of only one person in
accordance with a Chinese custom. As mentioned earlier, that custom
consisted of placing properties of parents in the name of the eldest
unmarried son or daughter, with the implicit understanding that
ownership thereof would later revert to the siblings.
In contrast to the failure of petitioners to prove that such custom existed
and was practiced in that place,38 Belen presented evidence that clearly
negated any claim of ownership by the formers predecessors-in-
interest. Having shown that the property in question was originally
owned by one Adolfo Ocampo -- not by Spouses Ocampo, from whom
petitioners derive their right -- the claim of custom becomes
immaterial.
The fact that Fidela was not presented in court will not necessarily
favor petitioners and prove that the property in question is indeed co-
owned. If they felt that her testimony would prove their cause, then
they could have easily called her as an adverse or a hostile
witness.39 But since respondents were confident in the documents they
presented in court, they did not see any need to call her as a witness.
Petitioners also question the motives of Fidela for donating her
properties, when she is still alive and needs money in her old age. They
clearly overlook the nature of a donation.
Donation is an act of liberality whereby a person gratuitously disposes
of a thing or a right in favor of another who accepts it.40 Once
perfected, a donation is final; its revocation or rescission cannot be
effected, absent any legal ground therefor.41 A donation may in fact
comprehend the entire property of the donor.42 At any rate, the law
provides that donors should reserve, in full ownership or in usufruct,
sufficient means for their own support and that of all their relatives
who, at the time of the acceptance of the donation, are by law entitled
to be supported by them.43
In questioning the motives of Fidela for donating the subject property,
petitioners are contradicting even themselves. On the one hand, they
assert that she would not have disposed of her property, since she
would need it in her old age; on the other, they argue that it was not
hers alone anyway. It should be clear that the law protects donors by
providing that, without any reservation of sufficient means for
themselves, the donation shall be reduced upon the petition of any
person affected.44
To be sure, petitioners arguments all pertain to circumstances
extraneous to the Deed of Donation itself. The law is clear that when its
terms have been reduced to writing, an agreement must be presumed to
contain all the terms agreed upon; and there can be, between the parties
and their successors in interest, no evidence of such terms other than
the contents of the written agreement.45
Petitioners did not question the consent of Fidela to the donation. Never
was there any intimation that she had either been coerced or defrauded
into entering into it. As all the essential elements of a donation --
consent, subject matter and cause46 -- have been satisfied, we see no
reason to entertain any doubt about the Deed pertaining thereto.
The question of why the land was registered several years after the
donation is purely speculative. What is important is that there was a
duly proven Deed of Donation, which formed the basis of Belens
claim and led to the registration of the property in her name.
Petitioners also question Fidelas filing of an unlawful detainer suit
after the date of the Deed of Donation. Again, we remind petitioners
that because this action involves property, they should rely on the
strength of their own title, not on the alleged weakness of the claim of
respondents. At any rate, the burden of proof of the claim of co-
ownership rests on the former.
Moreover, the final resolution of this case entails the review of factual
findings of the courts below. It is a settled doctrine that in a civil case,
final and conclusive are the factual findings of the trial court, if
supported by clear and convincing evidence on record. Usually, the
Supreme Court does not review those findings -- especially when
affirmed by the Court of Appeals, as in this case.47 From the records of
the present case, no cogent evidence appears that would impel us to
apply the above doctrine differently. The courts below have not
overlooked essential facts that, if considered, may produce a different
outcome. The trial court correctly explained thus:
"This Court from the outset had the opportunity to see and
hear the tell-tale [signs] of truthfulness or perjury like the
flush of face, or the tone of voice, or the dart of eyes, or the
fearful pause [--] and finds that credibility is with the
defendants [herein respondents]. Moreover, the
preponderance of evidence is with defendants whose
testimonial evidences are buttressed by their documentary
evidences."48
Finally, we agree with the CA in eliminating the awards for damages
and attorneys fees for respondents failure to show any factual, legal or
equitable bases therefor.49
WHEREFORE, the Petition is hereby DENIED, and the assailed
Decision AFFIRMED. Costs against petitioners.
SO ORDERED.
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. Tiongco 10 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 co-owners, 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. 122904. April 15, 2005]
ADORACION E. CRUZ, THELMA DEBBIE E. CRUZ, GERRY E.
CRUZ and NERISSA CRUZ-TAMAYO, petitioners, vs. THE
HONORABLE COURT OF APPEALS, SUMMIT
FINANCING CORP., VICTOR S. STA. ANA, MAXIMO C.
CONTRERAS, RAMON G. MANALASTAS, and VICENTE
TORRES, respondents.
DECISION
TINGA, J.:
This is a petition for review on certiorari under Rule 45 of the 1997
Rules of Civil Procedure. Petitioners are assailing the Decision[1] of the Court
of Appeals in CA-G.R.CV No. 41298 which reversed and set aside
the Decision[2] of the Regional Trial Court (RTC), Branch CLXIII, Pasig in
Civil Case No. 49466 and dismissed petitioners complaint therein for
annulment of certain deeds, and the November 21, 1995 Resolution,[3] which
denied petitioners motion for reconsideration.
Herein petitioner Adoracion Cruz is the mother of her co-petitioners
Thelma Cruz, Gerry Cruz and Nerissa Cruz Tamayo, as well as Arnel Cruz,
who was one of the defendants in Civil Case No. 49466. Petitioners filed said
case on February 11, 1983 against Arnel Cruz and herein private respondents
Summit Financing Corporation (Summit), Victor S. Sta. Ana and Maximo C.
Contreras, the last two in their capacities as deputy sheriff and ex-officio
sheriff of Rizal, respectively, and Ramon G. Manalastas in his capacity as
Acting Register of Deeds of Rizal.
The Complaint[4] alleged that petitioners and Arnel Cruz were co-
owners of a parcel of land situated in Taytay, Rizal. Yet the property, which
was then covered by Transfer Certificate of Title (TCT) No. 495225, was
registered only in the name of Arnel Cruz. According to petitioners, the
property was among the properties they and Arnel Cruz inherited upon the
death of Delfin Cruz, husband of Adoracion Cruz.
On August 22, 1977, petitioners and Arnel Cruz executed a Deed of
Partial Partition,[5] distributing to each of them their shares consisting of
several lots previously held by them in common. Among the properties
adjudicated to defendant Cruz was the parcel of land covered at the time by
TCT No. 495225. It is the subject of this case.
Subsequently, the same parties to the Deed of Partial Partition agreed
in writing to share equally in the proceeds of the sale of the properties
although they had been subdivided and individually titled in the names of the
former co-owners pursuant to the Deed of Partial Partition. This arrangement
was embodied in a Memorandum of Agreement[6] executed on August 23,
1977 or a day after the partition. The tenor of the Memorandum of
Agreement was annotated at the back of TCT No. 495225 on September 1,
1977.
Sometime in January 1983, petitioner Thelma Cruz discovered that
TCT No. 495225 had already been cancelled by TCT No. 514477 which was
issued on October 18, 1982 in the name of Summit. Upon further
investigation, petitioners learned that Arnel Cruz had executed a Special
Power of Attorney[7] on May 16, 1980 in favor of one Nelson Tamayo,
husband of petitioner Nerissa Cruz Tamayo, authorizing him to obtain a loan
in the amount of One Hundred Four Thousand Pesos (P104,000.00) from
respondent Summit, to be secured by a real estate mortgage on the subject
parcel of land.
On June 4, 1980, a Real Estate Mortgage[8] was constituted on the
disputed property then covered by TCT No. 495225 to secure the loan
obtained by Arnel Cruz thru Nelson Tamayo from respondent Summit. Since
the loan had remained outstanding on maturity, Summit instituted
extrajudicial foreclosure proceedings, and at the foreclosure sale it was
declared the highest bidder. Consequently, Sheriff Sta. Ana issued
a Certificate of Sale[9] to respondent Summit, which more than a year later
consolidated its ownership of the foreclosed property. Upon presentation of
the affidavit of consolidation of ownership, the Acting Register of Deeds of
Rizal cancelled TCT No. 495225 and issued, in lieu thereof, TCT No. 514477
in the name of respondent Summit.
In their complaint before the RTC, petitioners asserted that they co-
owned the properties with Arnel Cruz, as evidenced by the Memorandum of
Agreement. Hence, they argued that the mortgage was void since they did not From a reading of the following provisions of the Deed of Partial
consent to it. Partition, no other meaning can be gathered other than that petitioners and
In ruling in favor of petitioners, the trial court declared that with the Arnel Cruz had put an end to the co-ownership, to wit:
execution of the Memorandum of Agreement, petitioners and Arnel Cruz had That the parties hereto are common co-owners pro-indiviso in equal shares of
intended to keep the inherited properties in a state of co-ownership. The trial the following registered real properties . . .
court stated that respondent Summit should suffer the consequences of That there are no liens and encumbrance of whatsoever nature and kind on the
incorrectly assuming that Arnel Cruz was the exclusive owner of the above-described real properties except . . .;
mortgaged property. It found respondent Summit negligent in its failure to
inquire further into the limitations of defendant Cruzs title. Thus, the trial That the said liability was actually inscribed and annotated in the aforesaid
court declared that only the undivided share of Cruz in the mortgaged titles on July 19, 1967 . . .;
property was validly transferred to respondent Summit although it granted That since July 19, 1967 and up to this writing two years have already lapsed
petitioners prayer for nullification, per the dispositive portion of its Decision, and no claim has been filed against the estate of said Delfin I. Cruz . . .;
thus: That the parties hereto mutually decided to end their common ownership pro-
WHEREFORE, judgment is hereby rendered, in favor of plaintiff and against indiviso over the above-described properties and agreed to partition the same
defendants, as follows: as follows:
1. Declaring the Special Power of Attorney, the Real Estate (1) To be adjudicated to THELMA E. CRUZ: . . .
Mortgage, the Public Auction Sale, the Certificate of Sale, the (2) To be adjudicated to NERISSA CRUZ-TAMAYO: . . .
Affidavit of Consolidation, executed by defendant Summit
Financing Corporation, and the Consolidation of Ownership (3) To be adjudicated to ARNEL E. CRUZ:
null and void ab initio; (a) . . .
2. Ordering the Register of Deeds of Rizal, to cancel TCT No. (b) Lot 1-C-2-B-2-B-4-P-4, (LRC) PSD-264936
514477, and to issue, in lieu thereof another TCT, in the name
(c ) . . .
of Arnel E. Cruz, with the same annotations on the Real Estate
Mortgage inscribed on September 16, 1980 and thereafter. (d) . . .
3. Ordering defendants, jointly and severally, to pay to plaintiffs, (4) To be adjudicated to GERRY E. CRUZ: . . .
the amount of P10,000.00, as reasonable attorneys fees, plus (5) To be adjudicated to ADORACION E. CRUZ: . . .
costs.
That the contracting parties warrant unto each other quiet and peaceful
4. Dismissing defendants (sic) counterclaims, for lack of merit. possession as owners and possessors of their respective shares in the partition
SO ORDERED.[10] . . . [16] (emphasis supplied)
With the exception of Arnel Cruz, the other defendants, who are herein In the aforesaid deed, the shares of petitioners and Arnel Cruzs in the
private respondents, elevated the case to the Court of Appeals. Private mass of co-owned properties were concretely determined and distributed to
respondents as appellants therein argued, among others, that the trial court each of them. In particular, to Arnel Cruz was assigned the disputed property.
erred in not holding Arnel Cruz as the sole and exclusive owner of the There is nothing from the words of said deed which expressly or impliedly
mortgaged property, in not holding petitioners in estoppel, and in not finding stated that petitioners and Arnel Cruz intended to remain as co-owners with
that under the Memorandum of Agreement the parties thereto merely agreed respect to the disputed property or to any of the properties for that matter. It is
to share in the proceeds of the sale of the properties. Private respondents also well-settled in both law and jurisprudence, that contracts are the law between
questioned the trial courts nullification of the special power of attorney and its the contracting parties and should be fulfilled, if their terms are clear and
declaration that respondent Summit was grossly negligent in not verifying the leave no room for doubt as to the intention of the contracting parties. [17]
capacity of Arnel Cruz.[11] To be considered a co-owner, one must have a spiritual part of a thing
In the assailed Decision, the Court of Appeals reversed the trial courtswhich is not physically divided, or each of them is an owner of the whole, and
decision. The appellate court stressed that the Memorandum of Agreement doesover the whole he exercises the right of dominion, but he is at the same time
[18]
not contain any proscription against the mortgage of the subject propertythe owner of a portion which is truly abstract. In Dela Cruz v. Cruz, et
[19] this Court denied the prayer for legal redemption of plaintiff-appellant
although it provides that the parties thereto are entitled to share in the proceeds ofal.,
the sale of the properties covered by it. In that regard, the appellate court notedtherein because the portions of appellant-plaintiff and of the defendant
that petitioner Adoracion Cruz had executed two other real estate mortgages on spouses are concretely determined and identifiable, for to the former belongs
the other parcels of land, which were not objected to by her supposed co-owners.the northern half, and to the latter belongs the remaining southern half, of the
[20]
Thus, it upheld the validity of the real estate mortgage executed by Nelsonland.
