Property Cases No.
8 Page |1
[No. 4656. November 18, 1912.]
Ricardo Pardell y Cruz and Vicenta Ortiz y Felin de Pardell, plaintiffs and
appellees, vs. Gaspar de Barto-lome y Escribano and Matilde Ortiz y Felin
de Bar-tolome, defendants and appellants.
1.Estates; Realty; Rights of Coowners or Tenants in Common.—Each co-owner or
tenant in common of undivided realty has the same rights therein as the others; he
may use and enjoy the same without other limitation except that he must not
prej-udice the rights of his coowners, but until a division is effected, the respective
parts belonging to each can not be determined; each coowner exercises joint
dominion and is entitled to joint use.
2.Id.; Id.; Id.; Rent by One Coowner.—For the use and enjoyment of a particular
portion of the lower part of a house, not used as living quarters, a coowner must, in
strict justice, pay rent, in like manner as other people pay for similar space in the
house; he has no right to the free use and enjoyment of such space which, if rented
to a third party, would produce income.
3.Id.; Id.; Id.; Repairs and Improvements; Interest.—Until a cause instituted to
determine the liability of the rest of the coowners for repairs and improvements made
by one of their number is finally decided and the amount due is fixed, the persons
alleged to be liable can not be considered in default as to interest, because interest is
only due from the date of the decision fixing- the principal liability. (Supreme court of
Spain, April 24, 1867, November 19, 1869, November 22, 1901, in connection with
arts. 1108-1110 of the Civil Code.)
4.Id.; Id.; Id.; Voluntary Administrator; Compensation.—To an administrator or
voluntary manager of property belonging to his wife and another, both coowners, the
property being undi-vided, the law does not concede any remuneration, without
prejudice to his right to be reimbursed for any necessary and useful expenditures in
connection with the property and for any damages he may have suffered thereby.
5.Id.; Id.; Id.; Right to Demand Valuation Before Division or Sale.—Any one of the
coowners of undivided property about to be divided or to be sold in consequence of a
mutual petition, has the right to ask that the property be valued by experts, a
val-uation which would not be prejudicial but rather beneficial to all.
APPEAL from a judgment of the Court of First Instance of Ilocos Sur. Chanco, J.
The facts are stated in the opinion of the court.
Gaspar de Bartolome, in his own behalf.
B. Gimenez Zoboli, for appellees.
TORRES, J.:
This is an appeal by bill of exceptions, from the judgment of October 5, 1907,
whereby the Honorable Dionisio Chanco, judge, absolved the defendants from the
complaint, and the plaintiff from a counterclaim, without special finding as to costs.
Counsel for the spouses Ricardo y Cruz and Vicente Ortiz y Felin de Pardell, the first
of whom, absent in Spain by reason of his employment, conferred upon the second
sufficient and ample powers to appear before the courts of justice, on June 8, 1905,
in his written complaint, alleged that the plaintiff, Vicente Ortiz, and the defendant,
Matilde Ortiz, are the duly recognized natural daughters of the spouses Miguel Ortiz
and Calixta Felin y Paula who died in Vigan, Ilocos Sur, in 1875 and 1882,
respectively; that Calixta Felin, prior to her death, executed on August 17, 1876, a
nuncupative will in Vigan whereby she made her four children, named Manuel,
Francisca, Vicenta, and Matilde, surnamed Ortiz y Felin, her sole and universal heirs
of all her property; that, of the persons enumerated, Manuel died before his mother
and Francisca a few years after her death, leaving no heirs by force of law, and
therefore the only existing heirs of the said testatrix are the plaintiff Vicenta Ortiz and
the defendant Matilde Ortiz; that, aside from some personal property and jewelry
already divided among the heirs, the testatrix possessed, at the time of the execution
of her will, and left at her death the real properties which, with their respective cash
values, are as follows:
1. A house of strong material, with the lot on which it is built,
P6,000.00
situated on Escolta Street, Vigan, and valued at
2. A house of mixed material, with the lot on which it stands,
1,500.00
at No. 88 Washington Street, Vigan; valued at
3. A lot on Magallanes Street, Vigan; valued at 100.00
4. A parcel of rice land, situated in the barrio of San Julian,
60.00
Vigan; valued at
5. A parcel of rice land in the pueblo of Santa Lucia; valued at 86.00
6. Three parcels of land in the pueblo of Candon; valued at 150.00
Total 7,896.00
That, on or about the first months of the year 1888, the defendants, without judicial
authorization, nor friendly or extrajudicial agreement, took upon themselves the
administration and enjoyment of the said properties and collected the rents, fruits,
and products thereof, to the serious detriment of the plaintiffs' interest; that,
notwithstanding the different and repeated demands extrajudicially made upon

Matilde Ortiz to divide the aforementioned properties with the plaintiff Vicente and to
deliver to the latter the one-half thereof, together with one-half of the fruits and rents
collected therefrom, the said defendant and her husband, the self-styled
administrator of the properties mentioned, had been delaying the partition and
delivery of the said properties by means of unkept promises and other excuses; and
that the plaintiffs, on account of the extraordinary delay in the delivery of one-half of
said properties, or their value in cash, as the case might be, had suffered losses and
damages in the sum of P8,000. Said counsel for the plaintiffs therefore asked that
judgment be rendered by sentencing the defendants, Gaspar de Bartolome, and
Matilde Ortiz Felin de Bartolome, to restore and deliver to the plaintiffs one-half of the
total value in cash, according to appraisal, of the undivided property specified, which
one-half amounted approximately to P3,948, or if deemed proper, to recognize the
plaintiff Vicenta Ortiz to be vested with the full and absolute right of ownership to the
said undivided one-half of the properties in question, as universal testamentary heir
thereof together with the defendant Matilde Ortiz, to indemnify the plaintiffs in the
sum of P8,000, for losses and damages, and to pay the costs.
Counsel for the defendants, in his answer denied the facts alleged in paragraphs 1, 4,
6, 7, and 8 thereof, inasmuch as, upon the death of the litigating sister's brother
Manuel, their mother, who was still living, was his heir by force of law, and the
defendants had never refused to give to the plaintiff Vicente Ortiz her share of the
said properties; and stated that he admitted the facts alleged in paragraph 2,
provided it be understood, however, that the surname of the defendant's mother was
Felin, and not Feliu, and that Miguel Ortiz died in Spain, and not in Vigan; that he
also admitted paragraph 3 of the complaint, with the difference that the said surname
should be Felin, and likewise paragraph 5, except the part thereof relating to the
personal property and the jewelry, since the latter had not yet been divided; that the
said jewelry was in the possession of the plaintiffs and consisted of: one Lozada gold
chronometer watch with a chain in the form of a bridle curb and a watch charm
consisting of the engraving of a postage stamp on a stone mounted in gold and
bearing the initials M. O., a pair of cuff buttons made of gold coins, four small gold
buttons, two finger rings, another with the initials M. O., and a gold bracelet; and
that the defendants were willing to deliver to the plaintiffs, in conformity with their
petitions, one-half of the total value in cash, according to appraisement, of the
undivided real properties specified in paragraph 5, which half amounted to P3,948.
In a special defense said counsel alleged that the defendants had never refused to
divide the said property and had in fact several years before solicited the partition of
the same; that, from 1886 to 1901, inclusive, there was collected from the property
on Calle Escolta the sum of 288 pesos, besides a few other small amounts derived
from other sources, which were delivered to the plaintiffs with other larger amounts,
in 1891, and from the property on Calle Washington, called La Quinta, 990.95 pesos,
which proceeds, added together, made a total of 1,278.95 pesos, saving error or
omission; that, between the years abovementioned, Escolta, and that on Calle
Washington, La Quinta, 376.33, which made a total of 1,141.71, saving error or
omission; that, in 1897, the work of reconstruction was begun of the house on Calle
Property Cases No. 8 Page |2
Escolta, which been destroyed by an earthquake, which work was not finished until
1903 and required an expenditure on the part of the defendant Matilde Ortiz, of
5,091.52 pesos; that all the collections made up to August 1, 1905, including the rent
from the stores, amounted to only P3,654.15, and the expenses, to P6,252.32, there
being, consequently, a balance of P2,598.17, which divided between the sisters, the
plaintiff and the defendant, would make the latter's share P1,299.08; that, as shown
by the papers kept by the plaintiffs, in the year 1891 the defendant Bartolome
presented to the plaintiffs a statement in settlements of accounts, and delivered to
the person duly authorized by the latter for the purpose, the sum of P2,606.29, which
the said settlement showed was owing his principals, from various sources; that, the
defendant Bartolome having been the administrator of the undivided property claimed
by the plaintiffs, the latter were owing the former legal remuneration of the
percentage allowed by law for administration; and that the defendants were willing to
pay the sum of P3,948, one-half of the total value of the said properties, deducting
therefrom the amount found to be owing them by the plaintiffs, and asked that
judgment be rendered in their favor to enable them to recover from the latter that
amount, together with the costs and expenses of the suit.
The defendants, in their counter claim, repeated each and all of the allegations
contained in each of the paragraphs of section 10 of their answer; that the plaintiffs
were obliged to pay to the administrator of the said property the remuneration
allowed him by law; that, as the revenues collected by the defendants amounted to
no more than P3,654.15 and the expenditures incurred by them, to P6,252.32, it
followed that the plaintiffs owed the defendants P1,299.08, that is one-half of the
difference between the amount collected from and that extended on the properties,
and asked that judgment be therefore rendered in their behalf to enable them to
collect this sum from the plaintiffs, Ricardo Pardell and Vicenta Ortiz, with legal
interest thereon from December 7, 1904, the date when the accounts were rendered,
together with the sums to which the defendant Bartolome was entitled for the
administration of the undivided properties in question.
By a written motion of August 21, 1905, counsel for the plaintiffs requested
permission to amend the complaint by inserting immediately after the words "or
respective appraisal," fifth line of paragraph 5, the phrase "in cash in accordance with
the assessed value," and likewise further to amend the same, in paragraph 6 thereof,
by substituting the following word in lieu of the petition for the remedy sought: "By
reason of all the foregoing, I beg the court to be pleased to render the judgment by
sentencing the defendants, Gaspar de Bartolome and Matilde Ortiz Felin de
Bartolome, to restore and deliver to the plaintiffs an exact one-half of the total vale of
the undivided properties described in the complaint, such value to be ascertained by
the expert appraisal of two competent persons, one of whom shall be appointed by
the plaintiffs and the other by the defendants, and, in case of disagreement between
these two appointees such value shall be determined by a third expert appraiser
appointed by the court, or, in a proper case, by the price offered at public auction; or,
in lieu thereof, it is requested that the court recognize the plaintiff, Vicenta Ortiz, to
be vested with a full and absolute right to an undivided one-half of the said

properties; furthermore, it is prayed that the plaintiffs be awarded an indemnity of
P8,000 for losses and damages, and the costs." Notwithstanding the opposition of the
defendants, the said amendment was admitted by the court and counsel for the
defendants were allowed to a period of three days within which to present a new
answer. An exception was taken to this ruling.
The proper proceedings were had with reference to the valuation of the properties
concerned in the division sought and incidental issues were raised relative to the
partition of some of them and their award to one or the other of the parties. Due
consideration was taken of the averments and statements of both parties who agreed
between themselves, before the court, that any of them might at any time acquire, at
the valuation fixed by the expert judicial appraiser, any of the properties in question,
there being none in existence excluded by the litigants. The court, therefore, by order
of December 28, 1905, ruled that the plaintiffs were entitled to acquire, at the
valuation determined by the said expert appraiser, the building known as La Quinta,
the lot on which it stands and the warehouses and other improvements comprised
within the inclosed land, and the seeds lands situated in the pueblos of Vigan and
Santa Lucia; and that the defendants were likewise entitled to acquire the house on
Calle Escolta, the lot on Calle Magallanes, and the three parcels of land situated in the
pueblo of Candon.
After this partition had been made counsel for the defendants, by a writing of March
8, 1906, set forth: That, having petitioned for the appraisement of the properties in
question for the purpose of their partition, it was not to be understood that he
desired from the exception duly entered to the ruling made in the matter of the
amendment to the complaint; that the properties retained by the defendants were
valued at P9,310, and those retained by the plaintiffs, at P2,885, one-half of which
amounts each party had to deliver to the other, as they were pro indiviso properties;
that, therefore, the defendants had to pay the plaintiffs the sum of P3,212.50, after
deducting the amount which the plaintiffs were obliged to deliver to the defendants,
as one-half of the price of the properties retained by the former; that,
notwithstanding that the amount of the counterclaim for the expenses incurred in the
reconstruction of the pro indiviso property should be deducted from the sum which
the defendants had to pay the plaintiffs, the former, for the purpose of bringing the
matter of the partition to a close, would deliver to the latter, immediately upon the
signing of the instrument of purchase and sale, the sum of P3,212.50, which was
one-half of the value of the properties alloted to the defendants; such delivery,
however, was not to be understood as a renouncement of the said counterclaim, but
only as a means for the final termination of the pro indiviso status of the property.
The case having been heard, the court on October 5, 1907, rendered judgment
holding that the revenues and the expenses were compensated by the residence
enjoyed by the defendant party, that no losses or damages were either caused or
suffered, nor likewise any other expense besides those aforementioned, and absolved
the defendants from the complaint and the plaintiffs from the counterclaim, with no
special finding as to costs. An exception was taken to this judgment by counsel for
Property Cases No. 8 Page |3
the defendants who moved for a new trial on the grounds that the evidence
presented did not warrant the judgment rendered and that the latter was contrary to
law. This motion was denied, exception whereto was taken by said counsel, who filed
the proper bill of exceptions, and the same was approved and forwarded to the clerk
of this court, with a transcript of the evidence.
Both of the litigating sisters assented to a partition by halves of the property left in
her will by their mother at her death; in fact, during the course of this suit,
proceedings were had, in accordance with the agreement made, for the division
between them of the said hereditary property of common ownership, which division
was recognized and approved in the findings of the trial court, as shown by the
judgment appealed from.
The issues raised by the parties, aside from said division made during the trial, and
which have been submitted to this court for decision, concern: (1) The indemnity
claimed for losses and damages, which the plaintiffs allege amount to P8,000, in
addition to the rents which should have been derived from the house on Calle
Escolta, Vigan; (2) the payment by the plaintiffs to the defendants of the sum of
P1,299.08, demanded by way of counterclaim, together with legal interest thereon
from December 7, 1904; (3) the payment to the husband of the defendant Matilde
Ortiz, of a percentage claimed to be due him as the administrator of the property of
common ownership; (4) the division of certain jewelry in the possession of the
plaintiff Vicenta Ortiz; and (5) the petition that the amendment be held to have been
improperly admitted, which was made by the plaintiffs in their written motion of
August 21, 1905, against the opposition of the defendants, through which admission
the latter were obliged to pay the former P910.50.lawphil.net
Before entering upon an explanation of the propriety or impropriety of the claims
made by both parties, it is indispensable to state that the trial judge, in absolving the
defendants from the complaint, held that they had not caused losses and damages to
the plaintiffs, and that the revenues and the expenses were compensated, in view of
the fact that the defendants had been living for several years in the Calle Escolta
house, which was pro indiviso property of joint ownership.
By this finding absolving the defendants from the complaint, and which was
acquiesced in by the plaintiffs who made no appeal therefrom, the first issue has
been decided which was raised by the plaintiffs, concerning the indemnity for losses
and damages, wherein are comprised the rents which should have been obtained
from the upper story of the said house during the time it was occupied by the
defendants, Matilde Ortiz and her husband, Gaspar de Bartolome.
Notwithstanding the acquiescence on the part of the plaintiffs, assenting to the said
finding whereby the defendants were absolved from the complaint, yet, as such
absolution is based on the compensation established in the judgment of the trial
court, between the amounts which each party is entitled to claim from the other, it is

imperative to determine whether the defendant Matilde Ortiz, as coowner of the
house on Calle Escolta, was entitled, with her husband, to reside therein, without
paying to her coowner, Vicenta Ortiz, who, during the greater part of the time, lived
with her husband abroad, one-half of the rents which the upper story would have
produced, had it been rented to a stranger.
Article 394 of the Civil Code prescribes:
Each coowner may use the things owned in common, provided he uses them
in accordance with their object and in such manner as not to injure the
interests of the community nor prevent the coowners from utilizing them
according to their rights.
Matilde Ortiz and her husband occupied the upper story, designed for use as a
dwelling, in the house of joint ownership; but the record shows no proof that, by so
doing, the said Matilde occasioned any detriment to the interest of the community
property, nor that she prevented her sister Vicenta from utilizing the said upper story
according to her rights. It is to be noted that the stores of the lower floor were rented
and accounting of the rents was duly made to the plaintiffs.
Each coowner of realty held pro indiviso exercises his rights over the whole property
and may use and enjoy the same with no other limitation than that he shall not injure
the interests of his coowners, for the reason that, until a division be made, the
respective part of each holder can not be determined and every one of the coowners
exercises, together with his other coparticipants, joint ownership over the pro
indiviso property, in addition to his use and enjoyment of the same.
As the hereditary properties of the joint ownership of the two sisters, Vicenta Ortiz,
plaintiff, and Matilde Ortiz, defendant, were situated in the Province of Ilocos Sur,
and were in the care of the last named, assisted by her husband, while the plaintiff
Vicenta with her husband was residing outside of the said province the greater part of
the time between 1885 and 1905, when she left these Islands for Spain, it is not at all
strange that delays and difficulties should have attended the efforts made to collect
the rents and proceeds from the property held in common and to obtain a partition of
the latter, especially during several years when, owing to the insurrection, the
country was in a turmoil; and for this reason, aside from that founded on the right of
coownership of the defendants, who took upon themselves the administration and
care of the properties of joint tenancy for purposes of their preservation and
improvement, these latter are not obliged to pay to the plaintiff Vicenta one-half of
the rents which might have been derived from the upper of the story of the said
house on Calle Escolta, and, much less, because one of the living rooms and the
storeroom thereof were used for the storage of some belongings and effects of
common ownership between the litigants. The defendant Matilde, therefore, in
occupying with her husband the upper floor of the said house, did not injure the
interests of her coowner, her sister Vicenta, nor did she prevent the latter from living
Property Cases No. 8 Page |4
therein, but merely exercised a legitimate right pertaining to her as coowner of the
property.
Notwithstanding the above statements relative to the joint-ownership rights which
entitled the defendants to live in the upper story of the said house, yet in view of the
fact that the record shows it to have been proved that the defendant Matilde's
husband, Gaspar de Bartolome, occupied for four years a room or a part of the lower
floor of the same house on Calle Escolta, using it as an office for the justice of the
peace, a position which he held in the capital of that province, strict justice, requires
that he pay his sister-in-law, the plaintiff, one half of the monthly rent which the said
quarters could have produced, had they been leased to another person. The amount
of such monthly rental is fixed at P16 in accordance with the evidence shown in the
record. This conclusion as to Bartolome's liability results from the fact that, even as
the husband of the defendant coowner of the property, he had no right to occupy
and use gratuitously the said part of the lower floor of the house in question, where
he lived with his wife, to the detriment of the plaintiff Vicenta who did not receive
one-half of the rent which those quarters could and should have produced, had they
been occupied by a stranger, in the same manner that rent was obtained from the
rooms on the lower floor that were used as stores. Therefore, the defendant
Bartolome must pay to the plaintiff Vicenta P384, that is, one-half of P768, the total
amount of the rents which should have been obtained during four years from the
quarters occupied as an office by the justice of the peace of Vigan.
With respect to the second question submitted for decision to this court, relative to
the payment of the sum demanded as a counterclaim, it was admitted and proved in
the present case that, as a result of a serious earthquake on August 15, 1897, the
said house on Calle Escolta was left in ruins and uninhabitable, and that, for its
reconstruction or repair, the defendants had to expend the sum of P6,252.32. This
expenditure, notwithstanding that it was impugned, during the trial, by the plaintiffs,
was duly proved by the evidence presented by the defendants. Evidence,
unsuccessfully rebutted, was also introduced which proved that the rents produced
by all the rural and urban properties of common ownership amounted, up to August
1, 1905, to the sum of P3,654.15 which, being applied toward the cost of the repair
work on the said house, leaves a balance of P2,598.17, the amount actually advanced
by the defendants, for the rents collected by them were not sufficient for the
termination of all the work undertaken on the said building, necessary for its
complete repair and to replace it in a habitable condition. It is therefore lawful and
just that the plaintiff Vicenta Ortiz, who was willing to sell to her sister Matilde for
P1,500, her share in the house in question, when it was in a ruinous state, should pay
the defendants one-half of the amount expanded in the said repair work, since the
building after reconstruction was worth P9,000, according to expert appraisal.
Consequently, the counterclaim made by the defendants for the payment to them of
the sum of P1,299.08, is a proper demand, though from this sum a reduction must be
made of P384, the amount of one-half of the rents which should have been collected
for the use of the quarters occupied by the justice of the peace, the payment of
which is incumbent upon the husband of the defendant Matilde, as aforesaid, and the

