Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-10423             January 21, 1958

AMADO P. JALANDONI and PAZ RAMOS, plaintiffs-appellants, vs.ANGELA MARTIR-GUANZON, in her own behalf and as Judicial Adminisrtratix of the Testate Estate of the late spouses Hilarion and Ligoria Martir, and ANTONIO GUANZON, defendants-appellees.

Marcos S. Gomez, Ildefonso S. Villanueva and Jose Ur. Carbonell for appellants.Villanueva and Villanueva for appellees.

REYES, J.B.L., J.:

Appeal by the spouses Amado P. Jalandoni and Paz Ramos from an order of the Court of First Instance of Occidental Negros dismissing her complaint in Civil Case No. 3586 of said court.

It appears that on January 9, 1947, the appellant spouses began a suit (Case No. 573) against the appellees Antonio Guanzon, eta al., for partition of lots Nos. 130-A, 130-B and 130-F of the Murcia Cadastre, as well as lots Nos. 1288 and 1376 of the Bogo Cadastre, and for recovery of damages caused by the defendants' unwarranted refusal to recognize plaintiffs' right and partition said lots, as was to account for and deliver plaintiff's share in the crops obtained during the agricultural years from 1941-1942 to 1946-1947. By decision of February 22, 1955, the Court of First Instance of Negros Occidental held for plaintiffs and ordered the partition of the lands involved, but denied their claim for damages because of failure to "prove the exact and actual damages suffered by them.

The decision having become final because none of the parties appealed therefrom, the plaintiffs instituted the present action (No. 3586 of the same Court of First Instance) on August 26, 1955, seeking recovery from the defendants of the following amounts: (1) P20,000 as moral and exemplary damages due to suffering, anguish and anxiety occasioned by the defendant's refusal to partition of the properties involved in the proceeding case; (2) P55,528.20 as share of the products of the property from 1947 (when the preceeding case No. 573 was filed) until 1955 when judgment was rendered therein (3) P4,689.54 as land taxes due unpaid on the properties involved; and (4) P2,500 for attorney's fees.

Upon motion of defendant's, the court a quo dismissed the second complaint for failure to state a cause of action; and after their motion to reconsider was denied, plaintiffs appealed to this Court on points of law.

We find the dismissal to have been correctly entered. Except as concomitant to physical injuries, moral and corrective damages (allegedly due to suffering, anguish and axiety caused by the refusal of defendants in 1941 to partition the common property) were not recoverable under the Civil Code of 1899 which was the governing law at the time. Recovery of such damages was established for the first time in 1950 by the new Civil Code, and action not be made to apply retroactively to acts that occurred character of these damages. The rule is expressly laid down by paragraph 1 of Article 2257 of the new Code.

ART. 2257. Provision of this Code which attach a civil sanction or penalty or a deprivation of rights to acts or ommissions which were not penalized by the former laws, are not applicable to those who, when said laws were in force may have executed the act or incurred in the ommission forbidden or condemmned by this Code.

xxx             xxx             xxx.

As to the value of the plaintiff's share in the products of the land during the time that the former action was pending (which are the damages claimed under the second cause of action), their recovery is now barred by the previous judgment. These damages are but the result of the original cause of action, viz., the continuing refusal by defendants in 1941 to recognize the plaintiffs' right to an interest in the property. In the same way that plaintiffs claimed for their share of the produce from 1941 to 1947, these later damages could have been claimed in the first action, either in the original complaint (for their existence could be anticipated when the first complaint was filed) or else by supplemental plaeding. To allow them to be recovered by subsequent suit would be a violation of the rule against multiplicity of suits, and specifically of sections 3 and 4 of Rules 2 of the Rules of Court, against the splitting of causes of action, since these damages spring from the same cause of action that was pleading in the former case No. 573 between the same parties (Blossom & Co. vs. Manila Gas Corporation, 55 Phil. 26; Santos vs. Moir, 36 Phil. 350; Pascua vs. Sideco, 24 Phil 26; Bachrach Motor Co. vs. Icarangal, 68 Phil. 287).

That the former judgment did not touch upon these damages is not material to its conclusive effect; between the same parties, with the same subject matter and cause of action, a final judgment on the merits is conclusive not only the questions actually contested and determined, but upon all matters that might have been litigated and decided in the former suit, i.e., all matters properly belonging to the subject of the controversy and within the scope of the issue (Penalosa vs. Tuason, 22 Phil. 312; National Bank vs. Barretto, 52 Off. Gaz., 182; Miranda vs. Tianco, 96 Phil., 526, 51 Off. Gaz., [3] 1366). Hence, the rejection of plaintiffs' claim for damages in Case No. 573 imports denial of those who claimed, since there are a mere continuation of the former.

Annent the land taxes allegedly overdue and unpaid, it is readily apparent that, taxes beein due to the government, plaintiffs have no right to compel payment thereof to themselves. The case could be otherwise if plaintiffs had paid the taxes to stave of forfeiture of the common property of tax delinquency; in that event, they could compel contribution. But the complaint does not aver any such tax payment.

Little need be said concerning the claim for attorney's fees under the fourth cause of action. If they be fees for the lawyer's services in the former case, they are barred from recovery for the reasons already given; if for services in the present case, there is no jurisdiction therefor, since no case is made out for the plaintiffs.

The order of dismissal appealed from is affirmed. Costs against plaintiffs-appellants. So ordered.

Bengzon, Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia, and Felix, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-63025 November 29, 1991

RAMON C. ONG, Petitioner, vs. COURT OF APPEALS, FRANCISCO BOIX and ARSENIO CAMINO AS DEPUTY SHERIFF OF CAMARINES NORTE, Respondents.

 

PARAS, J.:

The instant petitioner for certiorari seeks are reversal of the decision ** of herein public respondent Court of Appeals dated October 24, 1977 in CA-G.R. No. 47063-R and its resolution dated January 14, 1983 denying herein petitioner's Motion for Reconsideration.chanroblesvirtualawlibrary chanrobles virtual law library

The Court of Appeals narrates the facts thus:

The record shows that on November 16, 1961, Ramon C. Ong filed a complaint against defendants Arsenio Camino as Deputy Sheriff of Camarines Norte and Francisco Boix, to annul the auction sale of a parcel of land, allegedly owners conjugally by plaintiff and his former wife Teodora B. Ong, awarded in favor of Boix, as highest bidder, in an auction sale conducted on October 10, 1958 by the Deputy Sheriff of Camarines Norte, herein defendant Camino, pursuant to a writ of execution dated August 8, 1958 (Exhibits "C", "2-A") issued by the Court of First Instance of Manila, Branch IV, to enforce its decision in Civil Case No. 33396, entitled, "Francisco Boix, Plaintiff vs. Teodora B. Ong and Ramon C. Ong, Defendants" wherein judgment was rendered to wit:

WHEREFORE, judgment is hereby rendered in favor of plaintiff, ordering the defendant Teodora B. Ong to pay to the plaintiff the sum P2,827.83, with interest of 8% per annum on the sum of P1,000.00 from September 5, 1955, on the sum of P827.83 from December 30, 1955 plus 15% on the total amount of P2,827.83 as attorney's fees; and the further amount of P2,503 with interest at 6% per annum from date of the filing of the complaint, and the costs of the suit. (Exhibit "1")

The title to the property, in favor of the execution-creditor Boix was duly registered in the Office of the Register of Deeds of Camarines Norte (Exhibit "4").chanroblesvirtualawlibrary chanrobles virtual law library

It is not disputed that plaintiff's wife, Teodora B. Ong conducted her own logging business in Camarines Sur. In furtherance of her business operation, on August 18, 1955, she secured from Francisco Boix a loan in the amount of P2,827.83. Unfortunately, because of mismanagement, Teodora defaulted in her obligation. This prompted Boix to file a complaint, based on the promissory notes executed by Teodora, to collect the sum legally due plus interest against Teodora and Ramon Ong, the latter being joined as husband of the former. Defendant-spouses were declared in default and judgment was rendered, as aforesaid, in favor of Boix.chanroblesvirtualawlibrary chanrobles virtual law library

After the aforementioned decision became final and executory, Boix moved to execute the judgment. The motion was granted and a corresponding writ of execution, dated August 8, 1958 (Exhibits "C", "2-A"), was issued. Accordingly, the Sheriff of Camarines Norte levied and attached a parcel of land situated at Diego Linan St., Daet, Camarines Norte, declared under Tax No. 05378 in the sole name of Teodora B. Ong, subject-parcel of herein suit. In a notice of levy on Execution dated August 22, 1958 (Exhibit "2-B"), and notice of Public Auction sale dated September 10, 1958 (Exhibit "2-C"), auction sales was held on October 10, 1958 and as already mentioned, defendant Boix was adjudged highest bidder. A writ of possession was issued to place the execution-creditor in possession of the property levied upon and sold on execution. A corresponding Certificate of Sale (Exhibit "H") was also issued in favor of Boix.chanroblesvirtualawlibrary chanrobles virtual law library

Subsequently, thereafter, Ramon C. Ong filed an Omnibus motion dated October 2, 1961 (Exhibit "D") with the same Court of First Instance of Manila asking to quash the writ of possession, which was denied in an order dated December 6, 1961. A motion for reconsideration dated December 29, 1961 (Exhibit "F") was likewise denied in an order dated February 10, 1962 (Exhibit "G"). (Pp. 1-4, Decision; pp. 11-14 Rollo)

Consequently, petitioner brought the case to the Court of Appeals to annul the auction sale allegedly irregularly executed on the following grounds, namely, that the property was conjugal and thus could not be held liable for personal debts contracted by the wife, and that the there was no valid publication thus making the auction sale void.chanroblesvirtualawlibrary chanrobles virtual law library

The Court of Appeals affirmed the decision of the trial court, prompting petitioner to file a motion for reconsideration thereof. Said motion was denied on January 15, 1983; hence, the present petition.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner contends that the auction sale of the property in dispute is null and void, having been made on a date different from that reflected in the advertisement thereof, aside from having been published in a newspaper which is not of general circulation in the province where the property is situated. According to the petitioner, respondent court's failure to touch on such a jurisdictional issue constitutes grave abuse of discretion which justifies a reversal of its decision affirming the finding of the trial court which in itself constitutes a misappreciation of facts.chanroblesvirtualawlibrary chanrobles virtual law library

The other argument advanced by the petitioner is that the subject property is really conjugal which the wife in the case at bar could not legally bind, and considering that the indebtedness was contracted by the wife only, the levy of the subject property not owned exclusively by the wife owned jointly with the husband is improper.chanroblesvirtualawlibrary chanrobles virtual law library

Against petitioner's argument that the auction sale is null and void is the trial court's assessment of the validity thereof, that is, that the notice of public auction sale was published in accordance with law. Such a factual finding of the trial court is entitled to great weight and should not be disturbed on appeal. "Factual questions should be resolved by the lower courts and the Supreme Court has no jurisdiction as a rule to reverse the findings of the lower courts except in a clear showing of a grave abuse of discretion" (Korean Air Lines vs. Court of Appeals, 154 SCRA 211). In the instant case, petitioner failed to show any grave abuse of discretion committed, by the lower court in appreciating private respondent's allegation that petitioner was previously notified of the supposed transfer of the date of public auction from September 25, 1958 to October 10, 1958.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner's other argument is also based on factual considerations. Against the Court of Appeals' finding that the subject property is paraphernal property, in view of the fact that it was "declared, under Tax No. 05378, in the name of Teodora B. Ong while the house erected thereon was declared under Tax No. 06022 in the name of Ramon C. Ong and Teodora B. Ong (Exhibits "B", "2-B", "2-C, "4") (Decision, p. 4) is petitioner's claim that the subject property is conjugal. Petitioner stresses heavily on the fact that since the surname "Ong" (which is the surname of the husband Ramon C. Ong) was carried by Teodora in the aforesaid declaration, that indicates that the subject property was acquired during the marriage. By reason thereof, the property in dispute is presumed to be owned jointly by both spouses.chanroblesvirtualawlibrary chanrobles virtual law library

We disagree. The mere use of the surname of the husband in the tax declaration of the subject property is not sufficient proof that said property was acquired during the marriage and is therefore conjugal. It is undisputed that the subject parcel was declared solely in the wife's name, but the house built thereon was declared in the name of the spouses. Under such circumstances, coupled with a careful scrutiny of the records of the present case, We hold that the lot in question is paraphernal, and is therefore, liable for the personal debts of the wife.chanroblesvirtualawlibrary chanrobles virtual law library

Thus, it was held in the case of Maramba vs. Lozano, 20 SCRA 474, that

The presumption that property is conjugal (Art. 160, New Civil Code) refers to property acquired during the marriage. When there is no showing as to when the property was acquired by a spouse, the fact that the title is in the spouse's name is an indication that the property belongs exclusively to said spouse.