Tamayo on behalf of Arnel Cruz, without prejudice to petitioners right of action Petitioners do not question the validity or efficacy of the Deed of
against Arnel Cruz for the collection of the proceeds of the loan.[12] Partial Partition. In fact, they admitted its existence in their pleadings and
Petitioners moved for the reconsideration of the decision, but the Court submitted it as part of their evidence. Thus, the deed should be accorded its
of Appeals denied it in the assailed Resolution dated November 21, 1995. legal dire effect. Since a partition legally made confers upon each heir the
exclusive ownership of the property adjudicated to him,[21] it follows that
Hence, the present petition which at the bottom presents the issue
Arnel Cruz acquired absolute ownership over the specific parcels of land
whether or not the real estate mortgage on the property then covered by TCT assigned to him in the Deed of Partial Partition, including the property
No. 495225 is valid. Resolution of the issue in turn depends on the subject of this case. As the absolute owner thereof then, Arnel Cruz had the
determination of whether the mortgaged property was the exclusive property
right to enjoy and dispose of the property,[22] as well as the right to constitute
of Arnel Cruz when it was mortgaged. If answered in the affirmative, then
a real estate mortgage over the same without securing the consent of
there was nothing to prevent him from exercising ownership over the said petitioners.
property.
On the other hand, there is absolutely nothing in the Memorandum of
Petitioners insist that the Memorandum of Agreement expressly
Agreement which diminishes the right of Arnel Cruz to alienate or encumber
created a pro-indiviso co-ownership over the property.[13] Thus,
the properties allotted to him in the deed of partition. The following
petitioners argue that the Court of Appeals erred in upholding the provisions of the agreement, which recognize the effects of partition, negate
validity of the mortgage considering that it was executed without their petitioners claim that their consent is required to make the mortgage in favor
knowledge and consent.
of respondent Summit valid, to wit:
On the other hand, private respondents rely on the provisions of
That the parties hereto are common co-owners pro-indiviso in equal shares of
the Deed of Partial Partition in claiming that defendant Cruz was already the the following registered real properties . . .
exclusive owner of the disputed property at the time it was mortgaged. To
further bolster their claim, private respondents assert that each of petitioners That as a result of said partial partition, the properties affected were actually
also executed real estate mortgages on the properties allocated to them in the partitioned and the respective shares of each party, adjudicated to him/her;
partition deed as absolute owners in fee simple. That despite the execution of this Deed of Partial Partition and the eventual
This Court finds no merit in the petition. disposal or sale of their respective shares, the contracting parties herein
covenanted and agreed among themselves and by these presents do hereby
Co-ownership is terminated upon judicial or extra-judicial partition of
bind themselves to one another that they shall share alike and receive equal
the properties owned in common. Partition, in general, is the separation,
shares from the proceeds of the sale of any lot or lots allotted to and
division and assignment of a thing held in common among those to whom it
adjudicated in their individual names by virtue of this deed of partial
may belong.[14]Every act which is intended to put an end to indivision among partition;
co-heirs and legatees or devisees is deemed to be a partition, although it
should purport to be a sale, an exchange, a compromise, or any other That this Agreement shall continue to be valid and enforceable among the
transaction.[15] contracting parties herein up to and until the last lot is covered by the deed of
partial partition above adverted to shall have been disposed of or sold and the
proceeds thereof equally divided and their respective shares received by each
of them.[23] (emphasis supplied)
As correctly held by the Court of Appeals, the parties only bound
themselves to share in the proceeds of the sale of the properties. The
agreement does not direct reconveyance of the properties to reinstate the
common ownership of the parties. To insist that the parties also intended to
re-establish co-ownership after the properties had been partitioned is to read
beyond the clear import of the agreement and to render nugatory the effects of
partition, which is not the obvious or implied intent of the parties.
Moreover, to ascertain the intent of the parties in a contractual
relationship, it is imperative that the various stipulations provided for in the
contracts be construed together, consistent with the parties contemporaneous
and subsequent acts as regards the execution of the contract. [24] Subsequent to
the execution of the Deed of Partition and Memorandum of Agreement, the
properties were titled individually in the names of the co-owners to which
they were respectively adjudicated, to the exclusion of the other co-owners.
Petitioners Adoracion Cruz and Thelma Cruz separately sold the properties
distributed to them as absolute owners thereof. Being clear manifestations of
sole and exclusive dominion over the properties affected, the acts signify total
incongruence with the state of co-ownership claimed by petitioners. Thus, this
Court holds that the real estate mortgage on the disputed property is valid and
does not contravene the agreement of the parties.
WHEREFORE, the instant petition is DENIED. The assailed Decision
and Resolution of the Court of Appeals in CA-G.R. CV No. 41298 are hereby
AFFIRMED. Costs against petitioners.
SO ORDERED.
G.R. No. 161136 November 16, 2006
WILFREDO T. VAGILIDAD and LOLITA A.
VAGILIDAD, Petitioners,
vs.
GABINO VAGILIDAD, Jr. and DOROTHY
VAGILIDAD, Respondents.
DECISION
PUNO, J.:
This is a Petition for Review on Certiorari of the Decision1 and
Resolution2 of the Court of Appeals in CA-G.R. No. CV-68318 dated
March 19, 2003 and November 13, 2003, respectively, reversing and
setting aside the decision of the Regional Trial Court of Antique, Sixth
Judicial Region, Branch II, in Civil Case No. 2825 dated January 26,
1999.
The facts are stated in the assailed Decision3 of the appellate court, viz.:
A parcel of land, Lot No. 1253, situated in Atabay, San Jose, Antique,
measuring 4,280 square meters, was owned by Zoilo [Labiao]
(hereafter ZOILO) as per Original Certificate of Title No. RO-2301
issued on March 3, 1931. Sometime in 1931, ZOILO died.
Subsequently, on May 12, 1986, Loreto Labiao (hereafter LORETO),
son of ZOILO, sold to Gabino Vagilidad Jr. (hereafter GABINO JR.) a
portion of Lot No. 1253 (hereafter Lot 1253-B), measuring 1,604
square meters as evidenced by the Deed of Absolute Sale executed by
LORETO.
In view of the death of ZOILO, his children, LORETO, Efren Labiao
(hereafter EFREN) and Priscilla Espanueva (hereafter PRISCILLA)
executed an Extrajudicial x x x Settlement of Estate dated January 20,
1987, adjudicating the entire Lot No. 1253, covering 4,280 square
meters, to LORETO. On January 29, 1987, Transfer Certificate of Title
(TCT) No. T-16693 was issued in favor of LORETO, EFREN and
PRISCILLA, but on even date, TCT No. T-16693 was cancelled and
TCT No. T-16694, covering the said property, was issued in the name
of LORETO alone.
On July 31, 1987, GABINO JR., as petitioner, filed a Petition for the
Surrender of TCT No. T-16694, covering Lot No. 1253, with the
Regional Trial Court of San Jose City, Sixth Judicial Region, against
LORETO, docketed as Cadastral Case No. 87-731-A. The plaintiff
alleged that, being the owner of x x x Lot No. 1253-B, under TCT No.
T-16694, by virtue of the sale that took place on May 12, 1986, he is
entitled to ask for the surrender of the owners copy of TCT No. T-
16694 to the Register of Deeds of Antique in order to effect the transfer
of title to the name of the petitioner. However, as per motion of both
counsels[,] since the parties seemed to have already reached an
amicable settlement without the knowledge of their counsels, the trial
court issued an Order dated March 21, 1994 sending the case to the
archives.
On September 21, 1988, [GABINO JR.] paid real estate taxes on the
land he bought from LORETO as per Tax Declaration No. 1038 where
the property was specified as Lot No. 1253-B. GABINO JR. thereafter
sold the same lot to Wilfredo Vagilidad (hereafter WILFREDO) as per
Deed of Absolute Sale dated December 7, 1989. On even date, Deed of
Absolute Sale of a Portion of Land involving the opt-described
property was also executed by LORETO in favor of WILFREDO. The
aforementioned deeds, which were both executed on December 7, 1989
[and] notarized by Atty. Warloo Cardenal[,] [appear] to have been
given the same entry number in his notarial books as both contained the
designation "Document No. 236, Page No. 49, Book No. XI, Series of
1989[."]
Corollarily, on February 14, 1990, the sale of Lot No. 1253-B to
WILFREDO was registered with the Registry of Deeds of the Province
of Antique under Entry No. 180425. Consequently, TCT No. T-18023,
cancelling TCT No. 16694, was issued in favor of WILFREDO
pursuant to the Deed of Absolute Sale dated December 7, 1989.
On October 24, 1991, spouses WILFREDO and LOLITA obtained a
loan from the Philippine National Bank (PNB for brevity) in the
amount of 150,000.00 and mortgaged Lot No. 1253-B as collateral of
the said loan and the transaction was inscribed at the back of TCT No.
18023 as Entry No. 186876. Subsequently, the xxx real estate mortgage
was cancelled under Entry No. 191053 as per inscription dated
November 17, 1992 in xxx TCT No. 18023.
Subsequently, WILFREDO obtained another loan from Development
Bank of the Philippines (DBP for brevity) in the amount of
200,000.00 and mortgaged Lot No. 1253-B as collateral of the xxx
loan and the transaction was inscribed at the back of TCT No. 18023 as
Entry No. 196268. The said loan was paid and, consequently, the
mortgage was cancelled as Entry No. 202500.
On September 29, 1995, spouses GABINO and Ma. Dorothy Vagilidad
(hereafter DOROTHY), as plaintiffs, filed a Complaint for Annulment
of Document, Reconveyance and Damages, with the Regional Trial
Court of Antique, Sixth Judicial Region, Branch 11, against spouses
WILFREDO and Lolita Vagilidad (hereafter LOLITA), docketed as
Civil Case No. 2825. The plaintiffs claimed that they are the lawful
owners of Lot No. 1253-B which was sold to him by LORETO in
1986. They alleged that [GABINO JR.] is a nephew of defendant
WILFREDO. They likewise raised that when GABINO SR. died,
defendant WILFREDO requested GABINO JR. to transfer the
ownership of Lot No. 1253-B in defendant WILFREDOs name for
loaning purposes with the agreement that the land will be returned
when the plaintiffs need the same. They added that, pursuant to the
mentioned agreement, plaintiff GABINO JR., without the knowledge
and consent of his spouse, DOROTHY, executed the Deed of Sale
dated December 7, 1989 in favor of defendant WILFREDO receiving
nothing as payment therefor. They pointed out that after defendant
WILFREDO was able to mortgage the property, plaintiffs demanded
the return of the property but the defendants refused to return the same.
The plaintiffs claimed that the same document is null and void for want
of consideration and the same does not bind the non-consenting spouse.
They likewise prayed that the defendant be ordered to pay the plaintiffs
not less than 100,000.00 as actual and moral damages, 10,000.00 as
attorneys fees and 5,000.00 as litigation expenses.
For their part, the defendants, on January 15, 1996, filed their Answer,
denying the material allegations of the plaintiffs. Defendants claimed
that they are the lawful owners of Lot No. 1253-B. They alleged that
LORETO, with conformity of his wife, sold to them Lot No. 1253 on
December 7, 1989 for 5,000.00 and the transaction was registered
with the Register of Deeds of the Province of Antique under Entry No.
180425. They added that, subsequently, TCT No. T-18023, covering
Lot No. 1253-B, was issued in favor of the defendants. Hence, they
claimed that the plaintiffs be directed to pay the defendants
200,000.00 as moral damages, 50,000.00 as exemplary damages,
20,000.00 as attorneys fees and 30,000.00 for litigation expenses. 4
The trial court ruled in favor of petitioners WILFREDO and LOLITA
and held that LORETO did not validly convey Lot No. 1253-B to
GABINO, JR. on May 12, 1986 since at that time, the heirs of ZOILO
had not partitioned Lot No. 1253.5 It ruled that LORETO could only
sell at that time his aliquot share in the inheritance. He could not have
sold a divided part thereof designated by metes and bounds. Thus, it
held that LORETO remained the owner of the subject lot when he sold
it to WILFREDO on December 7, 1989. It further found that there was
no proof that WILFREDO knew of the sale that took place between
LORETO and GABINO, JR. on May 12, 1986. The dispositive portion
of the decision states:
WHEREFORE, in view of the foregoing pronouncements and a
preponderance of evidence, judgment is hereby rendered:
1. FINDING the defendants WILFREDO VAGILIDAD and
LOLITA VAGILIDAD to have duly acquired ownership of
Lot No. 1253-B containing an area of 1,604 square meters,
more or less, situated in San Jose, Antique;
 2. SUSTAINING the validity of Transfer Certificate of Title
No. T-18023 covering the subject Lot No. 1253-B and issued
in the name of the defendant WILFREDO VAGILIDAD,
married to the defendant LOLITA VAGILIDAD;
3. DISMISSING the complaint of the plaintiffs GABINO
VAGILIDAD, JR. and MA. DOROTHY VAGILIDAD, as
well as the counterclaims of the defendants WILFREDO
VAGILIDAD and LOLITA VAGILIDAD and of the
defendants LORETO LABIAO and FRANCISCA LABIAO;
and
4. PRONOUNCING no cost.6
GABINO, JR. and DOROTHY filed an appeal with the Court of
Appeals. The appellate court reversed and set aside the decision of the
court a quo, viz.:
WHEREFORE, premises considered, the Decision dated January 26,
1999 of the Regional Trial Court of Antique, Sixth Judicial Region,
Branch 11, in Civil Case No. 2825, is hereby REVERSED and SET
ASIDE and a new one is entered: (1) declaring the Deed of Absolute
Sale [of Portion of Land] dated December 7, 1989 executed by appellee
LORETO in favor of appellee WILFREDO null and void; (2) ordering
the defendants-appellees WILFREDO and LOLITA to reconvey Lot
No. 1253-B to plaintiffs-appellants GABINO, JR. and DOROTHY; and
(3) ordering the defendants-appellees to pay the plaintiffs-appellants
100,000.00 as moral damages, 10,000.00 as attorneys fees and
5,000.00 as litigation expenses.7
The appellate court ruled that the sale made by LORETO in favor of
GABINO, JR. on May 12, 1986 is valid. The rights of LORETO to
succession are transmitted from the moment of ZOILOs death in 1931.