balance remaining, P915.08, is the amount which the plaintiff Vicenta must pay to the
defendants.
The defendants claim to be entitled to the collection of legal interest on the amount
of the counterclaim, from December 7, 1904. This contention can not be sustained,
inasmuch as, until this suit is finally decided, it could not be known whether the
plaintiffs would or would not be obliged to pay the sum whatever in reimbursement
of expenses incurred by the plaintiffs in the repair work on the said house on Calle
Escolta, whether or not the defendants, in turn, were entitled to collect any such
amount, and, finally, what the net sum would be which the plaintiff's might have to
pay as reimbursement for one-half of the expenditure made by the defendants. Until
final disposal of the case, no such net sum can be determined, nor until then can the
debtor be deemed to be in arrears. In order that there be an obligation to pay legal
interest in connection with a matter at issue between the parties, it must be declared
in a judicial decision from what date the interest will be due on the principal
concerned in the suit. This rule has been established by the decisions of the supreme
court of Spain, in reference to articles 1108, 1109, and 1110 of the Civil Code,
reference on April 24, 1867, November 19, 1869, and February 22, 1901.
With regard to the percentage, as remuneration claimed by the husband of the
defendant Matilde for his administration of the property of common ownership,
inasmuch as no stipulation whatever was made in the matter by and between him
and his sister-in-law, the said defendant, the claimant is not entitled to the payment
of any remuneration whatsoever. Of his own accord and as an officious manager, he
administered the said pro indiviso property, one-half of which belonged to his wife
who held it in joint tenancy, with his sister-in-law, and the law does not allow him
any compensation as such voluntary administrator. He is merely entitled to a
reimbursement for such actual and necessary expenditures as he may have made on
the undivided properties and an indemnity for the damages he may have suffered
while acting in that capacity, since at all events it was his duty to care for and
preserve the said property, half of which belonged to his wife; and in exchange for
the trouble occasioned him by the administration of his sister-in-law's half of the said
property, he with his wife resided in the upper story of the house aforementioned,
without payment of one-half of the rents said quarters might have produced had they
been leased to another person.
With respect to the division of certain jewelry, petitioned for by the defendants and
appellants only in their brief in this appeal, the record of the proceedings in the lower
court does not show that the allegation made by the plaintiff Vicenta is not true, to
the effect that the deceased mother of the litigant sisters disposed of this jewelry
during her lifetime, because, had she not done so, the will made by the said
deceased would have been exhibited in which the said jewelry would have been
mentioned, at least it would have been proved that the articles in question came into
the possession of the plaintiff Vicenta without the expressed desire and the consent
of the deceased mother of the said sisters, for the gift of this jewelry was previously
Property Cases No. 8 Page |5
assailed in the courts, without success; therefore, and in view of its inconsiderable
value, there is no reason for holding that the said gift was not made.
As regards the collection of the sum of P910.50, which is the difference between the
assessed value of the undivided real properties and the price of the same as
determined by the judicial expert appraiser, it is shown by the record that the ruling
of the trial judge admitting the amendment to the original complaint, is in accord with
the law and principles of justice, for the reason that any of the coowners of a pro
indiviso property, subject to division or sale, is entitled to petition for its valuation by
competent expert appraisers. Such valuation is not prejudicial to any of the joint
owners, but is beneficial to their interests, considering that, as a general rule, the
assessed value of a building or a parcel of realty is less than the actual real value of
the property, and this being appraiser to determine, in conjunction with the one
selected by the plaintiffs, the value of the properties of joint ownership. These two
experts took part in the latter proceedings of the suit until finally, and during the
course of the latter, the litigating parties agreed to an amicable division of the pro
indiviso hereditary property, in accordance with the price fixed by the judicial expert
appraiser appointed as a third party, in view of the disagreement between and
nonconformity of the appraisers chosen by the litigants. Therefore it is improper now
to claim a right to the collection of the said sum, the difference between the assessed
value and that fixed by the judicial expert appraiser, for the reason that the increase
in price, as determined by this latter appraisal, redounded to the benefit of both
parties.
In consideration of the foregoing, whereby the errors assigned to the lower court
have been duly refuted, it is our opinion that, with a partial reversal of the judgment
appealed from, in so far as it absolves the plaintiffs from the counterclaim presented
by the defendants, we should and hereby do sentence the plaintiffs to the payment
of the sum of P915.08, the balance of the sum claimed by the defendants as a
balance of the one-half of the amount which the defendants advanced for the
reconstruction or repair of the Calle Escolta house, after deducting from the total of
such sum claimed by the latter the amount of P384 which Gaspar de Bartolome, the
husband of the defendant Matilde, should have paid as one-half of the rents due for
his occupation of the quarters on the lower floor of the said house as an office for the
justice of the peace court of Vigan; and we further find: (1) That the defendants are
not obliged to pay one-half of the rents which could have been obtained from the
upper story of the said house; (2) that the plaintiffs can not be compelled to pay the
legal interest from December 7, 1904, on the sum expanded in the reconstruction of
the aforementioned house, but only the interest fixed by law, at the rate of 6 per cent
per annum, from the date of the judgment to be rendered in accordance with this
decision; (3) that the husband of the defendant Matilde Ortiz is not entitled to any
remuneration for the administration of the pro indiviso property belonging to both
parties; (4) that, neither is he entitled to collect from the plaintiffs the sum of
P910.50, the difference between the assessed valuation and the price set by the
expert appraisal solicited by the plaintiffs in their amendment to the complaint; and,
(5) that no participation shall be made of jewelry aforementioned now in the
 Property Cases No. 8 Page |6

possession of the plaintiff Vicenta Ortiz. The said judgment, as relates to the points
appealed, is affirmed, in so far as its findings agree with those of this decision, and is
reversed, in so far as they do not. No special finding is made regarding the costs of
both instances. So ordered.

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


[No. 32047. November 1, 1930]
MANUEL MELENCIO, MARIANO MELENCIO, PURA MELENCIO, and CARIDAD
MELENCIO, plaintiffs and appellants, vs. DY TIAO LAY, defendant and
appellee,
I.CIVIL CODE; COMMUNITY OF PROPERTY; ALTERATIONS.—Article 397 of the Civil
Code provides: "None of the owners shall, without the consent of the others, make
any alterations in the common property even though such alterations might be
advantageous to all." While the property referred to in this case was leased, without
the consent of all the coöwners, building thereon one house and three warehouses, it
cannot be considered that the alterations are of sufficient importance to nullify the
lease, especially so since none of the coöwners objected to such alterations until over
twenty years after the execution of the contract of lease.
2.ID.; ID.; CONTRACT OF LEASE; RESCISSION.—The provision in the contract that
the lessee, at any time before he erected any building on the land, might rescind the
lease, can hardly be regarded as a violation of article 1256 of the Civil Code.
3.ID.; ID.; ID.; ANNULMENT.—In this case only a small majority of the coöwners
executed the lease here in question, and according to the terms of the contract the
lease might be given a duration of sixty years. This is an open violation of article
1548 of the Civil Code and the contract of lease herein in question should therefore
be declared null and void.
APPEAL from a judgment of the Court of First Instance of Nueva Ecija. Gutierrez
David, J.
The facts are stated in the opinion of the court.
Jose V. Valladolid, Jose P. Melencio and Camus & Delgado for appellants.
Araneta & Zaragoza f or appellee.
DECISION
OSTRAND, J.:
On August 1, 1927, the plaintiffs, Manuel, Mariano, Pura and Caridad Melencio,
brought the present action against the defendant-appellee, Dy Tiao Lay, for the
recovery of the possession of a parcel of land situated in the town of Cabanatuan,
Nueva Ecija, and containing an area of 4,628.25 square meters. The plaintiffs further
demand a monthly rental of P300 for the use and occupation of the parcel from May,
1926, until the date of the surrender to them of the possession thereof; and that if it
Property Cases No. 8 Page |7
is found that the said appellee was occupying the said parcel of land by virtue of a
contract of lease, such contract should be declared null and void for lack of consent,
concurrence, and ratification by the owners thereof.
In his answer, the defendant pleaded the general issue, and as special defenses, he
alleged in substance that he was occupying the said tract of land by virtue of a
contract of lease executed on July 24, 1905, in favor of his predecessor in interest, by
Ruperta Garcia, Pedro Melencio, Juliana Melencio, and Ruperto Melencio under the
terms specified therein, and which contract is still in force; that Liberata Macapagal,
the mother of the plaintiffs, in her capacity as judicial administratrix of the estate of
Ramon Melencio, one of the original coowners of the parcel of land in question,
actually recognized and ratified the existence and validity of the contract aforesaid by
virtue of the execution of a public document by her on or about November 27, 1920,
and by collecting from the assignees of the original lessee the monthly rent for the
premises until April 30, 1926; and that said defendant deposits with the clerk of court
the sum of P20.20 every month as rent thereof and that as a counterclaim, he seeks
the recovery of P272 for goods and money delivered by him to the plaintiffs.
The plaintiffs filed a reply to the answer alleging, among other things, that Ruperta
Garcia was not one of the coowners of the land in question; that the persons who
signed the alleged contract of lease never represented themselves as being the sole
and exclusive owners of the land subject to the lease as alleged by the defendant in
his answer; that the said contract of lease of July 24, 1905, is null and void for being
executed without the intervention and consent of two coowners, Ramon Melencio and
Jose P. Melencio, and without the marital consent of the husbands of Juliana and
Ruperta Melencio; that the lessee has repeatedly violated the terms and conditions of
the said contract; and that Liberata Macapagal, in her capacity as administratrix of
the property of her deceased husband, could not lawfully and legally execute a
contract of lease with the conditions and terms similar to that of the one under
consideration, and that from this it follows that she could not ratify the said lease as
claimed by the defendant.
On January 21, 1928, Liberta Macapagal Viuda de Melencio, duly appointed and
qualified as administratrix of the estate of her deceased husbands, Ramon Melencio,
filed a petition praying to be allowed to join the plaintiffs as party to the present case,
which petition was granted in open court on January 31, 1928. Her amended
complaint of intervention of February 14, 1928, contains allegations similar to those
alleged in the complaint of the original plaintiffs, and she further alleges that the
defendant-appellee has occupied the land in question ever since November, 1920,
under and by virtue of a verbal contract of lease for a term from month to month. To
this complaint of intervention, the defendant-appellee filed an answer reproducing
the allegations contained in his answer to the complaint of the original plaintiffs and
setting up prescription as a further special defense.
It appears from the evidence that the land in question was originally owned by one
Julian Melencio. He died prior to the year 1905 leaving his widow, Ruperta Garcia,
and his five children, Juliana, Ramon, Ruperta, Pedro R., and Emilio Melencio. Emilio

Melencio also died before ’905, his son Jose P. Melencio, then a minor, succeeding to
his interest in the said parcel of land by representation. A question has been raised as
to whether the land was community property of the marriage of Julian Melencio and
Ruperta Garcia, but the evidence is practically undisputed that Ruperta Garcia in
reality held nothing but a widow’s usufruct in the land.
On July 24, 1905, Ruperta Garcia, Pedro R. Melencio, Juliana Melencio, and Ruperta
Melencio executed a contract of lease of the land in favor of one Yap Kui Chin, but
neither Jose P. Melencio nor Ramon Melencio were mentioned in the lease. The term
of the lease was for twenty years, extendible for a like period at the option of the
lessee. The purpose of the lessee was to establish a rice mill on the land, with the
necessary buildings for warehouses and for quarters for the employees, and it was
further stipulated that at the termination of the original period of the lease, or the
extension thereof, the lessors might purchase all the buildings and improvements on
the land at a price to be fixed by experts appointed by the parties, but that if the
lessors should fail to take advantage of that privilege, the lease would continue for
another and further period of twenty years. The document was duly acknowledged
but was never recorded with the register of deeds. The original rent agreed upon was
P25 per month, but by reason of the construction of a street through the land, the
monthly rent was reduced to P20.20.
Shortly after the execution of the lease, the lessee took possession of the parcel in
question and erected the mill as well as the necessary buildings, and it appears that
in matters pertaining to the lease, he dealt with Pedro R. Melencio, who from 1905
until his death in 1920, acted as manager of the property held in common by the
heirs of Julian Melencio and Ruperta Garcia. The original lessee, Yap Kui Chin, died in
1912, and the lease, as well as the other property, was transferred to Uy Eng Jui who
again transferred it to Uy Eng Jui & Co., an unregistered partnership. Finally the lease
came into the hands of Dy Tiao Lay, the herein Defendant-Appellee.
Ramon Melencio died in 1914, and his widow, Liberata Macapagal, was appointed
administratrix of his estate. In 1913 the land which includes the parcel in question
was registered under the Torrens system. The lease was not mentioned in the
certificate of title, but it was stated that one house and three warehouses on the land
were the property of Yap Kui Chin.
In 1920 the heirs of Julian Melencio made an extrajudicial partition of parts of the
inheritance, and among other things, the land here in question fell to the share of the
children of Ramon Melencio, who are the original plaintiffs in the present case. Their
mother, Liberta Macapagal, as administratrix of the estate of her deceased husband,
Ramon, collected the rent for the lease at the rate of P20.20 per month until the
month of May, 1926, when she demanded of the lessee that the rent should be
increased to P300 per month, and she was then informed by the defendant that a
written lease existed and that according to the terms thereof, the defendant was
entitled to an extension of the lease at the original rental. The plaintiffs insisted that
they never had any knowledge of the existence of such a contract of lease and
maintained that in such case the lease was executed without their consent and was
Property Cases No. 8 Page |8
void. It may be noted that upon careful search, a copy of the contract of lease was
found among the papers of the deceased Pedro R. Melencio. Thereafter the present
action was brought to set aside the lease and to recover possession of the land. Upon
trial, the court below rendered judgment in favor of the defendant declaring the lease
valid and ordering the plaintiffs to pay the P272 demanded by the defendant in his
counterclaim. From this judgment the plaintiffs appealed.
The contention of the appellants is that the aforesaid contract of lease (Exhibit C) is
null and void for the following reasons:jgc:chanrobles.com.ph
"1. That Exhibit C calls for an alteration of the property in question and therefore
ought to have been signed by all the coowners as by law required in the premises.
"2. That the validity and fulfillment of the said agreement of lease were made to
depend upon the will of the lessee exclusively.
"3. That the said contract of lease being for a term of over six years, the same is null
and void pursuant to the provision of article 1548 of the Civil Code.
"4. That the duration of the same is unreasonably long, thus being against public
policy.
"5. That the defendant-appellee and his predecessors in interest repeatedly violated
the provisions of the agreements."cralaw virtua1aw library
The first proposition is based on article 397 of the Civil Code which provides that
"none of the owners shall, without the consent of the others, make any alterations in
the common property even though such alterations might be advantageous to all."
We do not think that the alterations are of sufficient importance to nullify the lease,
especially so since none of the coowners objected to such alterations until over
twenty years after the execution of the contract of lease. The decision of this court in
the case of Enriquez v. A. S. Watson & Co. (22 Phil., 623), contains a full discussion
of the effect of alterations of lease community property, and no further discussion
upon that point need here be considered.
The second proposition is likewise of little merit. Under the circumstances, the
provision in the contract that the lessee, at any time before he erected any building
on the land, might rescind the lease, can hardly be regarded as a violation of article
1256 of the Civil Code.
The third and fourth propositions are, in our opinion, determinative of the
controversy. The court below based its decision principally on the case of Enriquez v.
A. S. Watson & Co. (22 Phil., 623), and on the resolution of the Direccion General de
los Registros dated April 26, 1907. (Jurisprudecia Civil, vol. 107, p. 222.) An
examination of the Enriquez case will show that it differs materially from the present.
In that case all of the coowners of a lot and building executed a contract of lease of
the property for the term of eighteen years in favor of A. S. Watson & Co.; one of the

