G.R. No. 118464 December 21, 1998 HEIRS OF IGNACIO CONTI and ROSARIO CUARIO, petitioner, vs.

COURT OF APPEALS and LYDIA S. REYES as Attorney-in-Fact of JOSEFINA S. REYES, BERNARDITA S. PALILIO, HERMINIA S. PALILIO, REMEDIOS A. SAMPAYO, ILUMINADA A. SAMPAYO, ENRICO A. SAMPAYO CARLOS A. SAMPAYO, GENEROSO C. SAMPAYO, MYRNA C. SAMPAYO, ROSALINO C. SAMPAYO, MANUEL C. SAMPAYO, DELIA A. SAMPAYO, CORAZON C. SAMPAYO, NILO C. SAMPAYO, and LOLITA A. SAMPAYO in her own behalf and as Attorney-in-Fact of NORMA A. SAMPAYO, respondents.

BELLOSILLO, J.: This petition for review on certiorari seeks to reverse the 30 March 1994. Decision and 21 December 1994 Resolution of respondent Court of Appeals which upheld the right of private respondents as heirs of Lourdes Sampayo to demand partition under Art. 494 of the Civil Code. Lourdes Sampayo and Ignacio Conti, married to Rosario Cuado, were the co-owners of the property in litigation consisting of a 539-square meter lot at the corner of Zamora and Abellanosa Streets, Lucena City, covered by TCT No. T-15374, with a house erected thereon. 1 On 17 March 1986 Lourdes Sampayo died intestate without issue. 2 Subsequently, on 1 April 1987 private respondents Josefina S. Reyes, Bernardita S. Palilio, Herminia S. Palilio, Remedios A. Sampayo, Iluminada A. Sampayo, Enrico A. SAMPAYO, Carlos A. Sampayo, Gelleroso C. Sampayo, Myrna C. Sampayo, Rosalina C. Sampayo, Manuel C. Sampayo, Delia. A. Sampayo, Corazon C. Sampayo, Nilo C. Sampayo, Lolita A. Sampayo and Norma A. Sampayo, all represented by their Attorney-in-Fact Lydia S. Reyes, with Lolita A. Sampayo acting also in her own behalf and as Attorney-in-Fact of Norma A. Sampayo, all claiming to be collateral relatives of the deceased Lourdes Sampayo, filed an action for partition and damages before RTC-Br. 54, Lucena City. 3 The spouses Ignacio Conti and Rosario Cuario refused the partition on the ground that private respondents failed to produce any document to produce that they were the rightful heirs of Lourdes Sampayo. 4 On 30 August 1987 Ignacio Conti died and was substituted as party-defendant by his children Asuncion, Francisco, Milagros, Joselito, Luisito, Diego and Teresita, all surnamed Conti. 5 At the trial, private respondents presented Lydia Sampayo Reyes and Adelaida Sampayo to prove that they were the collateral heirs of the deceased Lourdes Sampayo and therefore entitled to her rights as co-owner of the subject lot. Bringing with her the original copy of her certificate of live birth showing that her father was Inocentes Reyes and her mother was Josefina Sampayo, 6 Lydia Sampayo Reyes testified that she was one of the nieces of Lourdes Sampayo, being the daughter of Josefina Sampayo, the only living sibling of Lourdes. Lydia also testified that Lourdes had another sister named Remedios J. Sampayo who died in 1948, and two brothers, Manuel J. Sampayo and Luis J. Sampayo who died in 1983 and 1960, respectively. To prove that Josefina, Remedios, Luis and Manuel were siblings of Lourdes, their baptismal certificates together with a photocopy of the birth certificate of Manuel Sampayo were offered in evidence. These documents showed that their father and mother, like Lourdes Sampayo, were Antonio Sampavo and Brigida Jaraza. The certificates of baptism presented as part of the testimony of Lydia Sampayo Reyes were prepared by Rev. Franklin C. Rivero who duly certified that all data therein written were in accordance with the church records, hence, the lower left portion of the documents bearing the seal of the church with the notation as to where the documents were logged in particular. 7 The baptismal certificates were presented in lieu of the birth certificates because the repository of those documents, the Office of the Civil Registrar of Lucena City, had been razed by fire On two separate occasions, 27 November 1974 and 30 August 1983, thus all civil registration records were totally burned. 8 On the other hand, a photocopy of Manuel's birth certificate dated 25 October 1919 (Exh. "I") 9 showed that it was issued by the Local Civil Registrar of Lucena, Tayabas (now Lucena City).
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Adelaida Sampayo, widow of Manuel Sampayo, testified that her husband Manuel was the brother of the deceased Lourdes, and with the death of Manuel, Luis and Remedios, the only living sibling of Lourdes was Josefina. 10 To rebut whatever rights the alleged heirs of Lourdes had over the subject lot, petitioners presented Rosario Cuario Conti, Rosal Ladines Malundas and Rodolfo Espineli. Rosario testified that the subject property was co-owned in equal shares by her husband Ignacio Conti and Lourdes Sampayo and that her family (Rosario) had been staying in the subject property since 1937. 11 In fact, she said that her late husband Ignacio Conti paid for the real estate taxes 12 and spent for the necessary repairs and improvements thereon 13 because by agreement Lourdes would leave her share of the property to them. 14 However, as correctly found by the trial court, no will, either testamentary or holographic, was presented by petitioners to substantiate this claim. 15 Rosario also disclosed that when Lourdes died her remains were taken by her-relatives from their house. 16 When cross examined on who those relatives were, she replied that the only one she remembered was Josefina since there were many relatives who came. When asked who Josefina's parents were, she said she could not recall. Likewise, when asked who the parents of Lourdes were, Rosario denied having ever known them. 17 Another witness, Rosa Ladines Malundas, narrated that she used to be the neighbor and hairdresser of the deceased Lourdes Sampayo who told her that upon her death her share would go to Ignacio Conti whom she considered as her brother since both of them were "adopted" by their foster parents Gabriel Cord and Anastacia Allarey Cord, 18 although she admitted that she did not know whether Lourdes had other relatives. 19 According to another witness, Rodolfo Espineli, he took pictures of the tombs bearing the tombstones of Gabriel Cord and Anastacia Allarey Cord and Ignacio Conti as well as that of Lourdes Sampayo who was supposed to have been interred beside her "adoptive" parents. However, as revealed by Rosario during her direct examination, Lourdes was not in fact interred there because her relatives took her remains. 20 On 4 April 1991 the trial court declared private respodents as the rightful heirs of Lourdes Sampayo. It further ordered private respondents and petitioners to submit a project of partition of the residential house and lot for confirmation by the court. 21 Petitioners elevated the case to the Court of Appeals contending that the trial court erred in finding that private respondents were the heirs of Lourdes Sampayo and that they were entitled to the partition of the lot and the improvements thereon. 22 On 30 March 1994 the Court of Appeals affirmed the assailed RTC decision and held
23