Thus, when LORETO sold the 1,604-square meter portion of Lot No.
1253 to GABINO JR., he already had the right as co-owner to his share
to Lot No. 1253, even if at that time the property had not yet been
partitioned. Consequently, the sale made by LORETO in favor of
WILFREDO on December 7, 1989 is void because LORETO and
FRANCISCA were no longer the owners of Lot No. 1253-B as of that
time. The appellate court also held WILFREDO and LOLITA liable for
moral damages for falsifying the fictitious deeds of sale on December
7, 1989.
WILFREDO and LOLITA moved for reconsideration but the motion
was denied in the questioned Resolution dated November 13, 2003.
Hence, this petition for review on certiorari raising the following errors:
I particularly described as follows, to wit:
THE HONORABLE COURT OF APPEALS ERRED IN
NOT APPLYING ARTICLE 1349 AND ARTICLE 1460 OF
THE NEW CIVIL CODE IN THE CASE AT BAR.
II
THE HONORABLE COURT OF APPEALS ERRED IN
NOT APPLYING THE PROVISION OF ARTICLE 1544
OF THE NEW CIVIL CODE AND THE DOCTRINE OF
DOUBLE SALE THAT THE BUYER WHO IS IN
POSSESSION OF THE TORRENS TITLE AND HAD THE
DEED OF SALE REGISTERED MUST PREVAIL.
III
THE HONORABLE COURT OF APPEALS ERRED IN
NOT APPLYING ARTICLE 1391 OF THE NEW CIVIL
CODE AND THE DOCTRINE THAT IN CASE OF
FRAUD, ACTION FOR RECONVEYANCE MUST BE
BROUGHT WITHIN FOUR (4) YEARS FROM THE
DISCOVERY OF THE FRAUD.
IV
THE HONORABLE COURT OF APPEALS ERRED IN
AWARDING PRIVATE RESPONDENT MORAL
DAMAGES, ATTORNEYS FEES AND LITIGATION
EXPENSES.8
We deny the petition.
I 1253-B. It clearly demonstrated that the subject parcel was originally
First, petitioners contend that the Deed of Absolute Sale between
LORETO and GABINO, JR. does not have a determinate object. They
anchor their claim on the following discrepancies: (1) the object of the
Deed of Absolute Sale between LORETO and GABINO, JR. is Lot
No. 1253 with an area of 1,604 square meters; (2) the object of the
Deed of Absolute Sale of Portion of Land between LORETO and
WILFREDO is a portion of Lot No. 1253, known as Lot No. 1253-B,
also with an area of 1,604 square meters;9 (3) the Deed of Absolute
Sale between LORETO and GABINO, JR. shows that its object, Lot
No. 1253, is not registered under the Land Registration Act nor under
the Spanish Mortgage Law; and (4) the property subject of this action,
Lot No. 1253-B, was taken from Lot No. 1253 containing an area of
4,280 square meters previously registered in the name of ZOILO under
Original Certificate of Title (OCT) No. RO-2301.10 With these
discrepancies, petitioners contend that either the Deed of Absolute Sale
between LORETO and GABINO, JR. does not have a determinate
object or that Lot No. 1253-B, the subject parcel, is not the object
thereof. Hence, absent a determinate object, the contract is void. They
rely on Articles 1349 and 1460 of the Civil Code, viz.:
Art. 1349. The object of every contract must be determinate, as to its
kind. The fact that the quantity is not determinate shall not be an
obstacle to the existence of the contract, provided it is possible to
determine the same, without the need of a new contract between the
parties.
Art. 1460. A thing is determinate when it is particularly designated or
physically segregated from all others of the same class.
The requisite that a thing be determinate is satisfied if at the time the
contract is entered into, the thing is capable of being made determinate
without the necessity of a new or further agreement between the
parties.
Petitioners err. The evidence on record shows that Lot No. 1253-B, the
subject parcel, and the lot described as Lot No. 1253 in the Deed of
Absolute Sale of May 12, 1986 between LORETO and GABINO, JR.,
are the same. In the Deed of Absolute Sale, Lot No. 1253 is
described, viz.:
A parcel of land (Lot No. 1253 of the Cadastral Survey of San Jose),
with the improvements thereon. Bounded on the North [by] 1254 and
1255; on the South by road; on the East by 1253 and road on the West
by 1240-Angel Salazar; containing an area of 1,604 square meters more
or less declared under Tax Declaration No. 4159.11
In the Deed of Absolute Sale of Portion of Land of December 7, 1989
between LORETO and WILFREDO, the subject parcel is
described, viz.:
A parcel of land (Lot No. 1253. Ap-06-00271) of the Cadastral Survey
of San Jose, LRC Cad. Rec. No. 936), situated at Atabay, San Jose,
Antique. Bounded on the N. and E. along lines 1-2-3 by lot 1255; San
Jose Cadastre; on the S. along line 3-4 by Road; on the W. along line 4-
5 by Lot 1240; San Jose Cadastre; and on the N. along line 5-1 by Lot
1254, San Jose Cadastre containing an area of [Four] Thousand Two
Hundred Eighty (4,280) square meters, more or less.
of which a portion of land subject of this sale is hereinbelow (sic)
A portion of Lot No. 1253-B of the Cadastral Survey of San Jose,
situated at Atabay, San Jose, Antique. Bounded on the North by Lot
No. 1254; South by Road; West by Lot 1253-A; and on the East by Lot
No. 1253-C; containing an area of 1,604 square meters, more or less.12
The description of Lot No. 1253, the object of the Deed of Absolute
Sale, as "not registered under Act No. 196[,] otherwise known as the
Land Registration Act, nor under the Spanish Mortgage Law"13 is a
stray description of the subject parcel. It is uncorroborated by any
evidence in the records. This description solely appears on the Deed of
Absolute Sale and the discrepancy was not explained by LORETO who
signed the Deed of Absolute Sale as vendor. LORETO does not, in fact,
deny the existence of the Deed of Absolute Sale. He merely counters
that the Deed of Absolute Sale was purportedly a mortgage. However,
LORETOs claim that it was one of mortgage is clearly negated by a
Certification14 issued by the Bureau of Internal Revenue dated May 12,
1986. It certified that LORETO was not required to pay the capital
gains tax on the transfer of Lot No. 1253 to GABINO, JR. because the
property was classified as an ordinary asset.
To be sure, petitioners could have easily shown that LORETO owned
properties other than Lot No. 1253 to bolster their claim that the object
of the Deed of Absolute Sale was different from Lot No. 1253-B which
is the object described in the Deed of Absolute Sale of Portion of Land.
They did not proffer any evidence.
The trial court itself comprehensively traced the origin of Lot No.
part of the registered lot of ZOILO. It also showed how the subject
parcel was eventually bounded by Lot No. 1253-A on the West and by
Lot No. 1253-C on the East, as the lot would be later described in the
Deed of Absolute Sale of Portion of Land.
The trial court found that ZOILO previously owned Lot No. 1253
under OCT No. RO-2301 issued on March 3, 1931. On November 14,
1986, Entry No. 167922 was inscribed in the certificate of title, per
Order dated March 30, 1978 of Judge Noli Ma. Cortes of the then Court
of First Instance of Antique, stating that it was a reconstituted
certificate of title.15 Lot No. 1253 was subdivided by virtue of a
subdivision plan dated June 19, 1987. On January 20, 1987, an
Extrajudicial Settlement of Estate executed by LORETO, EFREN and
PRISCILLA was entered as Entry No. 170722. The OCT of ZOILO
was cancelled by TCT No. T-16693 in the names of LORETO, EFREN
and PRISCILLA on January 29, 1987. TCT No. T-16693 was cancelled
on the same day by TCT No. T-16694 in the name of LORETO alone.
The TCT was partially cancelled by the issuance of TCTs covering Lot
Nos. 1253-A, 1253-C and 1253-D. The TCT of Lot No. 1253-B was
issued in the name of WILFREDO married to LOLITA on February 15,
1990. WILFREDOs TCT No. T-18023 appears to be a transfer from
LORETOs TCT No. T-16694.
II
Next, petitioners contend that the appellate court should have upheld
the title of WILFREDO under Article 1544 of the Civil Code and the
doctrine of double sale where the buyer who is in possession of the
Torrens Title must prevail.16 First, petitioners title was issued pursuant
to the purported Deed of Absolute Sale of Portion of Land dated
December 7, 1989. Second, WILFREDO did not see any encumbrance
at the back of the title of the subject lot when he purchased it from
LORETO on December 7, 1989. Thus, since he is not bound to go
beyond the certificate of title, he has acquired the subject property in
due course and in good faith.
We disagree. Article 1544 of the Civil Code states, viz.:
Art. 1544. If the same thing should have been sold to different vendees,
the ownership shall be transferred to the person who may have first
taken possession thereof in good faith, if it should be movable property.
Should it be immovable property, the ownership shall belong to the
person acquiring it who in good faith recorded it in the Registry of
Property.
Should there be no inscription, the ownership shall pertain to the person
who in good faith was first in the possession; and, in the absence
thereof, to the person who presents the oldest title, provided there is
good faith.
Petitioners reliance on Article 1544 is misplaced. While title to the
property was issued in WILFREDOs name on February 15, 1990, the
following circumstances show that he registered the subject parcel with
evident bad faith.
First, the Deed of Absolute Sale of Portion of Land dated December 7,
1989 between LORETO and WILFREDO is tainted with blatant
irregularities. It is a fact that the Deed of Absolute Sale of Portion of
Land and the Deed of Absolute Sale between GABINO, JR. and
WILFREDO are of even date. Both Deeds had the same object Lot
No. 1253-B. Both deeds were notarized by Atty. Warloo Cardenal and
bear the same entry in his notarial register: Document No. 236, Page
No. 49, Book No. XI, Series of 1989.
Second, the testimony of a disinterested witness, Febe Mabuhay,
established the irregularity. Mabuhay used to work as secretary for
Atty. Cardenal and co-signed as witness in both Deeds. She stated that
Atty. Cardenal instructed her to prepare the two documents in the last
week of November 1989. She was present when GABINO, JR. signed
the Deed of Absolute Sale. She testified that after GABINO, JR. left,
LORETO and his wife FRANCISCA arrived and signed the Deed of
Absolute Sale of Portion of Land.17 The Decision of the court a
quo further states, viz.:
[Mabuhay testified that when she prepared the two documents, she]
noticed the similarity of Lot No. 1253 as technically described in both
documents but she did not call the attention of Atty. Warlo[o] Cardenal.
[She likewise stated that Atty. Cardenal] specifically instructed her to
assign the same document number to the two documents notarized on
December 7, 1989.18
Third, the testimony of Atty. Ernesto Estoya, then Clerk of Court of
the Regional Trial Court of Antique, supports the claim that there was
bad faith in the execution of the Deed of Absolute Sale of Portion of
Land. Atty. Estoya brought the notarial record of Atty. Cardenal for the
year 1989 pursuant to a subpoena. He stated that he had not brought
both Deeds as required in the subpoena because "Doc. No. 236; Page
No. 49; Book No. XI; Series of 1989" as entered in the notarial register
of Atty. Cardenal could not be found in the files. He further explained
that the last document on page 48 of the notarial register of Atty.
Cardenal is Document No. 235, while the first document on page 49 is
Document No. 239, leaving three unexplained gaps for document
numbers 236, 237 and 238. Atty. Estoya stated that he was not the one
who received the 1989 notarial register of Atty. Cardenal when the
latter surrendered it since he assumed office only in 1994. 19
Fourth, we give credence to the testimony of GABINO, JR. that
LORETO and WILFREDO had employed the scheme to deprive him
and his wife of their lawful title to the subject property. The facts speak
for themselves. WILFREDO knew that he could not use the Deed of
Absolute Sale executed in his favor by GABINO, JR. because the latter
had no title to transfer. Without a title, WILFREDO could not use the
subject property as collateral for a bank loan. Hence, LORETO, who
had refused to surrender the title to GABINO, JR. and in whose name
the land remained registered, had to execute the Deed of Absolute Sale
of Portion of Land in favor of WILFREDO. Hence, it was convenient
for WILFREDO to deny the existence of the Deed of Absolute Sale of
December 7, 1989 between him and GABINO, JR. But the evidence on
record shows that after he was able to register the subject property in
his name on February 15, 1990, WILFREDO used the title as collateral
in the loans that he contracted with the Philippine National Bank on
October 24, 1991 and the Development Bank of the Philippines on
December 1, 1993. This supports the claim of GABINO, JR. that
WILFREDO needed the lot for loaning purposes.