owners was a minor, but he was represented by his legally appointed guardian, and
the action of the latter in signing the lease on behalf of the minor was formally
approved by the Court of First Instance. In the present case only a small majority of
the coowners executed the lease here in question, and according to the terms of the
contract the lease might be given a duration of sixty years; that is widely different
from a lease granted by all of the coowners for a term of only eighteen years.
The resolution of April 26, 1907, is more in point. It relates to the inscription or
registration of a contract of lease of some pasture grounds. The majority of the
coowners of the property executed the lease for the term of twelve years, but when
the lessees presented the lease for inscription in the registry of property, the registrar
denied the inscription on the ground that the term of the lease exceeded six years
and that therefore the majority of the coowners lacked authority to grant the lease.
The Direccion General de los Registros held that the contract of lease for a period
exceeding six years, constitutes a real right subject to registry and that the lease in
question was valid.
The conclusions reached by the Direccion General led to considerable criticism and
have been overruled by a decision of the Supreme Court of Spain dated June 1, 1909.
In that decision the court made the following statement of the case
(translation):jgc:chanrobles.com.ph
"The joint owners of 511 out of 1,000 parts of the realty denominated El Mortero,
leased out the whole property for twelve years to Doña Josefa de la Rosa; whereupon
the Count and Countess Trespalacios together with other coowners brought this suit
to annul the lease and, in view of the fact that the land was indivisible, prayed for its
sale by public auction and the distribution of the price so obtained; they alleged that
they neither took part nor consented to the lease; that the decision of the majority of
part owners referred to in article 398 of the Code, implies a common deliberation on
the step to be taken, for to do without it, would, even more than to do without the
minority, be nothing less than plunder; and that, even if this deliberation were not
absolutely necessary, the power of the majority would still be confined to decisions
touching the management and enjoyment of the common property, and would not
include acts of ownership, such as a lease for twelve years, which according to the
Mortgage Law gives rise to a real right, which must be recorded, and which can be
performed only by the owners of the property leased.
"The part owners who had executed the contract prayed in reconvention that it be
held valid for all the owners in common, and if this could not be, then for all those
who had signed it, and for the rest, for the period of six years; and the Audiencia of
Caceres having rendered judgment holding the contract null and void, and ordering
the sale of the realty and the distribution of the price, the defendants appealed
alleging under the third and fourth assignments of error, that the judgment was a
violation of article 398 of the Civil Code, which is absolute and sets no limit of time
for the efficacy of the decisions arrived at by the majority of the part owners for the
enjoyment of the common property, citing the decisions of June 30th, 1897, of July
8th, 1902, and of October 30th, 1907; under the fifth assignment of error the
Property Cases No. 8 Page |9
appellants contended that in including joint owners among those referred to in said
article, which sets certain limits to the power of leasing, in the course of the
management of another’s property, the court applied article 1548 unduly; and by the
seventh assignment of error, they maintained the judgment appealed from also
violated article 1727, providing that the principal is not bound where his agent has
acted beyond his authority; whence it may be inferred, that if in order to hold the
contract null and void, the majority of the part owners are looked upon as managers
or agents exercising limited powers, it must at least be conceded that in so far as the
act in question lies within the scope of their powers, it is valid; the contract cannot be
annulled in toto."cralaw virtua1aw library
The Supreme Court held that the appeal from the decision of the Audiencia of
Caceres was not well taken and expressed the following
consideranda:jgc:chanrobles.com.ph
"Considering that, although as a rule the contract of lease constitutes an act of
management, as this court has several times held, cases may yet arise, either owing
to the nature of the subject matter, or to the period of duration, which may render it
imperative to record the contract in the registry of property, in pursuance of the
Mortgage Law, where the contract of lease may give rise to a real right in favor of the
lessee, and it would then constitute such a sundering of the ownership as transcends
mere management; in such cases it must of necessity be recognized that the part
owners representing the greater portion of the property held in common have no
power to lease said property for a longer period than six years without the consent of
all the coowners, whose proprietary rights, expressly recognized by the law, would by
contracts of long duration be restricted or annulled; and as under article 1548 of the
Civil Code such contracts cannot be entered into by the husband with respect to his
wife’s property, by the parent or guardian with respect to that of the child or ward,
and by the manager in default of special power, since the contract of lease only
produces personal obligations, and cannot without the consent of all persons
interested or express authority from the owner, be extended to include stipulations
which may alter its character, changing it into a contract of partial alienation of the
property leased;
"Considering that, applying this doctrine to the case before us, one of the grounds
upon which the judgment appealed from, denying the validity of the lease made by
the majority of the part owners of the pasture land El Mortero is based, must be
upheld; to wit, that the period of duration is twelve years and the consent of all the
coowners has not been obtained; hence, the third, fourth, and fifth assignments of
error are without merit; firstly, because article 398 of the Civil Code, alleged to have
been violated, refers to acts decided upon by the majority of the part owners,
touching the management and enjoyment of the common property, and does not
contradict what we have stated in the foregoing paragraph; secondly, because
although the cases cited were such as arose upon leases for more than sixty years,
yet this point was not raised on appeal, and could not therefore be passed upon; and
thirdly, because it cannot be denied that there is an analogy between a manager
without special authority, who is forbidden by article 1548 of the Code to give a lease
 P r o p e r t y C a s e s N o . 8 P a g e | 10

for a period of over six years, and the joint owners constituting a legal majority, who
may decide to lease out the indivisible property, with respect to the shares of the Avanceña, C.J., Malcolm, Johns, Romualdez and Villa-Real, JJ., concur.
other coowners; and having come to the conclusion that the contract is null and void,
there is no need to discuss the first two assignments of error which refer to another
of the bases adopted, however erroneously, by the trial court;

"Considering that the sixth assignment of error is without merit, inasmuch as the joint
ownership of property is not a sort of agency and cannot be governed by the
provisions relating to the latter contract; whence, article 1727 of the Code alleged to
have been violated, can no more be applied, than, the question of the validity or
nullity of the lease being raised, upon the contract as celebrated, it would be
allowable to modify a posteriori some one or other of the main conditions stipulated,
like that regarding the duration of the lease, for this would amount to a novation; still
less allowable would it be to authorize diverse periods for the different persons
unequally interested in the fulfillment."cralaw virtua1aw library
Taking into consideration articles 398, 1548, and 1713 of the Civil Code and following
the aforesaid decision of June 1,1909, we hold that the contract of lease here in
question is null and void.

It has been suggested that by reason of prescription and by acceptance of benefits

under the lease, the plaintiffs are estopped to question the authority for making the
lease. To this we may answer that the burden of proof of prescription devolved upon
the defendant and that as far as we can find, there is no proof that Ramon Melencio
and his successor over had knowledge of the existence of the lease in question prior
to 1926. We cannot by mere suspicion conclude that they were informed of the
existence of the document and its terms; it must be remembered that under a strict
interpretation of the terms of the lease, the lessees could remain indefinitely in their
tenancy unless the lessors could purchase the mill and the buildings on the land. In
such circumstances, better evidence than that presented by the defendant in regard
to the plaintiffs’ knowledge of the lease must be required.

The fact that Ramon during his lifetime received his share of the products of land
owned in common with his coheirs is not sufficient proof of knowledge of the
existence of the contract of lease when it is considered that the land in question was
only a small portion of a large tract which Pedro R. Melencio was administering in
connection with other community property.

The appealed judgment as to the validity of the lease is therefore reversed, and it is
ordered that the possession of the land in controversy be delivered to the intervenor
Liberata Macapagal in her capacity as administratrix of the estate of the deceased
Ramon Melencio. It is further ordered that the defendant pay to said administratrix a
monthly rent of P50 for the occupation of the land from May 1st, 1926, until the land
is delivered to the administratrix. The sum of P272 demanded by the defendant in his
counterclaim may be deducted from the total amount of the rent due and unpaid.
The buildings erected on the land by the defendant and his predecessors in interest
may be removed by him, or otherwise disposed of, within six months from the
promulgation of this decision. Without costs. So ordered.

[No. L-3404. April 2, 1951]
ANGELA I. TUASON, plaintiff and appellant, vs. ANTONIO TUASON, JR., and
GREGORIO ARANETA, INC., defendants and appellees.
COMMUNITY PROPERTY; PARTITION; RESCISSION.—A contract among land co-
owners wherein they agreed to fill their property, construct roads therein and then
subdivide it into small lots for sale, the proceeds to be later divided among them, and
to this end one of them was to finance the whole development and subdivision, to
prepare a schedule of prices and conditions of sale subject to the approval of the
other two co-owners, to sell the subdivided lots and execute the corresponding
contracts with buyers, and to receive 50 per cent of the gross selling price of the lots
and the rents that may be collected f rom the property while in the process of sale,
the remaining 50 per cent to be divided in equal portions among the three co-
owners,—does not violate article 400 of the Civil Code. Far from violating the
prohibition against a co-owner being obliged to remain a party to the community, the
contract precisely has for its purpose and object the dissolution of the co-ownership
and of the community by selling the parcel held in common and dividing the proceeds
of the sale among the co-owners. The obligation imposed in the contract to preserve
the co-ownership until all the lots shall have been sold is a mere incident to the main
object of dissolving the co-ownership.
APPEAL from a judgment of the Court of First Instance of Manila. Peña, J.
The facts are stated in the opinion of the Court.
Alcuaz & Eiguren for appellant.
Araneta & Araneta for appellees.
MONTEMAYOR, J.:
In 1941 the sisters Angela I. Tuason and Nieves Tuason de Barreto and their brother
Antonio Tuason Jr., held a parcel of land with an area of 64,928.6 sq. m. covered by
Certificate of Title No. 60911 in Sampaloc, Manila, in common, each owning an
undivided 1/3 portion. Nieves wanted and asked for a partition of the common
property, but failing in this, she offered to sell her 1/3 portion. The share of Nieves
was offered for sale to her sister and her brother but both declined to buy it. The
offer was later made to their mother but the old lady also declined to buy, saying that
if the property later increased in value, she might be suspected of having taken
advantage of her daughter. Finally, the share of Nieves was sold to Gregorio Araneta
Inc., a domestic corporation, and a new Certificate of Title No. 61721 was issued in
lieu of the old title No. 60911 covering the same property. The three co-owners
agreed to have the whole parcel subdivided into small lots and then sold, the
P r o p e r t y C a s e s N o . 8 P a g e | 11
proceeds of the sale to be later divided among them. This agreement is embodied in
a document (Exh. 6) entitled "Memorandum of Agreement" consisting of ten pages,
dated June 30, 1941.
Before, during and after the execution of this contract (Exh. 6), Atty. J. Antonio
Araneta was acting as the attorney-in-fact and lawyer of the two co-owners, Angela I.
Tuason and her brother Antonio Tuason Jr. At the same time he was a member of
the Board of Director of the third co-owner, Araneta, Inc.
The pertinent terms of the contract (Exh. 6) may be briefly stated as follows: The
three co-owners agreed to improve the property by filling it and constructing roads
and curbs on the same and then subdivide it into small lots for sale. Araneta Inc. was
to finance the whole development and subdivision; it was prepare a schedule of
prices and conditions of sale, subject to the subject to the approval of the two other
co-owners; it was invested with authority to sell the lots into which the property was
to be subdivided, and execute the corresponding contracts and deeds of sale; it was
also to pay the real estate taxes due on the property or of any portion thereof that
remained unsold, the expenses of surveying, improvements, etc., all advertising
expenses, salaries of personnel, commissions, office and legal expenses, including
expenses in instituting all actions to eject all tenants or occupants on the property;
and it undertook the duty to furnish each of the two co-owners, Angela and Antonio
Tuason, copies of the subdivision plans and the monthly sales and rents and
collections made thereon. In return for all this undertaking and obligation assumed by
Araneta Inc., particularly the financial burden, it was to receive 50 per cent of the
gross selling price of the lots, and any rents that may be collected from the property,
while in the process of sale, the remaining 50 per cent to be divided in equal portions
among the three co-owners so that each will receive 16.33 per cent of the gross
receipts.
Because of the importance of paragraphs 9, 11 and 15 of the contract (Exh. 6), for
purposes of reference we are reproducing them below:
(9) This contract shall remain in full force and effect during all the time that
it may be necessary for the PARTY OF THE SECOND PART to fully sell the
said property in small and subdivided lots and to fully collect the purchase
prices due thereon; it being understood and agreed that said lots may be
rented while there are no purchasers thereof;
(11) The PARTY OF THE SECOND PART (meaning Araneta Inc.) is hereby
given full power and authority to sign for and in behalf of all the said co-
owners of said property all contracts of sale and deeds of sale of the lots
into which this property might be subdivided; the powers herein vested to
the PARTY OF THE SECOND PART may, under its own responsibility and
risk, delegate any of its powers under this contract to any of its officers,
employees or to third persons;

(15) No co-owner of the property subject-matter of this contract shall sell,
alienate or dispose of his ownership, interest or participation therein without
first giving preference to the other co-owners to purchase and acquire the
same under the same terms and conditions as those offered by any other
prospective purchaser. Should none of the co-owners of the property
subject-matter of this contract exercise the said preference to acquire or
purchase the same, then such sale to a third party shall be made subject to
all the conditions, terms, and dispositions of this contract; provided, the
PARTIES OF THE FIRST PART (meaning Angela and Antonio) shall be bound
by this contract as long as the PARTY OF THE SECOND PART, namely, the
GREGORIO ARANETA, INC. is controlled by the members of the Araneta
family, who are stockholders of the said corporation at the time of the
signing of this contract and/or their lawful heirs;
On September 16, 1944, Angela I. Tuason revoked the powers conferred on her
attorney-in-fact and lawyer, J. Antonio Araneta. Then in a letter dated October 19,
1946, Angela notified Araneta, Inc. that because of alleged breach of the terms of the
"Memorandum of Agreement" (Exh. 6) and abuse of powers granted to it in the
document, she had decided to rescind said contract and she asked that the property
held in common be partitioned. Later, on November 20, 1946, Angela filed a
complaint in the Court of First Instance of Manila asking the court to order the
partition of the property in question and that she be given 1/3 of the same including
rents collected during the time that the same including rents collected during the time
that Araneta Inc., administered said property.
The suit was administered principally against Araneta, Inc. Plaintiff's brother, Antonio
Tuason Jr., one of the co-owners evidently did not agree to the suit and its purpose,
for he evidently did not agree to the suit and its purpose, for he joined Araneta, Inc.
as a co-defendant. After hearing and after considering the extensive evidence
introduce, oral and documentary, the trial court presided over by Judge Emilio Peña
in a long and considered decision dismissed the complaint without pronouncement as
to costs. The plaintiff appealed from that decision, and because the property is valued
at more than P50,000, the appeal came directly to this Court.
Some of the reasons advanced by appellant to have the memorandum contract (Exh.
6) declared null and void or rescinded are that she had been tricked into signing it;
that she was given to understand by Antonio Araneta acting as her attorney-in-fact
and legal adviser that said contract would be similar to another contract of
subdivision of a parcel into lots and the sale thereof entered into by Gregorio Araneta
Inc., and the heirs of D. Tuason, Exhibit "L", but it turned out that the two contracts
widely differed from each other, the terms of contract Exh. "L" being relatively much
more favorable to the owners therein the less favorable to Araneta Inc.; that Atty.
Antonio Araneta was more or less disqualified to act as her legal adviser as he did
because he was one of the officials of Araneta Inc., and finally, that the defendant
company has violated the terms of the contract (Exh. 6) by not previously showing
her the plans of the subdivision, the schedule of prices and conditions of the sale, in
P r o p e r t y C a s e s N o . 8 P a g e | 12
not introducing the necessary improvements into the land and in not delivering to her
her share of the proceeds of the rents and sales.
We have examined Exh. "L" and compared the same with the contract (Exh. 6) and
we agree with the trial court that in the main the terms of both contracts are similar
and practically the same. Moreover, as correctly found by the trial court, the copies of
both contracts were shown to the plaintiff Angela and her husband, a broker, and
both had every opportunity to go over and compare them and decide on the
advisability of or disadvantage in entering into the contract (Exh. 6); that although
Atty. Antonio Araneta was an official of the Araneta Inc.; being a member of the
Board of Directors of the Company at the time that Exhibit "6" was executed, he was
not the party with which Angela contracted, and that he committed no breach of
trust. According to the evidence Araneta, the pertinent papers, and sent to her
checks covering her receive the same; and that as a matter of fact, at the time of the
trial, Araneta Inc., had spent about P117,000 in improvement and had received as
proceeds on the sale of the lots the respectable sum of P1,265,538.48. We quote
with approval that portion of the decision appealed from on these points:
The evidence in this case points to the fact that the actuations of J. Antonio
Araneta in connection with the execution of exhibit 6 by the parties, are
above board. He committed nothing that is violative of the fiduciary
relationship existing between him and the plaintiff. The act of J. Antonio
Araneta in giving the plaintiff a copy of exhibit 6 before the same was
executed, constitutes a full disclosure of the facts, for said copy contains all
that appears now in exhibit 6.
Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing the
terms of the contract in that the defendant corporation has failed (1) to
make the necessary improvements on the property as required by
paragraphs 1 and 3 of the contract; (2) to submit to the plaintiff from time
to time schedule of prices and conditions under which the subdivided lots
are to be sold; and to furnish the plaintiff a copy of the subdivision plans, a
copy of the monthly gross collections from the sale of the property.
The Court finds from the evidence that he defendant Gregorio Araneta,
Incorporated has substantially complied with obligation imposed by the
contract exhibit 6 in its paragraph 1, and that for improvements alone, it has
disbursed the amount of P117,167.09. It has likewise paid taxes,
commissions and other expenses incidental to its obligations as denied in the
agreement.
With respect to the charged that Gregorio Araneta, Incorporated has failed
to submit to plaintiff a copy of the subdivision plains, list of prices and the
conditions governing the sale of subdivided lots, and monthly statement of
collections form the sale of the lots, the Court is of the opinion that it has no

basis. The evidence shows that the defendant corporation submitted to the
plaintiff periodically all the data relative to prices and conditions of the sale
of the subdivided lots, together with the amount corresponding to her. But
without any justifiable reason, she refused to accept them. With the
indifferent attitude adopted by the plaintiff, it was thought useless for
Gregorio Araneta, Incorporated to continue sending her statement of
accounts, checks and other things. She had shown on various occasions that
she did not want to have any further dealings with the said corporation. So,
if the defendant corporation proceeded with the sale of the subdivided lots
without the approval of the plaintiff, it was because it was under the correct
impression that under the contract exhibit 6 the decision of the majority co-
owners is binding upon all the three.
The Court feels that recission of the contract exhibit 6 is not minor violations
of the terms of the agreement, the general rule is that "recission will not be
permitted for a slight or casual breach of the contract, but only for such
breaches as are so substantial and fundamental as to defeat the object of
the parties in making the agreement" (Song Fo & Co. vs. Hawaiian-Philippine
Co., 47 Phil. 821).
As regards improvements, the evidence shows that during the Japanese occupation
from 1942 and up to 1946, the Araneta Inc. although willing to fill the land, was
unable to obtain the equipment and gasoline necessary for filling the low places
within the parcel. As to sales, the evidence shows that Araneta Inc. purposely
stopped selling the lots during the Japanese occupantion, knowing that the purchase
price would be paid in Japanese military notes; and Atty. Araneta claims that for this,
plaintiff should be thankfull because otherwise she would have received these notes
as her share of the receipts, which currency later became valueles.
But the main contention of the appellant is that the contract (Exh. 6) should be
declared null and void because its terms, particularly paragraphs 9, 11 and 15 which
we have reproduced, violate the provisions of Art. 400 of the Civil Code, which for the
purposes of reference we quote below:
ART. 400. No co-owner shall be obliged to remain a party to the community.
Each may, at any time, demand the partition of the thing held in common.
Nevertheless, an agreement to keep the thing undivided for a specified
length of time, not exceeding ten years, shall be valid. This period may be a
new agreement.
We agree with the trial court that the provisions of Art. 400 of the Civil Code are not
applicable. The contract (Exh., 6) far from violating the legal provision that forbids a
co-owner being obliged to remain a party to the community, precisely has for its
purpose and object the dissolution of the co-ownership and of the community by
P r o p e r t y C a s e s N o . 8 P a g e | 13
selling the parcel held in common and dividing the proceeds of the sale among the
co-owners. The obligation imposed in the contract to preserve the co-ownership until
all the lots shall have been sold, is a mere incident to the main object of dissolving
the co-owners. By virtue of the document Exh. 6, the parties thereto practically and
substantially entered into a contract of partnership as the best and most expedient
means of eventually dissolving the co-ownership, the life of said partnership to end
when the object of its creation shall have been attained.
This aspect of the contract is very similar to and was perhaps based on the other
agreement or contract (Exh. "L") referred to by appellant where the parties thereto in
express terms entered into partnership, although this object is not expressed in so
many words in Exh. 6. We repeat that we see no violation of Art. 400 of the Civil
Code in the parties entering into the contract (Exh. 6) for the very reason that Art.
400 is not applicable.
Looking at the case from a practical standpoint as did the trial court, we find no valid
ground for the partition insisted upon the appellant. We find from the evidence as
was done by the trial court that of the 64,928.6 sq. m. which is the total area of the
parcel held in common, only 1,600 sq. m. or 2.5 per cent of the entire area remained
unsold at the time of the trial in the year 1947, while the great bulk of 97.5 per cent
had already been sold. As well observed by the court below, the partnership is in the
process of being dissolved and is about to be dissolved, and even assuming that Art.
400 of the Civil Code were applicable, under which the parties by agreement may
agree to keep the thing undivided for a period not exceeding 10 years, there should
be no fear that the remaining 1,600 sq. m. could not be disposed of within the four
years left of the ten-years period fixed by Art. 400.
We deem it unnecessary to discuss and pass upon the other points raised in the
appeal and which counsel for appellant has extensively and ably discussed, citing
numerous authorities. As we have already said, we have viewed the case from a
practical standpoint, brushing aside technicalities and disregarding any minor
violations of the contract, and in deciding the case as we do, we are fully convinced
that the trial court and this Tribunal are carrying out in a practical and expeditious
way the intentions and the agreement of the parties contained in the contract (Exh.
6), namely, to dissolve the community and co-ownership, in a manner most profitable
to the said parties.
In view of the foregoing, the decision appealed from is hereby affirmed. There is no
pronouncement as to costs.
So ordered.
Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur.
Paras, C. J., I certify that Mr. Justice Feria voted to affirm.
 P r o p e r t y C a s e s N o . 8 P a g e | 14