As correctly pointed out by the respondent Court, the party who invokes the presumption that all property of the marriage belongs to the conjugal partnership (Art. 160, New Civil Code) must first prove that the property was acquired during the marriage. Proof of acquisition during the marriage is a condition sine qua non for the operation of the presumption in favor of the conjugal partnership. (Cobb-Perez, et al. vs. Lantin, et al., 23 SCRA 637; Jose Ponce de Leon vs. Rehabilitation Finance Corp., 36 SCRA 289). In the same manner, the recent case of PNB vs. Court of Appeals, 153 SCRA 435 affirms that:

When the property is registered in the name of the a spouse only and there is no showing as to when the property was acquired by said spouse, this is an indication that the property belongs exclusively to said spouse. And this presumption under Art. 160 of the Civil Code cannot prevail when the title is in the name of only one spouse and the rights of innocent third parties are involved.

Furthermore, even assuming for the sake of argument that the property in dispute is conjugal, the same may still be held liable for the debts of the wife in this case. Under Art. 117 of the Civil Code, the wife may engage in business although the husband may object (but subject to certain conditions). It is clear from the records that the wife was engaged in the logging business with the husband's knowledge and apparently without any objection on his part. The acts of the husband show that he gave his implied consent to the wife's engagement in business. According to Justice Ameurfina-Herrera (then Associate Justice of the Court of Appeals) in her concurring opinion, the rule that should govern in that case is that the wife's paraphernal properties, as well as those of their conjugal partnership, shall be liable for the obligations incurred by the wife in the course of her business (Arts. 117, 140, 172, 203, and 236, Civil Code; Art. 10, Code of Commerce, cited in Commentaries on Phil. Commercial Laws, Martin, T.C. Vol. 1, 1970 Revised Edition, pp. 14-15). After all, whatever profits are earned by the wife from her business go to the conjugal partnership. It would only be just and equitable that the obligations contracted by the wife in connection with her business may also be chargeable not only against her paraphernal property but also against the conjugal property of the spouses.chanroblesvirtualawlibrary chanrobles virtual law library

Let it be noted that due to the length of time that this case has remained pending, private respondents Francisco Boix and Arsenio Camino have allegedly already died in the process. No proper substitution of parties have apparently been made. Nevertheless, despite such supervening events, for failure on the part of petitioner to show any grave abuse of discretion or reversible error committed by respondent appellate court, We deem it wise to affirm the said court's decision. Besides, the decision of the trial court is in accordance with law and the evidence presented.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the petition is hereby DISMISSED for lack of merit without pronouncement as to costs.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Padilla and Regalado, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library

Melencio-Herrera, J., took no part.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 2426            January 24, 1906

FERNANDO MONTAÑO LOPEZ, plaintiff-appellee, vs.PEDRO MARTINEZ ILUSTRE, defendant-appellant.

Hartigan, Marple, Rohde and Gutierrez for appellant.Carlos Casademunt for appellee.

WILLARD, J.:

On the 26th day of December, 1902, Francisco Martinez and the defendant, Pedro Martinez, his son, were the owners as tenants in common of two separate parcels of land in Calle Dulumbayan,

in the city of Manila, each being the owner of an undivided one-half of each of said tracts of land. On the 26th day of December, 1902, Francisco Martinez conveyed to the plaintiff his undivided half interest in both said tracts of land. This deed contained a clause giving Martinez the right to repurchase the property within one year from December 26, 1902. He did not repurchase it, and on the 28th of December, 1903, the plaintiff caused the proper marginal entry to be made upon the books in the registry of property in which registry the conveyance had been recorded, and afterwards brought this action in March, 1904, asking for a partition of the two lots of land, between himself and the defendant, and that defendant account for and pay to the plaintiff his part of the rents of the said properties from the 26th day of December, 1903.

It appeared that Francisco Martinez and the defendant, his son, were the owners as tenants in common of twenty-six other parcels of land; that in June, 1903, before the expiration of the year in which Francisco Martinez had the right to repurchase the property so conveyed to the plaintiff, he and the defendant, his son, made a voluntary partition of these twenty-eight tracts of land, which partition was approved by the Court of First Instance of manila on the 15th day of June, 1903. These twenty-eight tracts of land had been acquired by Francisco Martinez during his marriage with his wife, Doña Germana Ilustre. The wife having died, her estate was in process of administration in the Court of First Instance of Manila, and the partition above mentioned was made on the theory that these lands were the property of the conjugal partnership existing between Francisco Martinez and his wife. In this partition the two parcels of land in question in this case fell to the defendant, and his claim is that by this partition plaintiff lost all his interest in the property. Judgment was entered in the court below in favor of plaintiff as prayed for in his complaint, and the defendant has brought the case here by bill of exceptions.

Article 399 of the Civil Code is as follows:

Every coowner shall have full ownership of his part and in the fruits and benefits derived therefrom, and he therefore may alienate, assign, or mortgage it, and even substitute another person in its enjoyment, unless personal rights are in question. But the effect of the alienation or mortgage, with regard to the coowners, shall be limited to the share which may be awarded him in the division on the dissolution of the community.

This article gives the owner of an undivided interest in the property the right to freely sell and dispose of it — that is, of his undivided interest. he has no right to sell a divided part of the real estate. If he is the owner of an undivided half of a tract of land, he has a right to sell and convey an undivided half, but he has no right to divide the lot into two parts, and convey the whole of one part by metes and bounds. All that Francisco Martinez undertook to do in this case was to convey his undivided interest in these two properties. This he had a perfect right to do, in accordance with the terms of said article. There is nothing in the last clause of the article inconsistent with this position. That declares simply that when the property is divided the purchaser gets an interest only in that part which may be assigned to him. For the purposes of this case we see no difference between it and a case in which the tenant in common makes an absolute conveyance of his undivided interest in the property, without reserving the right to repurchase. In the case of an absolute conveyance of that character, the relation between the grantor in the deed and his cotenant is terminated. They are no longer cotenants. The grantee in the deed takes the place of the grantor, and he and the other owner of the property become cotenants. In such a case the grantor loses all interest in the property, and of course has no right to take any part in the partition of it. It would be absurd to say that after such conveyance the grantor, who had lost all his interest in the property, could by agreement with the other owner make a partition of property in which he had no interest that would be binding upon his grantee.

We do not see how the fact that Francisco Martinez and his son were the owners of other pieces of property as tenants in common can affect the question presented in this case. Each tract was separate and distinct from all the others. The parties had a right to deal with one lot without any reference to the other twenty-seven. The fact that the defendant acquired title to all of them by inheritance from his mother did not make them physically one tract of land, so that a conveyance by the son of his undivided half interest in one of these lots would amount to a conveyance of a divided part of a tract of land held by him in common with this father.

The judgment of the court below is affirmed, with the costs of this instance against the appellant, and after the expiration of twenty days judgment should be entered in accordance herewith and the case remanded to the court below for execution. So ordered.

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

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 137677 May 31, 2000

ADALIA B. FRANCISCO, petitioner,vs.ZENAIDA F. BOISER, respondent.

 

MENDOZA, J.:

This is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No. 55518 which affirmed in toto the decision of the Regional Trial Court, Branch 122, Caloocan City, dismissing petitioner's complaint for redemption of property against respondent.

The facts are as follows:

Petitioner Adalia B. Francisco and three of her sisters, Ester, Elizabeth and Adeluisa, were co-owners of four parcels of registered lands 1 on which stands the Ten Commandments Building at 689 Rizal Avenue Extension, Caloocan City. On August 6, 1979, they sold 1/5 of their undivided share in the subject parcels of land to their mother, Adela Blas, for P10,000.00, thus making the latter a co-owner of said real property to the extent of the share sold.

On August 8, 1986, without the knowledge of the other co-owners, Adela Blas sold her 1/5 share for P10,000.00 to respondent Zenaida Boiser who is another sister of petitioner.

On August 5, 1992, petitioner received summons, with a copy of the complaint in Civil Case No. 15510, filed by respondent demanding her share in the rentals being collected by petitioner from the tenants of the building. Petitioner then informed respondent that she was exercising her right of redemption as a co-owner of the subject property. On August 12, 1992, she deposited the amount of P10,000.00 as redemption price with the Clerk of Court. This move to redeem the property was interposed as a permissive counterclaim in Civil Case No. 15510. However, said case was dismissed after respondent was declared non-suited with the result that petitioner's counterclaim was likewise dismissed.

On September 14, 1995, petitioner instituted Civil Case No. C-17055 before the Regional Trial Court in Caloocan City. She alleged that the 30-day period for redemption under Art. 1623 of the Civil Code had not begun to run against her since the vendor, Adela Blas, never informed her and the other owners about the sale to respondent. She learned about the sale only on August 5, 1992, after she received the summons in Civil Case No. 15510, together with the complaint.

Respondent, on the other hand, contended that petitioner knew about the sale as early as May 30, 1992, because, on that date, she wrote petitioner a letter 2 informing the latter about the sale, with a demand that the rentals corresponding to her 1/5 share of the subject property be remitted to her. Said letter was sent with a copy of the Deed of Sale 3 between respondent and Adela Blas. On the same date, letters 4 were likewise sent by respondent to the tenants of the building, namely, Seiko Service Center and Glitters Corporation, informing them of the sale and requesting that, thenceforth, they pay 1/5 of the monthly rentals to respondent. That petitioner received these letters is proved by the fact that on June 8, 1992, she wrote 5 the building's tenants advising them to disregard respondent's request and continue paying full rentals directly to her.

On August 19, 1996, the trial court dismissed petitioner's complaint for legal redemption. It ruled that Art. 1623 does not prescribe any particular form of notifying co-owners about a sale of property owned in common to enable them to exercise their right of legal redemption. 6 While no written notice was given by the vendor, Adela Blas, to petitioner or the other owners, petitioner

herself admitted that she had received respondent's letter of May 30, 1992 and was in fact furnished a copy of the deed evidencing such sale. 7 The trial court considered the letter sent by respondent to petitioner with a copy of the deed of sale as substantial compliance with the required written notice under Art. 1623 of the New Civil Code. 8 Consequently, the 30-day period of redemption should be counted not from August 5, 1992, when petitioner received summons in Civil Case No. 15510, but at the latest, from June 8, 1992, the date petitioner wrote the tenants of the building advising them to continue paying rentals in full to her. Petitioner failed to redeem the property within that period.

Petitioner brought the matter to the Court of Appeals, which, on October 26, 1998, affirmed the decision of the Regional Trial Court. She moved for reconsideration, but her motion was denied by the appellate court on February 16, 1999. Hence, this petition.

The sole issue presented in this appeal is whether the letter of May 30, 1992 sent by respondent to petitioner notifying her of the sale on August 8, 1986 of Adela Blas' 1/5 share of the property to respondent, containing a copy of the deed evidencing such sale, can be considered sufficient as compliance with the notice requirement of Art. 1623 for the purpose of legal redemption. The trial court and the Court of Appeals relied on the ruling in Distrito v. Court ofAppeals 9 that Art. 1623 does not prescribe any particular form of written notice, nor any distinctive method for notifying the redemptioner. They also invoked the rulings in De Conejero v. Court of Appeals 10 and Badillo v. Ferrer 11 that furnishing the redemptioner with a copy of the deed of sale is equivalent to giving him the written notice required by law.

On the other hand, petitioner points out that the cited cases are not relevant because the present case does not concern the particular form in which notice must be given. Rather, the issue here is whether a notice sent by the vendee may be given in lieu of that required to be given by the vendor or prospective vendor. 12

Art. 1623 of the Civil Code provides:

The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case maybe. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners.

The right of redemption of co-owners excludes that of adjoining owners.

In ruling that the notice given by the vendee was sufficient, the appellate court cited the case of Etcuban v. Court of Appeals 1 in which it was held:

Petitioner contends that vendors (his co-heirs) should be the ones to give him written notice and not the vendees (defendants or private respondent herein) citing the case of Butte vs. Manuel Uy & Sons. Inc., 4 SCRA 526. Such contention is of no moment. While it is true that written notice is required by the law (Art. 1623), it is equally true that, the same "Art. 1623 does not prescribe any particular form of notice, nor any distinctive method for notifying the redemptioner." So long, therefore, as the latter is informed in writing of the sale and the particulars thereof, the 30 days for redemption start running, and the redemptioner has no real cause to complain. (De Conejero et al v. Court of Appeals, et al., 16 SCRA 775). In the Conejero case, we ruled that the furnishing of a copy of the disputed deed of sale to the redemptioner was equivalent to the giving of written notice required by law in "a more authentic manner than any other writing could have done," and that We cannot adopt a stand of having to sacrifice substance to technicality. More so in the case

at bar, where the vendors or co-owners of petitioner stated under oath in the deeds of sale that notice of sale had been given to prospective redemptioners in accordance with Art. 16232 of the Civil Code. "A sworn statement or clause in a deed of sale to the effect that a written notice of sale was given to possible redemptioners or co-owners might be used to determine whether an offer to redeem was made on or out of time, or whether there was substantial compliance with the requirement of said Art. 1623." 14

In Etcuban, notice to the co-owners of the sale of the share of one of them was given by the vendees through their counterclaim in the action for legal redemption. Despite the apparent meaning of Art. 1623, it was held in that case that it was "of no moment" that the notice of sale was given not by the vendor but by the vendees. "So long as the [co-owner] is informed in writing of the sale and the particulars thereof, the 30 days for redemption stair running, and the redemptioner has no cause to complain," so it was held. The contrary doctrine of Butte v. Manuel Uy and Sons, Inc. 15 was thus overruled sub silencio.