In the instant case, plaintiffs [now private respondents] were able to prove and establish by preponderance of evidence that they are the collateral heirs of deceased Lourdes Sampayo and therefore the lower court did not err in ordering herein plaintiffs [now private respondents] and defendants [now petitioners] to submit a project of partition of the residential house and lot owned in common by the deceased Lourdes Sampayo and defendant spouses Conti for confirmation by the court . . . . Considering our earlier finding that the lower court did not err in declaring herein plaintiffs [now private respondents] as heirs of deceased Sampayo and therefore entitled to inherit her property, the argument of the appellants [now petitioners] that the plaintiffs [now private respondents] are not entitled, to partition is devoid of merit ( insertions in 11 supplied). Respondent court also ruled, citing Hernandez v. Padua 24 and Marabilles v. Quito, 25 that a prior and separate judicial declaration of heirship was not necessary 26 and that private respondents became the co-owners of the portion of the property owned and registered in the name of Lourdes Sampayo upon her death and, consequently, entitled to the immediate possession thereof and all other incidents/rights of ownership as provided for by law, including the right to demand partition under Art. 777 of the Civil Code, 27 and Ilustre v. Alaras Frondosa 28holding that the property
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belongs to the heirs at the moment of death of the decedent, as completely as if he had executed and delivered to them a deed for the same before his death. The appellate court subsequently denying a motion for reconsideration upheld the probative value of the documentary and testimonial evidence of private respondents and faulted petitioners for not having subpoenaed Josefina if they believed that she was a vital witness in the case. 29 Hence, petitioners pursued this case arguing that a complaint for partition to claim a supposed share of the deceased co-owner cannot prosper without prior settlement of the latter's estate and compliance with all legal requirements especially publication, and private respondents were not able to prove by competent evidence their relationship with the deceased. 30 There is no merit in the petition. A prior settlement of the estate is not essential before the heirs can commence any action originally pertaining to the deceased as we explained in Quison v. Salud 31 Claro Quison died in 1902. It was proven at the trial that the present plaintiffs are next of kin and heirs, but it is said by the appellants that they are not entitled to maintain this action because there is no evidence that any proceedings have been taken in court for the settlement of the estate of Claro Quison; and that without such settlement, the heirs cannot maintain this action. There is nothing in this point. As well by the Civil Code as by the Code of Civil Procedure, the title to the property owned by a person who dies intestate passes at once to his heirs. Such transmission is, under the present law, subject to the claims of administration and the property may be taken from the heirs for the purpose of paying debts and expenses, but this does not prevent an immediate passage of the title, upon the death of the intestate, from himself to his heirs. Without some showing that a judicial administrator had been appointed in proceedings to settle the estate of Claro Quison, the right of the; plaintiffs to maintain this action is established. Conformably with the foregoing and taken in conjunction with Arts. 777 and 494 32 of the Civil Code, from the death of Lourdes Sampayo her rights as a co-owner, incidental to which is the right to ask for partition at any time or to terminate the co-ownership, were transmitted to her rightful heirs. In so demanding partition private respondents merely exercised the right originally pertaining to the decedent, their predecessor-in-interest. Petitioners' theory as to the requirement of publication would have been correct had the action been for the partition of the estate of Lourdes Sampayo, or if we were dealing with extrajudicial settlement by agreement between heirs and the summary settlement of estates of small value. 33 But what private respondents are pursuing is the mere segregation of Lourdes' one-half share which they inherited; from her through intestate succession. This is a simple case of ordinary partition between co-owners. The applicable law in point is Sec. 1 of Rules 69 of the Rules of Court Sec. 1. Complaint in an action for partition of real estate . A person having the right to compel the partition of real estate may do so as in this rule prescribed, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all the other persons interested in the property. A cursory reading of the aforecited rule shows that publication is not required as erroneously maintained by petitioners. There are two (2) simultaneous issues in an action for partition. First, whether the plaintiff is indeed a co-owner of the property sought to be partitioned, and second, if answered in the affirmative, the manner of the division of the property, i.e., what portion should go to which co-owner. 34 Thus, in this case, we must determine whether private respondents, by preponderance of evidence, have been able to establish that they are co-owners by way of succession as collateral heirs of the late Lourdes Sampayo as they claim to be, either a sister, a nephew or a niece. These, private respondents were able to prove in the trial court as well as before respondent Court of Appeals. Petitioners however insist that there was no such proof of filiation because: (a) mere photocopies of birth certificates do not prove filiation; (b) certifications on non-availability of records of birth do not prove filiation; (c)
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baptismal certificates do not prove filiation of alleged collateral relatives of the deceased; and, (d) the testimonies of Lydia S. Reyes, alleged daughter of Josefina Reyes, and Adelaida Sampayo, alleged sister-in-law of Josefina and Lourdes, were incompetent as Lydia was made to testify on events which happened before her birth while Adelaida testified on matters merely narrated to her. 35 We are not persuaded. Altogether, the documentary and testimonial evidence submitted that private respondents are competent and adequate proofs that private respondents are collateral heirs of Lourdes Sampayo. Private respondents assert that they are co-owners of one-half (1/2) pro-indiviso share of the subject property by way of legal or intestate succession. Succession is a mode of acquisition by vietue of which the property, rights and obligations to the extent of the value of the inheritance of a person are transmitted through his death to another or others either by his will or by operation of law. 36 Legal or intestate succession takes place if a person dies without a will, or with a void will, or one which has subsequently lost its validity. 37 If there are no descendants, ascendants, illegitimate children, or a surviving spuoses, the collateral relatives shall succeed to the entire estate of the decedent. 38 It was established during the trial that Lourdes died intestate and without issues. Private respondents as sister, nephews and nieces now claim to be the collateral relatives of Lourdes. Under Art. 172 of the Family Code, 39 the filiation of ligitimate children shall be proved by any other means allowed by the Rules of Court and special laws, in the absence of a record of birth or a parent's admission of such legitimate filiation in a public or private document duly signed by the parent. Such other proof of one's filiation may be a baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses and other kinds of proof admissible under Rule 130 of the Rules of Court. 40 By analogy, this method of proving filiation may also be utilized in the instant case. Public documents are the written official acts, or records of the official act of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country. 41 The baptismal certificates presented in evidence by private respondents are public documents. Parish priests continue to be the legal custodians of the parish records and are authorized to issue true copies, in the form of certificates, of the entries contained therein. 42 The admissibility of baptismal certificates offered by Lydia S. Reyes, absent the testimony of the officiating priest or the official recorder, was settled in People v. Ritter, citing U.S. v. de Vera (28 Phil.105 [1914], 43 thus. . . . the entries made in the Registry Book may be considered as entries made in the course of the business under Section 43 of Rule 130, which is an exception to the hearsay rule. The baptisms administered by the church are one of its transactions in the exercise of ecclesiastical duties and recorded in the book of the church during this course of its business. It may be argued that baptismal certificates are evidence only of the administration of the sacrament, but in this case, there were four (4) baptismal certificates which, when taken together, uniformly show that Lourdes, Josefina, Remedios and Luis had the same set of parents, as indicated therein. Corroborated by the undisputed testimony of Adelaida Sampayo that with the demise of Lourdes and her brothers Manuel, Luis and sister Remedios, the only sibling left was Josefina Sampayo Reyes, such baptismal certificates have acquired evidentiary weight to prove filiation. Petitioners' objection to the photocopy of the certificate of birth of Manuel Sampayo was properly discarded by the court a quo and respondent Court of Appeals. According to Sec. 3, par. (1), Rule 130, of the Rules of Court, when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself except when the original has been lost or destroyed or cannot be produced in court, without bad faith on the part of the offeror. The loss or destruction of the original certificate of birth of Manuel T. Sampayo was duly established by the certification issued by the Office of the Local Civil Registrar of Lucena City to the effect that its
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office was completely destroyed by fire on 27 November 1974 and 30 August 1983, respectively, and as a consequence thereof, all civil registration records were totally burned. Apparently, there seems to be some merit in petitioners' contention that the testimony of Adelaida Sampayo cannot prove filiation for being hearsay considering that there was no declaration ante litem motam as required by the rules, i.e., that the declaration relating to pedigree was made before the controversy occurred. Nonetheless, petitioners made no move to dispute her testimony in open court when she was mentioning who the brothers and sisters of Lourdes were. As correctly observed by the trial court in explicit terms, "the documentary and testimonial evidence not were not disputed by defendants" (now petitioners). 44 Notably, when Rosario Cuario Conti took the witness stand, she admitted that she was not aware of the identities of the parents of the deceased. Clearly, this runs, counter to the relationship akin to filial bonding which she professed she had enjoyed with the decedent. As wife of Ignacio Contil, she was supposedly a "sister-in-law" of the deceased Lourdes Sampayo who regarded Ignacio as a brother. However, in sum, we rule that all the pieces of evidence adduced, taken together, clearly preponderate to the right of private respondents to maintain the action for partition. Absent any reversible error in the assailed Decision and Resolution of the Court of Appeals, this petition for review on certiorari will not lie. WHEREFORE, the petition is DENIED. The assailed Decision dated 30 March 1994 and Resolution dated 21 December 1994 of the Court of Appeals are AFFIRMED. Costs against petitioners. SO ORDERED.

Bellosillo, Puno, Mendoza, Martinez., JJ. concur.

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G.R. No. 114151 September 17, 1998 MAURICIA ALEJANDRINO, petitioner, vs. THE HONORABLE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, RTC-9, CEBU CITY, and LICERIO P. NIQUE, respondents.