G.R. No. 101522. May 28, 1993.* Mariano v. Amparo Gosiengfiao 1 raising as issue the distinction between Article
10882 and Article 16203 of the Civil Code.
LEONARDO MARIANO, AVELINA TIGUE, LAZARO MARIANO, MERCEDES SAN
PEDRO, DIONISIA M. AQUINO, and JOSE N.T. AQUINO, petitioners, vs. The Court of Appeals summarized the facts as follows:
HON. COURT OF APPEALS, (Sixteenth Division), GRACE GOSIENGFIAO,
assisted by her husband CHARLIE GUILLEN; EMMA GOSIENGFIAO, assisted It appears on record that the decedent Francisco Gosiengfiao is the
by her husband GERMAN GALCOS; ESTER GOSIENGFIAO, assisted by her registered owner of a residential lot located at Ugac Sur,
husband AMADOR BITONA; FRANCISCO GOSIENGFIAO, JR., NORMA Tuguegarao, Cagayan, particularly described as follows, to wit:
GOSIENGFIAO, and PINKY ROSE GUENO, respondents.
"The eastern portion of Lot 1351, Tuguegarao
Civil Law; Property; Co-ownership; Sale of property owned in common; Right of Cadastre, and after its segregation now
redemption; Notice required to be given to the co-owners of the sale to a stranger designated as Lot 1351-A, Plan PSD-67391, with
must be in writing.—Respondents have not lost their right to redeem, for in the an area of 1,1346 square meters."
absence of a written notification of the sale by the vendors, the 30-day period has
not even begun to run.
and covered by Transfer Certificate of Title No. T-2416 recorded in
the Register of Deeds of Cagayan.
Same; Same; Same; Same; Same; Redemption by a co-owner inures to the benefit of
all the other co-owners.—“Admittedly, as the property in question was mortgaged by
The lot in question was mortgaged by the decedent to the Rural
the decedent, a co-ownership existed among the heirs during the period given by law
Bank of Tuguegarao (designated as Mortgagee bank, for brevity)
to redeem the foreclosed property. Redemption of the whole property by a co-owner
on several occasions before the last, being on March 9, 1956 and
does not vest in him sole ownership over said property but will inure to the benefit of
29, 1958.
all co-owners. In other words, it will not put an end to the existing state of co-
ownership. Redemption is not a mode of terminating a co-ownership.
On August 15, 1958, Francisco Gosiengfiao died intestate survived
by his heirs, namely: Third-Party Defendants: wife Antonia and
Same; Same; Same; Same; Same; Consignation; It is not necessary when tender of
Children Amparo, Carlos, Severino and herein plaintiffs-appellants
payment was made to enforce or exercise a right and not to discharge an
Grace, Emma, Ester, Francisco, Jr., Norma, Lina (represented by
obligation.—It has been previously held that consignation is not required to preserve
daughter Pinky Rose), and Jacinto.
the right of repurchase as a mere tender of payment is enough if made on time as a
basis for an action to compel the vendee a retro to resell the property; no subsequent
consignation was necessary to entitle private respondents to such reconveyance. The loan being unpaid, the lot in dispute was foreclosed by the
mortgagee bank and in the foreclosure sale held on December 27,
1963, the same was awarded to the mortgagee bank as the highest
PETITION for review of the decision of the Court of Appeals.
bidder.

The facts are stated in the opinion of the Court.

On February 7, 1964, third-party defendant Amparo Gosiengfiao-
Ibarra redeemed the property by paying the amount of P1,347.89
The Barristers Law Office for petitioners. and the balance of P423.35 was paid on December 28, 1964 to the
mortgagee bank.
Simeon T. Agustin for private respondents.
On September 10, 1965, Antonia Gosiengfiao on her behalf and
NOCON, J.: that of her minor children Emma, Lina, Norma together with Carlos
and Severino executed a "Deed of Assignment of the Right of
Before Us is a petition foe review of the decision, dated May 13, 1991 of the Court of Redemption" in favor of Amparo G. Ibarra appearing in the notarial
Appeals in CA-G.R. CV No. 13122, entitled Grace Gosiengfiao, et al. v. Leonardo register of Pedro (Laggui) as Doc. No. 257, Page No. 6, Book No. 8,
Series of 1965.

On August 15, 1966, Amparo Gosiengfiao sold the entire property
to defendant Leonardo Mariano who subsequently established
residence on the lot subject of this controversy. It appears in the
Deed of Sale dated August 15, 1966 that Amparo, Antonia, Carlos
and Severino were signatories thereto.
Sometime in 1982, plaintiff-appellant Grace Gosiengfiao learned of
the sale of said property by the third-party defendants. She went to
the Barangay Captain and asked for a confrontation with
defendants Leonardo and Avelina Mariano to present her claim to
said property.
On November 27, 1982, no settlement having been reached by the
parties, the Barangay captain issued a certificate to file action.
On December 8, 1982, defendant Leonardo Mariano sold the same
property to his children Lazaro F. Mariano and Dionicia M. Aquino
as evidenced by a Deed of Sale notarized by Hilarion L. Aquino as
Doc. No. 143, Page No. 19, Book No. V, Series of 1982.
On December 21, 1982, plaintiffs Grace Gosiengfiao, et al. filed a
complaint for "recovery of possession and legal redemption with
damages" against defendants Leonardo and Avelina Mariano.
Plaintiffs alleged in their complaint that as co-heirs and co-owners
of the lot in question, they have the right to recover their
respective shares in the same, and property as they did not sell the
same, and the right of redemption with regard to the shares of
other co-owners sold to the defendants.
Defendants in their answer alleged that the plaintiffs has (sic) no
cause of action against them as the money used to redeem lot in
question was solely from the personal funds of third-party
defendant Amparo Gosiengfiao-Ibarra, who consequently became
the sole owner of the said property and thus validly sold the entire
property to the defendants, and the fact that defendants had
already sold the said property to the children, Lazaro Mariano and
Dionicia M. Aquino. Defendants further contend that even granting
that the plaintiffs are co-owners with the third-party defendants,
their right of redemption had already been barred by the Statute of
Limitations under Article 1144 of the Civil Code, if not by laches.4
After trial on the merits, the Regional Trial Court of Cagayan, Branch I, rendered a
decision dated September 16, 1986, dismissing the complaint and stating that
respondents have no right of ownership or possession over the lot in question. The
trial court further said that when the subject property foreclosed and sold at public
P r o p e r t y C a s e s N o . 8 P a g e | 15
auction, the rights of the heirs were reduced to a mere right of redemption. And
when Amparo G. Ibarra redeemed the lot from the Rural Bank on her own behalf and
with her own money she became the sole owner of the property. Respondents'
having failed to redeem the property from the bank or from Amparo G. Ibarra, lost
whatever rights the might have on the property.5
The Court of Appeals in its questioned decision reversed and set aside the ruling of
the trial court and declared herein respondents as co-owners of the property in the
question. The Court of Appeals said:
The whole controversy in the case at bar revolves on the question
of "whether or not a co-owner who redeems the whole property
with her own personal funds becomes the sole owner of said
property and terminates the existing state of co-ownership."
Admittedly, as the property in question was mortgaged by the
decedent, a co-ownership existed among the heirs during the
period given by law to redeem the foreclosed property. Redemption
of the whole property by a co-owner does not vest in him sole
ownership over said property but will inure to the benefit of all co-
owners. In other words, it will not end to the existing state of co-
ownership. Redemption is not a mode of terminating a co-
ownership.
xxx xxx xxx
In the case at bar, it is undisputed and supported by records, that
third-party defendant Amparo G. Ibarra redeemed the propety in
dispute within the one year redemption period. Her redemption of
the property, even granting that the money used was from her own
personal funds did not make her the exclusive owner of the
mortgaged property owned in common but inured to the benefit of
all co-owners. It would have been otherwise if third-party
defendant Amparo G. Ibarra purchased the said property from the
mortgagee bank (highest, bidder in the foreclosure sale) after the
redemption period had already expired and after the mortgagee
bank had consolidated it title in which case there would no longer
be any co-ownership to speak of .6
The decision of the Court of Appeals is supported by a long line of case law which
states that a redemption by a co-owner within the period prescribed by law inures to
the benefit of all the other co-owners.7
The main argument of petitioners in the case at bar is that the Court of Appeals
incorrectly applied Article 1620 of the Civil Code, instead of Article 1088 of the same
 P r o p e r t y C a s e s N o . 8 P a g e | 16

code which governs legal redemption by co-heirs since the lot in question, which A. I asked him about the Deed of Sale which Mrs.
forms part of the intestate estate of the late Francisco Gosiengfiao, was never the Aquino had told me and he also showed me a
subject of partition or distribution among the heirs, thus, private respondents and Deed of Sale. I went over the Deed of Sale and I
third-party defendants had not ceased to be co-heirs. asked Atty. Laggui about this and he mentioned
here about the names of the legal heirs. I asked
On that premise, petitioners further contend that the right of legal redemption was why my name is not included and I was never
not timely exercised by the private respondents, since Article 1088 prescribes that the informed in writing because I would like to claim
same must be done within the period of one month from the time they were notified and he told me to better consult my own
in writing of the sale by the vendor. attorney.

According to Tolentino, the fine distinction between Article 1088 and Article 1620 is Q. And did you go?
that when the sale consists of an interest in some particular property or properties of
the inheritance, the right redemption that arises in favor of the other co-heirs is that A. Yes, I did.
recognized in Article 1620. On the other hand, if the sale is the hereditary right itself,
fully or in part, in the abstract sense, without specifying any particular object, the Q. What kind of copy or document is that?
right recognized in Article 1088 exists.8
A. It is a deed of sale signed by my mother,
Petitioners allege that upon the facts and circumstances of the present case, sister Amparo and my brothers.
respondents failed to exercise their right of legal redemption during the period
provided by law, citing as authority the case of Conejero, et al., v. Court of Appeals,
Q. If shown to you the copy of the Deed of Sale
et al.9 wherein the Court adopted the principle that the giving of a copy of a deed is
will you be able to identify it?
equivalent to the notice as required by law in legal redemption.

A. Yes, sir.11
We do not dispute the principle laid down in the Conejero case. However, the facts in
the said case are not four square with the facts of the present case.
In Conejero, redemptioner Enrique Conejero was shown and given a copy of the deed Thereafter, Grace Gosiengfiao explicitly stated that she was never given a copy of the
of sale of the subject property. The Court in that case stated that the furnishing of a said Deed of Sale.
copy of the deed was equivalent to the giving of a written notice required by law. 11
Q. Where did Don Mariano, Dr. Mariano and you
The records of the present petition, however, show no written notice of the sale see each other?
being given whatsoever to private respondents. Although, petitioners allege that
sometime on October 31, 1982 private respondent, Grace Gosiengfiao was given a A. In the house of Brgy. Captain Antonio Bassig.
copy of the questioned deed of sale and shown a copy of the document at the Office
of the Barangay Captain sometime November 18, 1982, this was not supported by
Q. What transpired in the house of the Brgy.
the evidence presented. On the contrary, respondent, Grace Gosiengfiao, in her
Captain when you saw each other there?
testimony, declared as follows:

A. Brgy. Captain Bassig informed my intention of

Q. When you went back to the residence of Atty.
claiming the lot and I also informed him about
Pedro Laggui were you able to see him?
the Deed of Sale that was not signed by me since
it is mine it is already sold and I was informed in
A. Yes, I did. writing about it. I am a legal heir and I have also
the right to claim.
Q. When you saw him, what did you tell?
 P r o p e r t y C a s e s N o . 8 P a g e | 17

Q. And what was the reply of Don Mariano and The ruling in Castillo v. Samonte; supra, was reiterated in the case of Garcia
Dr. Mariano to the information given to them by v. Calaliman, where We also discussed the reason for the requirement of the written
Brgy. Captain Bassig regarding your claim? notice. We said:

A. He insisted that the lot is already his because Consistent with aforesaid ruling, in the interpretation of a related
of the Deed of Sale. I asked for the exact copy so provision (Article 1623 of the New Civil Code) this Court had
that I could show to him that I did not sign and stressed that written notice is indispensable, actual knowledge of
he said he does not have a copy. 12 the sale acquired in some other manners by the redemptioner,
notwithstanding. He or she is still entitled to written notice, as
The above testimony was never refuted by Dr. Mariano who was present before Brgy. exacted by the code to remove all uncertainty as to the sale, its
Captain Bassig. terms and its validity, and to quiet and doubt that the alienation is
not definitive. The law not having provided for any alternative, the
method of notifications remains exclusive, though the Code does
The requirement of a written notice has long been settled as early as in the case
not prescribe any particular form of written notice nor any
of Castillo v. Samonte,13 where this Court quoted the ruling in Hernaez v. Hernaez, 32
distinctive method written notification of redemption (Conejero et
Phil., 214, thus:
al. v. Court of Appeals et al., 16 SCRA 775 [1966]; Etcuban v. Court
of Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva, G.R. No.
Both the letter and spirit of the New Civil Code argue against any 75069, April 15, 1988).17 (Emphasis ours)
attempt to widen the scope of the notice specified in Article 1088
by including therein any other kind of notice, such as verbal or by
We likewise do not find merit in petitioners' position that private respondents could
registration. If the intention of the law had been to include verbal
not have validly effected redemption due to their failure to consign in court the full
notice or any other means of information as sufficient to give the
redemption price after tender thereof was rejected by the petitioners. Consignation is
effect of this notice, then there would have been no necessity or
not necessary, because the tender of payment was not made to discharge an
reasons to specify in Article 1088 of the New Civil Code that the
obligation, but to enforce or exercise a right. It has been previously held that
said notice be made in writing for, under the old law, a verbal
consignation is not required to preserve the right of repurchase as a mere tender of
notice or information was sufficient. 14
payment is enough on time as a basis for an action to compel the vendee a retro to
resell the property; no subsequent consignation was necessary to entitle private
Moreover, petitioners themselves adopted in their argument respondents' allegation respondents to such
In their complaint that sometime on October, 1982 they sought the redemption of the reconveyance. 18
property from spouses Leonardo Mariano and Avelina Tigue, by tendering the
repurchase money of P12,000.00, which the spouses rejected.15 Consequently,
Premises considered, respondents have not lost their right to redeem, for in the
private respondents exercised their right of redemption at the first opportunity they
absence of a written notification of the sale by the vendors, the 30-day period has
have by tendering the repurchase price to petitioners. The complaint they filed,
not even begun to run.
before the Barangay Captain and then to the Regional Trial Court was necessary to
assert their rights. As we learned in the case of Castillo, supra:
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. Cost against
petitioners.
It would seem clear from the above that the reimbursement to the
purchaser within the period of one month from the notice in writing
is a requisite or condition precedent to the exercise of the right of SO ORDERED.
legal redemption; the bringing of an action in court is the remedy
to enforce that right in case the purchaser refuses the redemption. Narvasa, C.J., Padilla and Nocon, JJ., concur.
The first must be done within the month-period; the second within
the prescriptive period provided in the Statute of Limitation. 16

No. L-24419. July 15, 1968.
LEONORA ESTOQUE, plaintiff-appellant, vs. ELENA M. PAJIMULA, assisted
by her husband CIRIACO PAJIMULA, defendants-appellees.
Evidence; That an act could have been done is no proof that it was done; Application
in sales; Case at bar.—Granting that the seller, Crispina Perez Vda. de Aquitania could
not have sold this particular portion of the lot owned in common by her and her two
brothers, Lorenzo and Ricardo Perez, by no means does it follow that she intended to
sell to appellant Estoque her 1/3 undivided interest in the lot aforementioned. There
is nothing in the deed of sale to justify such inference. That the seller could have
validly sold her one-third undivided interest to appellant is no proof that she did
choose to sell the same. Ab posse ad actu non valet illatio.
Sales; Where seller not the owner of a thing sold later acquires title thereto; Case at
bar.—While on the date of the sale to Estoque said contract may have been
ineffective, for lack of power in the vendor to sell the specific portion described in the
deed, the transaction was validated and became fully effective when the next day,
October 29, 1951, the vendor, Crispina Perez, became the sole owner of Lot No. 802
of the Rosario Cadastral survey. Article 1434 of the new Civil Code applies.
Co-ownership; Where the lot sold was clearly specified; Case at bar.—The deed of
sale to Estoque clearly specifies the object sold as the southeastern third portion of
Lot 802 of the Rosario Cadastre, with an area of 840 square meters more or less.
Wherefore, she never acquired an undivided interest in Lot 802.
APPEAL from an order of dismissal of the Court of First Instance of La Union. Flores,
J.
The facts are stated in the opinion of the Court.
Jesus P. Mapanao for plaintiff-appellant.
Vergara & Dayot for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal from an order of the Court of First Instance of La Union, in its Civil Case
No. 1990, granting a motion to dismiss the complaint for legal redemption by a co-
owner (retracto legal de comuneros) on account of failure to state a cause of action.
The basic facts and issues are stated in the decision appealed from, as follows:
P r o p e r t y C a s e s N o . 8 P a g e | 18
Plaintiff based her complaint for legal redemption on a claim that she is a
co-owner of Lot No. 802, for having purchased 1/3 portion thereof,
containing an area of 640 square meters as evidenced by a deed of sale,
Annex "A", which was executed on October 28, 1951 by Crispina Perez de
Aquitania, one of the co-owners, in her favor.
On the other hand, the defendant, who on December 30, 1959 acquired the
other 2/3 portion of Lot No. 802 from Crispina Aquitania and her children,
claimed that the plaintiff bought the 1/3 southeastern portion, which is
definitely identified and segregated, hence there existed no co-ownership at
the time and after said plaintiff bought the aforesaid portion, upon which
right of legal redemption can be exercised or taken advantage of.
From the complaint, it would appear that Lot No. 802 of the Cadastral
survey of Rosario, covered by original certificate of title No. RO-2720 (N.A.)
was originally owned by the late spouses, Rosendo Perez and Fortunata
Bernal, who were survived by her children, namely, Crispina Perez, Lorenzo
Perez and Ricardo Perez. Ricardo Perez is also now dead. On October 28,
1951, Crispina P. Vda. de Aquitania sold her right and participation in Lot
No. 802 consisting of 1/3 portion with an area of 640 square meters to
Leonora Estoque (Annex A of the complaint). On October 29, 1951, Lorenzo
Perez, Crispina Perez and Emilia P. Posadas, widow of her deceased
husband, Ricardo Perez for herself and in behalf of her minor children,
Gumersindo, Raquel, Emilio and Ricardo, Jr., executed a deed of
extrajudicial settlement wherein Lorenzo Perez, Emilia P. Posadas and her
minor children assigned all their right, interest and participation in Lot No.
802 to Crispina Perez (Annex B of the complaint). On December 30, 1959,
Crispina Perez and her children Rosita Aquitania Belmonte, Remedios
Aquitania Misa, Manuel Aquitania, Sergio Aquitania and Aurora Aquitania
sold to Elena Pajimula, the remaining 2/3 western portion of Lot No. 802
with an area of 958 square meters (Annex C of the complaint).
The action of the plaintiff is premised on the claim of co-ownership. From
the deed of sale executed in favor of the plaintiff, it can be seen that the 1/3
portion sold to plaintiff is definitely identified as the 1/3 portion located on
the southeastern part of Lot No. 802 and specifically bounded on the north
by De Guzman Street, on the east by Posadas Street, on the south by Perez
Street, and on the west by remaining portion of the same lot, which
contained an area of 640 square meters. And in the deed of sale executed
by Crispina Perez and her children in favor of defendant Elena Pajimula over
the remaining 2/3 portion of Lot No. 802, said portion is identified as the
western portion of Lot No. 802 which is bounded on the north by De
Guzman Street, on the east by properties of Leonarda Estoque, on the south
by the national road and on the west by Lots Nos. 799 and 801, containing
an area of 598 square meters.
 P r o p e r t y C a s e s N o . 8 P a g e | 19