However, in the later case of Salatandol v. Retes, 16 decided a year after the Etcuban case, the Court expressly affirmed the ruling in Butte that the notice required by Art. 1623 must be given by the vendor. In Salatandol, the notice given to the redemptioner by the Register of Deeds of the province where the subject land was situated was held to be insuffucient. Resolving the issue of whether such notice was equivalent to the notice from the vendor required under Art. 1623, this Court stated:

The appeal is impressed with merit. In Butte vs. Manuel Uy and Sons, Inc., the Court ruled that Art. 1623 of the Civil Code clearly and expressly prescribes that the thirty (30) days for making the pre-emption or redemption are to be counted from notice in writing by the vendor. The Court said:

. . . The test of Article 1623 clearly and expressly prescribes that the thirty days for making the redemption are to be counted from notice in writing by the vendor. Under the old law (Civil Code of 1889, Art. 1524), it was immaterial who gave the notice; so long as the redeeming co-owner learned of the alienation in favor of the stranger, the redemption period began to run. It is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular method of giving notice, and that method must be deemed exclusive (39 Am. Jur., 237; Payne vs. State, 12 S.W. (2d) (528). As ruled in Wampher vs. Lecompte, 150 Atl. 458 (aff'd. in 75 Law Ed. [U.S.] 275) —

Why these provisions were inserted in the statute we are not informed, but we may assume until the contrary is shown, that a state of facts in respect thereto existed, which warranted the legislature in so legislating.

The reasons for requiring that the notice should be given by the seller, and not by the buyer, are easily divined. The seller of an undivided interest is in the best position to know who are his co-owners that under the law must be notified of the sale. Also, the notice by the seller removes all doubts as to fact of the sale, its perfection, and its validity, the notice being a reaffirmation thereof; so that that party notified need not entertain doubt that the seller may still contest the alienation. This assurance would not exist if the notice should be given by the buyer.

In the case at bar, the plaintiffs have not been furnished any written notice of sale or a copy thereof by Eufemia Omole, the vendor. Said plaintiffs' right to exercise the legal right of preemption or redemption, given to a co-owner when any one of the other co-owners sells his

share in the thing owned in common to a third person, as provided for in Article 1623 of the Civil Code, has not yet accrued.

There was thus a return to the doctrine laid down in Butte. That ruling is sound. In the first place, reversion to the ruling in Butte is proper. Art. 1623 of the Civil Code is clear in requiring that the written notification should come from the vendor or prospective vendor, not from any other person. There is, therefore, no room for construction. Indeed, the principal difference between Art. 1524 of the former Civil Code and Art. 1623 of the present one is that the former did not specify who must give the notice, whereas the present one expressly says the notice must be given by the vendor. Effect must be given to this change in statutory language.

In the second place, it makes sense to require that the notice required in Art. 1623 be given by the vendor and by nobody else. As explained by this Court through Justice J.B.L. Reyes in Butte, the vendor of an undivided interest is in the best position to know who are his co-owners who under the law must be notified of the sale. It is likewise the notification from the seller, not from anyone else, which can remove all doubts as to the fact of the sale, its perfection, and its validity, for in a contract of sale, the seller is in the best position to confirm whether consent to the essential obligation of selling the property and transferring ownership thereof to the vendee has been given.

Now, it is clear that by not immediately notifying the co-owner, a vendor can delay or even effectively prevent the meaningful exercise of the right of redemption. In the present case, for instance, the sale took place in 1986, but it was kept secret until 1992 when vendee (herein respondent) needed to notify petitioner about the sale to demand 1/5 rentals from the property sold. Compared to serious prejudice to petitioner's right of legal redemption, the only adverse effect to vendor Adela Blas and respondent-vendee is that the sale could not be registered. It is non-binding, only insofar as third persons are concerned. 17 It is, therefore, unjust when the subject sale has already been established before both lower courts and now, before this Court, to further delay petitioner's exercise of her right of legal redemption by requiring that notice be given by the vendor before petitioner can exercise her right. For this reason, we rule that the receipt by petitioner of summons in Civil Case No. 15510 on August 5, 1992 constitutes actual knowledge on the basis of which petitioner may now exercise her right of redemption within 30 days from finality of this decision.

Our ruling is not without precedent. In Alonzo v. Intermediate Appellate Court, 18 we dispensed with the need for written notification considering that the redemptioners lived on the same lot on which the purchaser lived and were thus deemed to have actual knowledge of the sales. We stated that the 30-day period of redemption started, not from the date of the sales in 1963 and 1964, but sometime between those years and 1976, when the first complaint for redemption was actually filed. For 13 years, however, none of the co-heirs moved to redeem the property. We thus ruled that the right of redemption had already been extinguished because the period for its exercise had already expired.

In the present case, as previously discussed, receipt by petitioner of summons in Civil Case No. 15510 on August 5, 1992 amounted to actual knowledge of the sale from which the 30-day period of redemption commenced to run. Petitioner had until September 4, 1992 within which to exercise her right of legal redemption, but on August 12, 1992 she deposited the P10,000.00 redemption price. As petitioner's exercise of said right was timely, the same should be given effect.

WHEREFORE, in view of the foregoing, the petition is GRANTED and the decision of the Court of Appeals is REVERSED and the Regional Trial Court, Branch 122, Caloocan City is ordered to effect petitioner's exercise of her right of legal redemption in Civil Case No. C-17055.

SO ORDERED.

Bellosillo and Buena, JJ., concur.

Quisumbing and De Leon, Jr., JJ., are on leave.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 G.R. No. 109910 April 5, 1995

REMEDIOS G. SALVADOR and GRACIA G. SALVADOR, petitioners, vs.COURT OF APPEALS, ALBERTO and ELPIA YABO, FRANCISCA YABO, et al., respondents.

 DAVIDE, JR., J.:

Assailed in this petition is the legal determination made by the Court of Appeals on the issues of which portion of Lot No. 6080 and Lot No. 6180 formed part of the conjugal assets of the spouses Pastor Makibalo and Maria Yabo, and of whether or not the rights of Pastor's co-heirs in the estate of Maria Yabo were extinguished through prescription or laches.

Alipio Yabo was the owner of Lot No. 6080 and Lot No. 6180 situated in Barrio Bulua, Cagayan de Oro City, containing an area of 1,267 and 3,816 square meters, respectively. Title thereto devolved upon his nine children, namely, Victoriano, Procopio, Lope, Jose, Pelagia, Baseliza, Francisca, Maria, and Gaudencia, upon his death sometime before or during the second world war.

On 28 April 1976, Pastor Makibalo, who is the husband of Maria Yabo, one of Alipio's children, filed with the then Court of First Instance of Misamis Oriental a complaint, docketed as Civil Case No. 5000, against the spouses Alberto and Elpia Yabo for "Quieting of Title, Annulment of Documents, and Damages." In the complaint, he alleged that he owned a total of eight shares of the subject lots, having purchased the shares of seven of Alipio's children and inherited the share of his wife, Maria, and that except for the portion corresponding to Gaudencia's share which he did not buy, he occupied, cultivated, and possessed continuously, openly, peacefully, and

exclusively the two parcels of land. He then prayed that he be declared the absolute owner of 8/9 of the lots in question. 1

On 8 October 1976, the grandchildren and great-grandchildren of the late Alipio Yabo 2 lodged with the same court a complaint for partition and quieting of title with damages, 3 docketed as Civil Case No. 5174, against Pastor Makibalo, Enecia Cristal, and the spouses Eulogio and Remedies Salvador. They alleged that Lot No. 6080 and Lot No. 6180 are the common property of the heirs of Alipio Yabo, namely, the plaintiffs, defendant Enecia Cristal, Maria Yabo and Jose Yabo, whose share had been sold to Alberto Yabo; that after Alipio's death, the spouses Pastor and Maria Makibalo, Enecia Cristal and Jose Yabo became the de facto administrators of the said properties; and that much to their surprise, they discovered that the Salvador spouses, who were strangers to the family, have been harvesting coconuts from the lots, which act as a cloud on the plaintiffs' title over the lots.

The plaintiffs then prayed that (a) they, as well as defendant Pastor Makibalo, in representation of his wife, and Enecia Cristal, in representation of Gaudencia, be declared as the owners of the lots; (b) the Salvador spouses be declared as having no rights thereto except as possible assignees of their co-defendants, Pastor Makibalo and Enecia Cristal; (c) the lots be partitioned according to law among the aforementioned co-owners; and (d) the defendants be made to pay for the value of the fruits they harvested from the lots and for moral and exemplary damages, attorney's fees, expenses of the litigation, and costs of the suit.

The two cases were consolidated and jointly heard by Branch 5 of the Court of First Instance of Cagayan de Oro City.

By evidence, Pastor, Makibalo sought to prove the following allegations:

He was married to Maria Yabo who died on 17 March 1962. 4 In August 1949, Jose and Victoriano, both surnamed Yabo, sold their respective shares in the disputed lots to one Pedro Ebarat, and in 1952 the latter sold both shares to Pastor Makibalo. 5 Ebarat formalized this conveyance by executing an Affidavit of Waiver and Quitclaim dated 30 May 1969 in favor of Pastor. 6

On 16 January 1951, the heirs of the late Lope Yabo sold Lope's shares in the litigated properties to one Dominador Canomon, 7 who, in turn, sold the same to Pastor. 8 Canomon afterwards executed an Affidavit of Waiver and Quitclaim in favor of the latter. 9

Pastor Makibalo likewise purchased the shares of Baseliza in the two lots in 1942, of Procopio in 1957, of Francisca in 1958, and of Pelagia in 1967. The only share he did not buy was that of Gaudencia. After every purchase, he took possession of the portions bought and harvested the products thereof. 10

In 1966, Pastor sold back to Alberto a portion of Lot No. 6180 which was formerly the share of Alberto's father, Procopio. 11

In December 1968, Pastor mortgaged the two lots to the spouses Eulogio and Remedios Salvador. 12 On 26 September 1978, he executed a document denominated as a "Confirmation and Quitclaim" whereby he waived all his rights, interests, and participation in the lots in favor of the Salvador spouses. 13

On the other hand, by their evidence, l4 the spouses Alberto and Elpia Yabo tried to prove that they had repurchased from Pastor Makibalo the share of Procopio, which was previously sold to Pastor, and had bought the shares of Jose and Maria. 15

Filoteo Yabo denied having sold the share of his father, Lope Yabo, in the contested lots and disowned his signature and those of his mother, brothers, and sisters appearing at the back of Exhibit "C". 16

Ignacio Yabo testified that his father, Victoriano Yabo, did not know how to write and sign his name. He further declared that he had no knowledge that his father affixed his thumbmark in the document marked as Exhibit "A" purporting to alienate his father's share in the disputed lots. l7

On 15 January 1983, the trial court rendered its decision 18 holding as follows:

Assuming that the thumbmark on the typewritten name "Jose Yabo" in Exh. 3 was that of Jose Yabo, Alberto Yabo and Elpia R. Yabo purchased the share of Jose Yabo in bad faith because they knew before and up to the execution of Exh. 3 on October 24, 1972 that Jose Yabo was no longer the owner of that area because from the documents she borrowed from Mrs. Salvador they came to know that Jose Yabo had sold his shares to Pedro Ebarat, and they have seen that Pastor Makibalo has been in possession of those shares together with the seven others exclusively as owner, he having mortgaged them to Mrs. Salvador.

As Jose Yabo was no longer the owner of the one-ninth (1/9) shares which he sold to Alberto Yabo and Elpia Yabo under Exh. 3, the sale is null and void, and Alberto and Elpia acquired nothing because Jose Yabo had no more title, right or interest to dispose of.

. . .

Pastor Makibalo had been in possession of Jose Yabo's share since 1949 after purchasing it from Ebarat, and has been in possession thereof up to September 26, 1978 when he sold it to the spouses Eulogio Salvador and Remedios Salvador, who are now in possession of the same.

Exh. A, evidencing the sale of Victoriano Yabo's share to Pedro Ebarat was identified by the latter who testified that he sold it to Pastor Makibalo in 1951. Exh. A is an ancient document — 1949 when the document came to existence up to now is more than 30 years, and the document had been in the possession of Pastor Makibalo, then Remedios Salvador who had interest in its preservation.