With these corroborating circumstances and the following irrefragable
documents on record, the evidence preponderates in favor of GABINO,
JR. One, he acquired Lot No.1253-B from LORETO on May 12,
198620 by virtue of the Deed of Absolute Sale. Two, the Bureau of
Internal Revenue issued a Certification, also on May 12, 1986, for the
exemption from the payment of capital gains tax when LORETO sold
to him the subject parcel. Three, GABINO, JR. paid the real estate tax
on the subject parcel in 1987. Four, he filed a Petition for the Surrender
of LORETOs title on July 31, 1987 so he could transfer the title of the
property in his name.
Petitioners likewise err in their argument that the contract of sale
between LORETO and GABINO, JR. is void on the ground that at the
time of the sale on May 12, 1986, LORETO had a right to dispose only
an aliquot part of the yet undivided property of ZOILO. The subject
parcel, being an inherited property, is subject to the rules of co-
ownership under the Civil Code.
Co-ownership is the right of common dominion which two or more
persons have in a spiritual part of a thing, not materially or physically
divided.21 Before the partition of the property 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 property.22
LORETO sold the subject property to GABINO, JR. on May 12, 1986
as a co-owner. LORETO had a right, even before the partition of the
property on January 19, 1987,23 to transfer in whole or in part his
undivided interest in the lot even without the consent of his co-heirs.
This right is absolute in accordance with the well-settled doctrine that a
co-owner has full ownership of his pro-indiviso share and has the right
to alienate, assign or mortgage it, and substitute another person for its
enjoyment.24 Thus, what GABINO, JR. obtained by virtue of the sale
on May 12, 1986 were the same rights as the vendor LORETO had as
co-owner, in an ideal share equivalent to the consideration given under
their transaction.25
LORETO sold some 1,604 square meters of Lot No. 1253 to GABINO,
JR. Consequently, when LORETO purportedly sold to WILFREDO on
December 7, 1989 the same portion of the lot, he was no longer the
owner of Lot No. 1253-B. Based on the principle that "no one can give
what he does not have,"26 LORETO could not have validly sold to
WILFREDO on December 7, 1989 what he no longer had. As correctly
pointed out by the appellate court, the sale made by LORETO in favor
of WILFREDO is void as LORETO did not have the right to transfer
the ownership of the subject property at the time of sale.
III
Petitioners contend that since the subdivision plan of Lot No. 1253 was
only approved on January 19, 1987, the appellate court can not presume
that the aliquot part of LORETO was the parcel designated as Lot
1253-B.27
Petitioners err. The mere fact that LORETO sold a definite portion of
the co-owned lot by metes and bounds before partition does not, per se,
render the sale a nullity. We held in Lopez v. Vda. De Cuaycong28 that
the fact that an agreement purported to sell a concrete portion of a co-
owned property does not render the sale void, for it is well-established
that the binding force of a contract must be recognized as far as it is
legally possible to do so.29
In the case at bar, the contract of sale between LORETO and GABINO,
JR. on May 12, 1986 could be legally recognized.1wphi1 At the time
of sale, LORETO had an aliquot share of one-third of the 4,280-square
meter property or some 1,42630 square meters but sold some 1,604
square meters to GABINO, JR. We have ruled that if a co-owner sells
more than his aliquot share in the property, the sale will affect only his
share but not those of the other co-owners who did not consent to the
sale.31 Be that as it may, the co-heirs of LORETO waived all their
rights and interests over Lot No. 1253 in favor of LORETO in an
Extrajudicial Settlement of Estate dated January 20, 1987. They
declared that they have previously received their respective shares from
the other estate of their parents ZOILO and PURIFICACION.32 The
rights of GABINO, JR. as owner over Lot No. 1253-B are thus
preserved. These rights were not effectively transferred by LORETO to
WILFREDO in the Deed of Absolute Sale of Portion of Land. Nor
were these rights alienated from GABINO, JR. upon the issuance of the
title to the subject property in the name of WILFREDO. Registration of
property is not a means of acquiring ownership.33 Its alleged
incontrovertibility cannot be successfully invoked by WILFREDO
because certificates of title cannot be used to protect a usurper from the
true owner or be used as a shield for the commission of fraud. 34
IV
On the issue of prescription, petitioners contend that the appellate court
failed to apply the rule that an action for reconveyance based on fraud
prescribes after the lapse of four years.35 They cite Article 139136 of the
Civil Code and the case of Gerona v. De Guzman.37
We disagree. This Court explained in Salvatierra v. Court of
Appeals,38 viz.:
An action for reconveyance based on an implied or constructive trust
must perforce prescribe in ten years and not otherwise. A long line of
decisions of this Court, and of very recent vintage at that, illustrates this
rule. Undoubtedly, it is now well-settled that an action for
reconveyance based on an implied or constructive trust prescribes in
ten years from the issuance of the Torrens title over the property. The
only discordant note, it seems, is Balbin v. Medalla, which states
that the prescriptive period for a reconveyance action is four years.
However, this variance can be explained by the erroneous reliance
on Gerona v. de Guzman. But in Gerona, the fraud was discovered
on June 25, 1948, hence Section 43(3) of Act No. 190 was applied,
the New Civil Code not coming into effect until August 30, 1950
xxx. It must be stressed, at this juncture, that Article 1144 and
Article 1456 are new provisions. They have no counterparts in the
old Civil Code or in the old Code of Civil Procedure, the latter
being then resorted to as legal basis of the four-year prescriptive
period for an action for reconveyance of title of real property
acquired under false pretenses.39
[Thus,] under the present Civil Code, xxx just as an implied or
constructive trust is an offspring of xxx Art. 1456, xxx so is the
corresponding obligation to reconvey the property and the title thereto
in favor of the true owner. In this context, and vis--vis prescription,
Article 1144 of the Civil Code is applicable[, viz.:]
Art. 1144. The following actions must be brought within ten years from
the time the right of action accrues:
1) Upon a written contract;
2) Upon an obligation created by law;
3) Upon a judgment.40 (emphases supplied)
Thus, in the case at bar, although the TCT of WILFREDO became
indefeasible after the lapse of one year from the date of registration, the
attendance of fraud in its issuance created an implied trust in favor of
GABINO, JR. under Article 145641 of the Civil Code. Being an implied
trust, the action for reconveyance of the subject property therefore
prescribes within a period of ten years from February 15, 1990. Thus,
when respondents filed the instant case with the court a quo on
September 26, 1995, it was well within the prescriptive period.
V thousand pesos (5,000.00).12
On the issue of damages, petitioners contend that the grant is erroneous
and the alleged connivance between Atty. Cardenal and WILFREDO
lacks basis.
We disagree. The evidence on record is clear that petitioners committed
bad faith in the execution of the purported Deed of Absolute Sale of
Portion of Land dated December 7, 1989 between LORETO and
WILFREDO. As stated by the appellate court, viz.:
xxxx From the series of events, it can be reasonably inferred that
appellees WILFREDO, LORETO and Atty. Cardenal connived in
attempting to deprive appellants of Lot No. 1253-B, hence, the
appellants entitlement to moral damages. Further, it is a well-settled
rule that attorneys fees are allowed to be awarded if the claimant is
compelled to litigate with third persons or to incur expenses to protect
his interest by reason of an unjustified act or omission of the party for
whom it is sought. xxxx To protect themselves, the appellants engaged
the services of counsel and incurred expenses in the course of litigation.
Hence, we deem it equitable to award attorneys fees to the appellant
xxx.42
IN VIEW WHEREOF, the petition is DENIED. The assailed
Decision and Resolution of the Court of Appeals in CA-G.R. No. CV-
68318 dated March 19, 2003 and November 13, 2003, respectively, are
AFFIRMED in toto. Costs against petitioners.
SO ORDERED.
.R. No. 154486 December 1, 2010
FEDERICO JARANTILLA, JR., Petitioner,
vs.
ANTONIETA JARANTILLA, BUENAVENTURA REMOTIGUE,
substituted by CYNTHIA REMOTIGUE, DOROTEO
JARANTILLA and TOMAS JARANTILLA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
This petition for review on certiorari1 seeks to modify the Decision2 of
the Court of Appeals dated July 30, 2002 in CA-G.R. CV No. 40887,
which set aside the Decision3 dated December 18, 1992 of the Regional
Trial Court (RTC) of Quezon City, Branch 98 in Civil Case No. Q-
50464.
The pertinent facts are as follows:
The spouses Andres Jarantilla and Felisa Jaleco were survived by eight
children: Federico, Delfin, Benjamin, Conchita, Rosita, Pacita, Rafael
and Antonieta.4 Petitioner Federico Jarantilla, Jr. is the grandchild of
the late Jarantilla spouses by their son Federico Jarantilla, Sr. and his
wife Leda Jamili.5 Petitioner also has two other brothers: Doroteo and
Tomas Jarantilla.
Petitioner was one of the defendants in the complaint before the RTC
while Antonieta Jarantilla, his aunt, was the plaintiff therein. His co-
respondents before he joined his aunt Antonieta in her complaint, were
his late aunt Conchita Jarantillas husband Buenaventura Remotigue,
who died during the pendency of the case, his cousin Cynthia
Remotigue, the adopted daughter of Conchita Jarantilla and
Buenaventura Remotigue, and his brothers Doroteo and Tomas
Jarantilla.6
In 1948, the Jarantilla heirs extrajudicially partitioned amongst
themselves the real properties of their deceased parents.7 With the
exception of the real property adjudicated to Pacita Jarantilla, the heirs
also agreed to allot the produce of the said real properties for the years
1947-1949 for the studies of Rafael and Antonieta Jarantilla.8
In the same year, the spouses Rosita Jarantilla and Vivencio Deocampo
entered into an agreement with the spouses Buenaventura Remotigue
and Conchita Jarantilla to provide mutual assistance to each other by
way of financial support to any commercial and agricultural activity on
a joint business arrangement. This business relationship proved to be
successful as they were able to establish a manufacturing and trading
business, acquire real properties, and construct buildings, among other
things.9 This partnership ended in 1973 when the parties, in an
"Agreement,"10 voluntarily agreed to completely dissolve their "joint
business relationship/arrangement."11
On April 29, 1957, the spouses Buenaventura and Conchita Remotigue
executed a document wherein they acknowledged that while registered
only in Buenaventura Remotigues name, they were not the only
owners of the capital of the businesses Manila Athletic Supply (712
Raon Street, Manila), Remotigue Trading (Calle Real, Iloilo City) and
Remotigue Trading (Cotabato City). In this same "Acknowledgement
of Participating Capital," they stated the participating capital of their
co-owners as of the year 1952, with Antonieta Jarantillas stated as
eight thousand pesos (8,000.00) and Federico Jarantilla, Jr.s as five
The present case stems from the amended complaint13 dated April 22,
1987 filed by Antonieta Jarantilla against Buenaventura Remotigue,
Cynthia Remotigue, Federico Jarantilla, Jr., Doroteo Jarantilla and
Tomas Jarantilla, for the accounting of the assets and income of the co-
ownership, for its partition and the delivery of her share corresponding
to eight percent (8%), and for damages. Antonieta claimed that in 1946,
she had entered into an agreement with Conchita and Buenaventura
Remotigue, Rafael Jarantilla, and Rosita and Vivencio Deocampo to
engage in business. Antonieta alleged that the initial contribution of
property and money came from the heirs inheritance, and her
subsequent annual investment of seven thousand five hundred pesos
(7,500.00) as additional capital came from the proceeds of her farm.
Antonieta also alleged that from 1946-1969, she had helped in the
management of the business they co-owned without receiving any
salary. Her salary was supposedly rolled back into the business as
additional investments in her behalf. Antonieta further claimed co-
ownership of certain properties14 (the subject real properties) in the
name of the defendants since the only way the defendants could have
purchased these properties were through the partnership as they had no
other source of income.
The respondents, including petitioner herein, in their Answer,15 denied
having formed a partnership with Antonieta in 1946. They claimed that
she was in no position to do so as she was still in school at that time. In
fact, the proceeds of the lands they partitioned were devoted to her
studies. They also averred that while she may have helped in the
businesses that her older sister Conchita had formed with Buenaventura
Remotigue, she was paid her due salary. They did not deny the
existence and validity of the "Acknowledgement of Participating
Capital" and in fact used this as evidence to support their claim that
Antonietas 8% share was limited to the businesses enumerated therein.