The appellant's stand is that the deed in her favor was inoperative to convey the deed, the transaction was validated and became fully effective when the next day
southeastern third of Lot 802 of the Rosario Cadastre notwithstanding the description (October 29, 1951) the vendor, Crispina Perez, acquired the entire interest of her
in the deed itself, for the reason that the vendor, being a mere co-owner, had no remaining co-owners (Annex B) and thereby became the sole owner of Lot No. 802 of
right to sell any definite portion of the land held in common but could only transmit the Rosario Cadastral survey (Llacer vs. Muñoz, 12 Phil. 328). Article 1434 of the Civil
her undivided share, since the specific portion corresponding to the selling co-owner Code of the Philippines clearly prescribes that — .
is not known until partition takes place (Lopez vs. Ilustre, 5 Phil. 567; Ramirez vs.
Bautista, 14 Phil. 528). From this premise, the appellant argues that the sale in her When a person who is not the owner of a thing sells or alienates and
favor, although describing a definite area, should be construed as having conveyed delivers it, and later the seller or grantor acquires title thereto, such title
only the undivided 1/3 interest in Lot 802 owned at the time by the vendor, Crispina passes by operation of law to the buyer or grantee."
Perez Vda. de Aquitania. Wherefore, when the next day said vendor acquired the 2/3
interest of her two other co-owners, Lot 802 became the common property of
Pursuant to this rule, appellant Estoque became the actual owner of
appellant and Crispina Perez. Therefore, appellant argues, when Crispina sold the rest
the southeastern third of lot 802 on October 29, 1951. Wherefore, she never acquired
of the property to appellee Pajimula spouses, the former was selling an undivided 2/3
an undivided interest in lot 802. And when eight years later Crispina Perez sold to the
that appellant, as co-owner, was entitled to redeem, pursuant to Article 1620 of the
appellees Pajimula the western two-thirds of the same lot, appellant did not acquire a
New Civil Code.
right to redeem the property thus sold, since their respective portions were distinct
and separate.
ART. 1620. A co-owner of a thing may exercise the right of redemption in
case the shares of all the other co-owners or of any of them, are sold to a
IN VIEW OF THE FOREGOING, the appealed order of dismissal is affirmed. Costs
third person. If the price of the alienation is grossly excessive the
against appellant Estoque.1äwphï1.ñët
redemptioner shall pay only a reasonable one.

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

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando,
they may only do so in proportion to the share they may respectively have in
JJ., concur.
the thing owned in common.

The lower court, upon motion of defendant, dismissed the complaint, holding that the
deeds of sale show that the lot acquired by plaintiff Estoque was different from that
of the defendants Pajimula; hence they never became co-owners, and the alleged
right of legal redemption was not proper. Estoque appealed.

We find no error in the order of dismissal, for the facts pleaded negate the claim that
appellant Estoque ever became a co-owner of appellees Pajimula.

(1) The deed of sale to Estoque (Annex A of the complaint) clearly specifies the
object sold as the southeastern third portion of Lot 802 of the Rosario Cadastre, with
an area of 840 square meters, more or less. Granting that the seller, Crispina Perez
Vda. de Aquitania could not have sold this particular portion of the lot owned in
common by her and her two brothers, Lorenzo and Ricardo Perez, by no means does
it follow that she intended to sell to appellant Estoque her 1/3 undivided interest in
the lot forementioned. There is nothing in the deed of sale to justify such inference.
That the seller could have validly sold her one-third undivided interest to appellant is
no proof that she did choose to sell the same. Ab posse ad actu non valet illatio.

(2) While on the date of the sale to Estoque (Annex A) said contract may have been
ineffective, for lack of power in the vendor to sell the specific portion described in the

G.R. No. 76351. October 29, 1993.*
VIRGILIO B. AGUILAR, petitioner, vs. COURT OF APPEALS and SENEN B.
AGUILAR, respondents.
Remedial Law; Civil Procedure; Pre-Trial; Pre-trial is mandatory; a party who fails to
appear at a pre-trial conference may be non-suited or considered as in default.—As
regards the first issue, the law is clear that the appearance of parties at the pre-trial
is mandatory. A party who fails to appear at a pre-trial conference may be non-suited
or considered as in default. In the case at bar, where private respondent and counsel
failed to appear at the scheduled pre-trial, the trial court has authority to declare
respondent in default.
Same; Same; Same; Same; Grant or denial of motion to postpone pre-trial hearing is
within the sound discretion of the trial court.—Although respondent’s counsel filed a
motion to postpone pre-trial hearing, the grant or denial thereof is within the sound
discretion of the trial court, which should take into account two factors in the grant or
denial of motions for postponement, namely: (a) the reason for the postponement
and (b) the merits of the case of movant.
Same; Same; Same; Same; Same; Court sustains the trial court and rules that it did
not abuse its discretion in denying the postponement for lack of merit.—In the instant
case, the trial court found the reason stated in the motion of counsel for respondent
to cancel the pretrial to be without merit. Counsel’s explanation that he had to go to
Iloilo by boat as early as 25 March 1979 to fetch his wife and accompany her to a
wedding in Dumaguete City on 27 April 1979 where she was one of the principal
sponsors, cannot be accepted. We find it insufficient to justify postponement of the
pre-trial, and the Court of Appeals did not act wisely in overruling the denial. We
sustain the trial court and rule that it did not abuse its discretion in denying the
postponement for lack of merit. Certainly, to warrant a postponement of a mandatory
process as pre-trial would require much more than mere attendance in a social
function. It is time indeed we emphasize that there should be much more than mere
perfunctory treatment of the pre-trial procedure. Its observance must be taken
seriously if it is to attain its objective, i.e., the speedy and inexpensive disposition of
cases.
Same; Same; Same; Same; Same; Respondent should have personally appeared in
order not to be declared as in default.—Moreover, the trial court denied the motion
for postponement three (3) days before the scheduled pre-trial. If, indeed, counsel
for respondent could not attend the pre-trial on the scheduled date, respondent at
least should have personally appeared in order not to be declared as in default. But,
since nobody appeared for him, the order of the trial court declaring him as in default
and directing the presentation of petitioner’s evidence ex parte was proper.
P r o p e r t y C a s e s N o . 8 P a g e | 20
Civil Law; Property; Co-ownership; No co-owner shall be obliged to remain in the co-
ownership and that each co-owner may demand at any time partition of the thing
owned in common insofar as his share is concerned.—Article 494 of the Civil Code
provides that no co-owner shall be obliged to remain in the co-ownership, and that
each co-owner may demand at any time partition of the thing owned in common
insofar as his share is concerned. Corollary to this rule, Art. 498 of the Code states
that whenever the thing is essentially indivisible and the co-owners cannot agree that
it be allotted to one of them who shall indemnify the others, it shall be sold and its
proceeds accordingly distributed. This is resorted to (1) when the right to partition
the property is invoked by any of the co-owners but because of the nature of the
property it cannot be subdivided or its subdivision would prejudice the interests of the
co-owners, and (b) the co-owners are not in agreement as to who among them shall
be allotted or assigned the entire property upon proper reimbursement of the co-
owners. In one case, this Court upheld the order of the trial court directing the
holding of a public sale of the properties owned in common pursuant to Art. 498 of
the Civil Code.
Same; Same; Same; Each co-owner of property held pro indiviso exercises his rights
over the whole property and may use and enjoy the same with no other limitations
than that he shall not injure the interests of his co-owners.—However, being a co-
owner respondent has the right to use the house and lot without paying any
compensation to petitioner, as he may use the property owned in common so long as
it is in accordance with the purpose for which it is intended and in a manner not
injurious to the interest of the other co-owners. Each co-owner of property held pro
indiviso exercises his rights over the whole property and may use and enjoy the same
with no other limitation than that he shall not injure the interests of his co-owners,
the reason being that until a division is made, the respective share of each cannot be
determined and every co-owner exercises, together with his co-participants joint
ownership over the pro indiviso property, in addition to his use and enjoyment of the
same.
Same; Same; Same; Co-ownership deemed terminated and the right to enjoy
possession jointly also ceased upon filing and the granting of action to compel the
sale of the property and the ejectment of respondent.—When petitioner filed an
action to compel the sale of the property and the trial court granted the petition and
ordered the ejectment of respondent, the co-ownership was deemed terminated and
the right to enjoy the possession jointly also ceased. Thereafter, the continued stay
of respondent and his family in the house prejudiced the interest of petitioner as the
property should have been sold and the proceeds divided equally between them. To
this extent and from then on, respondent should be held liable for monthly rentals
until he and his family vacate.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.

Jose F. Manacop for petitioner.
Siruelo, Muyco & Associates Law Office for private respondent.
BELLOSILLO, J.:
This is a petition for review on certiorari seeking to reverse and set aside the Decision
of the Court of Appeals in CA-GR CV No. 03933 declaring null and void the orders of
23 and 26 April, 1979, the judgment by default of 26 July 1979, and the order of 22
October 1979 of the then Court of First Instance of Rizal, Pasay City, Branch 30, and
directing the trial court to set the case for pre-trial conference.
Petitioner Virgilio and respondent Senen are brothers; Virgilio is the youngest of
seven (7) children of the late Maximiano Aguilar, while Senen is the fifth. On 28
October 1969, the two brothers purchased a house and lot in Parañaque where their
father could spend and enjoy his remaining years in a peaceful neighborhood.
Initially, the brothers agreed that Virgilio's share in the co-ownership was two-thirds
while that of Senen was one-third. By virtue of a written memorandum dated 23
February 1970, Virgilio and Senen agreed that henceforth their interests in the house
and lot should be equal, with Senen assuming the remaining mortgage obligation of
the original owners with the Social Security System (SSS) in exchange for his
possession and enjoyment of the house together with their father.
Since Virgilio was then disqualified from obtaining a loan from SSS, the brothers
agreed that the deed of sale would be executed and the title registered in the
meantime in the name of Senen. It was further agreed that Senen would take care of
their father and his needs since Virgilio and his family were staying in Cebu.
After Maximiano Aguilar died in 1974, petitioner demanded from private respondent
that the latter vacate the house and that the property be sold and proceeds thereof
divided among them.
Because of the refusal of respondent to give in to petitioner's demands, the latter
filed on 12 January 1979 an action to compel the sale of the house and lot so that the
they could divide the proceeds between them.
In his complaint, petitioner prayed that the proceeds of the sale, be divided on the
basis of two-thirds (2/3) in his favor and one-third (1/3) to respondent. Petitioner
also prayed for monthly rentals for the use of the house by respondent after their
father died.
In his answer with counterclaim, respondent alleged that he had no objection to the
sale as long as the best selling price could be obtained; that if the sale would be
P r o p e r t y C a s e s N o . 8 P a g e | 21
effected, the proceeds thereof should be divided equally; and, that being a co-owner,
he was entitled to the use and enjoyment of the property.
Upon issues being joined, the case was set for pre-trial on 26 April 1979 with the
lawyers of both parties notified of the pre-trial, and served with the pre-trial order,
with private respondent executing a special power of attorney to his lawyer to appear
at the pre-trial and enter into any amicable settlement in his behalf.1
On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel for respondent, filed a motion
to cancel pre-trial on the ground that he would be accompanying his wife to
Dumaguete City where she would be a principal sponsor in a wedding.
On 23 April 1979, finding the reasons of counsel to be without merit, the trial court
denied the motion and directed that the pre-trial should continue as scheduled.
When the case was called for pre-trial as scheduled on 26 April 1979, plaintiff and his
counsel appeared. Defendant did not appear; neither his counsel in whose favor he
executed a special power of attorney to represent him at the pre-trial. Consequently,
the trial court, on motion of plaintiff, declared defendant as in default and ordered
reception of plaintiff's evidence ex parte.
On 7 May 1979, defendant through counsel filed an omnibus motion to reconsider the
order of default and to defer reception of evidence. The trial court denied the motion
and plaintiff presented his evidence.
On 26 July 1979, rendering judgment by default against defendant, the trial court
found him and plaintiff to be co-owners of the house and lot, in equal shares on the
basis of their written agreement. However, it ruled that plaintiff has been deprived of
his participation in the property by defendant's continued enjoyment of the house
and lot, free of rent, despite demands for rentals and continued maneuvers of
defendants, to delay partition. The trial court also upheld the right of plaintiff as co-
owner to demand partition. Since plaintiff could not agree to the amount offered by
defendant for the former's share, the trial court held that this property should be sold
to a third person and the proceeds divided equally between the parties.
The trial court likewise ordered defendant to vacate the property and pay plaintiff
P1,200.00 as rentals2 from January 1975 up to the date of decision plus interest from
the time the action was filed.
On 17 September 1979, defendant filed an omnibus motion for new trial but on 22
October 1979 the trial court denied the motion.
Defendant sought relief from the Court of Appeals praying that the following orders
and decision of the trial court be set aside: (a) the order of 23 April 1970 denying

defendants motion for postponement of the pre-trial set on 26 April 1979; (b) the
order of 26 April 1979 declaring him in default and authorizing plaintiff to present his
evidence ex-parte; (e) the default judgment of 26 July 1979; and, (d) the order dated
22 October 1979 denying his omnibus motion for new trial.
On 16 October 1986, the Court of Appeals set aside the order of the trial court of 26
April 1979 as well as the assailed judgment rendered by default., The appellate court
found the explanation of counsel for defendant in his motion to cancel pre-trial as
satisfactory and devoid of a manifest intention to delay the disposition of the case. It
also ruled that the trial court should have granted the motion for postponement filed
by counsel for defendant who should not have been declared as in default for the
absence of his counsel.
Petitioner now comes to us alleging that the Court of Appeals erred (1) in not holding
that the motion of defendant through counsel to cancel the pre-trial was dilatory in
character and (2) in remanding the case to the trial court for pre-trial and trial.
The issues to be resolved are whether the trial court correctly declared respondent as
in default for his failure to appear at the pre-trial and in allowing petitioner to present
his evidence ex-parte, and whether the trial court correctly rendered the default
judgment against respondent.
We find merit in the petition.
As regards the first issue, the law is clear that the appearance of parties at the pre-
trial is mandatory.3 A party who fails to appear at a pre-trial conference may be non-
suited or considered as in default.4 In the case at bar, where private respondent and
counsel failed to appear at the scheduled pre-trial, the trial, court has authority to
declare respondent in default.5
Although respondent's counsel filed a motion to postpone pre-trial hearing, the grant
or denial thereof is within the sound discretion of the trial court, which should take
into account two factors in the grant or denial of motions for postponement, namely:
(a) the reason for the postponement and (b) the merits of the case of movant.6
In the instant case, the trial court found the reason stated in the motion of counsel
for respondent to cancel the pre-trial to be without merit. Counsel's explanation that
he had to go to by boat as early as 25 March 1979 to fetch his wife and accompany
her to a wedding in Dumaguete City on 27 April 1979 where she was one of the
principal sponsors, cannot be accepted. We find it insufficient to justify postponement
of the pre-trial, and the Court of Appeals did not act wisely in overruling the denial.
We sustain the trial court and rule that it did not abuse its discretion in denying the
postponement for lack of merit. Certainly, to warrant a postponement of a mandatory
process as pre-trial would require much more than mere attendance in a social
function. It is time indeed we emphasize that there should be much more than mere
P r o p e r t y C a s e s N o . 8 P a g e | 22
perfunctory treatment of the pre-trial procedure. Its observance must be taken
seriously if it is to attain its objective, i.e., the speedy and inexpensive disposition of
cases.
Moreover, the trial court denied the motion for postponement three (3) days before
the scheduled pre-trial. If indeed, counsel for respondent could not attend the pre-
trial on the scheduled date, respondent at least should have personally appeared in
order not to be declared as in default. But, since nobody appeared for him, the order
of the trial court declaring him as in default and directing the presentation of
petitioner's evidence ex parte was proper.7
With regard to the merits of the judgment of the trial court by default, which
respondent appellate court did not touch upon in resolving the appeal, the Court
holds that on the basis of the pleadings of the parties and the evidence presented ex
parte, petitioner and respondents are co-owners of subject house and lot in equal
shares; either one of them may demand the sale of the house and lot at any time and
the other cannot object to such demand; thereafter the proceeds of the sale shall be
divided equally according to their respective interests.
Private respondent and his family refuse to pay monthly rentals to petitioner from the
time their father died in 1975 and to vacate the house so that it can be sold to third
persons. Petitioner alleges that respondent's continued stay in the property hinders
its disposal to the prejudice of petitioner. On the part of petitioner, he claims that he
should be paid two-thirds (2/3) of a monthly rental of P2,400.00 or the sum of
P1,600.00.
In resolving the dispute, the trial court ordered respondent to vacate the property so
that it could be sold to third persons and the proceeds divided between them equally,
and for respondent to pay petitioner one-half (1/2) of P2,400.00 or the sum of
P1,200.00 as monthly rental, conformably with their stipulated sharing reflected in
their written agreement.
We uphold the trial court in ruling in favor of petitioner, except as to the effectivity of
the payment of monthly rentals by respondent as co-owner which we here declare to
commence only after the trial court ordered respondent to vacate in accordance with
its order of 26 July 1979.
Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in
the co-ownership, and that each co-owner may demand at any time partition of the
thing owned in common insofar as his share is concerned. Corollary to this rule, Art.
498 of the Code states that whenever the thing is essentially, indivisible and the co-
owners cannot agree that it be, allotted to one of them who shall indemnify the
others, it shall be sold and its proceeds accordingly distributed. This is resorted to (1)
when the right to partition the property is invoked by any of the co-owners but
because of the nature of the property it cannot be subdivided or its subdivision would
 P r o p e r t y C a s e s N o . 8 P a g e | 23

prejudice the interests of the co-owners, and (b) the co-owners are not in agreement
as to who among them shall be allotted or assigned the entire property upon proper
reimbursement of the co-owners. In one case,8 this Court upheld the order of the trial
court directing the holding of a public sale of the properties owned in common
pursuant to Art. 498 of the Civil Code.
The trial court is further directed to take immediate steps to implement this decision
conformably with Art. 498 of the Civil Code and the Rules of Court. This decision is
final and executory.
SO ORDERED.