As regards the shares of Lope Yabo, the same had been sold by his surviving spouse Juana Legaspi, and his children Filoteo, Andresa, Jovita, Bonifacio, and Rundino for P105.00 on January 16, 1951 to Dominador Conomon (Exh. C and C-1), who in turn sold it to Pastor Makibalo in 1952, executing a formal Deed of Waiver and Quitclaim on May 30, 1969 (Exh. D).

Exh. C is an ancient document, being more than 30 years old and has been in the possession of Pastor Makibalo and then the spouses Eulogio and Remedios Salvador — who had an interest in its preservation. The claim of Filoteo Yabo that the signatures appearing in Exh. C are not his and those of his brothers and sisters are of no avail, for if they were not the ones who affixed those signatures and so they did not sell the shares of their father Lope Yabo, why did they not then take possession of said shares — they remained silent from 1951 to September 16, 1976 a period of 25 years. They are now [e]stopped by laches.

And as regards the shares of Baseliza, Francisca and Pelagia, there is no evidence presented to effectively rebut the testimony of Pastor Makibalo that he acquired the shares of Baseliza Yabo in 1942 by changing it with a buffalo; that he bought the shares of Francisca Yabo in 1958 and that he bought the shares of Pelagia Yabo in 1967; Pastor Makibalo had been in possession of these

shares from the time he acquired them, continuously, adversely, openly, and peacefully, as owner up to the time he sold his rights and interest therein to the spouses Eulogio and Remedies Salvador. The heirs of Baseliza, Francisca and Pelagia have not taken any step to protect their rights over those shares for over 40 years in the case of Baseliza's share, for about 20 years in the case of Francisca's share, and for more than 10 years in the case of Pelagia's share. Laches, likewise has rendered their rights stale.

On March 10, 1966 Pastor Makibalo sold back to Alberto Yabo the share of Procopio Yabo in Lot 6180 (Exh. 1 and 2), but there is nothing to show that. Pastor Makibalo also sold back Procopio's share in Lot 6080.

So then, by purchase, Pastor Makibalo and Maria Yabo acquired the shares of Baseliza, Victoriano, Jose, Lope, Procopio and Francisca, or six (6) shares from Lots 6080 and 6180. These belonged to the conjugal partnership of Pastor Makibalo and Maria Yabo. Maria Yabo had also a share from Lots 6080 and 6180, and Pastor Makibalo acquired the shares of Pelagia Yabo in both Lots 6080 and 6180. All in all; Pastor Makibalo acquired eight shares in both Lot 6080 and 6180.

While Maria Yabo died on March 17, 1962, and so one-fourth (1/4) of the shares of Baseliza, Victoriano, Jose, Lope, and Francisca, or one-fourth of five-ninth (5/9) of both lots and one-fourth (1/4) of Lot 6080 should go to the children of the brothers and sisters of Maria Yabo by virtue of the provisions of Article 1001 of the New Civil Code, the latter have lost their rights thereto by laches for their inaction for a very long period and their rights have become stale. On the other hand, Pastor Makibalo who had been in possession of the whole of the eight shares in both Lots 6080 and 6180, enjoying the fruits thereof exclusively, uninterruptedly, publicly, peacefully, and continuously from the death of Maria Yabo up to the filing of the complaint in Civil Case No. 5174 on October 8, 1976, or a period of 14 years, had acquired title to the whole of the eight shares in Lot 6080 and seven shares in Lot 6180 (the share of Procopio in Lot 6180 had been sold back to Alberto Yabo).

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered finding Pastor Makibalo, now Eulogio Salvador and Remedios Salvador the owner of eight (8) shares, equivalent to eight-ninth (8/9) of Lot No. 6080, and of seven (7) shares, equivalent to seven-ninth (7/9) of Lot No. 6180, and therefore, ordering the partition of Lot 6080 so that the one-ninth (1/9) alloted to Gaudencia Yabo will go to her heirs or their assigns, and the remaining eight-ninth (8/9) will go to the spouses Eulogio Salvador and Remedios Salvador, as successor of Pastor Makibalo, and the partition of Lot 6180 so that the seven-ninth (7/9) portion which formerly belonged to Baseliza, Victoriano, Jose, Lope, Maria, Francisca, and Pelagia will go to the spouses Eulogio and Remedios Salvador, the one-ninth (1/9) which formerly belonged to Procopio, will go to Alberto Yabo, and the remaining one-ninth (1/9) which formerly belonged to Gaudencia, will go to Gaudencia's heirs or their assigns.

Doc. No. 720, recorded on page 28 of Notarial Register No. VII, and acknowledged before Notary Public Isidro S. Baculio (Exh. E) [purportedly executed by Maria Yabo and Pastor Makibalo] is hereby declared null and void, and so the Office of the City Fiscal is directed to cause an investigation of this matter to find out the person or persons responsible for the falsification of the said document, and if the evidence warrants, to file the corresponding criminal action in court. The Office of the City Assessor of Cagayan de Oro City is, likewise, directed to cause the cancellation of Tax Declarations Nos. 33553, marked as Exh. H-3, 33557, marked as Exh. H-2, both in the name of Alberto Yabo, for having been issued on the basis of a falsified document. Let copies of this decision be furnished the Offices of the City Fiscal and City Assessor, both of Cagayan de Oro City.

No pronouncement as to damages, attorney's fees and costs.

SO ORDERED. 19

The defendants in Civil Case No. 5000 and the plaintiffs in Civil Case No. 5174 appealed from the decision to the Court of Appeals on 19 August 1983. 20

In its decision of 3 February 1993, 21 the Court of Appeals held that (a) Maria Yabo did not sell her share to Alberto and Elpia Yabo; (b) prescription and laches have not run against the private respondents with respect to the 1/9 share of Maria Yabo in the estate of her father and to her conjugal share in the portions acquired from her brothers and sisters; and (c) Procopio never sold his share in Lot No. 6080 to Pastor Makibalo. More specifically it stated:

Exh. E is the document found by the lower court to be a falsification. This finding appellants do not dispute and have not raised an error.

. . .

While acknowledging. that upon the death of Maria Yabo on March 17, 1962, one-half (1/2) of the share of Maria Yabo in Lots 6080 and 6180 and one-half (1/2) of Maria Yabo's conjugal share in the portions bought from Basiliza, Victoriano, Jose, Lope, Pelagia and Francisca should go to the children of the brothers and sisters of Maria in accordance with Article 1001 of the Civil Code, the lower court rule that said children have lost their rights by laches "for their inaction for a very long period and their rights have become stale" (Decision, p. 16; Record, Vol. 2, p. 158).

Appellants in their second assignment of error aver that this is an error.

We agree that the lower court erred.

While between March 17, 1962 when Maria Yabo died and October 8, 1976, when Civil Case No. 5174 for partition was filed, was a period of more than fourteen (14) years, that alone to our mind would not suffice to establish laches or prescription. Upon the death of Maria Yabo, appellee Pastor Makibalo and appellants and the other children of the brothers and sisters of Maria, by operation of law become co-owners of the one-ninth (1/9) share of Maria as heir of her father Alipio and the conjugal share of Maria in the portions acquired from Basiliza, Victoriano, Jose, Lope, Pelagia and Francisca. Time alone is not a decisive factor. Appellee Pastor Makibalo, it must be remembered, is the husband of Maria and, therefore, an uncle in-law of appellants. In our culture, a demand by an heir or heirs for partition immediately upon the death of a relative is more often taken not as a legitimate assertion of a right but of something else, like greed. It must also be noted that the spouses, the appellee Pastor Makibalo and his deceased wife Maria, were childless and, therefore, appellants and the other children of the brothers and sisters of Maria must have felt that at any rate the property would go to them in the course of time. This probably explains why appellants started asserting their right over the property only after appellee Pastor Makibalo sold the same to the spouses Eulogio and Remedios Salvador. Besides, Lots 6080 and 6180 have a combined area only of 5,083 square meters and before the development of Northern Mindanao, and even in 1962 when Maria Yabo died, were not that valuable. This is shown by the fact that each heir sold his other share only for P110.00.

As we have said not time alone. In the early case of Cortes v. Oliva, 33 Phil. 480, it was held that"(o)rdinarily, possession by one joint owner will not be presumed to be adverse to the others, but will, as a rule, be held to be for the benefit of all. Much stronger evidence is required to show an adverse holding by one of several joint owners than by a stranger; and in such cases, to sustain

a plea of prescription, it must always clearly appear that one who was originally a joint owner has repudiated the claims of his co-owners, and that his co-owners were apprised or should have been apprised of his claim of adverse and exclusive ownership before the alleged prescription began to run (at page 484). This ruling on prescription should apply with equal force to laches.

The third assignment of error challenges the finding of the lower court that "there is nothing to show that Pastor Makibalo also sold back Procopio's share in Lot 6080" (Decision, p. 16; Records, Vol. 2,p. 158).

Exhibits 1 and 2 cover only Procopio's share in Lot 6180. In other words, Exhibits 1 and. 2 conveyed back to Alberto Yabo only his father, Procopio's share in Lot 6180.

There is indeed no evidence that Pastor Makibalo also sold back to Alberto, his father Procopio's share in Lot 6080.

But from the evidence it appears that Procopio Yabo never sold his share in Lot 6080 to Pastor Makibalo. So there was no need to convey back Procopio's share in Lot 6080.

This fact is evident from the Affidavit of Confirmation of Sale (Exh. M) dated April 22, 1970, executed by Alberto Yabo, which is the very document relied upon by the lower court (Decision, p. 11; Record, Vol. 2, p. 153) in finding that "Alberto Yabo admitted that the share of his father Procopio Yabo was previously bought by Pastor Makibalo." A look at Exh. M, particularly par. 3 thereof, reveals that AlbertoYabo merely acknowledged or confirmed the sale of his father's share to Pastor Makibalo in Lot 6180. In effect, it at the same time proves that Lot 6080 was never sold by Procopio to appellee Pastor Makibalo; otherwise, it would have been included in the said Affidavit of Confirmation of Sale. The Deed of Absolute Sale (Exh. 2) subsequently executed by Pastor Makibalo in favor of Alberto Yabo on April 23, 1970, further proves this point, since the latter merely bought back what was previously sold, his father's share in Lot 6180. 22

The respondent court then concluded and held as follows:

In summary, appellee Pastor Makibalo and his assigns, the spouses Eulogio and Remedios Salvador, are entitled only to one-half (½) of the one-ninth (1/9) share of Maria and three-fourths (3/4) of the six-ninth (6/9) shares acquired from Basiliza, Victoriano, Jose, Lope, Pelagia and Francisca. Accordingly, the partition should be done as follows:

(1) 1/9 of Lots 6080 end 6180 should be given to the heirs of Gaudencia Yabo or their successors and assigns;

(2) 1/9 of Lot 6180 should go to Alberto Yabo and his wife Elpia Yabo;

(3) 1/9 of Lot 6080 should be given to the heirs of Procopio Yabo and their successors end assigns, including Alberto Yabo;

(4) The 1/9 share of Maria Yabo in Lots 6080 and 6180 should be partitioned: One-half (1/2) for the surviving spouse Pastor Makibalo (now the spouses Eulogio Salvador and Remedios Salvador) and the other half for the children of the brothers and sisters of Maria Yabo in equal shares.

(5) The remaining 6/9, one-half (1/2) of which is conjugal between Maria Yabo and appellee Pastor Makibalo should be partitioned three-fourths (3/4) for Pastor Makibalo (now the spouses Eulogio Salvador and Remedios Salvador) and one-fourth (1/4) for the children of the brothers and sisters of Maria Yabo in equal shares.

(6) Jose Yabo if he is still alive should participate in the partition as heir of Maria otherwise he shall be represented by his children.

WHEREFORE, premises considered, subject to the modification in the partition, as indicated above, the decision appealed from is AFFIRMED, without pronouncement as to costs. The lower court is directed if necessary to fully effect the partition, to conduct further hearings and determine whether Jose Yabo is still alive and who are the children of the brothers and sisters of Maria Yabo. 23

Unable to obtain a reconsideration of the said-decision, Remedios Salvador, together with her daughter, Ma. Gracia Salvador, as one of the successors-in-interest of Eulogio M. Salvador who died during the pendency of the appeal, 24 elevated the case to this Court contending that the respondent court erred in ruling that: (1) the shares of Pelagia Yabo should be included in the partition; (2) prescription and laches have not run against the private respondents in relation to the 1/9 share of Maria Yabo in the estate of her father and to her ½ conjugal share in those acquired by purchase; (3) Procopio Yabo never sold to Pastor Makibalo his share in Lot No. 6080; and(4) Jose Yabo should be allowed to participate as heir of Maria even as he had openly rejected this option by refusing to participate in both civil cases. 25

Article 160 of the Civil Code provides that all property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains .exclusively to the husband or to the wife. Since the shares of Jose, Victoriano, Lope, Baseliza, Procopio, and Francisca in Lot No. 6180 and Lot No. 6080 had been purchased by Pastor during his marriage with Maria, and there is no proof that these were acquired with his exclusive money, the same are deemed conjugal properties. Not forming part of the conjugal partnership are: (1) the 1/9 share inherited by Maria which remained as her exclusive property pursuant to Article 146 (2) of the Civil Code; (2) the 1/9 share of Gaudencia which was not sold to Pastor; and (3) the 1/9 share of Pelagia which was acquired by Pastor in 1967 or five years after the death of his wife and which was therefore his exclusive property.