ROMERO,

J.:

Questioned in this petition for review on certiorari is the Decision 1 of the Court of Appeals which ruled that the trial court, in an action for quieting of title, did not act in excess of jurisdiction when it issued an order for the segregation of property, after the finality of its decision.
The facts show that the late spouses Jacinto Alejandrino and Enrica Labunos left their six children named Marcelino, Gregorio, Ciriaco, Mauricia, Laurencia and Abundio a 219-square-meter lot in Mambaling, Cebu City identified as Lot No. 2798 and covered by Transfer Certificate of Title No. 19658. Upon the demise of the Alejandrino spouses, the property should have been divided among their children with each child having a share of 36.50 square meters. However, the estate of the Alejandrino spouses was not settled in accordance with the procedure outlined in the Rules of Court.

Petitioner Mauricia (one of the children) allegedly purchased 12.17 square meters of Gregorio's share, 36.50 square meters of Ciriaco's share and 12.17 square meters of Abundio's share thereby giving her a total area of 97.43 square meters, including her own share of 36.50 square meters. It turned out, however, that a third party named Licerio Nique, the private respondent in this case, also purchased portions of the property, to wit: 36.50 square meters from Laurencia, 36.50 square meters from Gregorio "through Laurencia," 12.17 square meters from Abundio also "through Laurencia" and 36.50 square meters from Marcelino or a total area of Laurencia" and 36.50 square meters from Marcelino or a total area of 121.67 square meters of the Alejandrino property. 2
However, Laurencia (the alleged seller of most of the 121.67 square meters of the property) later questioned the sale in an action for quieting of title and damages against private respondent Nique. It was docketed as Civil Case No. CEB7038 in the Regional Trial Court of Cebu City, Branch 9 presided by Judge Benigno G. Gaviola. In due course, the lower court rendered a decision on November 27, 1990 disposing of the case as follows: WHEREFORE, the Court hereby renders judgment in favor of defendant and against plaintiff, dismissing the complaint filed by plaintiff against defendant, and on the Counterclaim and prayer of defendant in its Answer, the Court hereby declares defendant as the owner in fee simple of the share of plaintiff Laurencia Alejandrino and the shares of Marcelino, Gregorio and Abundio, all surnamed Alejandrino, of the parcel of land known as Lot No. 2798 and covered by Transfer Certificate of Title No. 19658 which 4 shares totals an area of 146 square meters more or less; and the Court further Orders plaintiff to: 1. Vacate the premises subject of the complaint and surrender the property to defendant to the extent of the 4 shares aforementioned; 2. Pay the defendant the amount of P15,000.00 as litigation and necessary expenses; the sum of P10,000.00 as reimbursement for attorney's fees; the sum of P10,000.00 as moral damages and P10,000.00 as exemplary damages;
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3. Plus costs.
SO ORDERED.
3

Laurencia appealed the decision to the Court of Appeals under CA-G.R. CV No. 33433 but later withdrew the same. 4 On April 13, 1992, the Court of Appeals considered the appeal withdrawn in accordance with Rule 50 of the Rules of Court. 5
Meanwhile, herein petitioner Mauricia Alejandrino filed on May 5, 1992 before the Regional Trial Court of Cebu City, Branch VII, a complaint for redemption and recovery of properties with damages against private respondent Nique that was docketed as Civil Case No. CEB-11673. Adelino B. Sitoy, Laurencia's counsel in Civil Case No. CEB-7038, filed Civil Case No. CEB-11673 for petitioner Mauricia. The amended complaint in the latter case dated May 17, 1992 alleged that private respondent Nique never notified petitioner Mauricia of the purchase of 121.67 square meters of the undivided Lot No. 2798 nor did he give petitioner Mauricia the preemptive right to buy the area as a co-owner of the same lot. As such co-owner, petitioner Mauricia manifested her willingness to deposit with the court the amount of P29,777.78, the acquisition cost of the portion purchased by private respondent Nique. Petitioner Mauricia also alleged that she demanded from private respondent the area of around 24.34 square meters that the latter had "unduly, baselessly and maliciously claimed as his own but which, as part of Lot No. 2798, actually belongs to her." The amended complaint prayed that petitioner Mauricia be allowed to redeem the area of 121.67 square meters under the redemption price of P29,777.78 and that private respondent Nique be ordered to execute the necessary documents for the redemption and the eventual transfer of certificate of title to her. The amended complaint further prayed for the return to petitioner Mauricia of the 24.34square-meter portion of the lot and for damages amounting to P115,000 and attorney's fees of P30,000. On August 2, 1993, the lower court granted the motion to admit the amended complaint and forthwith ordered the defendant therein to file an amended answer. In Civil Case No. CEB-7038 in the meantime, private respondent filed a motion for the segregation of the 146-squaremeter portion of the property that had been declared by the trial court as his own by virtue of purchase. On May 6, 1993, the trial court issued an order the pertinent portions of which read as follows: ORDER For resolution is a "Motion to Order Segregation of 146 Square Meters In Lot No. 2798" dated January 15, 1993 filed by defendant and the "Opposition" thereto dated February 2, 1992 by plaintiff. Movant-defendant also filed a rejoinder dated February 15, 1993 to the Opposition. After going over the allegations in the motion, the opposition thereto and the rejoinder as well as the records of the case, particularly the decision rendered by this Court and the Order dated October 28, 1992, denying the motion for reconsideration filed by plaintiffs and allowing the issuance of a writ of execution, the Court is inclined to Grant the instant motion. xxx xxx xxx In addition thereto, the Court makes the following observation: 1. Plaintiff (oppositor) has a total share of 146 square meters. This is admitted by her in her complaint (par. 4 thereof). In the decision rendered by this Court, this share now belongs to defendant movant by way of sale. The decision of this Court has long become final.
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2. The total area of the land is 219 sq. meters (par. 2 of complaint), thus, the share of Mauricia Alejandrino is only 73 square meters. 3. As early as June 10, 1983, Mauricia Alejandrino and Laurencia Alejandrino had entered into an "Extrajudicial Settlement of Estate" whereby they agreed to divide the land subject of this case with Laurencia Alejandrino owning 146 square meters in the frontage and Mauricia Alejandrino owning 75 square meters in the back portion (Exh. '16', Extrajudicial Settlement of Estate, par. 1) (emphasis supplied), and that the parties assure each other and their successor in interest that a right of way of two meters is granted to each party by the other permanently (Exh. '16', par. 2). This partition is signed by the parties and their witnesses. Although not notarized, it is certainly valid as between the parties, Maurecia (sic) Alejandrino, being an immediate party, may not renege on this. 4. Since the share of defendant Licerio P. Nique is specifically known to be 146 square meters, and that its location shall be on the "frontage" of the property while the 73 square meters of Maurecia (sic) Alejandrino shall be at the back portion, then, the Court cannot see its way clear, why the 146 sq. meters share of defendant may not be segregated. 5. The contention by oppositor that the "segregation of defendant's share of 146 sq. meters from Lot No. 2798 was not decreed in the judgment" is a rather narrow way of looking at the judgment. Paragraph 1 of the dispositive portion of the judgment by this Court, Orders plaintiff to "vacate the premises subject of the complaint and surrender the property to defendant to the extent of the 4 shares aforementioned." The 4 shares of Laurencia Alejandrino of 146 sq. meters can be segregated because Laurencia and Maurecia had already executed an extrajudicial partition indicating where their respective shares shall be located (Exh. '16'). To deny the segregation is to make the decision of this Court just about valueless is not altogether useless. The matter of allowing the segregation should be read into the decision. The bottomline is still that plaintiff Laurencia, despite the fact that the decision of this Court had long become final; and despite the fact that she even withdraw ( sic) her appeal, she still is enjoying the fruits of the property to the exclusion of the rightful owner. WHEREFORE, the Court hereby Grants the motion. The defendant Licerio Nique may proceed to segregate his 2146 (sic) sq. meters from Lot No. 2798 covered by TCT. No. 19658, by having the same surveyed by a competent Geodetic Engineer, at the expense of movant-defendant.
SO ORDERED.
6