However, being a co-owner respondent has the right to use the house and lot without Cruz, Davide, Jr., Quiason, JJ., concur.
paying any compensation to petitioner, as he may use the property owned in
common long as it is in accordance with the purpose for which it is intended and in a
manner not injurious to the interest of the other co-owners.9 Each co-owner of
property held pro indiviso exercises his rights over the whole property and may use
and enjoy the same with no other limitation than that he shall not injure the interests
of his co-owners, the reason being that until a division is made, the respective share
of each cannot be determined and every co-owner exercises, together with his co-
participants joint ownership over the pro indiviso property, in addition to his use and
enjoyment of the
same. 10

Since petitioner has decided to enforce his right in court to end the co-ownership of
the house and lot and respondent has not refuted the allegation that he has been
preventing the sale of the property by his continued occupancy of the premises,
justice and equity demand that respondent and his family vacate the property so that
the sale can be effected immediately. In fairness to petitioner, respondent should pay
a rental of P1,200.00 per month, with legal interest; from the time the trial court
ordered him to vacate, for the use and enjoyment of the other half of the property
appertaining to petitioner.

When petitioner filed an action to compel the sale of the property and the trial court
granted the petition and ordered the ejectment of respondent, the co-ownership was
deemed terminated and the right to enjoy the possession jointly also ceased.
Thereafter, the continued stay of respondent and his family in the house prejudiced
the interest of petitioner as the property should have been sold and the proceeds
divided equally between them. To this extent and from then on, respondent should
be held liable for monthly rentals until he and his family vacate.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals
dated 16 October 1986 is REVERSED and SET ASIDE. The decision of the trial court in
Civil Case No. 69.12-P dated 16 July 1979 is REINSTATED, with the modification that
respondent Senen B. Aguilar is ordered to vacate the premises in question within
ninety (90) days from receipt of this and to pay petitioner Virgilio B. Aguilar a monthly
rental of P1,200.00 with interest at the legal rate from the time he received the
decision of the trial court directing him to vacate until he effectively leaves the
premises.

G.R. No. L-33187 March 31, 1980
CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and APOLONIA ONTE,
petitioners, vs. VIVENCIO MORETO, VICTOR MORETO, ELIGIO MORETO,
MARCELO MORETO, PAULINA MORETO, ROSARIO MORETO, MARTA
MORETO, SEVERINA MENDOZA, PABLO MENDOZA, LAZARO MENDOZA,
VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO MORETO and LORENZO
MENDOZA, respondents.
Property; Sale; Equity; Laches; Estoppel; The petitioners are estopped from assailing
the reality of the sale of conjugal estate made by their widowed father where for
years they and the vendees have been neighbors each believing that the area
occupied by the private respondents-vendees was the one so sold and petitioners had
not questioned the sale made by their father of the area in question.—Again, there is
no dispute that the houses of the spouses Cornelio Pamplona and Apolonia Ante as
well as that of their son Rafael Pamplona, including the concrete piggery coral
adjacent thereto, stood on the land from 1952 up to the filing of the complaint by the
private respondents on July 25, 1961, or a period of over nine (9) years. And during
said period, the private respondents who are the heirs of Monica Maniega as well as
of Flaviano Moreto who also died intestate on August 12, 1956, lived as neighbors to
the petitioners-vendees, yet lifted no finger to question the occupation, possession
and ownership of the land purchased by the Pamplonas, so that We are persuaded
and convinced to rule that private respondents are in estoppel by laches to claim half
of the property in dispute as null and void. Estoppel by laches is a rule of equity
which bars a claimant from presenting his claim when, by reason of abandonment
and negligence, he allowed a long time to elapse without presenting the same.
(International Banking Corporation vs. Yared, 59 Phil. 92).
Same; Same; A co-owner has the right to sell his portion of the co-owned property.
The sale of a particular lot thus co-owned by one co-owner where within his right
pro-indiviso is valid in it’s en-tirety.—We reject respondent Court’s ruling that the sale
was valid as to one-half and invalid as to the other half for the very simple reason
that Flaviano Moreto, the vendor, had the legal right to more than 781 sq. meters of
the communal estate, a title which he could dispose, alienate in favor of the vendees-
petitioners. The title may be pro-indiviso or inchoate but the moment the co-owner as
vendor pointed out its location and even indicated the boundaries over which the
fences were to be erected without objection, protest or complaint by the other co-
owners, on the contrary they acquiesced and tolerated such alienation, occupation
and possession, We rule that a factual partition or termination of the co-ownership,
although partial, was created, and barred not only the vendor, Flaviano Moreto, but
also his heirs, the private respondents herein from asserting as against the vendees-
petitioners any right or title in derogation of the deed of sale executed by said vendor
Flaviano Moreto.
P r o p e r t y C a s e s N o . 8 P a g e | 24
Same; Same; Succession; Heirs are obliged to deliver land sold by their parents to
the vendee thereof.—Under Article 776, New Civil Code, the inheritance which private
respondents received from their deceased parents and/or predecessors-in-interest
included all the property rights and obligations which were not extinguished by their
parents’ death. And under Art. 1311, paragraph 1, New Civil Code, the contract of
sale executed by the deceased Flaviano Moreto took effect between the parties, their
assigns and heirs, who are the private respondents herein. Accordingly, to the private
respondents is transmitted the obligation to deliver in full ownership the whole area
of 781 sq. meters to the petitioners (which was the original obligation of their
predecessor Flaviano Moreto) and not only onehalf thereof. Private respondents must
comply with said obligation. The records reveal that the area of 781 sq. meters sold
to and occupied by petitioners for more than 9 years already as of the filing of the
complaint in 1961 had been re-surveyed by private land surveyor Daniel Aranas.
Petitioners are entitled to a segregation of the area from Transfer Certificate of Title
No. T-9843 covering Lot 1496 and they are also entitled to the issuance of a new
Transfer Certificate of Title in their name based on the relocation survey.
APPEAL from the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
E.P. Caguioa for petitioners.
Benjamin C. Yatco for respondents.
GUERRERO, J.:
This is a petition for certiorari by way of appeal from the decision of the Court of
Appeals 1 in CA-G.R. No. 35962-R, entitled "Vivencio Moreto, et al., Plaintiff-
Appellees vs. Cornelio Pamplona, et al., Defendants-Appellants," affirming the
decision of the Court of First Instance of Laguna, Branch I at Biñan.
The facts, as stated in the decision appealed from, show that:
Flaviano Moreto and Monica Maniega were husband and wife. During their marriage,
they acquired adjacent lots Nos. 1495, 4545, and 1496 of the Calamba Friar Land
Estate, situated in Calamba, Laguna, containing 781-544 and 1,021 square meters
respectively and covered by certificates of title issued in the name of "Flaviano
Moreto, married to Monica Maniega."
The spouses Flaviano Moreto and Monica Maniega begot during their marriage six (6)
children, namely, Ursulo, Marta, La Paz, Alipio, Pablo, and Leandro, all surnamed
Moreto.

Ursulo Moreto died intestate on May 24, 1959 leaving as his heirs herein plaintiffs
Vivencio, Marcelo, Rosario, Victor, Paulina, Marta and Eligio, all surnamed Moreto.
Marta Moreto died also intestate on April 30, 1938 leaving as her heir plaintiff Victoria
Tuiza.
La Paz Moreto died intestate on July 17, 1954 leaving the following heirs, namely,
herein plaintiffs Pablo, Severina, Lazaro, and Lorenzo, all surnamed Mendoza.
Alipio Moreto died intestate on June 30, 1943 leaving as his heir herein plaintiff
Josefina Moreto.
Pablo Moreto died intestate on April 25, 1942 leaving no issue and as his heirs his
brother plaintiff Leandro Moreto and the other plaintiffs herein.
On May 6, 1946, Monica Maniega died intestate in Calamba, Laguna.
On July 30, 1952, or more than six (6) years after the death of his wife Monica
Maniega, Flaviano Moreto, without the consent of the heirs of his said deceased wife
Monica, and before any liquidation of the conjugal partnership of Monica and Flaviano
could be effected, executed in favor of Geminiano Pamplona, married to defendant
Apolonia Onte, the deed of absolute sale (Exh. "1") covering lot No. 1495 for
P900.00. The deed of sale (Exh. "1") contained a description of lot No. 1495 as
having an area of 781 square meters and covered by transfer certificate of title No.
14570 issued in the name of Flaviano Moreto, married to Monica Maniega, although
the lot was acquired during their marriage. As a result of the sale, the said certificate
of title was cancelled and a new transfer certificate of title No. T-5671 was issued in
the name of Geminiano Pamplona married to Apolonia Onte (Exh. "A").
After the execution of the above-mentioned deed of sale (Exh. "1"), the spouses
Geminiano Pamplona and Apolonia Onte constructed their house on the eastern part
of lot 1496 as Flaviano Moreto, at the time of the sale, pointed to it as the land which
he sold to Geminiano Pamplona. Shortly thereafter, Rafael Pamplona, son of the
spouses Geminiano Pamplona and Apolonia Onte, also built his house within lot 1496
about one meter from its boundary with the adjoining lot. The vendor Flaviano
Moreto and the vendee Geminiano Pamplona thought all the time that the portion of
781 square meters which was the subject matter of their sale transaction was No.
1495 and so lot No. 1495 appears to be the subject matter in the deed of sale (Exh.
"1") although the fact is that the said portion sold thought of by the parties to be lot
No. 1495 is a part of lot No. 1496.
From 1956 to 1960, the spouses Geminiano Pamplona and Apolonio Onte enlarged
their house and they even constructed a piggery corral at the back of their said house
about one and one-half meters from the eastern boundary of lot 1496.
P r o p e r t y C a s e s N o . 8 P a g e | 25
On August 12, 1956, Flaviano Moreto died intestate. In 1961, the plaintiffs demanded
on the defendants to vacate the premises where they had their house and piggery on
the ground that Flaviano Moreto had no right to sell the lot which he sold to
Geminiano Pamplona as the same belongs to the conjugal partnership of Flaviano and
his deceased wife and the latter was already dead when the sale was executed
without the consent of the plaintiffs who are the heirs of Monica. The spouses
Geminiano Pamplona and Apolonia Onte refused to vacate the premises occupied by
them and hence, this suit was instituted by the heirs of Monica Maniega seeking for
the declaration of the nullity of the deed of sale of July 30, 1952 above-mentioned as
regards one-half of the property subject matter of said deed; to declare the plaintiffs
as the rightful owners of the other half of said lot; to allow the plaintiffs to redeem
the one-half portion thereof sold to the defendants. "After payment of the other half
of the purchase price"; to order the defendants to vacate the portions occupied by
them; to order the defendants to pay actual and moral damages and attorney's fees
to the plaintiffs; to order the defendants to pay plaintiffs P120.00 a year from August
1958 until they have vacated the premises occupied by them for the use and
occupancy of the same.
The defendants claim that the sale made by Flaviano Moreto in their favor is valid as
the lot sold is registered in the name of Flaviano Moreto and they are purchasers
believing in good faith that the vendor was the sole owner of the lot sold.
After a relocation of lots 1495, 1496 and 4545 made by agreement of the parties, it
was found out that there was mutual error between Flaviano Moreto and the
defendants in the execution of the deed of sale because while the said deed recited
that the lot sold is lot No. 1495, the real intention of the parties is that it was a
portion consisting of 781 square meters of lot No. 1496 which was the subject matter
of their sale transaction.
After trial, the lower court rendered judgment, the dispositive part thereof being as
follows:
WHEREFORE, judgment is hereby rendered for the plaintiffs
declaring the deed of absolute sale dated July 30, 1952 pertaining
to the eastern portion of Lot 1496 covering an area of 781 square
meters null and void as regards the 390.5 square meters of which
plaintiffs are hereby declared the rightful owners and entitled to its
possession.
The sale is ordered valid with respect to the eastern one-half (1/2)
of 1781 square meters of Lot 1496 measuring 390.5 square meters
of which defendants are declared lawful owners and entitled to its
possession.

After proper survey segregating the eastern one-half portion with
an area of 390.5 square meters of Lot 1496, the defendants shall
be entitled to a certificate of title covering said portion and Transfer
Certificate of Title No. 9843 of the office of the Register of Deeds of
Laguna shall be cancelled accordingly and new titles issued to the
plaintiffs and to the defendants covering their respective portions.
Transfer Certificate of Title No. 5671 of the office of the Register of
Deeds of Laguna covering Lot No. 1495 and registered in the name
of Cornelio Pamplona, married to Apolonia Onte, is by virtue of this
decision ordered cancelled. The defendants are ordered to
surrender to the office of the Register of Deeds of Laguna the
owner's duplicate of Transfer Certificate of Title No. 5671 within
thirty (30) days after this decision shall have become final for
cancellation in accordance with this decision.
Let copy of this decision be furnished the Register of Deeds for the
province of Laguna for his information and guidance.
With costs against the defendants. 2
The defendants-appellants, not being satisfied with said judgment, appealed to the
Court of Appeals, which affirmed the judgment, hence they now come to this Court.
The fundamental and crucial issue in the case at bar is whether under the facts and
circumstances duly established by the evidence, petitioners are entitled to the full
ownership of the property in litigation, or only one-half of the same.
There is no question that when the petitioners purchased the property on July 30,
1952 from Flaviano Moreto for the price of P900.00, his wife Monica Maniega had
already been dead six years before, Monica having died on May 6, 1946. Hence, the
conjugal partnership of the spouses Flaviano Moreto and Monica Maniega had already
been dissolved. (Article 175, (1) New Civil Code; Article 1417, Old Civil Code). The
records show that the conjugal estate had not been inventoried, liquidated, settled
and divided by the heirs thereto in accordance with law. The necessary proceedings
for the liquidation of the conjugal partnership were not instituted by the heirs either
in the testate or intestate proceedings of the deceased spouse pursuant to Act 3176
amending Section 685 of Act 190. Neither was there an extra-judicial partition
between the surviving spouse and the heirs of the deceased spouse nor was an
ordinary action for partition brought for the purpose. Accordingly, the estate became
the property of a community between the surviving husband, Flaviano Moreto, and
his children with the deceased Monica Maniega in the concept of a co-ownership.
The community property of the marriage, at the dissolution of this
bond by the death of one of the spouses, ceases to belong to the
P r o p e r t y C a s e s N o . 8 P a g e | 26
legal partnership and becomes the property of a community, by
operation of law, between the surviving spouse and the heirs of the
deceased spouse, or the exclusive property of the widower or the
widow, it he or she be the heir of the deceased spouse. Every co-
owner shall have full ownership of his part and in the fruits and
benefits derived therefrom, and he therefore may alienate, assign
or mortgage it, and even substitute another person in its
enjoyment, unless personal rights are in question. (Marigsa vs.
Macabuntoc, 17 Phil. 107)
In Borja vs. Addision, 44 Phil. 895, 906, the Supreme Court said that "(t)here is no
reason in law why the heirs of the deceased wife may not form a partnership with the
surviving husband for the management and control of the community property of the
marriage and conceivably such a partnership, or rather community of property,
between the heirs and the surviving husband might be formed without a written
agreement." In Prades vs. Tecson, 49 Phil. 230, the Supreme Court held that
"(a)lthough, when the wife dies, the surviving husband, as administrator of the
community property, has authority to sell the property with•ut the concurrence of the
children of the marriage, nevertheless this power can be waived in favor of the
children, with the result of bringing about a conventional ownership in common
between the father and children as to such property; and any one purchasing with
knowledge of the changed status of the property will acquire only the undivided
interest of those members of the family who join in the act of conveyance.
It is also not disputed that immediately after the execution of the sale in 1952, the
vendees constructed their house on the eastern part of Lot 1496 which the vendor
pointed out to them as the area sold, and two weeks thereafter, Rafael who is a son
of the vendees, also built his house within Lot 1496. Subsequently, a cemented
piggery coral was constructed by the vendees at the back of their house about one
and one-half meters from the eastern boundary of Lot 1496. Both vendor and
vendees believed all the time that the area of 781 sq. meters subject of the sale was
Lot No. 1495 which according to its title (T.C.T. No. 14570) contains an area of 781
sq. meters so that the deed of sale between the parties Identified and described the
land sold as Lot 1495. But actually, as verified later by a surveyor upon agreement of
the parties during the proceedings of the case below, the area sold was within Lot
1496.
Again, there is no dispute that the houses of the spouses Cornelio Pamplona and
Apolonia Onte as well as that of their son Rafael Pamplona, including the concrete
piggery coral adjacent thereto, stood on the land from 1952 up to the filing of the
complaint by the private respondents on July 25, 1961, or a period of over nine (9)
years. And during said period, the private respondents who are the heirs of Monica
Maniega as well as of Flaviano Moreto who also died intestate on August 12, 1956,
lived as neighbors to the petitioner-vendees, yet lifted no finger to question the
occupation, possession and ownership of the land purchased by the Pamplonas, so
that We are persuaded and convinced to rule that private respondents are in estoppel