With regard to Antonietas claim in their other corporations and
businesses, the respondents said these should also be limited to the
number of her shares as specified in the respective articles of
incorporation. The respondents denied using the partnerships income
to purchase the subject real properties and said that the certificates of
title should be binding on her.16
During the course of the trial at the RTC, petitioner Federico Jarantilla,
Jr., who was one of the original defendants, entered into a compromise
agreement17 with Antonieta Jarantilla wherein he supported Antonietas
claims and asserted that he too was entitled to six percent (6%) of the
supposed partnership in the same manner as Antonieta was. He prayed
for a favorable judgment in this wise:
Defendant Federico Jarantilla, Jr., hereby joins in plaintiffs prayer for
an accounting from the other defendants, and the partition of the
properties of the co-ownership and the delivery to the plaintiff and to
defendant Federico Jarantilla, Jr. of their rightful share of the assets and
properties in the co-ownership.181avvphi1
The RTC, in an Order19 dated March 25, 1992, approved the Joint
Motion to Approve Compromise Agreement20and on December 18,
1992, decided in favor of Antonieta, to wit:
WHEREFORE, premises above-considered, the Court renders
judgment in favor of the plaintiff Antonieta Jarantilla and against
defendants Cynthia Remotigue, Doroteo Jarantilla and Tomas Jarantilla
ordering the latter:
1. to deliver to the plaintiff her 8% share or its equivalent
amount on the real properties covered by TCT Nos. 35655,
338398, 338399 & 335395, all of the Registry of Deeds of
Quezon City; TCT Nos. (18303)23341, 142882 &
490007(4615), all of the Registry of Deeds of Rizal; and TCT
No. T-6309 of the Registry of Deeds of Cotabato based on
their present market value;
2. to deliver to the plaintiff her 8% share or its equivalent
amount on the Remotigue Agro-Industrial Corporation,
Manila Athletic Supply, Inc., MAS Rubber Products, Inc. and
Buendia Recapping Corporation based on the shares of stocks
present book value;
3. to account for the assets and income of the co-ownership
and deliver to plaintiff her rightful share thereof equivalent to
8%;
4. to pay plaintiff, jointly and severally, the sum of
50,000.00 as moral damages;
5. to pay, jointly and severally, the sum of 50,000.00 as
attorneys fees; and
6. to pay, jointly and severally, the costs of the suit. 21
Both the petitioner and the respondents appealed this decision to the
Court of Appeals. The petitioner claimed that the RTC "erred in not
rendering a complete judgment and ordering the partition of the co-
ownership and giving to [him] six per centum (6%) of the properties."22
While the Court of Appeals agreed to some of the RTCs factual
findings, it also established that Antonieta Jarantilla was not part of the
partnership formed in 1946, and that her 8% share was limited to the
businesses enumerated in the Acknowledgement of Participating
Capital. On July 30, 2002, the Court of Appeals rendered the herein
challenged decision setting aside the RTCs decision, as follows:
WHEREFORE, the decision of the trial court, dated 18 December 1992
is SET ASIDE and a new one is hereby entered ordering that:
(1) after accounting, plaintiff Antonieta Jarantilla be given
her share of 8% in the assets and profits of Manila Athletic
Supply, Remotigue Trading in Iloilo City and Remotigue
Trading in Cotabato City;
(2) after accounting, defendant Federico Jarantilla, Jr. be
given his share of 6% of the assets and profits of the above-
mentioned enterprises; and, holding that
(3) plaintiff Antonieta Jarantilla is a stockholder in the
following corporations to the extent stated in their Articles of
Incorporation:
(a) Rural Bank of Barotac Nuevo, Inc.;
(b) MAS Rubber Products, Inc.;
(c) Manila Athletic Supply, Inc.; and
(d) B. Remotigue Agro-Industrial Development
Corp.
(4) No costs.23
The respondents, on August 20, 2002, filed a Motion for Partial
Reconsideration but the Court of Appeals denied this in a
Resolution24 dated March 21, 2003.
Antonieta Jarantilla filed before this Court her own petition for review
on certiorari25 dated September 16, 2002, assailing the Court of
Appeals decision on "similar grounds and similar assignments of
errors as this present case"26 but it was dismissed on November 20,
2002 for failure to file the appeal within the reglementary period of
fifteen (15) days in accordance with Section 2, Rule 45 of the Rules of
Court.27
Petitioner filed before us this petition for review on the sole ground
that:
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN
NOT RULING THAT PETITIONER FEDERICO JARANTILLA, JR.
IS ENTITLED TO A SIX PER CENTUM (6%) SHARE OF THE
OWNERSHIP OF THE REAL PROPERTIES ACQUIRED BY THE
OTHER DEFENDANTS USING COMMON FUNDS FROM THE
BUSINESSES WHERE HE HAD OWNED SUCH SHARE.28
Petitioner asserts that he was in a partnership with the Remotigue
spouses, the Deocampo spouses, Rosita Jarantilla, Rafael Jarantilla,
Antonieta Jarantilla and Quintin Vismanos, as evidenced by the
Acknowledgement of Participating Capital the Remotigue spouses
executed in 1957. He contends that from this partnership, several other
corporations and businesses were established and several real
properties were acquired. In this petition, he is essentially asking for his
6% share in the subject real properties. He is relying on the
Acknowledgement of Participating Capital, on his own testimony, and
Antonieta Jarantillas testimony to support this contention.
The core issue is whether or not the partnership subject of the
Acknowledgement of Participating Capital funded the subject real
properties. In other words, what is the petitioners right over these real
properties?
It is a settled rule that in a petition for review on certiorari under Rule
45 of the Rules of Civil Procedure, only questions of law may be raised
by the parties and passed upon by this Court.29
A question of law arises when there is doubt as to what the law is on a
certain state of facts, while there is a question of fact when the doubt
arises as to the truth or falsity of the alleged facts. For a question to be
one of law, the same must not involve an examination of the probative
value of the evidence presented by the litigants or any of them. The
resolution of the issue must rest solely on what the law provides on the
given set of circumstances. Once it is clear that the issue invites a
review of the evidence presented, the question posed is one of fact.
Thus, the test of whether a question is one of law or of fact is not the
appellation given to such question by the party raising the same; rather,
it is whether the appellate court can determine the issue raised without
reviewing or evaluating the evidence, in which case, it is a question of
law; otherwise it is a question of fact.30
Since the Court of Appeals did not fully adopt the factual findings of
the RTC, this Court, in resolving the questions of law that are now in
issue, shall look into the facts only in so far as the two courts a quo
differed in their appreciation thereof.
The RTC found that an unregistered partnership existed since 1946
which was affirmed in the 1957 document, the "Acknowledgement of
Participating Capital." The RTC used this as its basis for giving
Antonieta Jarantilla an 8% share in the three businesses listed therein
and in the other businesses and real properties of the respondents as
they had supposedly acquired these through funds from the
partnership.31
The Court of Appeals, on the other hand, agreed with the RTC as to
Antonietas 8% share in the business enumerated in the
Acknowledgement of Participating Capital, but not as to her share in
the other corporations and real properties. The Court of Appeals ruled
that Antonietas claim of 8% is based on the "Acknowledgement of
Participating Capital," a duly notarized document which was specific as
to the subject of its coverage. Hence, there was no reason to pattern her
share in the other corporations from her share in the partnerships
businesses. The Court of Appeals also said that her claim in the
respondents real properties was more "precarious" as these were all
covered by certificates of title which served as the best evidence as to
all the matters contained therein.32 Since petitioners claim was
essentially the same as Antonietas, the Court of Appeals also ruled that
petitioner be given his 6% share in the same businesses listed in the
Acknowledgement of Participating Capital.
Factual findings of the trial court, when confirmed by the Court of
Appeals, are final and conclusive except in the following cases: (1)
when the inference made is manifestly mistaken, absurd or impossible;
(2) when there is a grave abuse of discretion; (3) when the finding is
grounded entirely on speculations, surmises or conjectures; (4) when
the judgment of the Court of Appeals is based on misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when the Court
of Appeals, in making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both appellant and
appellee; (7) when the findings of the Court of Appeals are contrary to
those of the trial court; (8) when the findings of fact are conclusions
without citation of specific evidence on which they are based; (9) when
the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly considered, would justify
a different conclusion; and (10) when the findings of fact of the Court
of Appeals are premised on the absence of evidence and are
contradicted by the evidence on record.33
In this case, we find no error in the ruling of the Court of Appeals.
Both the petitioner and Antonieta Jarantilla characterize their
relationship with the respondents as a co-ownership, but in the same
breath, assert that a verbal partnership was formed in 1946 and was
affirmed in the 1957 Acknowledgement of Participating Capital.
There is a co-ownership when an undivided thing or right belongs to
different persons.34 It is a partnership when two or more persons bind
themselves to contribute money, property, or industry to a common
fund, with the intention of dividing the profits among themselves. 35 The
Court, in Pascual v. The Commissioner of Internal Revenue, 36 quoted
the concurring opinion of Mr. Justice Angelo Bautista in Evangelista v.
The Collector of Internal Revenue37 to further elucidate on the
distinctions between a co-ownership and a partnership, to wit:
I wish however to make the following observation: Article 1769 of the
new Civil Code lays down the rule for determining when a transaction
should be deemed a partnership or a co-ownership. Said article
paragraphs 2 and 3, provides;
(2) Co-ownership or co-possession does not itself establish a
partnership, whether such co-owners or co-possessors do or
do not share any profits made by the use of the property;
(3) The sharing of gross returns does not of itself establish a
partnership, whether or not the persons sharing them have a
joint or common right or interest in any property from which
the returns are derived;
From the above it appears that the fact that those who agree to form a
co- ownership share or do not share any profits made by the use of the
property held in common does not convert their venture into a
partnership. Or the sharing of the gross returns does not of itself
establish a partnership whether or not the persons sharing therein have
a joint or common right or interest in the property. This only means
that, aside from the circumstance of profit, the presence of other
elements constituting partnership is necessary, such as the clear intent
to form a partnership, the existence of a juridical personality different
from that of the individual partners, and the freedom to transfer or
assign any interest in the property by one with the consent of the
others.
It is evident that an isolated transaction whereby two or more persons
contribute funds to buy certain real estate for profit in the absence of
other circumstances showing a contrary intention cannot be considered
a partnership.
Persons who contribute property or funds for a common enterprise and
agree to share the gross returns of that enterprise in proportion to their
contribution, but who severally retain the title to their respective
contribution, are not thereby rendered partners. They have no common
stock or capital, and no community of interest as principal proprietors
in the business itself which the proceeds derived.
A joint purchase of land, by two, does not constitute a co-partnership in
respect thereto; nor does an agreement to share the profits and losses on
the sale of land create a partnership; the parties are only tenants in
common.
Where plaintiff, his brother, and another agreed to become owners of a
single tract of realty, holding as tenants in common, and to divide the
profits of disposing of it, the brother and the other not being entitled to
share in plaintiffs commission, no partnership existed as between the
three parties, whatever their relation may have been as to third parties.
In order to constitute a partnership inter sese there must be: (a) An
intent to form the same; (b) generally participating in both profits and
losses; (c) and such a community of interest, as far as third persons are
concerned as enables each party to make contract, manage the
business, and dispose of the whole property. x x x.
The common ownership of property does not itself create a partnership
between the owners, though they may use it for the purpose of making
gains; and they may, without becoming partners, agree among
themselves as to the management, and use of such property and the
application of the proceeds therefrom.38 (Citations omitted.)
Under Article 1767 of the Civil Code, there are two essential elements
in a contract of partnership: (a) an agreement to contribute money,
property or industry to a common fund; and (b) intent to divide the
profits among the contracting parties. The first element is undoubtedly
present in the case at bar, for, admittedly, all the parties in this case
have agreed to, and did, contribute money and property to a common
fund. Hence, the issue narrows down to their intent in acting as they
did.39 It is not denied that all the parties in this case have agreed to
contribute capital to a common fund to be able to later on share its
profits. They have admitted this fact, agreed to its veracity, and even
submitted one common documentary evidence to prove such
partnership - the Acknowledgement of Participating Capital.
As this case revolves around the legal effects of the Acknowledgement
of Participating Capital, it would be instructive to examine the pertinent
portions of this document:
ACKNOWLEDGEMENT OF
PARTICIPATING CAPITAL
KNOW ALL MEN BY THESE PRESENTS:
That we, the spouses Buenaventura Remotigue and Conchita Jarantilla
de Remotigue, both of legal age, Filipinos and residents of Loyola
Heights, Quezon City, P.I. hereby state:
That the Manila Athletic Supply at 712 Raon, Manila, the Remotigue
Trading of Calle Real, Iloilo City and the Remotigue Trading, Cotabato
Branch, Cotabato, P.I., all dealing in athletic goods and equipments,
and general merchandise are recorded in their respective books with
Buenaventura Remotigue as the registered owner and are being
operated by them as such:
That they are not the only owners of the capital of the three
establishments and their participation in the capital of the three
establishments together with the other co-owners as of the year 1952
are stated as follows:
1. Buenaventura Remotigue (TWENTY-FIVE
THOUSAND)25,000.00
2. Conchita Jarantilla de Remotigue (TWENTY-FIVE THOUSAND)
25,000.00
3. Vicencio Deocampo (FIFTEEN THOUSAND) 15,000.00
4. Rosita J. Deocampo (FIFTEEN THOUSAND).... 15,000.00
5. Antonieta Jarantilla (EIGHT THOUSAND).. 8,000.00
6. Rafael Jarantilla (SIX THOUSAND).. ... 6,000.00
7. Federico Jarantilla, Jr. (FIVE THOUSAND).. 5,000.00
8. Quintin Vismanos (TWO THOUSAND)... 2,000.00
That aside from the persons mentioned in the next preceding paragraph,
no other person has any interest in the above-mentioned three
establishments.
IN WITNESS WHEREOF, they sign this instrument in the City of
Manila, P.I., this 29th day of April, 1957.
[Sgd.]
BUENAVENTURA REMOTIGUE
[Sgd.]