Petitioner Mauricia questioned this order of the lower court in a petition for certiorari and prohibition with prayer for the issuance of a writ of preliminary injunction filed before the Court of Appeals. In due course, the Court of Appeals dismissed the petition in a Decision promulgated on August 25, 1993. The Court of Appeals stated that, in issuing the questioned order of May 6, 1993, the respondent court was merely performing its job of seeing to it that "execution of a final judgment must conform to that decreed in the dispositive part of the decision." It ratiocinated thus: . . . . In ordering the segregation of the 146 square meters, respondent Judge correctly referred to the text of the decision to ascertain which portion of the land covered by TCT No. 19658 was
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actually sold by Laurencia Alejandrino (sister of herein petitioner Mauricia) to private respondent Nique. The respondent Judge did not err in relying upon Exhibit '16', the Deed of Extrajudicial Settlement, dated June 10, 1983, mentioned in page 3 of the Decision. Pertinent portion of Exhibit '6' reads: NOW, THEREFORE, the above-named parties-heirs hereby stipulates (sic), declare and agree as follows: 1. That the parties have agreed to divide the parcel of land with Laurencia Alejandrino owning 146 square meters in the frontage and Mauricia Alejandrino 73 square meters in the back portions; 2. That the parties mutually and reciprocally assure each other and their successor of interest ( sic) that a right of way of two meters is granted to each party to the other permanently. (emphasis supplied, Annex '1', Comment, p. 65, Rollo). duly signed by herein petitioner and witnessed by private respondent Nique. It readily reveals that when Laurencia subsequently sold her shares to herein private respondent, per the Deed of Absolute Sale dated October 29, 1986 (Exhs. 'B' and '10'), the parties must have referred to the 146 square meters in the frontage described in said document, Exhibit '16'. Laurencia had no authority to sell more, or, less, than that agreed upon in the extrajudicial settlement between her and herein petitioner Mauricia. Insofar as the latter is concerned, she is estopped from claiming that said extrajudicial settlement was a fatally defective instrument because it was not notarized nor published. What is important is that private respondent personally knew about Laurencia and Mauricia's agreement because he was a witness to said agreement and he relied upon it when he purchased the 146 square meters from Laurencia. It cannot be validly claimed by petitioner that she was deprived of her property without due process of law considering that private respondent is merely segregating the portion of the land actually sold to him by Laurencia Alejandrino and it does not affect the 73 square meters that properly pertain to petitioner.
Moreover, the Supreme Court has ruled that where there is ambiguity caused by an omission or mistake in the dispositive portion of a decision the court may clarify such ambiguity by an amendment even after the judgment had become final, and for this purpose it may resort to the pleadings filed by the parties, the court's finding of facts and conclusions of law as expressed in the body of the decision (Republic Surety and Insurance Co., Inc., et al., vs. Intermediate Appellate Court, et al., 152 SCRA 309). The assailed order, in effect, clarifies the exact location of the 146 square meters pursuant to Exhibit '16'. Respondent court did not act in excess of its jurisdiction. Hence, writs of certiorari and prohibition do not lie in this case. 7

Petitioner Mauricia filed a motion for the reconsideration of the Court of Appeals' decision. However, on February 15, 1994, the Court of Appeals denied the same for lack of merit "there being no new ground or compelling reason that justifies a reconsideration" of its Decision. 8
In the instant petition for review on certiorari, petitioner assails the decision of the Court of Appeals, contending that the lower court acted beyond its jurisdiction in ordering the segregation of the property bought by private respondent as the same was not decreed in its judgment, which had long become final and executory. Petitioner argues that partition of the property cannot be effected because private respondent is also a defendant in Civil Case No. CEB-11673. She asserts that Exhibit 16, the extrajudicial settlement of estate referred to in the questioned order of the lower court, was not discussed in the decision of the lower court and even if it were, she could not be bound thereby considering that she was not a party litigant in Civil Case No. CEB-7038. She questions the validity of the deed of extrajudicial settlement because it was not notarized or published.

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In his comment on the petition, private respondent alleges that although petitioner was not a party litigant in Civil Case No. CEB-7038, she is estopped from questioning the decision in that case and filing the instant petition because she had "knowledge of the existence of said case" where res judicata had set in. He adds that the instant petition was filed in violation of Circular No. 28-91 on forum shopping "in that the Petitioner in the instant petition whose counsel is also the counsel of plaintiff-appellant Laurencia Alejandrino in CA-G.R. CV No. . . ., had filed a civil action Civil Case No. CEB-11673 . . . for "REDEMPTION & RECOVERY OF PROPERTIES WITH DAMAGES", which is presently pending before Branch 7 of the Regional Trial Court of Cebu City." He asserts that the lower court did not exceed its jurisdiction and/or commit grave abuse of discretion in granting his motion for segregation of the 146 square meters of the land involved that rightfully belonged to him in accordance with the decision of the lower court. He charges counsel for petitioner with exhibiting "unethical conduct and practice" in appearing as counsel for petitioner in Civil Case No. CEB-11673 after he had appeared for complainant Laurencia in CA-G.R. CV No. 33433 or Civil Case No. CEB-7038. Under the circumstances of this case, the ultimate issue that needs determination is whether or not as an heir of the Alejandrino property, Laurencia may validly sell specific portions thereof to a third party.

Art. 1078 of the Civil Code provides that where there are two or more heirs, the whole estate of the decedent is, before partition, owned in common by such heirs, subject to the payment of the debts of the deceased. Under a co-ownership, the ownership of an undivided thing or right belongs to different persons. 9 Each co-owner of property which is held pro indivisoexercises his rights over the whole property and may use and enjoy the same with no other limitation than that he shall not injure the interests of his co-owners. The underlying rationale is that until a division is made, the respective share of each cannot be determined and every co-owner exercises, together with his co-participants, joint ownership over the pro indivisoproperty, in addition to his use and enjoyment of the same. 10 Although the right of an heir over the property of the decedent is inchoate as long as the estate has not been fully settled and partitioned, 11 the law allows a co-owner to exercise rights of ownership over such inchoate right. Thus, the Civil Code provides:
Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. With respect to properties shared in common by virtue of inheritance, alienation of a pro indiviso portion thereof is specifically governed by Article 1088 that provides: Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. In the instant case, Laurencia was within her hereditary rights in selling her pro indiviso share in Lot No. 2798. However, because the property had not yet been partitioned in accordance with the Rules of Court, no particular portion of the property could be identified as yet and delineated as the object of the sale. Thus, interpreting Article 493 of the Civil Code providing that an alienation of a co-owned property "shall be limited to the portion which may be allotted to (the seller) in the division upon the termination of the co-ownership, the Court said: . . . (p)ursuant to this law, a co-owner has the right to alienate his pro-indiviso share in the co-owned property even without the consent of the other co-owners. Nevertheless, as a mere part owner, he cannot alienate the shares of the
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other co-owners. The prohibition is premised on the elementary rule that "no one can give what he does not have" (Nemo dat quod non habet). Thus, we held in Bailon-Casilao vs. Court of Appeals (G.R. No. 78178, April 15, 1988, 160 SCRA 738, 745), viz: . . . since a co-owner is entitled to sell his undivided share, a sale of the entire property by one coowner without the consent of the other co-owners is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.
The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property of the co-owners who possessed and administered it. 2

The legality of Laurencia's alienation of portions of the estate of the Alejandrino spouses was settled in Civil Case No. CEB-7038. The decision in that case had become final and executory with Laurencia's withdrawal of her appeal. When private respondent filed a motion for the segregation of the portions of the property that were adjudged in his favor, private respondent was in effect calling for the partition of the property. However, under the law, partition of the estate of a decedent may only be effected by (1) the heirs themselves extrajudicially, (2) by the court in an ordinary action for partition, or in the course of administration proceedings, (3) by the testator himself, and (4) by the third person designated by the testator. 13
The trial court may not, therefore, order partition of an estate in an action for quieting of title. As there is no pending administration proceedings, the property of the Alejandrino spouses can only be partitioned by the heirs themselves in an extrajudicial settlement of estate. However, evidence on the extrajudicial settlement of estate was offered before the trial court and it became the basis for the order for segregation of the property sold to private respondent. Petitioner Mauricia does not deny the fact of the execution of the deed of extrajudicial settlement of the estate. She only questions its validity on account of the absence of notarization of the document and the nonpublication thereof. On extrajudicial settlement of estate, Section 1 of Rule 74 of the Rules of Court provides: If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action for partition. . . . . The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.

Notarization of the deed of extrajudicial settlement has the effect of making it a public document 14 that can bind third parties. However, this formal requirement appears to be superseded by the substantive provision of the Civil Code that states:
Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction.