There is, thus; merit in the petitioners' first assigned error. The Court of .Appeals should have excluded from the conjugal partnership the share of Pelagia which Pastor had acquired after his wife's death.

Upon Maria's death in 1962, the conjugal partnership of gains was dissolved. 26 Half of the conjugal properties, together with Maria's l/9 hereditary share in the disputed lots, constituted Maria's estate and should thus go to her surviving heirs. 27 Under Article 1001 of the Civil Code, her heirs are her spouse, Pastor Makibalo, who shall be entitled to-one-half (1/2) of her estate, her brother, Jose, and the children of her other brothers and sisters, who shall inherit the other half. There having been no actual partition of the estate yet, the said heirs became co-owners thereof by operation of law. 28

We now determine whether prescription and laches can be applied against the co-heirs of Pastor Makibalo.

It has been said that Article 494 of the Civil Code which provides that each co-owner may demand at any time the partition of the common property implies that an action to demand partition is imprescriptible or cannot be barred by laches. 29 The imprescriptibility of the action cannot, however, be invoked when one of the co-owners has possessed the property as exclusive owner and for a period sufficient to acquire it by prescription. 30

What needs to be addressed first is whether or not Pastor Makibalo has acquired by prescription the shares of his other co-heirs or co-owners. Prescription as a mode of acquiring ownership requires a continuous, open, peaceful, public, and adverse possession for a period of time fixed by law.

This Court has held that the possession of a co-owner is like that of a trustee and shall not be regarded as adverse to the other co-owners but in fact as beneficial to all of them. 31 Acts which may be considered adverse to strangers may not be considered adverse insofar as co-owners are concerned. A mere silent possession by a co-owner, his receipt of rents, fruits or profits from the property, the erection of buildings and fences and the planting of trees thereon, and the payment of land taxes, cannot serve as proof of exclusive ownership, if it is not borne out by clear and convincing evidence that he exercised acts of possession which unequivocably constituted an ouster or deprivation of the rights of the other co-owners. 32

Thus, in order that a co-owner's possession may be deemed adverse to the cestui que trust or the other co-owners, the following elements must concur: (1) that he has performed unequivocal acts of repudiation amounting to an ouster of the cestui que trust or the other co-owners; (2) that such positive acts of repudiation have been made known to the cestui que trust or the other co-owners; and (3) that the evidence thereon must be clear and convincing. 33

In Pangan vs. Court of Appeals, 34 this Court had occasion to lay down specific acts which are considered as acts of repudiation:

Filing by a trustee of an action in court against the trustor to quiet title to property, or for recovery of ownership thereof, held in possession by the former, may constitute an act of repudiation of the trust reposed on him by the latter.

The issuance of the certificate of title would constitute an open and clear repudiation of any trust, and the lapse of more than 20 years, open and adverse possession as owner would certainly suffice to vest title by prescription.

An action for the reconveyance of land based on implied or constructive trust prescribes within 10 years. And it is from the date of the issuance of such title that the effective assertion of adverse title for purposes of the statute of limitation is counted.

The prescriptive period may only be counted from the time petitioners repudiated the trust relation in 1955 upon the filing of the complaint for recovery of possession against private respondents so that the counterclaim of the private respondents contained in their amended answer wherein they asserted absolute ownership of the disputed realty by reason of the continuous and adverse possession of the same is well within the l0-year prescriptive period.

There is clear repudiation of a trust when one who is an apparent administrator of property causes the cancellation of the title thereto in the name of the apparent beneficiaries and gets a new certificate of title in his own name.

It is only when the defendants, alleged co-owners of the property in question, executed a deed of partition and on the strength thereof obtained the cancellation of the title in the name of their predecessor and the issuance of a new one wherein they appear as the new owners of a definite area each, thereby in effect denying or repudiating the ownership of one of the plaintiffs over his alleged share in the entire lot, that the statute of limitations started to run for the purposes of the

action instituted by the latter seeking a declaration of the existence of the co-ownership and of their rights thereunder.

The records do not show that Pastor Makibalo adjudicated to himself the whole estate of his wife by means of an affidavit filed with the Office of the Register of Deeds as allowed under Section 1 Rule 74 of the Rules of Court, or that he caused the issuance of a certificate of title in his name or the cancellation of the tax declaration in Alipio's name and the issuance of a new one in his own name. The only act which may be deemed as a repudiation by Pastor of the co-ownership over the lots is his filing on 28 April 1976 of an action to quiet title (Civil Case No. 5000). The period of prescription started to run only from this repudiation. However, this was tolled when his co-heirs, the private respondents herein, instituted on 8 October 1976 an action for partition (Civil Case No. 5174) of the lots. Hence, the adverse possession by Pastor being for only about six months would not vest in him exclusive ownership of his wife's estate, and absent acquisitive prescription of ownership, laches and prescription of the action for partition will not lie in favor of Pastor. 35

The issue presented by the petitioners in their third assigned error involves a question of fact. This Court is not ordinarily a trier of facts, its jurisdiction being limited to errors of law. Thus; the findings of facts of the Court of Appeals are as a rule deemed conclusive. However, when the findings of facts of the appellate court vary with those of the trial court, this Court has to review the evidence in order to arrive at the correct findings. 36

In the instant case, a conflict in the findings of facts of the lower courts exists. The trial court found that Pastor was the owner of Procopio's share in Lot No. 6080, as there was nothing to show that he sold it back to Alberto Yabo. The respondent court on the other hand, held that Procopio Yabo never sold his share in Lot No. 6080 to pastor, thus, there was no need to convey it back to Procopio's son, Alberto.

At this juncture, it is worthy to quote pertinent portions of the testimony of Pastor Makibalo:

COURT: (To the witness.)

Q Where is AlbertoYabo living?

A It is there in their house at Bulua.

ATTY. JARAULA: (Continuing.)

Q In whose land?

A Alipio Yabo's land.

Q What relation has that land to the two (2) parcels of land under litigation?

A I bought already.

Q So, will you please tell the Honorable Court, why Alberto Yabo is staying on that land when you said you have bought that land already.

A So, I sold back a portion to them because they requested me.

COURT: (To the witness.)

Q When was that when you said that Alberto Yabo requested a portion?

A In 1967.

COURT:

Q Did you give that portion which they requested?

A Their share being inherited from their father Procopio was the portion they requested.

COURT

Q Yes. Did you grant that?

A Yes.

Q That is the area you sold to Alberto Yabo, pursuant to his request?

A Because that was the land they inherited from their father that was what they requested.

Q All right. So that, the area now being occupied by Alberto Yabo?

A Yes. That land in the Centro.

Q This is now identified as Lot No. 6180?

A Yes, Your Honor.

ATTY. JARAULA: (Continuing.)

Q Where did you sign a document ceding that portion requested by Alberto Yabo?

A We did not make any receipt in favor of AlbertoYabo because they got only the receipt of that of his father.

COURT: (To the witness.)

Q You mean to say, that the receipt which Procopio signed when he sold his share for [sic] the document which Alberto got?

A Yes.

COURT:

All right.

ATTY. JARAULA (Continuing.)

Q Now, for how much did you buy. the shares of each of the brothers and sisters of your wife?

A One Hundred Ten (P110.00) Pesos.

Q When you sold back to Alberto Yabo, the portion corresponding to the share of his father Procopio in the Poblacion, how much did he pay you?

A The same.

Q By the same, you are referring by the same amount of One Hundred Ten (P110.00) Pesos?

A Yes, Sir. The same amount. 37

The petitioners contend that the sales or conveyances made by Alipio's heirs were for their consolidated shares in the two lots. If this was so, and the receipt which Procopio signed when he sold his consolidated share to Pastor was turned over to Alberto, the inevitable conclusion is that Alberto redeemed his father's share in both lots, not only in Lot: No. 6180. This conclusion is further buttressed by the above-quoted testimony of Pastor that he bought the shares (consolidated) of each of Alipio's heirs for P110.00 and that when he sold back to Alberto the former share of Procopio, Alberto paid him the same amount of P110.00.

However, since the share of Procopio in the two litigated parcels of land was purchased by Pastor during his marriage with Maria, the same became conjugal property, and half of it formed part of Maria's estate upon her death in 1962. Accordingly, Pastor's resale in favor of Alberto could only be valid with respect to Pastor's one-half (1/2) conjugal share and one-fourth (1/4) hereditary share as heir of Maria. 38 The remaining one-fourth (1/4) should go to Pastor's co-heirs, the private respondents herein.

Now on the fourth assigned error.

Section 1, Rule 69 of the Rules of Court requires that all persons interested in the land sought to be partitioned must be joined as defendants in the complaints. All co-owners and persons having an interest in the property are considered indispensable parties and an action for partition will not lie without the joinder of said persons. 39 It has been held that the absence of an indispensable party in a case renders ineffective all the proceedings subsequent to the filing of the complaint including the judgment. 40

It must be recalled that in Civil Case No. 5174 the private respondents sought the partition of the two lots based on the co-ownership which arose from the right of succession to Alipio's estate. Since Jose Yabo confirmed, through his thumbmark in the verification of the complaint, that he had already parted with his share in Alipio's estate, he in effect admitted that he had ceased to be a co-owner of the two lots which comprised his father's estate. Thus, his non-joinder as a party-plaintiff in the complaint would appear to be proper. He does not, as well, appear to be an indispensable party in Civil Case No. 5000.

As it turned out, however, the evidence and the issues which cropped up rendered imperative the determination of the conjugal assets of Pastor Makibalo and Maria Yabo and the partition of the latter's estate among her heirs. Her estate consists of one-half(½) of the conjugal properties, which should then be divided pursuant to Article 1001 of the Civil Code since the marriage produced no child; thus: one-half (½) to Pastor, and the other half to her brother Jose, and to her nephews and nieces.

Insofar as the partition of Maria Yabo's estate is concerned, Jose is an indispensable party. Strictly, the rule on indispensable parties may bar a partition of Maria's estate. Considering, however, that such estate or its partition are but incidents in Civil Case No. 5000 and Civil Case No. 5174, and the parties have not offered any objection to the propriety of the determination and partition of her estate, then in the light of Section 11 of Rule 3 41 and Sections 1 and 5, Rule 10 42 of the Rules of Court, and following the rulings of this Court in the 1910 case of Alonso vs. Villamor 43 and the 1947 case of Cuyugan vs. Dizon, 44 an amendment of the complaint in Civil Case No. 5174 to implead Jose Yabo as party plaintiff would be in order.

In Alonso, it was held that under Section 110 of the Code of Civil Procedure — whose first paragraph is substantially the same as the aforesaid Section 1 of Rule 10 — and Section 503 thereof, this Court "has full power, apart from that power and authority which is inherent, to amend the process, pleadings, proceedings, and decision in this case by substituting, as party plaintiff, the real party in interest." Our ruling in Cuyugan states:

We, however, do not believe that the case should be dismissed for plaintiff's failure to join her husband. (Sec. 11, Rule 2, Rules of Court). Nor should the case be remanded to the court below and a new trial ordered on this account. The complaint may and should be amended here, to cure the defect of party plaintiffs, after final decision is rendered. Section 11, Rule 2, and Section 2, Rule 17, explicitly authorize such procedure. As this Court had occasion to say in Quison vs. Salud, (12 Phil., 109, 116), "a second action would be but a repetition of the first and would involve both parties, plaintiffs and defendant, in much additional expense and would cause much delay, in that way defeating the purpose of the section, which is expressly stated to be "that the actual merits of the controversy may speedily be determined without regard to technicalities and in the most expeditious and inexpensive manner." (See also Diaz vs. De la Rama, 73 Phil., 104)

To avoid further delay in the disposition of this case, we declare Civil Case No. 5174 as thus duly amended. Consequently, Jose Yabo may participate in the partition of the estate of Maria Yabo. The fourth assigned error must then be rejected.