CONCHITA JARANTILLA DE REMOTIGUE40
The Acknowledgement of Participating Capital is a duly notarized
document voluntarily executed by Conchita Jarantilla-Remotigue and
Buenaventura Remotigue in 1957. Petitioner does not dispute its
contents and is actually relying on it to prove his participation in the
partnership. Article 1797 of the Civil Code provides:
Art. 1797. The losses and profits shall be distributed in conformity with
the agreement. If only the share of each partner in the profits has been
agreed upon, the share of each in the losses shall be in the same
proportion.
In the absence of stipulation, the share of each partner in the profits and
losses shall be in proportion to what he may have contributed, but the
industrial partner shall not be liable for the losses. As for the profits, the
industrial partner shall receive such share as may be just and equitable
under the circumstances. If besides his services he has contributed
capital, he shall also receive a share in the profits in proportion to his
capital. (Emphases supplied.)
It is clear from the foregoing that a partner is entitled only to his share
as agreed upon, or in the absence of any such stipulations, then to his
share in proportion to his contribution to the partnership. The petitioner
himself claims his share to be 6%, as stated in the Acknowledgement of
Participating Capital. However, petitioner fails to realize that this
document specifically enumerated the businesses covered by the
partnership: Manila Athletic Supply, Remotigue Trading in Iloilo City
and Remotigue Trading in Cotabato City. Since there was a clear
agreement that the capital the partners contributed went to the three
businesses, then there is no reason to deviate from such agreement and
go beyond the stipulations in the document. Therefore, the Court of
Appeals did not err in limiting petitioners share to the assets of the
businesses enumerated in the Acknowledgement of Participating
Capital.
In Villareal v. Ramirez,41 the Court held that since a partnership is a
separate juridical entity, the shares to be paid out to the partners is
necessarily limited only to its total resources, to wit:
Since it is the partnership, as a separate and distinct entity, that must
refund the shares of the partners, the amount to be refunded is
necessarily limited to its total resources. In other words, it can only pay
out what it has in its coffers, which consists of all its assets. However,
before the partners can be paid their shares, the creditors of the
partnership must first be compensated. After all the creditors have been
paid, whatever is left of the partnership assets becomes available for the
payment of the partners shares.42
There is no evidence that the subject real properties were assets of the
partnership referred to in the Acknowledgement of Participating
Capital.
The petitioner further asserts that he is entitled to respondents
properties based on the concept of trust. He claims that since the
subject real properties were purchased using funds of the partnership,
wherein he has a 6% share, then "law and equity mandates that he
should be considered as a co-owner of those properties in such
proportion."43 In Pigao v. Rabanillo,44 this Court explained the concept
of trusts, to wit:
Express trusts are created by the intention of the trustor or of the
parties, while implied trusts come into being by operation of law, either
through implication of an intention to create a trust as a matter of law
or through the imposition of the trust irrespective of, and even contrary
to, any such intention. In turn, implied trusts are either resulting or
constructive trusts. Resulting trusts are based on the equitable doctrine
that valuable consideration and not legal title determines the equitable
title or interest and are presumed always to have been contemplated by
the parties. They arise from the nature or circumstances of the
consideration involved in a transaction whereby one person thereby
becomes invested with legal title but is obligated in equity to hold his
legal title for the benefit of another.45
On proving the existence of a trust, this Court held that:
Respondent has presented only bare assertions that a trust was created.
Noting the need to prove the existence of a trust, this Court has held
thus:
"As a rule, the burden of proving the existence of a trust is on the party
asserting its existence, and such proof must be clear and satisfactorily
show the existence of the trust and its elements. While implied trusts
may be proved by oral evidence, the evidence must be trustworthy and
received by the courts with extreme caution, and should not be made to
rest on loose, equivocal or indefinite declarations. Trustworthy
evidence is required because oral evidence can easily be fabricated." 46
The petitioner has failed to prove that there exists a trust over the
subject real properties. Aside from his bare allegations, he has failed to
show that the respondents used the partnerships money to purchase the
said properties. Even assuming arguendo that some partnership income
was used to acquire these properties, the petitioner should have
successfully shown that these funds came from his share in the
partnership profits. After all, by his own admission, and as stated in the
Acknowledgement of Participating Capital, he owned a mere 6% equity
in the partnership.
In essence, the petitioner is claiming his 6% share in the subject real
properties, by relying on his own self-serving testimony and the equally
biased testimony of Antonieta Jarantilla. Petitioner has not presented
evidence, other than these unsubstantiated testimonies, to prove that the
respondents did not have the means to fund their other businesses and
real properties without the partnerships income. On the other hand, the
respondents have not only, by testimonial evidence, proven their case
against the petitioner, but have also presented sufficient documentary
evidence to substantiate their claims, allegations and defenses. They
presented preponderant proof on how they acquired and funded such
properties in addition to tax receipts and tax declarations.47 It has been
held that "while tax declarations and realty tax receipts do not
conclusively prove ownership, they may constitute strong evidence of
ownership when accompanied by possession for a period sufficient for
prescription."48 Moreover, it is a rule in this jurisdiction that testimonial
evidence cannot prevail over documentary evidence.49 This Court had
on several occasions, expressed our disapproval on using mere self-
serving testimonies to support ones claim. In Ocampo v. Ocampo, 50 a
case on partition of a co-ownership, we held that:
Petitioners assert that their claim of co-ownership of the property was
sufficiently proved by their witnesses -- Luisa Ocampo-Llorin and
Melita Ocampo. We disagree. Their testimonies cannot prevail over the
array of documents presented by Belen. A claim of ownership cannot
be based simply on the testimonies of witnesses; much less on those of
interested parties, self-serving as they are.51
It is true that a certificate of title is merely an evidence of ownership or
title over the particular property described therein. Registration in the
Torrens system does not create or vest title as registration is not a mode
of acquiring ownership; hence, this cannot deprive an aggrieved party
of a remedy in law.52 However, petitioner asserts ownership over
portions of the subject real properties on the strength of his own
admissions and on the testimony of Antonieta Jarantilla.1avvphi1 As
held by this Court in Republic of the Philippines v. Orfinada, Sr. 53:
Indeed, a Torrens title is generally conclusive evidence of ownership of
the land referred to therein, and a strong presumption exists that a
Torrens title was regularly issued and valid. A Torrens title is
incontrovertible against any informacion possessoria, of other title
existing prior to the issuance thereof not annotated on the Torrens title.
Moreover, persons dealing with property covered by a Torrens
certificate of title are not required to go beyond what appears on its
face.54
As we have settled that this action never really was for partition of a
co-ownership, to permit petitioners claim on these properties is to
allow a collateral, indirect attack on respondents admitted titles. In the
words of the Court of Appeals, "such evidence cannot overpower the
conclusiveness of these certificates of title, more so since plaintiffs
[petitioners] claims amount to a collateral attack, which is prohibited
under Section 48 of Presidential Decree No. 1529, the Property
Registration Decree."55
SEC. 48. Certificate not subject to collateral attack. A certificate of
title shall not be subject to collateral attack. It cannot be altered,
modified, or cancelled except in a direct proceeding in accordance with
law.
This Court has deemed an action or proceeding to be "an attack on a
title when its objective is to nullify the title, thereby challenging the
judgment pursuant to which the title was decreed."56 In Aguilar v.
Alfaro,57 this Court further distinguished between a direct and an
indirect or collateral attack, as follows:
A collateral attack transpires when, in another action to obtain a
different relief and as an incident to the present action, an attack is
made against the judgment granting the title. This manner of attack is to
be distinguished from a direct attack against a judgment granting the
title, through an action whose main objective is to annul, set aside, or
enjoin the enforcement of such judgment if not yet implemented, or to
seek recovery if the property titled under the judgment had been
disposed of. x x x.
Petitioners only piece of documentary evidence is the
Acknowledgement of Participating Capital, which as discussed above,
failed to prove that the real properties he is claiming co-ownership of
were acquired out of the proceeds of the businesses covered by such
document. Therefore, petitioners theory has no factual or legal leg to
stand on.
WHEREFORE, the Petition is hereby DENIED and the Decision of the
Court of Appeals in CA-G.R. CV No. 40887, dated July 30, 2002
is AFFIRMED.
SO ORDERED.
G.R. No. 170829 November 20, 2006
PERLA G. PATRICIO, Petitioner,
vs.
MARCELINO G. DARIO III and THE HONORABLE COURT
OF APPEALS, Second Division, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of
Court seeks to annul and set aside the Resolution of the Court of
Appeals dated December 9, 20051 in CA-G.R. CV No. 80680, which
dismissed the complaint for partition filed by petitioner for being
contrary to law and evidence.
On July 5, 1987, Marcelino V. Dario died intestate. He was survived by
his wife, petitioner Perla G. Patricio and their two sons, Marcelino
Marc Dario and private respondent Marcelino G. Dario III. Among the
properties he left was a parcel of land with a residential house and a
pre-school building built thereon situated at 91 Oxford corner Ermin
Garcia Streets in Cubao, Quezon City, as evidenced by Transfer
Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City
Registry of Deeds, covering an area of seven hundred fifty five (755)
square meters, more or less.2
On August 10, 1987, petitioner, Marcelino Marc and private
respondent, extrajudicially settled the estate of Marcelino V. Dario.
Accordingly, TCT No. RT-30731 (175992) was cancelled and TCT No.
R-213963 was issued in the names of petitioner, private respondent and
Marcelino Marc.
Thereafter, petitioner and Marcelino Marc formally advised private
respondent of their intention to partition the subject property and
terminate the co-ownership. Private respondent refused to partition the
property hence petitioner and Marcelino Marc instituted an action for
partition before the Regional Trial Court of Quezon City which was
docketed as Civil Case No. Q-01-44038 and raffled to Branch 78.
On October 3, 2002,3 the trial court ordered the partition of the subject
property in the following manner: Perla G. Patricio, 4/6; Marcelino
Marc G. Dario, 1/6; and Marcelino G. Dario III, 1/6. The trial court
also ordered the sale of the property by public auction wherein all
parties concerned may put up their bids. In case of failure, the subject
property should be distributed accordingly in the aforestated manner.4
Private respondent filed a motion for reconsideration which was denied
by the trial court on August 11, 2003,5 hence he appealed before the
Court of Appeals, which denied the same on October 19, 2005.
However, upon a motion for reconsideration filed by private respondent
on December 9, 2005, the appellate court partially reconsidered the
October 19, 2005 Decision. In the now assailed Resolution, the Court
of Appeals dismissed the complaint for partition filed by petitioner and
Marcelino Marc for lack of merit. It held that the family home should
continue despite the death of one or both spouses as long as there is a
minor beneficiary thereof. The heirs could not partition the property
unless the court found compelling reasons to rule otherwise. The
appellate court also held that the minor son of private respondent, who
is a grandson of spouses Marcelino V. Dario and Perla G. Patricio, was
a minor beneficiary of the family home.6
Hence, the instant petition on the following issues:
I.
THE HONORABLE COURT OF APPEALS PATENTLY
ERRED IN REVERSING ITS EARLIER DECISION OF
OCTOBER 19, 2005 WHICH AFFIRMED IN TOTO THE
DECISION OF THE TRIAL COURT DATED 03
OCTOBER 2002 GRANTING THE PARTITION AND
SALE BY PUBLIC AUCTION OF THE SUBJECT
PROPERTY.
II.
COROLLARILY, THE HONORABLE COURT OF
APPEALS PATENTLY ERRED IN APPLYING ARTICLE
159 IN RELATION TO ARTICLE 154 OF THE FAMILY
CODE ON FAMILY HOME INSTEAD OF ARTICLE 494
IN RELATION TO ARTICLES 495 AND 498 OF THE
NEW CIVIL CODE ON CO-OWNERSHIP.7
The sole issue is whether partition of the family home is proper where
one of the co-owners refuse to accede to such partition on the ground
that a minor beneficiary still resides in the said home.
Private respondent claims that the subject property which is the family
home duly constituted by spouses Marcelino and Perla Dario cannot be
partitioned while a minor beneficiary is still living therein namely, his
12-year-old son, who is the grandson of the decedent. He argues that as
long as the minor is living in the family home, the same continues as
such until the beneficiary becomes of age. Private respondent insists
that even after the expiration of ten years from the date of death of
Marcelino on July 5, 1987, i.e., even after July 1997, the subject
property continues to be considered as the family home considering
that his minor son, Marcelino Lorenzo R. Dario IV, who is a
beneficiary of the said family home, still resides in the premises.
On the other hand, petitioner alleges that the subject property remained
as a family home of the surviving heirs of the late Marcelino V. Dario
only up to July 5, 1997, which was the 10th year from the date of death
of the decedent. Petitioner argues that the brothers Marcelino Marc and
private respondent Marcelino III were already of age at the time of the
death of their father,8 hence there is no more minor beneficiary to speak
of.
The family home is a sacred symbol of family love and is the repository
of cherished memories that last during ones lifetime.9 It is the dwelling
house where husband and wife, or by an unmarried head of a family,
reside, including the land on which it is situated.10 It is constituted
jointly by the husband and the wife or by an unmarried head of a
family.11 The family home is deemed constituted from the time it is
occupied as a family residence. From the time of its constitution and so
long as any of its beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced sale or
attachment except as hereinafter provided and to the extent of the value
allowed by law.12
The law explicitly provides that occupancy of the family home either
by the owner thereof or by "any of its beneficiaries" must be actual.