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By this provision, it appears that when a co-owner sells his inchoate right in the co-ownership, he expresses his intention to "put an end to indivision among (his) co-heirs." Partition among co-owners may thus be evidenced by the overt act of a co-owner of renouncing his right over the property regardless of the form it takes. In effect, Laurencia expressed her intention to terminate the co-owner by selling her share to private respondent. Moreover, the execution of the deed of extrajudicial settlement of the estate reflected the intention of both Laurencia and petitioner Mauricia to physically divide the property. Both of them had acquired the shares of their brothers and therefore it was only the two of them that needed to settle the estate. The fact that the document was not notarized is no hindrance to its effectivity as regards the two of them. The partition of inherited property need not be embodied in a public document. In this regard, Tolentino subscribes to that opinion when he states as follows: . . . . We believe, however, that the public instrument is not essential to the validity of the partition. This is not one of those contracts in which form is of the essence. The public instrument is necessary only for the registration of the contract, but not for its validity. The validity of an oral contract among the heirs, terminating the co-ownership, has been recognized by the Supreme Court in a decision . . . (where) that tribunal said: "An agreement among the heirs that a certain lot should be sold and its proceeds paid to one of them is a valid oral contract, and the same has the force of law between the parties from and after the original assent thereto, and no one of them may withdraw or oppose its execution without the consent of all".
In a still later case, the Supreme Court held that "partition among heirs or renunciation of an inheritance by some of them is not exactly a conveyance for the reason that it does not involve transfer of property from one to the other, but rather a confirmation or ratification of title or right to property by the heir renouncing in favor of another heir accepting and receiving the inheritance." Hence, the court concluded, "it is competent for the heirs of an estate to enter into an oral agreement for distribution of the estate among themselves." 15

The deed of extrajudicial settlement executed by Mauricia and Laurencia evidence their intention to partition the property. It delineates what portion of the property belongs to each other. That it was not notarized is immaterial in view of Mauricia's admission that she did execute the deed of extrajudicial settlement. Neither is the fact that the trial court only mentioned the existence of such document in its decision in Civil Case No. CEB-7028. That document was formally offered in evidence and the court is deemed to have duly considered 16 it in deciding the case. the case. The court has in its favor the presumption of regularity of the performance of its task that has not been rebutted by petitioner Mauricia. Neither may the fact that the other heirs of the Alejandrino spouses, named Marcelino, Gregorio, Ciriaco and Abundio did not participate in the extrajudicial settlement of estate affect its validity. In her amended complaint in Civil Case No. CEB-11673, petitioner Mauricia herself admitted having acquired by purchase the rights over the shares of her brothers.
On the part of Laurencia, the court found that she had transmitted her rights over portions she had acquired from her brothers to private respondent Nique. The sale was made after the execution of the deed of extrajudicial settlement of the estate that private respondent himself witnessed. The extrajudicial settlement of estate having constituted a partition of the property, Laurencia validly transferred ownership over the specific front portion of the property with an area of 146 square meters. The trial court, therefore, did not abuse its discretion in issuing the order for the segregation of the property. In so doing, it was merely reiterating the partition of the property by petitioner Mauricia and her sister Laurencia that was embodied in the deed of extrajudicial settlement of estate. The order may likewise be deemed as a clarification of its decision that had become final and executory. Such clarification was needed lest proper execution of the decision be rendered futile.

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The Court finds no merit in the issue of forum shopping raised by private respondent. Forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other. 17Because the judgment in Civil Case No. CEB-7028 is already final and executory, the existence of res judicata is determinative of whether or not petitioner is guilty of forum shopping. For the principle of res judicata to apply, the following must be present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final; and (4) the two actions involve identical parties, subject matter and causes of action. 18 The fourth element is not present in this case. The parties are not identical because petitioner was not impleaded in Civil Case No. CEB-7028. While the subject matter may be the same property, of the Alejandrino spouses, the causes of action are different. Civil. Case No. CEB-7028 is an action for quieting of title and damages while Civil Case No. CEB-11673 is for redemption and recovery of properties. It appears moreover, that private respondent's argument on forum shopping is anchored on the fact that counsel for both plaintiffs in those two cases is one and the same, thereby implying that the same counsel merely wanted to prevail in the second case after having failed to do so in the first. The records show, however, that Laurencia executed an affidavit 19consenting to the appearance of her counsel in any case that petitioner Mauricia might file against private respondent. She affirmed in that affidavit that she could be included even as a defendant in any case that petitioner Mauricia would file because she "fully agree(d)" with whatever cause of action Mauricia would have against private respondent. Such a statement can hardly constitute a proper basis for a finding of forum shopping, much less evidence of misconduct on the part of counsel. As noted earlier, the two cases have different causes of action and the two plaintiffs who would have conflicting claims under the facts of the case actually presented a united stand against private respondent. If there is any charge that could be leveled against counsel, it is his lack of thoroughness in pursuing the action for quieting of title. As counsel for plaintiff therein, he could have impleaded petitioner Mauricia knowing fully well her interest in the property involved in order to avoid multiplicity of suits. However, such an omission is not a sufficient ground for administrative sanction.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit. Costs against petitioner. SO ORDERED.