In view of the foregoing disquisitions, the appealed judgment should be modified as follows: (a) the former 1/9 share of Pelagia Yabo in Lots No. 6180 and 6080 which she sold to Pastor should be treated as the latter's exclusive property which should now pertain to the petitioners, his successors-in-interest; and (b) the former 1/9 share of Procopio Yabo in both lots should be divided as follows: 3/4 (respondent Pastor's 1/2 conjugal share and 1/4 representing his share therein as Maria's heir) for the spouses Alberto and Elpia Yabo, and 1/4 (representing the share therein of Maria's collateral relatives as Maria's heirs) for the private respondents, including Alberto and Jose Yabo. The partition of the two lots in controversy should therefore be made in this wise:

(1) 1/9 share of Gaudencia Yabo should be allotted to her heirs or successors-in-interest;

(2) 1/9 share formerly belonging to Pelagia Yabo — to the petitioners as successors-in-interest of Pastor Makibalo;

(3) 1/9 hereditary share of Maria Yabo to be divided as follows:

(a) 1/2 for the petitioners (as successors-in-interest of Pastor Makibalo), and

(b) 1/2 for the private respondents, including Jose Yabo or his heirs;

(4) 1/9 share formerly belonging to Procopio Yabo to be divided thus:

(a) 3/4 for Spouses Alberto and Elpia Yabo, and

(b) 1/4 for the other private respondents, including Jose Yabo or his heirs;

(5) 5/9 shares which became the conjugal properties of Pastor Makibalo and Maria Yabo to be divided thus:

(a) 3/4 for the petitioners (as successors-in-interest of Pastor Makibalo), and

(b) ¼ for the private respondents, including Jose Yabo or his heirs.

In sum, Lots Nos. 6180 anid 6080 should be partitioned as follows:

1/9 or 4/36 — to Guadencia Yabo's heirs or successors-in-interest;

3/4 of 1/9 or 3/36 — to the spouses Alberto and Elpina Yabo;

8/36 — to the private respondents, including Jose Yabu or his heirs;

21/36 — to the petitioners as successors-in-interest of Pastor Makibalo.

WHEREFORE, the challenged decision of the Court of Appeals of 8 February 1993 in CA-G.R. CV No. 12839 is AFFIRMED, subject to the modifications indicated above. Upon the finality of this decision, let this case be forthwith remanded to the court a quo for further proceedings on the partition of Lots Nos. 6180 and 6080 in conformity with this decision.

No pronouncement as to costs.

SO ORDERED.

Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

 

Republic of the Philippines SUPREME COURT

Manila

  

THIRD DIVISION

 HEIRS OF FLORES RESTAR namely: ESMENIA R. RESTAR, BERNARDITA R. RENTINO, LUCIA RESTAR, RODOLFO RESTAR, JANET R. RELOJERO, LORNA R. RAMOS, MANUEL RESTAR, NENITA R. BELLEZA, MIRASOL R. DELA CRUZ, ROSELLE R. MATORRE, POLICARPIO RESTAR and ADOLFO RESTAR

Petitioners,

- versus -

 

HEIRS OF DOLORES R. CICHON,

G.R. No. 161720

 

Present:

 

PANGANIBAN, J., Chairman,

SANDOVAL-GUTIERREZ,*

CORONA,

CARPIO MORALES, and

GARCIA, JJ.

namely: RUDY R. CICHON, NORMA C. LACHICA, NILDA C. JUMAYAO, LYDIA C. SANTOS, and NELSON R. CICHON; HEIRS OF PERPETUA R. STA. MARIA, namely GEORGE STA. MARIA, LILIA M. MANIAGO, DERLY M. CONCEPCION, GERVY STA. MARIA, DORY M. INDULO; HEIRS OF MARIA R. ROSE, namely: TERESITA R. MALOCO, ROLANDO ROSE, EDELYN R. PALACIO and MINERVA R. PASTRANA, DOMINICA RESTAR-RELOJERO and PACIENCIA RESTAR MANARES,

Respondents.

 Promulgated:

'

November 22, 2005

 

 

xx- - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xx

D E C I S I O N

CARPIO MORALES, J.:

In 1935, Emilio Restar (Restar) died intestate, leaving eight (8) children-compulsory heirs, namely: Flores Restar, Dolores Restar-Cichon, Perpetua Restar-Sta. Maria, Paciencia Restar-Manares, Dominica Restar-Relojero, Policarpio Restar, Maria Restar-Rose and Adolfo Restar.

 In 1960, Restar's eldest child, Flores, on the basis of a July 12, 1959 Joint Affidavit[1] he executed with one Helen Restar, caused the cancellation of Tax Declaration No. 6696[2] in Restar's name covering a 5,918[3] square meter parcel of land, Lot 3177 (the lot), located at Barangay Carugdog, Lezo, Aklan which was among the properties left by Restar, and the issuance of Tax Declaration No. 11134 in his name.

Flores died on June 10, 1989.

 On November 5, 1998, the co-heirs of Flores discovered the cancellation of Restar's Tax Declaration No. 6696 and the issuance in lieu thereof of Tax Declaration No. 11134[4] in his name.

 On January 21, 1999, the heirs of Flores' sisters Dolores R. Cichon, Perpetua Sta. Maria, and Maria Rose who had in the meantime died, together with Flores' surviving sisters Dominica Restar-Relojero and Paciencia Restar-Manares, filed a Complaint[5] against Flores' heirs for 'partition [of the lot], declaration of nullity of documents, ownership with damages and preliminary injunction before the Regional Trial Court (RTC) of Aklan.

Flores' brothers Policarpio and Adolfo were impleaded also as defendants, they being unwilling co-plaintiffs.

 The plaintiffs, herein respondents, alleged that, inter alia, during the lifetime of Flores, they were given their shares of palay from the lot and even after Flores death up to 1991; after Flores' death in 1989, his widow Esmenia appealed to them to allow her to hold on to the lot to finance the education of her children, to which they (the plaintiffs) agreed on the condition that after the children had finished their education, it would be divided into eight (8) equal parts; and upon their

demand for partition of the lot, the defendants Heirs of Flores refused, they claiming that they were the lawful owners thereof as they had inherited it from Flores.

 By Answer[6] filed February 23, 1999, the defendants-herein petitioners Heirs of Flores claimed that they had been in possession of the lot in the concept of owner for more than thirty (30) years and have been paying realty taxes since time immemorial. And they denied having shared with the plaintiffs the produce of the lot or that upon Flores' death in 1989, Esmenia requested the plaintiffs to allow her to hold on to it to finance her children's education, they contending that by 1977, the children had already finished their respective courses.[7]

 The defendants Heirs of Flores further claimed that after World War II and under the 'new Tax Declaration in 1945, Flores caused the transfer of parcels of ricelands situated in Carugdog, Lezo, Aklan to his siblings as their shares from the estate of their father Restar;[8] and an extra-judicial partition was subsequently executed on September 28, 1973 by Restar's heirs, which was notarized by one Atty. Jose Igtanloc, dividing and apportioning among themselves four (4) parcels of land. [9]

 The defendant Adolfo Restar, by separate Answer,[10] alleged that the complaint did not state a cause of action as against him for he interposed no objection to the partition of the lot among the heirs of Restar.

 As for the defendant Policarpio Restar, he in his Amended Answer[11] acknowledged Flores as the owner of the lot but claimed that a portion of it, 1,315 square meters, was sold to him as shown by a Deed of Absolute Sale dated May 14, 1981.[12] He thus prayed that, among other things, an order for the partition of the lot among Restar's heirs be issued excluding, however, that portion sold to him by Flores.[13]

After trial, Branch 3 of the RTC of Kalibo, Aklan held that Flores' share in Restar's estate was not the lot but that covered by Cadastral Lot No. 3183. Nevertheless, the trial court, holding that Flores and his heirs had performed acts sufficient to constitute repudiation of the co-ownership, concluded that they had acquired the lot by prescription.[14]

 Respecting the defendant Policarpio's claim that a portion of the lot was sold to him, the trial court discredited the same upon noting that Flores' signature in the purported Deed of Sale differed from those appearing in other documents submitted by the parties; in 1981, when the said Deed of Sale was alleged to have been executed, Flores was admittedly paralyzed and bedridden and could not have written his name in a 'straight manner, as in fact his signature appearing in at least two documents dated 1980 was 'crooked, and there existed discrepancies in the spelling of Flores' wife's signature which read 'Esmea in the deed, and not as 'Esmenia.[15]

 The trial court thus dismissed the complaint by Decision of June 30, 1999.[16]

'On appeal by the defendants Heirs of Flores and Policarpio Restar, the appellate court, by Decision of October 29, 2002.[17] reversed the decision of the trial court, it finding that the defendants Heirs of Flores failed to prove that their possession of the lot excluded their co-owners or that they derived title to it from a separate conveyance to them by Restar.

 The appellate court further found that there was no adequate notice by Flores to his other co-heirs/co-owners of the repudiation of the co-ownership and neither was there a categorical assertion by the defendants of their exclusive right to the entire lot that barred the plaintiffs' claim of ownership.[18]

And the appellate court found it credible for the plaintiffs to have failed to immediately take legal action to protect their rights on account of forbearance towards their eldest brother who had asked them to continue cultivating the lot to support his children's education.[19]

Respecting the defendant Policarpio's claim that part of the lot had been sold to him by Flores, the appellate court sustained the trial court's rejection thereof.

Accordingly, the appellate court disposed:

WHEREFORE, in view of all the foregoing, the appeal is hereby GRANTED in so far as plaintiffs-appellants Heirs of Dolores Cichon, et al., are concerned and DENIED in so far as defendant-appellant Policarpio Restar. The decision of the Regional Trial Court of Kalibo, Aklan, Branch 3, dated June 30, 1999 is MODIFIED. The ruling of the said court that the heirs of Flores Restar have acquired ownership by adverse possession of the land in question, Cadastral Lot No. 6686, is hereby REVERSED.

SO ORDERED. (Emphasis in the original)

The appellate court having denied reconsideration of its decision, only the defendants Heirs of Flores filed the present petition, assigning the following errors:

A.           THE COURT OF APPEALS PATENTLY ERRED IN REVERSING THE RULING OF THE LOWER COURT THAT THE PETITIONERS AS HEIRS OF FLORES RESTAR HAVE ACQUIRED OWNERSHIP BY ADVERSE POSSESSION OF THE LAND IN QUESTION.

B.             THE COURT OF APPEALS PATENTLY ERRED IN NOT RULING THAT THERE WAS ACQUISITIVE PRESCRIPTION ON THE LAND IN QUESTION NOTWITHSTANDING THAT THE LAND IN QUESTION HAS BEEN DECLARED IN THE NAME OF FLORES RESTAR, FATHER OF PETITIONERS, AS EARLY AS 1960 AND THAT PETITIONERS AND THEIR PREDECESSOR-IN-INTEREST HAVE BEEN IN OPEN, CONTINUOUS, EXCLUSIVE AND NOTORIOUS POSSESSION OF THE LAND IN QUESTION IN THE CONCEPT OF OWNER FOR MORE THAN THIRTY (30) YEARS.[20]

The petition is impressed with merit.

Article 494 of the New Civil Code expressly provides:

ART. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned.

x x x

No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership. While the action to demand partition of a co-owned property does not prescribe, a co-owner may acquire ownership thereof by prescription[21] where there exists a clear repudiation of the co-ownership, and the co-owners are apprised of the claim of adverse and exclusive ownership.[22]

Acquisitive prescription of dominion and other real rights may be ordinary or extraordinary. 'Ordinary acquisitive prescription requires possession of things in good faith and with just title for a period of ten years. Without good faith and just title, acquisitive prescription can only be extraordinary in character which requires uninterrupted adverse possession for thirty years.

Thus, the New Civil Code provides:

ART. 1117. Acquisitive prescription of dominion and other real rights may be ordinary or extraordinary.

Ordinary acquisitive prescription requires possession of things in good faith and with just title for the time fixed by law.

ART. 1134. Ownership and other real rights over immovable property are acquired by ordinary prescription through possession of ten years.

ART. 1137. Ownership and other real rights over immovables also prescribe through uninterrupted adverse possession thereof for thirty years, without need of title or of good faith.

Resolving the main issue of whether petitioners acquired ownership over the lot by extraordinary prescription, the appellate court held in the negative.

While this Court is not a trier of facts, if the inference drawn by the appellate court from the facts is manifestly mistaken, it may, in the interest of justice, review the evidence in order to arrive at the correct factual conclusions based on the record.[23]

Contrary to the findings of the appellate court, the records of the case amply support petitioners' claim that the requirements for extraordinary prescription had been duly met.

When Restar died in 1935, his eight children became pro indiviso co-owners of the lot by intestate succession. Respondents never possessed the lot, however, much less asserted their claim thereto until January 21, 1999 when they filed the complaint for partition subject of the present petition.

In contrast, Flores took possession of the lot after Restar's death and exercised acts of dominion thereon ' tilling and cultivating the land, introducing improvements, and enjoying the produce thereof.