That which is "actual" is something real, or actually existing, as
opposed to something merely possible, or to something which is
presumptive or constructive. Actual occupancy, however, need not be
by the owner of the house specifically. Rather, the property may be
occupied by the "beneficiaries" enumerated in Article 154 of the
Family Code, which may include the in-laws where the family home is
constituted jointly by the husband and wife. But the law definitely
excludes maids and overseers. They are not the beneficiaries
contemplated by the Code.13
Article 154 of the Family Code enumerates who are the beneficiaries of
a family home: (1) The husband and wife, or an unmarried person who
is the head of a family; and (2) Their parents, ascendants, descendants,
brothers and sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and who depend upon
the head of the family for legal support.
To be a beneficiary of the family home, three requisites must concur:
(1) they must be among the relationships enumerated in Art. 154 of the
Family Code; (2) they live in the family home; and (3) they are
dependent for legal support upon the head of the family.
Moreover, Article 159 of the Family Code provides that the family
home shall continue despite the death of one or both spouses or of the
unmarried head of the family for a period of 10 years or for as long as
there is a minor beneficiary, and the heirs cannot partition the same
unless the court finds compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted the family
home.
Article 159 of the Family Code applies in situations where death occurs
to persons who constituted the family home.1wphi1 Dr. Arturo M.
Tolentino comments on the effect of death of one or both spouses or the
unmarried head of a family on the continuing existence of the family
home:
Upon the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the
constitution of his or her separate property as family home, the property
will remain as family home for ten years or for as long as there is a
minor beneficiary living in it. If there is no more beneficiary left at the
time of death, we believe the family home will be dissolved or cease,
because there is no more reason for its existence. If there are
beneficiaries who survive living in the family home, it will continue
for ten years, unless at the expiration of the ten years, there is still a
minor beneficiary, in which case the family home continues until that
beneficiary becomes of age.
After these periods lapse, the property may be partitioned by the heirs.
May the heirs who are beneficiaries of the family home keep it intact
by not partitioning the property after the period provided by this
article? We believe that although the heirs will continue in ownership
by not partitioning the property, it will cease to be a family
home.14 (Emphasis supplied)
Prof. Ernesto L. Pineda further explains the import of Art. 159 in this
manner:
The family home shall continue to exist despite the death of one or both
spouses or of the unmarried head of the family. Thereafter, the length
of its continued existence is dependent upon whether there is still a
minor-beneficiary residing therein. For as long as there is one
beneficiary even if the head of the family or both spouses are already
dead, the family home will continue to exist (Arts. 153, 159). If there
is no minor-beneficiary, it will subsist until 10 years and within this
period, the heirs cannot partition the same except when there are
compelling reasons which will justify the partition. This rule applies
regardless of whoever owns the property or who constituted the family
home.15 (Emphasis supplied)
The rule in Article 159 of the Family Code may thus be expressed in
this wise: If there are beneficiaries who survive and are living in the
family home, it will continue for 10 years, unless at the expiration of 10
years, there is still a minor beneficiary, in which case the family home
continues until that beneficiary becomes of age.
It may be deduced from the view of Dr. Tolentino that as a general rule,
the family home may be preserved for a minimum of 10 years
following the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the
constitution of his or her separate property as family home. After 10
years and a minor beneficiary still lives therein, the family home shall
be preserved only until that minor beneficiary reaches the age of
majority. The intention of the law is to safeguard and protect the
interests of the minor beneficiaryuntil he reaches legal age and would
now be capable of supporting himself. However, three requisites must
concur before a minor beneficiary is entitled to the benefits of Art. 159:
(1) the relationship enumerated in Art. 154 of the Family Code; (2)
they live in the family home, and (3) they are dependent for legal
support upon the head of the family.
Thus, the issue for resolution now is whether Marcelino Lorenzo R.
Dario IV, the minor son of private respondent, can be considered as a
beneficiary under Article 154 of the Family Code.
As to the first requisite, the beneficiaries of the family home are: (1)
The husband and wife, or an unmarried person who is the head of a
family; and (2) Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or illegitimate. The term
"descendants" contemplates all descendants of the person or persons
who constituted the family home without distinction; hence, it must
necessarily include the grandchildren and great grandchildren of the
spouses who constitute a family home. Ubi lex non distinguit nec nos
distinguire debemos. Where the law does not distinguish, we should not
distinguish. Thus, private respondents minor son, who is also the
grandchild of deceased Marcelino V. Dario satisfies the first requisite.
As to the second requisite, minor beneficiaries must be actually living
in the family home to avail of the benefits derived from Art. 159.
Marcelino Lorenzo R. Dario IV, also known as Ino, the son of private
respondent and grandson of the decedent Marcelino V. Dario, has been
living in the family home since 1994, or within 10 years from the death
of the decedent, hence, he satisfies the second requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario IV
cannot demand support from his paternal grandmother if he has parents
who are capable of supporting him. The liability for legal support falls
primarily on Marcelino Lorenzo R. Dario IVs parents, especially his
father, herein private respondent who is the head of his immediate
family. The law first imposes the obligation of legal support upon the
shoulders of the parents, especially the father, and only in their default
is the obligation imposed on the grandparents.
Marcelino Lorenzo R. Dario IV is dependent on legal support not from
his grandmother, but from his father.1wphi1 Thus, despite residing in
the family home and his being a descendant of Marcelino V. Dario,
Marcelino Lorenzo R. Dario IV cannot be considered as beneficiary
contemplated under Article 154 because he did not fulfill the third
requisite of being dependent on his grandmother for legal support. It is
his father whom he is dependent on legal support, and who must now
establish his own family home separate and distinct from that of his
parents, being of legal age.
Legal support, also known as family support, is that which is provided
by law, comprising everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and transportation, in keeping
with the financial capacity of the family.16 Legal support has the
following characteristics: (1) It is personal, based on family ties which
bind the obligor and the obligee; (2) It is intransmissible; (3) It cannot
be renounced; (4) It cannot be compromised; (5) It is free from
attachment or execution; (6) It is reciprocal; (7) It is variable in
amount.17
Professor Pineda is of the view that grandchildren cannot demand
support directly from their grandparents if they have parents
(ascendants of nearest degree) who are capable of supporting them.
This is so because we have to follow the order of support under Art.
199.18 We agree with this view.
The reasons behind Art. 199 as explained by Pineda and Tolentino: the
closer the relationship of the relatives, the stronger the tie that binds
them. Thus, the obligation to support under Art. 199 which outlines the
order of liability for support is imposed first upon the shoulders of the
closer relatives and only in their default is the obligation moved to the
next nearer relatives and so on.
There is no showing that private respondent is without means to
support his son; neither is there any evidence to prove that petitioner, as
the paternal grandmother, was willing to voluntarily provide for her
grandsons legal support. On the contrary, herein petitioner filed for the
partition of the property which shows an intention to dissolve the
family home, since there is no more reason for its existence after the
10-year period ended in 1997.
With this finding, there is no legal impediment to partition the subject
property.
The law does not encourage co-ownerships among individuals as
oftentimes it results in inequitable situations such as in the instant case.
Co-owners should be afforded every available opportunity to divide
their co-owned property to prevent these situations from arising.
As we ruled in Santos v. Santos,19 no co-owner ought to be compelled
to stay in a co-ownership indefinitely, and may insist on partition on
the common property at any time. An action to demand partition is
imprescriptible or cannot be barred by laches. Each co-owner may
demand at any time the partition of the common property.20
Since the parties were unable to agree on a partition, the court a
quo should have ordered a partition by commissioners pursuant to
Section 3, Rule 69 of the Rules of Court. Not more than three
competent and disinterested persons should be appointed as
commissioners to make the partition, commanding them to set off to
the plaintiff and to each party in interest such part and proportion of the
property as the court shall direct.
When it is made to appear to the commissioners that the real estate, or a
portion thereof, cannot be divided without great prejudice to the interest
of the parties, the court may order it assigned to one of the parties
willing to take the same, provided he pays to the other parties such sum
or sums of money as the commissioners deem equitable, unless one of
the parties interested ask that the property be sold instead of being so
assigned, in which case the court shall order the commissioners to sell
the real estate at public sale, and the commissioners shall sell the same
accordingly.21
The partition of the subject property should be made in accordance with
the rule embodied in Art. 996 of the Civil Code.22 Under the law of
intestate succession, if the widow and legitimate children survive, the
widow has the same share as that of each of the children. However,
since only one-half of the conjugal property which is owned by the
decedent is to be allocated to the legal and compulsory heirs (the other
half to be given exclusively to the surviving spouse as her conjugal
share of the property), the widow will have the same share as each of
her two surviving children. Hence, the respective shares of the subject
property, based on the law on intestate succession are: (1) Perla
Generosa Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6 and (3)
Marcelino G. Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals,23 we held that an action for
partition is at once an action for declaration of co-ownership and for
segregation and conveyance of a determinate portion of the properties
involved. If the court after trial should find the existence of co-
ownership among the parties, the court may and should order the
partition of the properties in the same action.24
WHEREFORE, the petition is GRANTED. The Resolution of the
Court of Appeals in CA-G.R. CV No. 80680 dated December 9, 2005,
is REVERSED and SET ASIDE. The case is REMANDED to the
Regional Trial Court of Quezon City, Branch 78, who is directed to
conduct a PARTITION BY COMMISSIONERS and effect the actual
physical partition of the subject property, as well as the improvements
that lie therein, in the following manner: Perla G. Dario, 4/6; Marcelino
Marc G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial court is
DIRECTED to appoint not more than three (3) competent and
disinterested persons, who should determine the technical metes and
bounds of the property and the proper share appertaining to each heir,
including the improvements, in accordance with Rule 69 of the Rules
of Court. When it is made to the commissioners that the real estate, or a
portion thereof, cannot be divided without great prejudice to the interest
of the parties, the court a quo may order it assigned to one of the parties
willing to take the same, provided he pays to the other parties such sum
or sums of money as the commissioners deem equitable, unless one of
the parties interested ask that the property be sold instead of being so
assigned, in which case the court shall order the commissioners to sell
the real estate at public sale, and the commissioners shall sell the same
accordingly, and thereafter distribute the proceeds of the sale
appertaining to the just share of each heir. No pronouncement as to
costs.
SO ORDERED.
G.R. No. 164277 October 8, 2014
FE U. QUIJANO, Petitioner, The respondent denied that his possession of the disputed portion had
vs. been by mere tolerance of Eliseo. He even asserted that he was in fact
the owner and lawful possessor of the property, having bought it from
ATTY. DARYLL A. AMANTE, Respondent. Eliseo; that the petitioner and her siblings could not deny knowing
about the sale in his favor because they could plainly see his house
DECISION from the road; and that the deed of absolute sale itself stated that the
sale to him was with their approval, and that they had already known
that his house and fence were existing; that before he purchased the
BERSAMIN, J.: property, Eliseo informed him that he and his co-heirs had already
orally partitioned the estate of their father, and that the portion being
sold to him was Eliseos share; and that with his having already
Where the plaintiff does not prove her alleged tolerance of the
purchased the property before the petitioner acquired it under the deed
defendant's occupation, the possession is deemed illegal from the
of extrajudicial partition, she should respect his ownership and
beginning. Hence, the action for unlawful detainer is an improper
possession of it.9
remedy. But the action cannot be considered as one for forcible entry
without any allegation in the complaint that the entry of the defendant
was by means of force, intimidation, threats, strategy or stealth. Judgment of the MTCC

Antecedents On February 5, 1996, the MTCC rendered its decision in favor of the
petitioner,10 ruling that the deeds of sale executed by Eliseo in favor of
the respondent did not have the effect of conveying the disputed
The petitioner and her siblings, namely: Eliseo, Jose and Gloria,
property to him inasmuch as at the time of the sale, the parcel of land
inherited from their father, the late Bibiano Quijano, the parcel of land
left by their father, which included the disputed property, had not yet
registered in the latter's name under Original Certificate of Title (OCT)
been partitioned, rendering Eliseo a mere co-owner of the undivided
No. 0-188 of the Registry of Deeds in Cebu City with an area of 15,790
estate who had no right to dispose of a definite portion thereof; that as a
square meters, more or less.1 On April 23, 1990, prior to any partition
co-owner, Eliseo effectively conveyed to the respondent only the
among the heirs, Eliseo sold a portion of his share, measuring 600
portion that would ultimately be allotted to him once the property
square meters, to respondent Atty. Daryll A. Amante (respondent), with
would be subdivided; that because the disputed property was
the affected portion being described in the deed of absolute sale Eliseo
adjudicated to the petitioner under the deed of extrajudicial settlement
executed in the following manner:
and partition, she was its owner with the consequent right of
possession; and that, as such, she had the right to demand that the
A portion of a parcel of land located at the back of the Pleasant Homes respondent vacate the land.