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G.R. No. 127827

March 5, 2003

ELEUTERIO, ANATALIA, JOSELITO, ROGELIO, EVANGELINE, NOEL, GUILLERMO, LORENZO, DOMINGO, AMADO, and VICTORIA, all surnamed LOPEZ, petitioners, vs. THE HONORABLE COURT OF APPEALS, and spouses MARCELINO and CRISTINA S. LOPEZ, FELISA LOPEZ and RAMON CORTEZ, ZOILO LOPEZ, LEONARDO LOPEZ and LEONILA LOPEZ and spouses ROGELIO M. AMURAO and NOAMI T. AMURAO, respondents. PUNO, J.: Before us is a petition for review on certiorari of the Decision1 dated September 30, 1996 of the Court of Appeals in C.A.-G.R. CV No. 43837, which affirmed with modification the Decision dated March 30, 1993 of the Regional Trial Court of Antipolo, Rizal, Branch 71, in Civil Case No. 677-A. The evidence shows that in 1920, Fermin Lopez occupied, possessed, and declared for taxation purposes a parcel of public land containing an area of 19 hectares, 48 ares, 88 centares, more or less, situated in Makatubong, Barrio De la Paz, Antipolo, Rizal. He filed a homestead application over the land, but his application was not acted upon until his death in 1934. When he died, he was survived by the following: (1) Hermogenes Lopez, now deceased, leaving his children, respondents Marcelino, Felisa, Zoilo, and Leonardo, all surnamed Lopez, as his heirs; (2) petitioner Eleuterio Lopez; (3) Juan Lopez, now deceased, leaving his children, Guillermo, Lorenzo, Domingo, Amado, and Victoria, all surnamed Lopez, as his heirs;2 and (4) Nazario, now deceased, leaving his wife, petitioner Anatalia, and children, petitioners Joselito, Rogelio, Evangeline and Noel, all surnamed Lopez, as his heirs. Following Fermin's death, Hermogenes, being the eldest child, worked and introduced additional improvements on the land. In 1936, he inquired from the Bureau of Lands the status of his late father's application for a homestead grant. An official3 of the bureau informed him that the application remained unacted upon and suggested that he file a new application. Following the suggestion, Hermogenes filed a homestead application in his own name, which was docketed as No. 138612. After ascertaining that the land was free from claim of any private person, the Bureau approved his application. In 1939, Hermogenes submitted his final proof of compliance with the residency and cultivation requirements of the law. The land was surveyed and a resulting plan, H-138612, was approved by the Director of Lands, who thereafter ordered the issuance of the homestead patent. The patent was later transmitted to the Register of Deeds of Rizal for transcription and issuance of the corresponding certificate of title in his name. Unaware that he has been awarded a homestead patent, Hermogenes executed on February 11, 1956 an Extra-judicial Partition of the disputed land with his brothers petitioner Eleuterio, Juan, and Nazario. On September 12, 1958, however, the three executed a Deed of Absolute Sale of their share in the land in favor of Hermogenes. The succeeding year, Hermogenes applied with the Land Registration Commission for the registration of the property in his name. This was docketed as LRC Case No. 2531. To his surprise, he found that the land has been registered in the names of Fernando Gorospe, Salvador de Tagle, Rosario de Tagle, Beatriz de Suzuarrequi and Eduardo Santos, who collectively opposed his application. In December 1959, Hermogenes filed a complaint for the annulment of the free patent and title against these persons before the Court of First Instance of Rizal, 4 docketed as Civil Case No. 5957. Some of the defendants moved for its dismissal alleging that Hermogenes was not a real party in interest since he previously sold his right to the land to one Ambrocio Aguilar on July 31, 1959. The case was dismissed. Aguilar instituted on November 18, 1976 a new civil action before the CFI of Rizal, 5 docketed as Civil Case No. 24873. It was similar to Civil Case No. 5957 except for the change in plaintiff and the addition of the Bureau of Lands as codefendant. On April 15, 1982, the lower court declared Aguilar as the absolute owner of the land and OCT No. 537
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and all subsequent certificates of title emanating therefrom as void ab initio. This decision was affirmed in toto by the Court of Appeals. In G.R. No. 90380, we affirmed the decision of the appellate court in a decision promulgated on September 13, 1990.6 After the April 15, 1982 decision of the CFI, and while the case was on appeal, respondent Lopezes, as heirs of Hermogenes (who died on August 20, 1982), filed a complaint against Aguilar before the RTC of Antipolo, Rizal. The July 14, 1984 complaint was for the cancellation of the deed of sale executed by Hermogenes in favor of Aguilar dated July 31, 1959 and/or reconveyance. It was docketed as Civil Case No. 463-A. On February 5, 1985, the lower court declared the deed of absolute sale null and void ab initio and the respondents as the true and absolute owner of the disputed land. Aguilar sought relief with the Court of Appeals, which affirmed in toto the decision of the RTC in a Decision promulgated on August 18, 1987.7 In G.R. No. 81092, we denied Aguilar's petition for review in a resolution dated April 6, 1998 for having been filed late. On April 25, 1985, after the RTC of Antipolo rendered its February 5, 1987 decision in Civil Case No. 463-A and pending its appeal, respondent Lopezes sold a large portion of the disputed property to respondent spouses Amurao. On May 31, 1985, petitioners Eleuterio, Anatalia, Joselito, Rogelio, Evangeline and Noel, all heirs of Nazario Lopez, along with Guillermo, Lorenzo, Domingo, Amado, and Victoria, all heirs of Juan Lopez, instituted the present action against the respondents before the RTC of Antipolo, Rizal, Branch 71, docketed as Civil Case No. 677-A. They prayed, among others, that they be declared co-owners of the property subject matter hereof and that private respondents be ordered to reconvey to them 3/5 thereof as its co-owners, or in the alternative, to pay its value. On June 26, 1985, respondents filed their Answer with Compulsory Counterclaim alleging that they are the absolute owners of the contested land on the basis of the homestead grant to their predecessor-in-interest, Hermogenes. After the pre-trial on November 27, 1987, trial ensued. In the August 28, 1986 hearing petitioners' counsel failed to appear, causing the case to be dismissed. The dismissal, however, was reconsidered upon motion of petitioners' counsel, and the case was again set for hearing. In the scheduled hearing of October 17, 1986, counsel for respondent was absent. Upon proper motion, petitioners were allowed to present their evidence ex-parte on December 5, 1986. Following the presentation of ex-parte evidence, the case was deemed submitted for resolution. On June 25, 1987, the court a quo rendered a decision in favor of the petitioners ordering the division of the disputed lot in equal portions among the four children of Fermin or their heirs. Respondents failed to appeal the decision but on September 10, 1987, they filed a petition for relief from judgment, alleging that accident/excusable negligence prevented them from attending the trial and that they have a good, substantial and meritorious defense. On December 28, 1989, the court a quo set aside its decision dated June 25, 1987 and ordered a pre-trial conference. On January 30, 1990, respondents filed a Motion to Admit Amended Answer alleging for the first time that petitioners have already sold to Hermogenes their shares in the contested property: Petitioners opposed the motion on the ground that the amendments constituted substantial alteration of the theory of the defense. On February 13, 1990, the court a quo allowed respondents to amend the answer. When their motion for reconsideration was denied, petitioners elevated the issue directly to this court via a Petition for Certiorari. On April 25, 1990, we denied the petition for failure to comply with the requirements of Circular 1-88, with a further pronouncement that, "besides, even if the petition were admitted, the same would still be dismissed as the Court finds that no grave abuse of discretion was committed by public respondent." Trial on the merits once more proceeded in the court a quo. While the case was on trial, complainants therein Guillermo, Lorenzo, Domingo, Amado and Victoria, all children of Juan Lopez, entered into a compromise agreement with the respondent Lopezes, heirs of Hermogenes, recognizing the latter's ownership and possession of the property subject of the case. They confirmed the sale made by their father Juan to Hermogenes. On July 20, 1992, the court a quo rendered a partial decision approving the compromise agreement.8

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On March 30, 1993, the court a quo rendered a Decision dismissing the complaint, the dispositive portion of which states: "WHEREFORE, judgment is hereby rendered: 1. Ordering the dismissal of the case; 2. Declaring Hermogenes Lopez as the exclusive owner of the property in question; 3. Ordering the plaintiffs to pay the defendants the amount of P20,000.00 as attorney's fees; and 4. Ordering plaintiffs to pay the costs. SO ORDERED."9 Feeling aggrieved, petitioners appealed to the Court of Appeals, which affirmed with modification the above Decision, thus: "Finally, We have to delete and disallow the award of attorney's fees for want of factual and legal premise in the text of the appealed Decision. IN VIEW OF ALL THE FOREGOING, the decision appealed from is AFFIRMED with a modification that the award of attorney's fees is deleted. Costs against the appellants." 10 Hence, the present course of action where petitioners contend: "I. The Honorable Court of Appeals in ruling that the propriety of the grant of respondents' petition for relief from judgment has been rendered moot is not in accord with the decisions of this Honorable Supreme Court. II. The Court of Appeals' ruling that Fermin Lopez, the common predecessor-in-interest, was not entitled to the grant of the homestead patent, hence petitioners are not co-owners of the disputed property is not in accord with the evidence and the decisions of this Honorable Supreme Court. III. The Court of Appeals' ruling that the statement or declarations in the extra-judicial partition (Exh. N); the special power of attorney (Exh. O); and the letter dated January 11, 1984 (Exh. Q) were based on a wrong assumption that the property is owned by their common predecessor-in-interest is not in accord with the evidence and decisions of this Honorable Supreme Court. IV. The Court of Appeals committed reversible error in ruling that the forged absolute deed of sale dated September 12, 1958 has no bearing on the respondents' claim over the disputed property. V. The Court of Appeals in not ruling that the remedy of partition is available to the petitioners is not in accord with law. VI. The Court of Appeals' ruling that laches applies to the herein (sic) who are close relatives is not in accord with the decisions of this Honorable Supreme Court."11 First, the procedural issue. Petitioners contend that the grant of relief from judgment is erroneous as the respondents did not substantiate their allegation of fraud, accident, mistake, or excusable negligence which unjustly deprived them of a hearing. They add that while respondents had ample opportunity to avail of other remedies, such
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as a motion for reconsideration or an appeal, from the time they received a copy of the decision on July 10, 1987, yet they did not do so. Rule 38 of the 1997 Rules of Civil Procedure governs the petition for relief from judgment. Sections 2 and 3 of the Rules provide: "Section 2. Petition for relief from judgment, order or other proceedings. When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside."12 "Section 3. Time for filing petition; contents and verification. A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake or excusable negligence relied upon, and the facts constituting the petitioners' good and substantial cause of action or defense, as the case may be." 13 We find that respondents were deprived of their right to a hearing due to accident. In the October 17, 1986 hearing, their counsel was absent due to asthma, which disabled him and made it difficult for him to talk. Similarly, when petitioners presented their evidence ex-parte on December 5, 1986, the counsel for the respondents again failed to appear as he experienced another severe asthma attack. On both occasions, his absence is clearly excusable. Nor is there any doubt that respondents were able to show that they have a good and substantial defense. They attached to their affidavit of merit the following documents: 14 the decision of the Court of First Instance of Pasig in Civil Case No. 5957 entitled "Hermogenes Lopez v. Fernando Gorospe, et al."; the decision also of the Pasig CFI, in Civil Case No. 24873, entitled "Ambrocio Aguilar v. Fernando Gorospe "; the decisions of the lower and appellate courts in the case of Marcelino Lopez, et al. v. Ambrocio Aguilar"; the decision of the Municipal Trial Court of Antipolo in the case of "Ambrocio Aguilar v. Santos "; and the Deed of Sale executed by and between Hermogenes and his brothers petitioner Eleuterio, Nazario and Juan. The ruling in the foregoing cases recognized the absolute ownership and possession of respondents' predecessor-in-interest, Hermogenes Lopez. The deed showed that petitioner Eleuterio, Juan and Nazario sold their rights and interests in the contested lot to their brother Hermogenes. Time and again, we have stressed that the rules of procedure are not to be applied in a very strict and technical sense. The rules of procedure are used only to help secure and not override substantial justice. 15 If a stringent application of the rules would hinder rather than serve the demands of substantial justice, the former must yield to the latter.16 We now address the substantive issues. The most pivotal is the petitioners' contention that the appellate court erred in holding that they are not co-owners of the disputed property. They argue that Fermin, their predecessor-ininterest, has complied with all the requirements of the Public Land Act pertaining to a homestead grant, and is therefore entitled to a patent as a matter of right. They claim that Fermin filed a homestead application over the land, cultivated at least one-fifth of it, and resided on it for at least one year. Upon his death, they argue that they became its co-owners through succession. We do not agree. Homestead settlement is one of the modes by which public lands suitable for agricultural purposes are disposed of.17 Its object is to provide a home for each citizen of the state, where his family may shelter and live beyond the reach of financial misfortune, and to inculcate in individuals those feelings of independence which are essential to the maintenance of free institutions. 18