The statutory period of prescription, however, commenced not in 1935 but in 1960 when Flores, who had neither title nor good faith, secured a tax declaration in his name and may, therefore, be said to have adversely claimed ownership of the lot. And respondents were also deemed to have been on said date become aware of the adverse claim.[24]

Flores' possession thus ripened into ownership through acquisitive prescription after the lapse of thirty years in accordance with the earlier quoted Article 1137 of the New Civil Code.

The following observations of the trial court thus merit this Court's approval.

 The evidence proved that as far back as 1959, Flores Restar adjudicated unto himself the whole land in question as his share from his father by means of a joint affidavit which he executed with one Helen Restar, and he requested the Provincial Treasurer/Assessor to have the land declared in his name. It was admitted by the parties during the pre-trial that this affidavit was the basis of the transfer of Tax Declaration No. 6686 from Emilio Restar to Flores Restar. So that from 1960 the land was declared in the name of Flores Restar (Exhibit 10). This was the first concrete act of repudiation made by Flores of the co-ownership over the land in question. x x x

Plaintiffs did not deny that aside from the verbal partition of one parcel of land in Carugdog, Lezo, Aklan way back in 1945, they also had an amicable partition of the lands of Emilio Restar in Cerrudo and Palale, Banga Aklan on September 28, 1973 (exhibit '20'). If they were able to

demand the partition, why then did they not demand the inclusion of the land in question in order to settle once and for all the inheritance from their father Emilio Restar, considering that at that time all of the brothers and sisters, the eight heirs of Emilio Restar, were still alive and participated in the signing of the extra-judicial partition?

 Also it was admitted that Flores died only in 1989. Plaintiffs had all the chances (sic) to file a case against him from 1960, or a period of 29 years when he was still alive, yet they failed to do so. They filed the instant case only on January 22, 1999, almost ten (10) years after Flores' death.

 From the foregoing evidence, it can be seen that the adverse possession of Flores started in 1960, the time when the tax declaration was transferred in his name. The period of acquisitive prescription started to run from this date. Hence, the adverse possession of Flores Restar from 1960 vested in him exclusive ownership of the land considering the lapse of more than 38 years. Acquisitive prescription of ownership, laches and prescription of the action for partition should be considered in favor of Flores Restar and his heirs. [25]

 While tax declarations and receipts are not conclusive evidence of ownership and do not prove title to the land, nevertheless, when coupled with actual possession, they constitute evidence of great weight[26] and can be the basis of a claim of ownership through prescription.[27]

 As for respondents' claim that they have been receiving shares from the produce of the land, it was correctly discredited by the trial court.

 [P]laintiffs' claim that Flores Restar gave them five to eight gantas each as their shares in the produce cannot be sustained. A few gantas cannot be considered one-eight share of sixty (60) cavans of palay produced per cropping. One eight of sixty cavans would be at least six cavans, not merely gantas after excluding expenses for cultivation and production. If plaintiffs were to be believed, their whole 7/8 share of the produce would total two cavans, six gantas only at the usual rate of 25 gantas per cavan.[28]

 Unless there are strong and impelling reasons to disturb the trial court's findings of facts which must, as a matter of judicial policy, be accorded with the highest respect, they must remain. Respondents have not, however, proffered any reason warranting the disturbance of the trial court's findings of facts.

 Indeed, the following acts of Flores show possession adverse to his co-heirs: the cancellation of the tax declaration certificate in the name of Restar and securing another in his name; the execution of a Joint Affidavit stating that he is the owner and possessor thereof to the exclusion of respondents; payment of real estate tax and irrigation fees without respondents having ever contributed any share therein; and continued enjoyment of the property and its produce to the exclusion of respondents. And Flores' adverse possession was continued by his heirs.

 The appellate court's crediting of respondents' justification for failing to immediately take legal action to protect their rights ' forbearance toward Flores and/or his wife who asked to be allowed to cultivate the land to support their children's education ' does not impress. For assuming such justification to be true, why did not any of respondents assail Flores' continuous possession after his children completed their college education in 1977?

 The trial court's finding and conclusion that Flores and his heirs had for more than 38 years possessed the land in open, adverse and continuous possession in the concept of owner − which length of possession had never been questioned, rebutted or disputed by any of respondents, being thus duly supported by substantial evidence, he and his heirs have become owner of the lot

by extraordinary prescription. It is unfortunate that respondents slept on their rights. Dura lex sed lex.

 

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is REVERSED and SET ASIDE and the June 30, 1999 decision of the trial court is REINSTATED.No pronouncement as to costs.

SO ORDERED.

 CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

 ARTEMIO V. PANGANIBAN

Associate Justice

Chairman

(ON LEAVE)

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

 

RENATO C. CORONA

Associate Justice

CANCIO C. GARCIA

Associate Justice 

ATTESTATION

 I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

 ARTEMIO V. PANGANIBAN

' Associate Justice

Chairman

CERTIFICATION

 Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

 HILARIO G. DAVIDE, JR.

Chief Justice

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-3404             April 2, 1951

ANGELA I. TUASON, plaintiff-appellant, vs.ANTONIO TUASON, JR., and GREGORIO ARANETA, INC., defendants-appellees.

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 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 not introducing the necessary improvements into the land and in not delivering to her her share of the proceeds of the rents and sales.

We have examined Exh. "L" and compared the same with the contract (Exh. 6) and we agree with the trial court that in the main the terms of both contracts are similar and practically the same. Moreover, as correctly found by the trial court, the copies of both contracts were shown to the plaintiff Angela and her husband, a broker, and both had every opportunity to go over and compare them and decide on the advisability of or disadvantage in entering into the contract (Exh. 6); that although Atty. Antonio Araneta was an official of the Araneta Inc.; being a member of the Board of Directors of the Company at the time that Exhibit "6" was executed, he was not the party with which Angela contracted, and that he committed no breach of trust. According to the evidence Araneta, the pertinent papers, and sent to her checks covering her receive the same; and that as a matter of fact, at the time of the trial, Araneta Inc., had spent about P117,000 in improvement and had received as proceeds on the sale of the lots the respectable sum of P1,265,538.48. We quote with approval that portion of the decision appealed from on these points:

The evidence in this case points to the fact that the actuations of J. Antonio Araneta in connection with the execution of exhibit 6 by the parties, are above board. He committed nothing that is violative of the fiduciary relationship existing between him and the plaintiff. The act of J. Antonio Araneta in giving the plaintiff a copy of exhibit 6 before the same was executed, constitutes a full disclosure of the facts, for said copy contains all that appears now in exhibit 6.

Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing the terms of the contract in that the defendant corporation has failed (1) to make the necessary improvements on the property as required by paragraphs 1 and 3 of the contract; (2) to submit to the plaintiff from time to time schedule of prices and conditions under which the subdivided lots are to be sold; and to furnish the plaintiff a copy of the subdivision plans, a copy of the monthly gross collections from the sale of the property.

The Court finds from the evidence that he defendant Gregorio Araneta, Incorporated has substantially complied with obligation imposed by the contract exhibit 6 in its paragraph 1, and that for improvements alone, it has disbursed the amount of P117,167.09. It has likewise paid taxes, commissions and other expenses incidental to its obligations as denied in the agreement.

With respect to the charged that Gregorio Araneta, Incorporated has failed to submit to plaintiff a copy of the subdivision plains, list of prices and the conditions governing the sale of subdivided lots, and monthly statement of collections form the sale of the lots, the Court is of the opinion that it has no basis. The evidence shows that the defendant corporation submitted to the plaintiff periodically all the data relative to prices and conditions of the sale of the subdivided lots, together with the amount corresponding to her. But without any justifiable reason, she refused to accept them. With the indifferent attitude adopted by the plaintiff, it was thought useless for Gregorio Araneta, Incorporated to continue sending her statement of accounts, checks and other things. She had shown on various occasions that she did not want to have any further dealings with the said corporation. So, if the defendant corporation proceeded with the sale of the

subdivided lots without the approval of the plaintiff, it was because it was under the correct impression that under the contract exhibit 6 the decision of the majority co-owners is binding upon all the three.

The Court feels that recission of the contract exhibit 6 is not minor violations of the terms of the agreement, the general rule is that "recission will not be permitted for a slight or casual breach of the contract, but only for such breaches as are so substantial and fundamental as to defeat the object of the parties in making the agreement" (Song Fo & Co. vs. Hawaiian-Philippine Co., 47 Phil. 821).

As regards improvements, the evidence shows that during the Japanese occupation from 1942 and up to 1946, the Araneta Inc. although willing to fill the land, was unable to obtain the equipment and gasoline necessary for filling the low places within the parcel. As to sales, the evidence shows that Araneta Inc. purposely stopped selling the lots during the Japanese occupantion, knowing that the purchase price would be paid in Japanese military notes; and Atty. Araneta claims that for this, plaintiff should be thankfull because otherwise she would have received these notes as her share of the receipts, which currency later became valueles.

But the main contention of the appellant is that the contract (Exh. 6) should be declared null and void because its terms, particularly paragraphs 9, 11 and 15 which we have reproduced, violate the provisions of Art. 400 of the Civil Code, which for the purposes of reference we quote below:

ART. 400. No co-owner shall be obliged to remain a party to the community. Each may, at any time, demand the partition of the thing held in common.

Nevertheless, an agreement to keep the thing undivided for a specified length of time, not exceeding ten years, shall be valid. This period may be a new agreement.

We agree with the trial court that the provisions of Art. 400 of the Civil Code are not applicable. The contract (Exh., 6) far from violating the legal provision that forbids a co-owner being obliged to remain a party to the community, precisely has for its purpose and object the dissolution of the co-ownership and of the community by selling the parcel held in common and dividing the proceeds of the sale among the co-owners. The obligation imposed in the contract to preserve the co-ownership until all the lots shall have been sold, is a mere incident to the main object of dissolving the co-owners. By virtue of the document Exh. 6, the parties thereto practically and substantially entered into a contract of partnership as the best and most expedient means of eventually dissolving the co-ownership, the life of said partnership to end when the object of its creation shall have been attained.

This aspect of the contract is very similar to and was perhaps based on the other agreement or contract (Exh. "L") referred to by appellant where the parties thereto in express terms entered into partnership, although this object is not expressed in so many words in Exh. 6. We repeat that we see no violation of Art. 400 of the Civil Code in the parties entering into the contract (Exh. 6) for the very reason that Art. 400 is not applicable.

Looking at the case from a practical standpoint as did the trial court, we find no valid ground for the partition insisted upon the appellant. We find from the evidence as was done by the trial court that of the 64,928.6 sq. m. which is the total area of the parcel held in common, only 1,600 sq. m. or 2.5 per cent of the entire area remained unsold at the time of the trial in the year 1947, while the great bulk of 97.5 per cent had already been sold. As well observed by the court below, the partnership is in the process of being dissolved and is about to be dissolved, and even assuming

that Art. 400 of the Civil Code were applicable, under which the parties by agreement may agree to keep the thing undivided for a period not exceeding 10 years, there should be no fear that the remaining 1,600 sq. m. could not be disposed of within the four years left of the ten-years period fixed by Art. 400.

We deem it unnecessary to discuss and pass upon the other points raised in the appeal and which counsel for appellant has extensively and ably discussed, citing numerous authorities. As we have already said, we have viewed the case from a practical standpoint, brushing aside technicalities and disregarding any minor violations of the contract, and in deciding the case as we do, we are fully convinced that the trial court and this Tribunal are carrying out in a practical and expeditious way the intentions and the agreement of the parties contained in the contract (Exh. 6), namely, to dissolve the community and co-ownership, in a manner most profitable to the said parties.

In view of the foregoing, the decision appealed from is hereby affirmed. There is no pronouncement as to costs.

So ordered.

Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur.Paras, C. J., I certify that Mr. Justice Feria voted to affirm.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. L-29288 November 29, 1976

JOVENCIO ARCENAS, NEMESIO ACAIN, and ROSA DIONGSON, petitioners, vs.HON. ANTONIO D. CINCO, Presiding Judge, Branch VIII, Court of First Instance of Cebu, and TEODORA VDA. DE ARCENAS, respondents.

Amado G. Olis, for petitioners.

V.L. Legaspi and Victorino del Fierro, for private respondent. 

ANTONIO, J.:

In this petition for certiorari and mandamus, petitioners seek the nullification of the Order of respondent Judge dated May 18, 1968, dismissing the appeal of petitioners in Civil Case No. P118, 1 and the issuance of an order for said respondent to approve the Record on Appeal.

On August 11, 1966, respondent Teodora Vda. de Arcenas, widow of the deceased Alfonso Arcenas, filed an action (Civil Case No. P-118) with the Court of First Instance of Cebu against Jovencio Arcenas, Nemesio Acain and Rosa Diongson for the partial annulment of certain deeds of pacto de retro and or sale executed by her only son, Jovencio Arcenas, in favor of Spouses Nemesio Acain and Rosa Diongson insofar as it encroached upon her rights as co-owner; for the return to her of the possession of the portions of the property taken from her by defendants, the accounting by defendants of her share of the produce, and the partition of the properties by the segregation of the portion belonging to her.