Subdivision and also at the back of Don Bosco Seminary, Punta
Princesa, Cebu City, to be taken from my share of the whole lot; the
The MTCC disposed as follows:
portion sold to Atty. Amante is only 600 square meters which is the
area near the boundary facing the Pleasant Homes Subdivision, Cebu
City.2 WHEREFORE, in view of all the foregoing premises, and on the basis
thereof, judgment is hereby rendered in favor of the plaintiff and
against the defendant, ordering the defendant; to:
On July 25, 1991, Eliseo, sickly and in need of money, sold an
additional 1/3 portion of his share inthe property to the respondent,
with their deed of absolute sale stating that the sale was with the 1) vacate from the portion, presently occupied by him and whereon his
approval of Eliseos siblings, and describing the portion subject of the building stands, of that parcel of land locatedin Cebu City covered by
sale as: TCT No. 6555 and registered in the nameof the plaintiff; and to remove
and/or demolish the building and all the structures that may have been
built on said portion;
That the portion covered under this transaction is Specifically located
right at the back of the seminary facing Japer Memorial School and
where the fence and house of Atty. Amante is located.3 2) pay the plaintiff the rentalof 1,000.00 a month for the portion in
litigation from November 21, 1994 until such time that the defendant
shall have vacated, and have removed all structures from said portion,
On September 30, 1992, Fe, Eliseo, Jose and Gloria executed a deed of
and have completely restored possession thereof to the plaintiff; and
extrajudicial partition to divide their fathers estate (consisting of the
aforementioned parcel of land) among themselves.4 Pursuant to the
deed extrajudicial partition, OCT No. O-188 was cancelled, and on July 3) pay unto the plaintiff the sum of 10,000.00 as attorneys fees; and
12, 1994 the Register of Deeds issued TransferCertificate of Title the sum of 5,000.00 for litigation expenses; and
(TCT) No. 6555, TCT No. 6556, TCT No. 6557 and TCT No. 65585 to
the petitioner, Gloria, Jose, and Eliseo, respectively. The partition
resulted in the portions earlier sold by Eliseo to the respondent being 4) to pay the costs of suit.
adjudicated to the petitioner instead of to Eliseo.6
SO ORDERED.11
Due to the petitioners needing her portion that was then occupied by
the respondent, she demanded that the latter vacate it. Despite several Decision of the RTC
demands, the last of which was by the letter dated November 4, 1994,7
the respondent refused to vacate, prompting her to file against him on
February 14, 1995 a complaint for ejectment and damages in the On appeal, the Regional Trial Court (RTC) reversed the judgment of
Municipal Trial Court in Cities of Cebu City (MTCC), docketed as the MTCC, and dismissed the complaint,12 holding that the summary
Civil Case No. R-34426.8 She alleged therein that she was the proceeding for ejectment was not proper because the serious question
registered owner of the parcel of land covered by TCT No. 6555, a of ownership of the disputed property was involved, viz:
portion of which was being occupied by the respondent, who had
constructed a residential building thereon by the mere tolerance of
Eliseo when the property she and her siblings had inherited from their In the case at bar, by virtue of the deed of absolute sale executed by
father had not yet been subdivided, and was thus still co-owned by Eliseo Quijano, one of the co-heirs of Fe Quijano, in 1990 and 1991,
them; and that the respondents occupation had become illegal the defendant Atty. Amante took possession of the portion in question
following his refusal to vacate despite repeated demands. and built his residential house thereat. Itwas only in 1992 that the heirs
of Bibiano Quijano executed the deed of extrajudicial partition, and
instead of giving to Eliseo Quijano the portion that he already sold to
the defendant, the same was adjudicated toplaintiff, Fe Quijano to the
great prejudice of the defendant herein who had been in possession of
the portion in question since 1990 and which possession is
notpossession de facto but possession de jure because it is based on 2
deeds of conveyances executed by Eliseo Quijano. There is, therefore, a
serious question of ownership involved which cannot be determined in
a summary proceeding for ejectment. Since the defendantis in
possession of the portion in question where his residential house is built
for several years, and before the extrajudicial partition, the possession
of the defendant, to repeat, is one of possession de jure and the plaintiff
cannot eject the defendant in a summary proceeding for ejectment
involving only possession de facto. What the plaintiff should have done
was to file an action publiciana or action reinvindicatoria before the
appropriate court for recovery of possession and ownership. However,
since there is a pending complaint for quieting of title filed by the
defendant against the plaintiff herein before the Regional Trial Court,
the matter of ownership should be finally resolved in said
proceedings.13 Undaunted, the petitioner moved for reconsideration,
but the RTC denied her motion on November 13, 1996.14
Decision of the CA
The petitioner appealed to the CA by petition for review.
On May 26, 2004, the CA promulgated its decision,15 affirming the
decision of the RTC, and dismissing the case for ejectment, but on the
ground that the respondent was either a co-owner or an assignee
holding the right of possession over the disputed property.
The CA observed that the RTC correctly dismissed the ejectment case
because a question of ownership over the disputed property was raised;
that the rule that inferior courts could pass upon the issue of ownership
to determine the question of possession was well settled; that the
institution of a separate action for quieting of title by the respondent did
not divest the MTCC of its authority to decide the ejectment case; that
Eliseo, as a coowner, had no right to sell a definite portion of the
undivided estate; that the deeds of sale Eliseo executed in favor of the
respondent were valid only with respect to the alienation of Eliseos
undivided share; that after the execution of the deeds of sale, the
respondent became a co-owner along with Eliseo and his co-heirs,
giving him the right toparticipate in the partition of the estate owned in
common by them; that because the respondent was not given any notice
of the project of partition or of the intention to effect the partition, the
partition made by the petitioner and her co-heirs did not bind him; and
that, as to him, the entire estate was still co-owned by the heirs, giving
him the right to the co-possession of the estate, including the disputed
portion.
Issues
The petitioner has come to the Court on appeal by certiorari,16
contending that the CA grossly erred in holding that the respondent was
either a co-owner or an assignee with the right of possession over the
disputed property.17
The petitioner explains that the respondent, being a lawyer, knew that
Eliseo could not validly transfer the ownership of the disputed property
to him because the disputed property was then still a part of the
undivided estate co-owned by all the heirs of the late Bibiano Quijano;
that the respondents knowledge of the defect in Eliseos title and his
failure to get the co-heirs consent to the sale in a registrable document
tainted his acquisition with bad faith; that being a buyer in bad faith,
the respondent necessarily became a possessor and builder in bad faith;
that she was not aware of the sale to the respondent, and it was her
ignorance of the sale that led her to believe that the respondent was
occupying the disputed property by the mere tolerance of Eliseo;
thatthe partition was clearly done in good faith; and that she was
entitled to the possession of the disputed property as its owner,
consequently giving her the right to recover it from the respondent.18
To be resolved is the issue ofwho between the petitioner and the
respondent had the better right to the possession of the disputed
property.
Ruling
The petition for review on certiorarilacks merit.
An ejectment case can be eitherfor forcible entry or unlawful detainer.
It is a summary proceeding designed to provide expeditious means to
protect the actual possession or the right to possession of the property
involved.19 The sole question for resolution in the case is the physical
or material possession (possession de facto)of the property in question,
and neither a claim of juridical possession (possession de jure)nor an
averment of ownership by the defendant can outrightly deprive the trial
court from taking due cognizance of the case. Hence,even if the
question of ownership is raised in the pleadings, like here, the court
may pass upon the issue but only to determine the question of
possession especially if the question of ownership is inseparably linked
with the question of possession.20 The adjudication of ownership in
that instance is merely provisional, and will not bar or prejudice an
action between the same parties involving the title to the property.21
Considering that the parties are both claiming ownership of the
disputed property, the CA properly ruled on the issue of ownership for
the sole purpose of determining who between them had the better right
to possess the disputed property.
The disputed property originally formed part of the estate of the late
Bibiano Quijano, and passed on to his heirs by operation of law upon
his death.22 Prior to the partition, the estate was owned in common by
the heirs, subject to the payment of the debts of the deceased.23 In a
co-ownership, the undivided thing or right belong to different persons,
with each of them holding the property pro indivisoand exercising her
rights over the whole property. Each co-owner may use and enjoy the
property with no other limitation than that he shall not injure the
interests of his co-owners. The underlying rationale is that until a
division is actually made, the respective share of each cannot be
determined, and every co-owner exercises, together with his co-
participants, joint ownership of the pro indiviso property, in addition to
his use and enjoyment of it.24
Even if an heirs right in the estate of the decedent has not yet been
fully settled and partitioned and is thus merely inchoate, Article 49325
of the Civil Codegives the heir the right to exercise acts of ownership.
Accordingly, when Eliseo sold the disputed property to the respondent
in 1990 and 1991, he was only a co-owner along with his siblings, and
could sell only that portion that would beallotted to him upon the
termination of the co-ownership. The sale did not vest ownership of the
disputed property in the respondent but transferred only the sellers pro
indiviso share to him, consequently making him, as the buyer, a co-
owner of the disputed property until it is partitioned.26
As Eliseos successor-in-interest or assignee, the respondent was vested
with the right under Article 497 of the Civil Codeto take part in the
partition of the estate and to challenge the partition undertaken without
his consent.27 Article 497 states:
Article 497. The creditors or assignees of the co-owners may take part
in the division of the thing owned in common and object to its being
effected without their concurrence. But they cannot impugn any
partition already executed, unless there has been fraud, or in case it was
made notwithstanding a formal opposition presented to prevent it,
without prejudice to the right of the debtor or assignor to maintain its
validity.
The respondent could not deny that at the time of the sale he knew that
the property he was buying was notexclusively owned by
Eliseo.1wphi1 He knew, too, that the co-heirs had entered into an oral
agreement of partition vis--vis the estate, such knowledge being Court would not be justified to treat this ejectment suit as one for
explicitly stated in his answer to the complaint, to wit: forcible entry because the complaint contained no allegation thathis
entry in the property had been by force, intimidation, threats, strategy
or stealth.
12. That defendant, before he acquired the land from Eliseo Quijano
was informed by the latter that the portion sold to him was his share
already; that they have orally partitioned the whole lot before defendant Regardless, the issue of possession between the parties will still remain.
acquired the portion from him.28 To finally resolve such issue,they should review their options and
decide on their proper recourses. In the meantime, it is wise for the
Court to leave the door open to them in that respect. For now, therefore,
His knowledge of Eliseos co-ownership with his co-heirs, and of their this recourse of the petitioner has to be dismissed.
oral agreement of partition notwithstanding, the respondent still did not
exercise his right under Article 497. Although Eliseo made it appear to
the respondent that the partition had already been completed and WHEREFORE, the Court AFFIRMS the decision promulgated on May
finalized, the co-heirs had not taken possession yet oftheir respective 26, 2004 subject to the MODIFICATION that the unlawful detainer
shares to signify that they had ratified their agreement, if any. For sure, action is dismissed for being an improper remedy; and ORDERS the
the respondent was no stranger to the Quijanos, because he himself had petitioner to pay the costs of suit.
served as the lawyer of Eliseo and the petitioner herself.29 In that
sense, it would have been easy for him to ascertain whether the
representation of Eliseo to him was true. As it turned out, there had SO ORDERED.
been no prior oral agreement among the heirs to partition the estate;
otherwise, Eliseo would have questioned the deed of extrajudicial
partition because it did not conform to what they had supposedly
agreed upon. Had the respondent been vigilant in protecting his
interest, he could have availed himself of the rights reserved to him by
law, particularly the right to take an active part in the partition and to
object to the partition if he wanted to. It was only on September 30,
1992, or two years and five months from the time of the first sale
transaction, and a year and two months from the time of the second sale
transaction, that the co-heirs executed the deed of extrajudicial
partition. Having been silent despite his ample opportunity to
participate in or toobject to the partition of the estate, the respondent
was bound by whatever was ultimately agreed upon by the Quijanos.

There is no question that the holder of a Torrens title is the rightful

owner of the property thereby covered and is entitled to its
possession.30 However, the Court cannot ignore thatthe statements in
the petitioners complaint about the respondents possession of the
disputed property being by the mere tolerance of Eliseo could be the
basis for unlawful detainer. Unlawful detainer involves the defendants
withholding of the possession of the property to which the plaintiff is
entitled, after the expiration or termination of the formers right tohold
possession under the contract, whether express or implied. A requisite
for a valid cause of action of unlawful detainer is that the possession
was originally lawful, but turned unlawful only upon the expiration of
the right to possess.

To show that the possession was initially lawful, the basis of such
lawful possession must then be established. With the averment here that
the respondents possession was by mere tolerance of the petitioner, the
acts of tolerance must be proved, for bare allegation of tolerance did
not suffice. At least, the petitioner should show the overt acts indicative
of her or her predecessors tolerance, or her co-heirs permission for
him to occupy the disputed property.31 But she did not adduce such
evidence. Instead, she appeared to be herself not clear and definite as to
his possession of the disputed property being merely tolerated by
Eliseo, as the following averment of her petition for review indicates:

6.9. Their ignorance of the said transaction of sale, particularly the

petitioner, as they were not duly informed by the vendor-co[-]owner
Eliseo Quijano, [led] them to believe that the respondents occupancy
of the subject premises was by mere tolerance of Eliseo, so that upon
partition of the whole property,said occupancy continued to be under
tolerance of the petitioner when the subject premises became a part of
the land adjudicated to the latter;32 (emphasis supplied) In contrast, the
respondent consistently stood firm on his assertion that his possession
of the disputed property was in the concept of an owner, not by the
mere tolerance of Eliseo, and actually presented the deeds of sale
transferring ownership of the property to him.33

Considering that the allegation ofthe petitioners tolerance of the

respondents possession of the disputed property was not established,
the possession could very well be deemed illegal from the beginning. In
that case, her action for unlawful detainer has to fail.34 Even so, the