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The record is bereft of any evidence as to when Fermin exactly filed his homestead application over the lot in controversy, but it must have been filed after 1920, the year he first occupied and possessed the land, and before 1934, the year he died. During this period, Act No. 2874 was the governing law. 19 Section 12 thereof provides: "Sec. 12. Any citizen of the Philippine Islands or of the United States, over the age of eighteen years, or the head of a family, who does not own more than twenty-four hectares of land in said Islands or has not had any benefit of any gratuitous allotment of more than twenty-four hectares of land since the occupation of the Philippine Islands by the United States, may enter a homestead of not exceeding twenty-four hectares of agricultural land of the public domain."20 A person who is legally qualified has to file his application for a homestead patent with the Bureau of Lands. If in order, the application shall be approved by the Director. The applicant will be authorized to enter the land upon payment of an entry fee of five pesos.21 Within six months after approval of the application, the applicant has to improve and cultivate the land. 22 He must cultivate at least one-fifth of the land for a period of not less than two years nor more than five years from the date of approval of the application. 23 He must also continuously reside in the same municipality where the homestead is located, or in an adjacent municipality, for at least one year. 24 He must finally present his final proof to the Bureau of Lands that he has complied with the cultivation and residency requirements.25 It bears emphasis that Act No. 2874 requires that for an application to be valid, it must be approved by the Director of Lands. This is expressly mandated by Section 13 of the law, viz: "Sec. 13. Upon filing of an application for a homestead, the Director of Lands, if he finds that the application should be approved, shall do so and authorize the applicant to take possession of the land upon the payment of ten pesos, Philippine currency, as entry fee. Within six months from and after the date of the approval of the application, the applicant shall begin to work the homestead, otherwise he shall lose his prior right to the land."26 (emphasis supplied) This provision gives the Director of Lands discretion to approve or deny an application. He is not a mere automaton who must perfunctorily approve an application upon its filing. He is tasked to satisfy himself that, among others, the application papers meet the requirements of the law, the land is a disposable public land, and the land is not subject of a previous valid application.27 Only when he finds the application sufficient in form and substance should he favorably act on it. Otherwise, he should deny it. The application of Fermin unfortunately remained unacted upon up to the time of his death. It was neither approved nor denied by the Director, as the Bureau failed to process it. Hence, he could not have acquired any vested rights as a homestead applicant over the property because his application was never acted upon. Reliance on the cases of Davao Grains, Inc. v. IAC28 and Balboa v. Farrales29 by the petitioners is misplaced. Those two had different factual backdrops. In both Davao Grains, Inc. and Balboa, the disputed lots were subject of valid applications for public land grants. The valid applications became our bases for ruling that once an applicant has complied with the cultivation, residency and other requirements of Act No. 2874, which entitle him to a patent for a particular tract of land, "he is deemed to have already acquired by operation of law not only a right to a grant, but a grant of the government for it is not necessary that a certificate of title be issued in order that said grant may be sanctioned by the courts an application therefor being sufficient under the provisions of Section 47 of Act No. 2874."30 A valid application is sadly lacking in the case of Fermin. This circumstance prevented him from acquiring any vested right over the land and fully owning it at the time of his death. Conformably, his heirs did not inherit any property right from him.31

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Had the application of Fermin been duly approved, his heirs would have succeeded him in his rights and obligations with respect to the land he has applied for. Sec. 103 of Act No. 2874 covers such a contingency, thus: "Sec. 103. If at any time the applicant or grantee shall die before the issuance of the patent or the final grant of the land, or during the life of the lease, or while the applicant or grantee still has obligations pending towards the Government, in accordance with this Act, he shall be succeeded in his rights and obligations with respect to the land applied for or granted or leased under this Act by his widow, who shall be entitled to have issued to her the patent or final concession if she shows that she has complied with the requirement therefore, or in case he has left no widow or the widow refuses the succession, he shall be succeeded by the person or persons who are his heirs by law and who shall be subrogated in all his rights and obligations for the purposes of this Act."32 The failure of the Bureau of Lands to act on the application of Fermin up to the time of his death, however, prevented his heirs to be subrogated in all his rights and obligations with respect to the land applied for. Perforce, at the time Hermogenes applied for a homestead grant over the disputed property, it was still part of alienable public land. As he applied for it in his own name, his application inures to his sole benefit. After complying with the cultivation and residency requirements, he became a grantee of a homestead patent over it, thereby making him its absolute and exclusive owner. 33 Petitioners, however, claim that Hermogenes and his heirs, respondent Lopezes, recognized their rights as co-owners of the disputed property, as shown by the following documents: an Extra-judicial Partition of the real property executed by Hermogenes and his brothers petitioner Eleuterio, Nazario, and Juan ;34 a Special Power of Attorney to sell the lot in question executed by petitioner Eleuterio, Nazario and Juan in favor of Hermogenes; 35and a letter dated January 16, 1984, which contains the statement that petitioners are co-heirs of the property, and which respondent Marcelino Lopez signed. 36 Petitioners argue that respondents are precluded from denying the contents of these documents based on the principle of estoppel by deed. They add that while only Hermogenes applied for a homestead grant, nonetheless, there was an agreement among the brothers that his application was for and in behalf of all them. These arguments fail to impress. Estoppel by deed is a bar which precludes one party from asserting as against the other party and his privies any right or title in derogation of the deed, or from denying the truth of any material facts asserted in it.37 The principle is that when a man has entered into a solemn engagement by deed, he shall not be permitted to deny any matter which he has asserted therein, for a deed is a solemn act to any part of which the law gives effect as the deliberate admission of the maker. 38 It promotes the judicious policy of making certain formal documents final and conclusive of their contents. 39 A void deed, however, will not work, and may not be the basis of, an estoppel. 40 Covenants do not work an estoppel unless the deed in which they are contained is itself a valid instrument.41 In the case at bar, the deed and instruments at issue were void. The extra-judicial partition and the special power of attorney to sell did not have an object certain, which is the subject matter of the deed. The disputed land cannot be their object because petitioners do not have any right or interest over it. They are not its co-owners as it is owned absolutely by Hermogenes. Well to note, the two instruments were executed on the mistaken assumption that Hermogenes and his brothers inherited the property from Fermin. Moreover, at the time the documents were made, Hermogenes was unaware that he was granted a homestead patent. As correctly ruled by the appellate court, estoppel does not operate to confer property rights where there are none. 42 Apropos the letter dated January 16, 1984, 43 suffice it to state that we agree with the trial court's pronouncement that respondent Marcelino Lopez signed it merely "to gain the favors of his uncle Eleuterio Lopez and in no way does it constitute an admission that the plaintiffs (petitioners herein) are co-owners of the property."44 Under these circumstances, respondents cannot be held guilty of estoppel by deed.