by laches to claim half of the property, in dispute as null and void. Estoppel by laches
is a rule of equity which bars a claimant from presenting his claim when, by reason of
abandonment and negligence, he allowed a long time to elapse without presenting
the same. (International Banking Corporation vs. Yared, 59 Phil. 92)
We have ruled that at the time of the sale in 1952, the conjugal partnership was
already dissolved six years before and therefore, the estate became a co-ownership
between Flaviano Moreto, the surviving husband, and the heirs of his deceased wife,
Monica Maniega. Article 493 of the New Civil Code is applicable and it provides a
follows:
Art. 493. Each co-owner shall have the full ownership of his part
and of the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are
involve. But the effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the portion which may
be allotted to him in the division upon the termination of the co-
ownership.
We agree with the petitioner that there was a partial partition of the co-ownership
when at the time of the sale Flaviano Moreto pointed out the area and location of the
781 sq. meters sold by him to the petitioners-vendees on which the latter built their
house and also that whereon Rafael, the son of petitioners likewise erected his house
and an adjacent coral for piggery.
Petitioners point to the fact that spouses Flaviano Moreto and Monica Maniega owned
three parcels of land denominated as Lot 1495 having an area of 781 sq. meters, Lot
1496 with an area of 1,021 sq. meters, and Lot 4545 with an area of 544 sq. meters.
The three lots have a total area of 2,346 sq. meters. These three parcels of lots are
contiguous with one another as each is bounded on one side by the other, thus: Lot
4545 is bounded on the northeast by Lot 1495 and on the southeast by Lot 1496. Lot
1495 is bounded on the west by Lot 4545. Lot 1496 is bounded on the west by Lot
4545. It is therefore, clear that the three lots constitute one big land. They are not
separate properties located in different places but they abut each other. This is not
disputed by private respondents. Hence, at the time of the sale, the co-ownership
constituted or covered these three lots adjacent to each other. And since Flaviano
Moreto was entitled to one-half pro-indiviso of the entire land area or 1,173 sq.
meters as his share, he had a perfect legal and lawful right to dispose of 781 sq.
meters of his share to the Pamplona spouses. Indeed, there was still a remainder of
some 392 sq. meters belonging to him at the time of the sale.
We reject respondent Court's ruling that the sale was valid as to one-half and invalid
as to the other half for the very simple reason that Flaviano Moreto, the vendor, had
the legal right to more than 781 sq. meters of the communal estate, a title which he
P r o p e r t y C a s e s N o . 8 P a g e | 27
could dispose, alienate in favor of the vendees-petitioners. The title may be pro-
indiviso or inchoate but the moment the co-owner as vendor pointed out its location
and even indicated the boundaries over which the fences were to be erectd without
objection, protest or complaint by the other co-owners, on the contrary they
acquiesced and tolerated such alienation, occupation and possession, We rule that a
factual partition or termination of the co-ownership, although partial, was created,
and barred not only the vendor, Flaviano Moreto, but also his heirs, the private
respondents herein from asserting as against the vendees-petitioners any right or title
in derogation of the deed of sale executed by said vendor Flaiano Moreto.
Equity commands that the private respondents, the successors of both the deceased
spouses, Flaviano Moreto and Monica Maniega be not allowed to impugn the sale
executed by Flaviano Moreto who indisputably received the consideration of P900.00
and which he, including his children, benefitted from the same. Moreover, as the
heirs of both Monica Maniega and Flaviano Moreto, private respondents are duty-
bound to comply with the provisions of Articles 1458 and 1495, Civil Code, which is
the obligation of the vendor of the property of delivering and transfering the
ownership of the whole property sold, which is transmitted on his death to his heirs,
the herein private respondents. The articles cited provide, thus:
Art. 1458. By the contract of sale one of the contracting parties
obligates himself to transfer the ownership of and to deliver a
determinate thing, and the other part to pay therefore a price
certain in money or its equivalent.
A contract of sale may be absolute or conditionial.
Art. 1495. The vendor is bound to transfer the ownership of and
deliver, as well as warrant the thing which is the object of the sale.
Under Article 776, New Civil Code, the inheritance which private respondents received
from their deceased parents and/or predecessors-in-interest included all the property
rights and obligations which were not extinguished by their parents' death. And under
Art. 1311, paragraph 1, New Civil Code, the contract of sale executed by the
deceased Flaviano Moreto took effect between the parties, their assigns and heirs,
who are the private respondents herein. Accordingly, to the private respondents is
transmitted the obligation to deliver in full ownership the whole area of 781 sq.
meters to the petitioners (which was the original obligation of their predecessor
Flaviano Moreto) and not only one-half thereof. Private respondents must comply
with said obligation.
The records reveal that the area of 781 sq. meters sold to and occupied by
petitioners for more than 9 years already as of the filing of the complaint in 1961 had
been re-surveyed by private land surveyor Daniel Aranas. Petitioners are entitled to a
segregation of the area from Transfer Certificate of Title No. T-9843 covering Lot
 P r o p e r t y C a s e s N o . 8 P a g e | 28

1496 and they are also entitled to the issuance of a new Transfer Certificate of Title
in their name based on the relocation survey.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby

AFFIRMED with modification in the sense that the sale made and executed by
Flaviano Moreto in favor of the petitioners-vendees is hereby declared legal and valid
in its entirely.

Petitioners are hereby declared owners in full ownership of the 781 sq. meters at the
eastern portion of Lot 1496 now occupied by said petitioners and whereon their
houses and piggery coral stand.

The Register of Deeds of Laguna is hereby ordered to segregate the area of 781 sq.
meters from Certificate of Title No. 9843 and to issue a new Transfer Certificate of
Title to the petitioners covering the segregated area of 781 sq. meters.

No costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Fernandez, De Castro and Melencio-Herrera, JJ.,

concur.

No. L-25014. October 17, 1973.
DOLORES LAHORA VDA. DE CASTRO, ARSENIO DE CASTRO, JR., WlLFREDO
DE CASTRO, IRINEO DE CASTRO and VlRGINIA DE CASTRO ALEJANDRO, (in
substitution for the deceased defendant-appellant ARSENIO DE CASTRO, SR.).,
petitioners, vs. GREGORIO ATIENZA, respondent.
Co-ownership; Co-owner may validly lease his half-interest to third party
independently of other co-owner; Case at bar.—The appellate court’s judgment is
fully supported by the Civil Code provisions on the rights and prerogatives of co-
owners, and specifically by Article 493 which expressly provides that “Art. 493. Each
co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when personal rights are involved.
But the effect of the alienation or the mortgage, with respect to the coowners, shall
be limited to the portion which may be allotted to him in the division upon the
termination of the co-ownership.”
APPEAL from a judgment of the Court of Appeals.
The facts are stated in the opinion of the Court.
Arsenio de Castro, Jr. & F.T. Papa for petitioners.
Dakila Castro & Z.D. de Mesa for respondent.
TEEHANKEE, J.:
The Court rejects petitioners' appeal as without merit and affirms the judgment of the
appellate court. Petitioners' predecessor-in-interest as co-owner of an undivided one-
half interest in the fishpond could validly lease his interest to a third party,
respondent Atienza, independently of his co-owner (although said co-owner had also
leased his other undivided one-half interest to the same third party) and could
likewise by mutual agreement independently cancel his lease agreement with said
third party. Said predecessor-in-interest (and petitioners who have substituted him as
his heirs) therefore stands liable on his express undertaking to refund the advance
rental paid to him by the lessee on the cancelled lease and cannot invoke the non-
cancellation of the co-owner's lease to elude such liability.
The Court of Appeals, in its decision affirming in toto the judgment of the Manila
court of first instance ordering therein defendant-appellant Arsenio de Castro, Sr.
(now deceased and substituted by above-named petitioners as his heirs) "to return to
the plaintiff (respondent) Gregorio Atienza the sum P2,500.00 with legal interest from
P r o p e r t y C a s e s N o . 8 P a g e | 29
the date of the filing of complaint until fully paid plus the sum of P250.00 as
attorney's fees and the costs of the suit", found the following facts to undisputed:
On January 24, 1956 the brothers Tomas de Castro and Arsenio de
Castro, Sr. leased to plaintiff a fishpond containing an area of 26
hectares situated in Polo, Bulacan and forming part of a bigger
parcel of land covered by Transfer Certificate of Title No. 196450 of
the registry of the property of Bulacan. The lessors are co-owners
in equal shares of the leased property.
According to the contract of lease (Exh. 1) the term of the lease
was for five years from January 24, 1956 at a rental of P5,000 a
year, the first year's rental to be paid on February 1, 1956, the
second on February 1, 1957 and the rental for the last three years
on February 1, 1958. The first year's rental was paid on time.
In the meantime, Tomas de Castro died.
In the month of November, 1956, plaintiff as lessee and defendant
Arsenio de Castro, Sr. as one of the lessors, agreed to set aside
and annul the contract of lease and for this purpose an agreement
(Exh. A) was signed by them, Exhibit A as signed by plaintiff and
defendant shows that Felisa Cruz Vda. de Castro, widow of Tomas
de Castro, was intended to be made a party thereof in her capacity
as representative of the heirs of Tomas Castro.
Condition No. 2 of Exhibit A reads as follows:
"2. Na sa pamamagitan nito ay pinawawalang kabuluhan namin
ang nasabing kasulatan at nagkasundo kami na ang bawat isa sa
amin ni Arsenio de Castro at Felisa Cruz Vda. de Castro ay isauli
kay GREGORIO ATIENZA ang tig P2,500.00 o kabuuang halagang
P5,000.00 na paunang naibigay nito alinsunod sa nasabing
kasulatan; na ang nasabing tig P2,500.00 ay isasauli ng bawat isa
sa amin sa o bago dumating ang Dec. 30, 1956."
Felisa Cruz Vda. de Castro refused to sign Exhibit A. Defendant did
not pay the P2,500.00 which under the above-quoted paragraph of
Exhibit A, he should have paid on December 30, 1956. Demand for
payment was made by plaintiff's counsel on January 7, 1957 but to
no avail, hence the present action.
On the conflicting contentions between the parties as to who between them would
attend to securing the signature of Mrs. Felisa Cruz Vda. de Castro (widow of Tomas
 P r o p e r t y C a s e s N o . 8 P a g e | 30

de Castro) to the agreement of cancellation of the lease with respondent Atienza, the of Mrs. Felisa Cruz Vda. de Castro is not essential for the cancellation of the lease of
appellate court found that "the testimony of the defendant (Arsenio de Castro, Sr.) ... defendant's one-half undivided share in the fishpond to plaintiff."
supports the contention of the plaintiff (Atienza) "that it was the defendant Arsenio
who was interested and undertook to do so, citing Arsenio's own declaration that "I The appellate court's judgment is fully supported by the Civil Code provisions on the
agreed to sign this document (referring to the cancellation) because of my desire to rights and prerogatives of co-owners, and specifically by Article 493 which expressly
cancel our original agreement" and that his purpose in obtaining the cancellation of provides that
said lease agreement with plaintiff Atienza was "(B)ecause I had the intention of
having said fishpond leased to other persons and I cannot lease it to third parties
Art. 493. Each co-owner shall have the full ownership of his
unless I can secure the signature of Felisa Vda. de Castro."
part and of the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even substitute
The appellate court thus held in effect that as Arsenio "was the one interested in another person in its enjoyment, except when personal rights are
cancelling the lease (Exh. 1), it stands to reason that he most probably undertook to involved. But the effect of the alienation or the mortgage, with
obtain the signature of Mrs. Castro [widow and successor-in-interest of his brother respect to the co-owners, shall be limited to the portion which may
Tomas]" and that he could not invoke his own failure to obtain such signature to be alloted to him in the division upon the termination of the co-
elude his own undertaking and liability to refund respondent (plaintiff) his share of ownership. *
the rental paid in advance by respondent on the cancelled lease in the sum of
P2,500.00.
ACCORDINGLY, the appealed judgment is hereby affirmed with costs against
petitioners.
The appellate court furthermore correctly held that the consent or concurrence of
Felisa Vda. de Castro (as co-owner in succession of Tomas) was not an essential
condition to the validity and effectivity of the agreement of cancellation of the lease
Makalintal, Actg. C.J., Zaldivar, Castro, Fernando, Barredo, Makasiar, Antonio and
(Exhibit A) as between Arsenio and respondent-lessee, contrary to petitioners' claim,
Esguerra, JJ., concur.
holding that "(S)ince there is no specific provision in Exhibit A supporting defendant's
claim, we are not prepared to supply such condition unless the same can be deduced
from other evidence or unless the terms of Exhibit A cannot be performed by plaintiff
and defendant without Mrs. Castro being bound as a party thereto."

The issue is simply reduced to whether Arsenio as co-owner of the fishpond

owned pro-indiviso by him with his brother Tomas (succeeded by Felisa Vda. de
Castro) could validly lease his half-interest to a third party (respondent
Atienza) independently of his
co-owner, and in case his co-owner also leased his other half interest to the same
third party, whether Arsenio could cancel his own lease agreement with said third
party?

The appellate court correctly resolved the issue thus: "Our view of the contract of
lease Exhibit 1 is that each of the Castro brothers, leased his undivided one-half
interest in the fishpond they owned in common to the plaintiff. Could one of them
have validly leased his interest without the other co-owner leasing his own? The
answer to this is given by appellant in his own brief (p. 14) when he said that it
would result in a partnership between the lessee and the owner of the other
undivided half. If the lease could be entered into partially by one of the co-owners,
insofar as his interest is concerned, then the lease, Exhibit 1, can also be cancelled
partially as between plaintiff and defendant. Therefore, we conclude that the consent

G.R. No. 137152. January 29, 2001.*
CITY OF MANDALUYONG, petitioner, vs. ANTONIO N., FRANCISCO N.,
THELMA N., EUSEBIO N., RODOLFO N., all surnamed AGUILAR,
respondents.
Constitutional Law; Expropriation; Order in acquiring lands for socialized housing.—
Lands for socialized housing are to be acquired in the following order: (1)
government lands; (2) alienable lands of the public domain; (3) unregistered or
abandoned or idle lands; (4) lands within the declared Areas for Priority Development
(APD), Zonal Improvement Program (ZIP) sites, Slum Improvement and Resettlement
(SIR) sites which have not yet been acquired; (5) BLISS sites which have not yet
been acquired; and (6) privately-owned lands.
Same; Same; Modes for acquiring lands for socialized housing under Republic Act
7279; Mode of expropriation is subject to two conditions.—Lands for socialized
housing under R.A. 7279 are to be acquired in several modes. Among these modes
are the following: (1) community mortgage; (2) land swapping; (3) land assembly or
consolidation; (4) land banking; (5) donation to the government; (6) joint venture
agreement; (7) negotiated purchase; and (8) expropriation. The mode of
expropriation is subject to two conditions: (a) it shall be resorted to only when the
other modes of acquisition have been exhausted; and (b) parcels of land owned by
small property owners are exempt from such acquisition.
Same; Same; The type of lands that may be acquired in the order of priority in
Section 9 are to be acquired only in the modes authorized under Section 20.—Section
9 of R.A. 7279 speaks of priorities in the acquisition of lands. It enumerates the type
of lands to be acquired and the heirarchy in their acquisition. Section 10 deals with
the modes of land acquisition or the process of acquiring lands for socialized housing.
These are two different things. They mean that the type of lands that may be
acquired in the order of priority in Section 9 are to be acquired only in the modes
authorized under Section 10. The acquisition of the lands in the priority list must be
made subject to the modes and conditions set forth in the next provision. In other
words, land that lies within the APD, such as in the instant case, may be acquired
only in the modes under, and subject to the conditions of Section 10.
Same; Same; Republic Act No. 7279 limits the size of the land sought to be
expropriated for socialized housing.—While we adhere to the expanded notion of
public use, the passage of R.A. No. 7279, the “Urban Development and Housing Act
of 1992” introduced a limitation on the size of the land sought to be expropriated for
socialized housing. The law expressly exempted “small property owners” from
expropriation of their land for urban land reform.
Same; Same; Two elements defining “Small-Property Owners.”—“Small-property
owners” are defined by two elements: (1) those owners of real property whose
P r o p e r t y C a s e s N o . 8 P a g e | 31
property consists of residential lands with an area of not more than 300 square
meters in highly urbanized cities and 800 square meters in other urban areas; and (2)
that they do not own real property other than the same.
Civil Law; Property; Co-ownership; During the existence of the co-ownership, no
individual can claim title to any definite portion of the community property until the
partition thereof and prior to the partition ail-that the co-owner has is an ideal or
abstract quota or proportionate share in the entire land or thing.—Under a co-
ownership, the ownership of an undivided thing or right belongs to different persons.
During the existence of the co-ownership, no individual can claim title to any definite
portion of the community property until the partition thereof, and prior to the
partition, all that the co-owner has is an ideal or abstract quota or proportionate
share in the entire land or thing, x x x Before partition in a co-ownership, every co-
owner has the absolute ownership of his undivided interest in the common property.
The co-owner is free to alienate, assign or mortgage his interest, except as to purely
personal rights. He may also validly lease his undivided interest to a third party
independently of the other co-owners. The effect of any such transfer is limited to the
portion which may be awarded to him upon the partition of the property.
Same; Same; Same; The rights of the co-owners to have the property partitioned and
their share in the same delivered to them cannot be questioned for no co-owner shall
be obliged to remain in the co-ownership.—As co-owners, all that the respondents
had was an ideal or abstract quota or proportionate share in the lots. This, however,
did not mean that they could not separately exercise any rights over the lots. Each
respondent had the full ownership of his undivided interest in the property. He could
freely sell or dispose of his interest independently of the other co-owners. And this
interest could have even been attached by his creditors. The partition in 1998, six (6)
months after the filing of the expropriation case, terminated the co-ownership by
converting into certain and definite parts the respective undivided shares of the co-
owners. The subject property is not a thing essentially indivisible. The rights of the
co-owners to have the property partitioned and their share in the same delivered to
them cannot be questioned for “[n]o co-owner shall be obliged to remain in the co-
ownership.” The partition was merely a necessary incident of the co-ownership; and
absent any evidence to the contrary, this partition is presumed to have been done in
good faith.
PETITION for review on certiorari of a decision of the Regional Trial Court of Pasig
City, Br. 168.
The facts are stated in the opinion of the Court.
Jimmy D. Lacebal for petitioner.
Ricardo J.M. Rivera Law Office for private respondents.