On February 24, 1967, the parties in the aforementioned civil case submitted a "Stipulation of Facts" stating in substance that Alfonso Arcenas died intestate on March 4, 1962, leaving as his heirs his wife, Teodora Vda. de Arcenas, and his only son, Jovencio Arcenas; that the deceased left to his heirs three (3) real properties, namely: (a) a parcel of agricultural land in Cabangbang, Bantayan, Cebu, with an area of 77,250 square meters, more or less; (b) a parcel of agricultural land in Sillon, Bantayan, Cebu, containing an area of 18,375 square meters, more or less; and (c) a parcel of land in the Poblacion of Bantayan, Cebu, containing an area of 235 square meters, more or less; that the parcels of land in (a) Cabangbang and (b) Sillon were sold, with right of repurchase, by Jovencio Arcenas to Nemesio Acain and Rosa Diongson sometime on July 5, 1963 and June 26, 1963, respectively, without the knowledge and conformity of Teodora Vda. de Arcenas; that subsequently, on March 23, 1966, Jovencio Arcenas executed a deed of absolute sale of the agricultural land in Sillon in favor of Nemesio Acain and Rosa Diongson who, thereafter, planted thereon about 400 to 500 coconut trees "more or less one year old" aside from fencing the said parcel; that from the date of the pacto de retro sale executed by Jovencio, Teodora Vda. de Arcenas has not received her share of the produce of said property; that Teodora Vda. de Arcenas waives her right to the residential lot in the Poblacion of Bantayan in favor of her son, Jovencio, but "seeks to enforce her rights as heir" on the properties in Cabangbang and Sillon; that Jovencio Arcenas, Nemesio Acain and Rosa Diongson agreed" to return voluntarily the share of said Teodora Vda. de Arcenas in the properties" situated at Cabangbang and Sillon, Bantayan, Cebu; that the parties agreed "to partition the properties" situated in Cabangbang and Sillon, "submitting for the decision of the Court the issue in the interpretation of Article 996, New Civil Code, as to the share of the surviving spouse Teodora Vda. de Arcenas", and finally, all the parties waived all their demands "for accounting, reimbursement of improvements introduced, and any or all claims for damages, attorney's fees or costs."

To assist the court in its determination of the share of the surviving spouse, the parties submitted their respective memoranda. In her memorandum, Teodora Vda. de Arcenas contended that in view of the ruling of this Court in Santillon v. Miranda, 2 the surviving spouse is entitled to a share equivalent to one-half (1/2) of the estate, while her son, Jovencio Arcenas, is entitled to the other half, under Article 996 of the New Civil Code. On the other hand, the herein petitioners claimed that since the surviving spouse survived with one legitimate son, she is entitled to only one-fourth (1/4) of the entire estate, while her son is entitled to three-fourths (3/4) thereof.

On the basis of the afore-mentioned stipulation and memoranda of the parties, the court a quo, on June 9, 1967, rendered judgment declaring the plaintiff, Teodora Vda. de Arcenas, as "the lawful owner in fee simple of an undivided one-half share of the land described in paragraphs 2(a) and 2(b) of the afore-quoted Stipulation of Facts; declaring Jovencio Arcenas the exclusive owner of the land described in paragraph 2(c) of the Stipulation of Facts above-quoted; ordering defendants Nemesio Acain and Rosa Diongson to deliver to the plaintiff the undivided one-half portions of the two parcels of land just described which correspondingly pertain to the surviving spouse, but erroneously ceded by the son, Jovencio, to the Acains." It also ordered the parties to partition the

agricultural lands in Cabangbang and Sillon and to "submit the corresponding deed of partition to the Court for its approval."

On September 16, 1967, Teodora Vda. de Arcenas, claiming that the decision of June 9, 1967 had become final, moved for the issuance of a Writ of Execution. This was opposed by petitioners who contended that the decision is interlocutory as it did not finally dispose of the action but left something for the parties to do, that is, to partition the property and submit the corresponding agreement of partition to the court for its approval. They likewise prayed that the decision be modified in order that the land situated in Sillon, which was sold to the spouses Nemesio Acain and Rosa Diongson and wherein they have introduced improvements, be awarded to them, while the land in Cabangbang be given in its entirety to Teodora Vda. de Arcenas. This was opposed by the widow, hence, on September 30, 1967, the respondent Judge appointed Municipal Judge Marcelino M. Escalona of Madridejos Cebu as Commissioner to partition the properties and to submit the project of partition to the court for approval.

In his report dated November 29, 1967, Commissioner Escalona recommended to the court that, since the Sillon property, although much smaller, has been improved by the Acain spouses by planting thereon 150 coconut trees, said property should be awarded to them in full, while the Cabangbang land, which is much larger, more productive, and with higher market value, should be awarded to Teodora Vda. de Arcenas. This was opposed by Teodora Vda. de Arcenas, who insisted that it would modify the judgment which ordered a physical division into two parts each of the two parcels, and consequently, the court a quo, on January 6, 1967, directed the Commissioner to make a "physical division of each of the two properties in the presence of the parties or their representatives" and to make the necessary recommendation as to which half should pertain to Jovencio and which half should pertain to the widow. Thereafter, the Commissioner submitted his second report, informing the court that he had divided the two parcels into two portions, to wit: (1) Cabangbang A, which is the northern portion of the property, with an area of 3.7080 hectares, with five (5) bamboo groves, and Cabangbang B, which is the southern portion, with an area of 4.0170 hectares, containing six (6) bamboo groves; and (2) Sillon A, which is the northern half of this land with an area of .91875 hectare, containing 150 coconut trees; and Sillon B, or the southern half of the same property, with an area of .91875 hectare and having 150 coconut trees planted thereon. He, however, opined that it would be inequitable to award one-half of the Cabangbang property to the Acain spouses considering that the Cabangbang property has been mortgaged by Jovencio Arcenas to the Bantayan Rural Bank to secure a loan of P2,000.00, with the knowledge and consent of his mother, Teodora, and the same is about to be foreclosed. Moreover, it would be unfair to deprive the Acain spouses of the Sillon property since they have introduced in good faith valuable improvements thereon by planting about 300 coconut trees. This notwithstanding, the court a quo, on March 27, 1968, issued an Order awarding Cabangbang A and Sillon B to Teodora Vda. de Arcenas, while Cabangbang B and Sillon A were awarded to Jovencio Arcenas.

On April 25, 1967, petitioners filed with the respondent court their Notice of Appeal, stating that they were appealing the trial court's Orders dated January 6, 1968 and March 27, 1968 to this Court "on questions of law". To show that the appeal was filed within the reglementary period, they stated that they received the Order of January 6, 1968 on January 22, 1968, while that of March 27, 1968 was received by them through their counsel on April 4, 1968. After the filing of the Record on Appeal, respondent court, on May 18, 1968, issued an Order dismissing the appeal of petitioners on the ground that the decision of June 9, 1967 had already become final and executory and that the orders sought to be reviewed are merely orders issued to implement the

afore-mentioned decision. Petitioner's motion for reconsideration was denied by the trial court on June 20, 1968, hence, this petition for certiorari and mandamus.

Submitted for resolution is the issue of whether or not the decision of respondent court in Civil Case No. P-118, dated June 9, 1967, is immediately executory and, therefore, not appealable.

There is no question that if the parties to the litigation submitted a compromise agreement to the court for approval and in the absence of opposition, the court renders judgment strictly in accordance with such agreement, the judgment rendered is not appealable. It is immediately executory, except that in case a motion to set aside the compromise on the ground of fraud, an order of the court denying such motion may be appealed. 3 The judgment rendered has the authority of res judicata from the moment it was rendered and is conclusive upon the parties and their privies. 4

We find, however, that the decision of June 9, 1967 was not a judgment based on a judicial compromise but one based on an agreed statement of facts. A "compromise" under Article 2028 of the Civil Code is a contract whereby the parties in interest, by making reciprocal concessions, avoid a litigation or terminate one already commenced. It is likewise defined as "an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their difficulties by mutual consent in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing." 5

While the parties in the "Stipulation of Facts" were in agreement that Teodora Vda. de Arcenas had a share in the said properties, they were in disagreement as to the extent of the share of said widow. As a matter of fact, in the respective memoranda of the parties, there was a marked disparity in the view of said parties as to the share of the surviving spouse, the widow insisting on her claim to one-half (1/2) of the estate, while the other party was willing to concede to her only one-fourth (1/4) of said estate. The agreed statement of facts submitted by the parties did not, therefore, put an end to the lawsuit because it did not definitely determine which specific portion of the property sold by Jovencio Arcenas to the Acain spouses should be returned to the surviving spouse, which was the main purpose of the action instituted by the latter.

Moreover, Civil Case No. P-118 is also an action of partition, hence, the Order of the court of June 9, 1967, directing the partition of the properties and requiring the parties "to submit the corresponding deed of partition to the Court for its approval", could not be final. It left something more to be done in the trial court for the complete disposition of the case, such as appointment of the commissioner and submission by the latter of his report which must be set for hearing. It is only after said hearing that the court may render a final judgment finally disposing of the action. 6 As a matter of fact, the court a quo, after the parties were unable to agree on the partition, had to appoint a commissioner to make the partition. Even assuming that the judgment terminated the action with respect to the claim of the widow for a one-half (1/2) share in the estate, there is no question that the Order of the court of March 27, 1968, approving the project of partition even when considered as incident to the judgment, could still be appealable. According to Moran, "when the terms of the judgment are not entirely clear and there is room for interpretation and the interpretation given is wrong in the opinion of the defeated party, the latter should be allowed to appeal from said order so that the appellate tribunal may pass upon the legality and correctness of the said order." 6*

We note, however, that since its inception, this case has been pending in the courts for more than ten (10) years. It appears in the manifestation of the respondents that Teodora Vda. de Arcenas is already 86 years of age. It cannot be denied that if petitioners continue with their appeal, there

will be further delays in its termination. It is in the milieu of such circumstance that this Court finds it relevant to make certain observations, in the hope that on the basis thereof, the parties themselves, with the assistance of the respondent court, may be able to resolve their differences in a fair and equitable manner. Thus, on the question regarding the share of the surviving spouse in the estate of the deceased, We note that the trial court was correct in declaring that Teodora Vda. de Arcenas is entitled to one-half (1/2) of the estate. This is in accordance with the rule enunciated by this Court in Santillon v. Miranda, supra, to the effect that when intestacy occurs, a surviving spouse concurring with only one legitimate child of the deceased is entitled to one-half (1/2) of the estate of the deceased spouse under Article 996 of the Civil Code. The afore-mentioned court was, nevertheless, in error in insisting that each and every parcel should be physically divided and apportioned to the parties in the manner indicated. Section 4 of Rule 69 of the Rules specifically requires that in making the partition, the commissioners shall (1) view and examine the real estate, after due notice to the parties, to attend at such view and examination; (2) to hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof; and (3) to set apart the same to the several parties in such lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof.

According to the report of the Commissioner, 150 coconut trees planted by Nemesio Acain on the Sillon parcel, and this land is adjacent to the Acain's property. On the other hand, according to the Commissioner, one-half (1/2) portion of the Cabangbang parcel cannot possibly compensate for the loss which Acain will suffer by losing one-half (1/2) of the Sillon parcel since the Cabangbang land is mortgaged to the Bantayan Rural Bank by Jovencio and "will probably be foreclosed any time now for the loan is now due, and the prospect of the loan to be paid is bleak." These circumstances should have been carefully considered.

It appears to be the settled rule that in an action for partition, where it is practicable to make a division of the property, "the generally if not universally recognized rule is that a court of equity, on ascertaining that one of two or more tenants in common has made permanent and valuable improvements on the property involved, will allot to him that portion on which the improvements are located, or so much thereof as represents his share of the whole tract." 7 Thus, "in keeping with the familiar principle of equity jurisprudence requiring that one who seeks equity must do equity, the rule has been generally adopted that a court of equity should take improvements into account when decreeing partition, and should award to the cotenant in possession who has necessarily and in good faith improved the common property and enhanced its value at his own cost such equitable compensation as will leave only the value of the estate without the improvements to be divided among the tenants in common." 8 Indeed, the rule requires that the properties should be partitioned in a manner that would be most advantageous and equitable to the parties, having "due regard to the improvements, situation and quality of the different parts" of the properties subject of the partition.

ACCORDINGLY, certiorari is granted and respondent Court's Order of May 18, 1968 is hereby set aside, with costs against the private respondent.

Fernando (Chairman), Barredo, Aquino and Concepcion, Jr., JJ., concur.