PUNO, J.:
This is a petition for review under Rule 45 of the Rules of Court of the Orders dated
September 17, 1998 and December 29, 1998 of the Regional Trial Court, Branch 168,
Pasig City1 dismissing the petitioner's Amended Complaint in SCA No. 1427 for
expropriation of two (2) parcels of land in Mandaluyong City. 1âwphi1.nêt
The antecedent facts are as follows:
On August 4, 1997, petitioner filed with the Regional Trial Court, Branch 168, Pasig
City a complaint for expropriation entitled "City of Mandaluyong, plaintiff v. Antonio
N., Francisco N, Thelma N, Eusebio N, Rodolfo N., all surnamed Aguilar,
defendants." Petitioner sought to expropriate three (3) adjoining parcels of land with
an aggregate area of 1,847 square meters registered under Transfer Certificates of
Title Nos. 59780, 63766 and 63767 in the names of the defendants, herein
respondents, located at 9 de Febrero Street, Barangay Mauwag, City of Mandaluyong;
on a portion of the 3 lots, respondents constructed residential houses several decades
ago which they had since leased out to tenants until the present; on the vacant
portion of the lots, other families constructed residential structures which they
likewise occupied; in 1983, the lots were classified by Resolution No. 125 of the
Board of the Housing and Urban Development Coordinating Council as an Area for
Priority Development for urban land reform under Proclamation Nos. 1967 and 2284
of then President Marcos; as a result of this classification, the tenants and occupants
of the lots offered to purchase the land from respondents, but the latter refused to
sell; on November 7, 1996, the Sangguniang Panlungsod of petitioner, upon petition
of the Kapitbisig, an association of tenants and occupants of the subject land,
adopted Resolution No. 516, Series of 1996 authorizing Mayor Benjamin Abalos of the
City of Mandaluyong to initiate action for the expropriation of the subject lots and
construction of a medium-rise condominium for qualified occupants of the land; on
January 10, 1996, Mayor Abalos sent a letter to respondents offering to purchase the
said property at P3,000.00 per square meter; respondents did not answer the letter.
Petitioner thus prayed for the expropriation of the said lots and the fixing of just
compensation at the fair market value of P3,000.00 per square meter.2
In their answer, respondents, except Eusebio N. Aguilar who died in 1995, denied
having received a copy of Mayor Abalos' offer to purchase their lots. They alleged
that the expropriation of their land is arbitrary and capricious, and is not for a public
purpose; the subject lots are their only real property and are too small for
expropriation, while petitioner has several properties inventoried for socialized
housing; the fair market value of P3,000.00 per square meter is arbitrary because the
zonal valuation set by the Bureau of Internal Revenue is P7,000.00 per square meter.
As counterclaim, respondents prayed for damages of P21 million.3
Respondents filed a "Motion for Preliminary Hearing" claiming that the defenses
alleged in their Answer are valid grounds for dismissal of the complaint for lack of
P r o p e r t y C a s e s N o . 8 P a g e | 32
jurisdiction over the person of the defendants and lack of cause of action.
Respondents prayed that the affirmative defenses be set for preliminary hearing and
that the complaint be dismissed.4 Petitioner replied.
On November 5, 1997, petitioner filed an Amended Complaint and named as an
additional defendant Virginia N. Aguilar and, at the same time, substituted Eusebio
Aguilar with his heirs. Petitioner also excluded from expropriation TCT No. 59870 and
thereby reduced the area sought to be expropriated from three (3) parcels of land to
two (2) parcels totalling 1,636 square meters under TCT Nos. 63766 and 63767.5
The Amended Complaint was admitted by the trial court on December 18, 1997.
Respondents, who, with the exception of Virginia Aguilar and the Heirs of Eusebio
Aguilar had yet to be served with summons and copies of the Amended Complaint,
filed a "Manifestation and Motion" adopting their "Answer with Counterclaim" and
"Motion for Preliminary Hearing" as their answer to the Amended Complaint.6
The motion was granted. At the hearing of February 25, 1998, respondents presented
Antonio Aguilar who testified and identified several documentary evidence. Petitioner
did not present any evidence. Thereafter, both parties filed their respective
memoranda.7
On September 17, 1998, the trial court issued an order dismissing the Amended
Complaint after declaring respondents as "small property owners" whose land is
exempt from expropriation under Republic Act No. 7279. The court also found that
the expropriation was not for a public purpose for petitioner's failure to present any
evidence that the intended beneficiaries of the expropriation are landless and
homeless residents of Mandaluyong. The court thus disposed of as follows:
"WHEREFORE, the Amended Complaint is hereby ordered dismissed without
pronouncement as to cost.
SO ORDERED."8
Petitioner moved for reconsideration. On December 29, 1998, the court denied the
motion. Hence this petition.
Petitioner claims that the trial court erred
"IN UPHOLDING RESPONDENT'S CONTENTION THAT THEY QUALIFY AS
SMALL PROPERTY OWNERS AND ARE THUS EXEMPT FROM
EXPROPRIATION."9
Petitioner mainly claims that the size of the lots in litigation does not exempt the
same from expropriation in view of the fact that the said lots have been declared to

be within the Area for Priority Development (APD) No. 5 of Mandaluyong by virtue of
Proclamation No. 1967, as amended by Proclamation No. 2284 in relation to
Presidential Decree No. 1517.10 This declaration allegedly authorizes petitioner to
expropriate the property, ipso facto, regardless of the area of the land.
Presidential Decree (P.D.) No. 1517, the Urban Land Reform Act, was issued by then
President Marcos in 1978. The decree adopted as a State policy the liberation of
human communities from blight, congestion and hazard, and promotion of their
development and modernization, the optimum use of land as a national resource for
public welfare.11 Pursuant to this law, Proclamation No. 1893 was issued in 1979
declaring the entire Metro Manila as Urban Land Reform Zone for purposes of urban
land reform. This was amended in 1980 by Proclamation No. 1967 and in 1983 by
Proclamation No. 2284 which identified and specified 245 sites in Metro Manila as
Areas for Priority Development and Urban Land Reform Zones.
In 1992, the Congress of the Philippines passed Republic Act No. 7279, the "Urban
Development and Housing Act of 1992." The law lays down as a policy that the state,
in cooperation with the private sector, undertake a comprehensive and continuing
Urban Development and Housing Program; uplift the conditions of the
underprivileged and homeless citizens in urban, areas and resettlement areas by
making available to them decent housing at affordable cost, basic services and
employment opportunities and provide for the rational use and development of urban
land to bring about, among others, equitable utilization of residential lands;
encourage more effective people's participation in the urban development process
and improve the capability of local government units in undertaking urban
development and housing programs and projects.12 Towards this end, all city and
municipal governments are mandated to conduct an inventory of all lands and
improvements within their respective localities, and in coordination with the National
Housing Authority, the Housing and Land Use Regulatory Board, the National
Mapping Resource Information Authority, and the Land Management
Bureau, identify lands for socialized housing and resettlement areas for the
immediate and future needs of the underprivileged and homeless in the urban
areas, acquire the lands, and dispose of said lands to the beneficiaries of the
program.13
The acquisition of lands for socialized housing is governed by several provisions in the
law. Section 9 of R.A. 7279 provides:
"Sec. 9. Priorities in the Acquisition of Land. — Lands for socialized housing
shall be acquired in the following order:
(a) Those owned by the Government or any of its subdivisions,
instrumentalities, or agencies, including government-owned or
controlled corporations and their subsidiaries;
P r o p e r t y C a s e s N o . 8 P a g e | 33
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas for Priority Development, Zonal
Improvement Program sites, and Slum Improvement and
Resettlement Program sites which have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and Services or BLISS
Sites which have not yet been acquired;
(f) Privately-owned lands.
Where on-site development is found more practicable and advantageous to
the beneficiaries, the priorities mentioned in this section shall not apply. The
local government units shall give budgetary priority to on-site development
of government lands."
Lands for socialized housing are to be acquired in the following order: (1)
government lands; (2) alienable lands of the public domain; (3) unregistered or
abandoned or idle lands; (4) lands within the declared Areas for Priority Development
(APD), Zonal Improvement Program (ZIP) sites, Slum Improvement and Resettlement
(SIR) sites which have not yet been acquired; (5) BLISS sites which have not yet
been acquired; and (6) privately-owned lands.
There is no dispute that the two lots in litigation are privately-owned and therefore
last in the order of priority acquisition. However, the law also provides that lands
within the declared APD's which have not yet been acquired by the government are
fourth in the order of priority. According to petitioner, since the subject lots lie within
the declared APD, this fact mandates that the lots be given priority in acquisition.14
Section 9, however, is not a single provision that can be read separate from the other
provisions of the law. It must be read together with Section 10 of R.A. 7279 which
also provides:
"Section 10. Modes of Land Acquisition. — The modes of acquiring lands for
purposes of this Act shall include, among others, community mortgage, land
swapping, land assembly or consolidation, land banking, donation to the
Government, joint-venture agreement, negotiated purchase, and
expropriation: Provided, however, That expropriation shall be resorted
to only when other modes of acquisition have been
exhausted: Provided, further, That where expropriation is resorted
to, parcels of land owned by small property owners shall be
exempted for purposes of this Act: Provided, finally, That abandoned

property, as herein defined, shall be reverted and escheated to the State in
a proceeding analogous to the procedure laid down in Rule 91 of the Rules
of Court.15
For the purposes of socialized housing, government-owned and foreclosed
properties shall be acquired by the local government units, or by the
National Housing Authority primarily through negotiated
purchase: Provided, That qualified beneficiaries who are actual occupants of
the land shall be given the right of first refusal."
Lands for socialized housing under R.A. 7279 are to be acquired in several modes.
Among these modes are the following: (1) community mortgage; (2) land swapping,
(3) land assembly or consolidation; (4) land banking; (5) donation to the
government; (6) joint venture agreement; (7) negotiated purchase; and (8)
expropriation. The mode of expropriation is subject to two conditions: (a) it shall be
resorted to only when the other modes of acquisition have been exhausted; (b)
parcels of land owned by small property owners are exempt from such acquisition.
Section 9 of R.A. 7279 speaks of priorities in the acquisition of lands. It enumerates
the type of lands to be acquired and the heirarchy in their acquisition. Section 10
deals with the modes of land acquisition or the process of acquiring lands for
socialized housing. These are two different things. They mean that the type of
lands that may be acquired in the order of priority in Section 9 are to be
acquired only in the modes authorized under Section 10. The acquisition of
the lands in the priority list must be made subject to the modes and conditions set
forth in the next provision. In other words, land that lies within the APD, such as in
the instant case, may be acquired only in the modes under, and subject to the
conditions of, Section 10.
Petitioner claims that it had faithfully observed the different modes of land acquisition
for socialized housing under R.A. 7279 and adhered to the priorities in the acquisition
for socialized housing under said law.16 It, however, did not state with particularity
whether it exhausted the other modes of acquisition in Section 9 of the law before it
decided to expropriate the subject lots. The law states "expropriation shall be
resorted to when other modes of acquisition have been exhausted." Petitioner alleged
only one mode of acquisition, i.e., by negotiated purchase. Petitioner, through the
City Mayor, tried to purchase the lots from respondents but the latter refused to
sell.17 As to the other modes of acquisition, no mention has been made. Not even
Resolution No. 516, Series of 1996 of the Sangguniang Panlungsod authorizing the
Mayor of Mandaluyong to effect the expropriation of the subject property states
whether the city government tried to acquire the same by community mortgage, land
swapping, land assembly or consolidation, land banking, donation to the government,
or joint venture agreement under Section 9 of the law.
P r o p e r t y C a s e s N o . 8 P a g e | 34
Section 9 also exempts from expropriation parcels of land owned by small property
owners.18 Petitioner argues that the exercise of the power of eminent domain is not
anymore conditioned on the size of the land sought to be expropriated.19 By the
expanded notion of public use, present jurisprudence has established the concept
that expropriation is not anymore confined to the vast tracts of land and landed
estates, but also covers small parcels of land.20 That only a few could actually benefit
from the expropriation of the property does not diminish its public use character.21 It
simply is not possible to provide, in one instance, land and shelter for all who need
them.22
While we adhere to the expanded notion of public use, the passage of R.A. No. 7279,
the "Urban Development and Housing Act of 1992" introduced a limitation on the size
of the land sought to be expropriated for socialized housing. The law expressly
exempted "small property owners" from expropriation of their land for urban land
reform. R.A. No. 7279 originated as Senate Bill No. 234 authored by Senator Joey
Lina23 and House Bill No. 34310. Senate Bill No. 234 then provided that one of those
lands not covered by the urban land reform and housing program was "land actually
used by small property owners within the just and equitable retention limit as
provided under this Act."24 "Small property owners" were defined in Senate Bill No.
234 as:
"4. Small Property Owners — are those whose rights are protected under
Section 9, Article XIII of the Constitution of the Philippines, who own small
parcels of land within the fair and just retention limit provided under this Act
and which are adequate to meet the reasonable needs of the small property
owner's family and their means of livelihood.25
The exemption from expropriation of lands of small-property owners was never
questioned on the Senate floor.26 This exemption, although with a modified definition,
was actually retained in the consolidation of Senate Bill No. 234 and House Bill No.
34310 which became R.A. No. 7279.27
The question now is whether respondents qualify as "small property owners" as
defined in Section 3 (q) of R.A. 7279. Section 3 (q) provides:
"Section 3 x x x (q). "Small property owners" refers to those whose only real
property consists of residential lands not exceeding three hundred square
meters (300 sq.m.) in highly urbanized cities and eight hundred square
meters (800 sq.m.) in other urban areas."
"Small-property owners" are defined by two elements: (1) those owners of real
property whose property consists of residential lands with an area of not more than
300 square meters in highly urbanized cities and 800 square meters in other urban
areas; and (2) that they do not own real property other than the same.

The case at bar involves two (2) residential lots in Mandaluyong City, a highly
urbanized city. The lot under TCT No. 63766 is 687 square meters in area and the
second under TCT No. 63767 is 949 square meters, both totalling 1,636 square
meters in area. TCT No. 63766 was issued in the names of herein five (5)
respondents, viz:
"FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR, single; EUSEBIO
N. AGUILAR, JR., widower; RODOLFO N. AGUILAR, single and ANTONIO N.
AGUILAR, married to Teresita Puig; all of legal age, Filipinos."28
TCT No. 63767 was issued in the names of the five (5) respondents plus Virginia
Aguilar, thus:
"FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR, single; EUSEBIO
N. AGUILAR, JR., widower; RODOLFO N. AGUILAR, single and ANTONIO N.
AGUILAR, married to Teresita Puig; and VIRGINIA N. AGUILAR, single, all of
legal age, Filipinos."29
Respondent Antonio Aguilar testified that he and the other registered owners are all
siblings who inherited the subject property by intestate succession from their
parents.30 Their father died in 1945 and their mother in 1976.31 Both TCT's were
issued in the siblings' names on September 2, 1987.31 In 1986, however, the siblings
agreed to extrajudicially partition the lots among themselves, but no action was taken
by them to this end. It was only eleven (11) years later, on November 28, 1997 that
a survey of the two lots was made33 and on February 10, 1998, a consolidation
subdivision plan was approved by the Lands Management Service of the Department
of Environment and Natural Resources.34 The co-owners signed a Partition Agreement
on February 24, 199835 and on May 21, 1998, TCT Nos. 63766 and 63767 were
cancelled and new titles issued in the names of the individual owners pursuant to the
Partition Agreement.
Petitioner argues that the consolidation of the subject lots and their partition was
made more than six (6) months after the complaint for expropriation was filed on
August 4, 1997, hence, the partition was made in bad faith, for the purpose of
circumventing the provisions of R.A. 7279.36
At the time of filing of the complaint for expropriation, the lots subject of this case
were owned in common by respondents; Under a co-ownership, the ownership of an
undivided thing or right belongs to different persons.37 During the existence of the
co-ownership, no individual can claim title to any definite portion of the community
property until the partition thereof; and prior to the partition, all that the co-owner
has is an ideal or abstract quota or proportionate share in the entire land or
thing.38 Article 493 of the Civil Code however provides that:
P r o p e r t y C a s e s N o . 8 P a g e | 35
"Art. 493. Each co-owner shall have the full ownership of his part and of the
fruits and benefits pertaining thereto, and he may therefore alienate, assign
or mortgage it, and even substitute another person in its enjoyment, except
when personal rights are involved. But the effect of the alienation or the
mortgage, with respect to the co-owners shall be limited to the portion
which may be allotted to him in the division upon termination of the co-
ownership.39
Before partition in a co-ownership, every co-owner has the absolute ownership of his
undivided interest in the common property. The co-owner is free to alienate, assign
or mortgage his interest, except as to purely personal rights. 40 He may also validly
lease his undivided interest to a third party independently of the other co-
owners.41 The effect of any such transfer is limited to the portion which may be
awarded to him upon the partition of the property.42
Article 493 therefore gives the owner of an undivided interest in the property the
right to freely sell and dispose of his undivided interest.43 The co-owner, however,
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.44 If the co-owner sells a concrete portion,
this, nonetheless, does not render the sale void. Such a sale affects only his own
share, subject to the results of the partition but not those of the other co-owners who
did not consent to the sale.45
In the instant case, the titles to the subject lots were issued in respondents' names as
co-owners in 1987—ten (10) years before the expropriation case was filed in 1997. As
co-owners, all that the respondents had was an ideal or abstract quota or
proportionate share in the lots. This, however, did not mean that they could not
separately exercise any rights over the lots. Each respondent had the full ownership
of his undivided interest in the property. He could freely sell or dispose of his interest
independently of the other co-owners. And this interest could have even been
attached by his creditors.46 The partition in 1998, six (6) months after the filing of the
expropriation case, terminated the co-ownership by converting into certain and
definite parts the respective undivided shares of the co-owners.47 The subject
property is not a thing essentially indivisible. The rights of the co-owners to have the
property partitioned and their share in the same delivered to them cannot be
questioned for "[n]o co-owner shall be obliged to remain in the co-ownership."48 The
partition was merely a necessary incident of the co-ownership;49 and absent any
evidence to the contrary, this partition is presumed to have been done in good faith.
Upon partition, four (4) co-owners, namely, Francisco, Thelma, Rodolfo and Antonio
Aguilar each had a share of 300 square meters under TCT Nos. 13849, 13852, 13850,
13851.50 Eusebio Aguilar's share was 347 square meters under TCT No. 1385351 while
Virginia Aguilar's was 89 square meters under TCT No. 13854.52
 P r o p e r t y C a s e s N o . 8 P a g e | 36

It is noted that Virginia Aguilar, although granted 89 square meters only of the Finally, this court notes that the subject lots are now in the possession of
subject lots, is, at the same time, the sole registered owner of TCT No. 59780, one of respondents. Antonio Aguilar testified that he and the other co-owners filed
the three (3) titles initially sought to be expropriated in the original complaint. TCT ejectment cases against the occupants of the land before the Metropolitan Trial
No. 59780, with a land area of 211 square meters, was dropped in the amended Court, Mandaluyong, Branches 59 and 60. Orders of eviction were issued and
complaint. Eusebio Aguilar was granted 347 square meters, which is 47 square executed on September 17, 1997 which resulted in the eviction of the tenants and
meters more than the maximum of 300 square meters set by R.A. 7279 for small other occupants from the land in question.71
property owners. In TCT No. 13853, Eusebio's title, however, appears the following
annotation: IN VIEW WHEREOF, the petition is DENIED and the orders dated September 17.
1998 and December 29, 1998 of the Regional Trial Court, Branch 168, Pasig City in
"... subject to x x x, and to the prov. of Sec. 4 Rule 74 of the Rules of Court SCA No. 1427 are AFFIRMED.
with respect to the inheritance left by the deceased Eusebio N. Aguilar."53
SO ORDERED.
Eusebio died on March 23, 1995,54 and, according to Antonio's testimony, the former
was survived by five (5) children.55 Where there are several co-owners, and some of Davide, Jr., Kapunan, Pardo, and Ynares-Santiago, JJ., concur.
them die, the heirs of those who die, with respect to that part belonging to the
deceased, become also co-owners of the property together with those who
survive.56 After Eusebio died, his five heirs became co-owners of his 347 square-
meter portion. Dividing the 347 square meters among the five entitled each heir to
69.4 square meters of the land subject of litigation.

Consequently, the share of each co-owner did not exceed the 300 square meter limit
set in R.A. 7279. The second question, however, is whether the subject property is
the only real property of respondents for them to comply with the second requisite
for small property owners.

Antonio Aguilar testified that he and most of the original co-owners do not reside on
the subject property but in their ancestral home in Paco, Manila.57 Respondents
therefore appear to own real property other than the lots in litigation. Nonetheless,
the records do not show that the ancestral home in Paco, Manila and the land on
which it stands are owned by respondents or anyone of them. Petitioner did not
present any title or proof of this fact despite Antonio Aguilar's testimony.

On the other hand, respondents claim that the subject lots are their only real
property58 and that they, particularly two of the five heirs of Eusebio Aguilar, are
merely renting their houses and therefore do not own any other real property in
Metro Manila.59 To prove this, they submitted certifications from the offices of the
City and Municipal Assessors in Metro Manila attesting to the fact that they have no
registered real property declared for taxation purposes in the respective cities.
Respondents were certified by the City Assessor of Manila;60 Quezon City;61 Makati
City;62 Pasay City;63 Paranaque;64 Caloocan City;65 Pasig
City;66 Muntinlupa;67 Marikina;68 and the then municipality of Las Piñas69 and the
municipality of San Juan del Monte70 as having no real property registered for
taxation in their individual names.1âwphi1.nêt