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The claim of the petitioners that Hermogenes filed the application in behalf of all the heirs of Fermin pursuant to a previous agreement does not hold water. There is paucity of evidence in support of this allegation. Aside from the uncorroborated testimony of petitioner Eleuterio, petitioners were not able to present other proof of the agreement. Besides, we cannot easily give credence to such a claim considering that under Act No. 2874, an applicant must personally comply with the legal requirements for a homestead grant. He must possess the necessary qualifications. He must cultivate the land and reside on it himself. It would be a circumvention of the law if an individual were permitted to apply "in behalf of another," as the latter may be disqualified or might not comply with the residency and cultivation requirements. In respect of the fourth assigned error, we find that petitioners' attack on the authenticity and validity of the Deed of Absolute Sale dated September 12, 1958, where petitioner Eleuterio, Juan, and Nazario allegedly sold their share in the disputed property to Hermogenes, bereft of merit. It did not change the fact that no co-ownership existed among Hermogenes and his brothers. Hermogenes is the absolute owner of the disputed property just as his brothers do not own any share in it. Hence, they cannot validly sell anything to Hermogenes by virtue of the deed. Prescinding from the lack of co-ownership, petitioners' argument that they are entitled to have the land partition must be rejected. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong.45 The purpose of partition is to put an end to co-ownership.46 It seeks a severance of the individual interests of each co-owner, vesting in each a sole estate in specific property and giving to each one a right to enjoy his estate without supervision or interference from the other. 47 Not being co-owners of the disputed lot, petitioners cannot demand its partition. They do not have any interest or share in the property upon which they can base their demand to have it divided. Petitioners' last argument that they are not guilty of laches in enforcing their rights to the property is irrelevant. Laches is the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it has abandoned it or declined to assert it. 48 It does not involve mere lapse or passage of time, but is principally an impediment to the assertion or enforcement of a right, which has become under the circumstances inequitable or unfair to permit.49 Petitioners' insistence that they are not negligent in asserting their right over the property proceeds from the wrong premise that they have a right to enforce over the disputed property as co-owners. There can be no delay in asserting a right where the right does not exist. IN VIEW WHEREOF, finding no cogent reason to reverse the impugned Decision of the Court of Appeals, the petition is DENIED for lack of merit. SO ORDERED.

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G.R. No. 152658. July 29, 2005 LILY ELIZABETH BRAVO-GUERRERO, BEN MAURICIO P. BRAVO,1 ROLAND P. BRAVO, JR., OFELIA BRAVO-QUIESTAS, HEIRS OF CORPUSINIA BRAVO-NIOR namely: GERSON U. NIOR, MARK GERRY B. NIOR, CLIFF RICHARD B. NIOR, BRYAN B. NIOR, WIDMARK B. NIOR, SHERRY ANNE B. NIOR, represented by LILY ELIZABETH BRAVO-GUERRERO as their attorney-in-fact, and HONORABLE FLORENTINO A. TUASON, JR., Presiding Judge, Regional Trial Court, Branch 139, Makati City, Petitioners, vs. EDWARD P. BRAVO, represented by his attorney-in-fact FATIMA C. BRAVO, respondent, and DAVID B. DIAZ, JR., intervenor-respondent. DECISION CARPIO, J.: The Case Before the Court is a petition for review2 assailing the Decision3 of 21 December 2001 of the Court of Appeals in CAG.R. CV No. 67794. The Court of Appeals reversed the Decision 4 of 11 May 2000 of the Regional Trial Court of Makati, Branch No. 139, in Civil Case No. 97-1379 denying respondents prayer to partition the subject properties. Antecedent Facts Spouses Mauricio Bravo ("Mauricio") and Simona5 Andaya Bravo ("Simona") owned two parcels of land ("Properties") measuring 287 and 291 square meters and located along Evangelista Street, Makati City, Metro Manila. The Properties are registered under TCT Nos. 58999 and 59000 issued by the Register of Deeds of Rizal on 23 May 1958. The Properties contain a large residential dwelling, a smaller house and other improvements. Mauricio and Simona had three children - Roland, Cesar and Lily, all surnamed Bravo. Cesar died without issue. Lily Bravo married David Diaz, and had a son, David B. Diaz, Jr. ("David Jr."). Roland had six children, namely, Lily Elizabeth Bravo-Guerrero ("Elizabeth"), Edward Bravo ("Edward"), Roland Bravo, Jr. ("Roland Jr."), Senia Bravo, Benjamin Mauricio Bravo, and their half-sister, Ofelia Bravo ("Ofelia"). Simona executed a General Power of Attorney ("GPA") on 17 June 1966 appointing Mauricio as her attorney-in-fact. In the GPA, Simona authorized Mauricio to "mortgage or otherwise hypothecate, sell, assign and dispose of any and all of my property, real, personal or mixed, of any kind whatsoever and wheresoever situated, or any interest therein xxx."6 Mauricio subsequently mortgaged the Properties to the Philippine National Bank (PNB) and Development Bank of the Philippines (DBP) for P10,000 and P5,000, respectively.7 On 25 October 1970, Mauricio executed a Deed of Sale with Assumption of Real Estate Mortgage ("Deed of Sale") conveying the Properties to "Roland A. Bravo, Ofelia A. Bravo and Elizabeth Bravo" 8 ("vendees"). The sale was conditioned on the payment of P1,000 and on the assumption by the vendees of the PNB and DBP mortgages over the Properties. As certified by the Clerk of Court of the Regional Trial Court of Manila, the Deed of Sale was notarized by Atty. Victorio Q. Guzman on 28 October 1970 and entered in his Notarial Register. 9 However, the Deed of Sale was not annotated on TCT Nos. 58999 and 59000. Neither was it presented to PNB and DBP. The mortage loans and the receipts for loan payments issued by PNB and DBP continued to be in Mauricios name even after his death on 20 November 1973. Simona died in 1977. On 23 June 1997, Edward, represented by his wife, Fatima Bravo, filed an action for the judicial partition of the Properties. Edward claimed that he and the other grandchildren of Mauricio and Simona are co-owners of the
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Properties by succession. Despite this, petitioners refused to share with him the possession and rental income of the Properties. Edward later amended his complaint to include a prayer to annul the Deed of Sale, which he claimed was merely simulated to prejudice the other heirs. In 1999, David Jr., whose parents died in 1944 and who was subsequently raised by Simona, moved to intervene in the case. David Jr. filed a complaint-in-intervention impugning the validity of the Deed of Sale and praying for the partition of the Properties among the surviving heirs of Mauricio and Simona. The trial court allowed the intervention in its Order dated 5 May 1999. 10 The Ruling of the Trial Court The trial court upheld Mauricios sale of the Properties to the vendees. The trial c ourt ruled that the sale did not prejudice the compulsory heirs, as the Properties were conveyed for valuable consideration. The trial court also noted that the Deed of Sale was duly notarized and was in existence for many years without question about its validity. The dispositive portion of the trial courts Decision of 11 May 2000 reads: WHEREFORE, premises considered, the Court hereby DENIES the JUDICIAL PARTITION of the properties covered by TCT Nos. 58999 and 59000 registered with the Office of the Register of Deeds of Rizal. SO ORDERED.11 Dissatisfied, Edward and David Jr. ("respondents") filed a joint appeal to the Court of Appeals. The Ruling of the Court of Appeals Citing Article 166 of the Civil Code ("Article 166"), the Court of Appeals declared the Deed of Sale void for lack of Simonas consent. The appellate court held that the GPA executed by Simona in 1966 was not sufficient to authorize Mauricio to sell the Properties because Article 1878 of the Civil Code ("Article 1878") requires a special power of attorney for such transactions. The appellate court reasoned that the GPA was executed merely to enable Mauricio to mortgage the Properties, not to sell them. The Court of Appeals also found that there was insufficient proof that the vendees made the mortgage payments on the Properties, since the PNB and DBP receipts were issued in Mauricios name. The appellate court opined that the rental income of the Properties, which the vendees never shared with respondents, was sufficient to cover the mortgage payments to PNB and DBP. The Court of Appeals declared the Deed of Sale void and ordered the partition of the Properties in its Decision of 21 December 2001 ("CA Decision"), as follows: WHEREFORE, the decision of the Regional Trial Court of Makati City, Metro-Manila, Branch 13[9] dated 11 May 2000[,] review of which is sought in these proceedings[,] is REVERSED. 1. The Deed of Sale with Assumption of Real Estate Mortgage (Exh. 4) dated 28 October 1970 is hereby declared null and void; 2. Judicial Partition on the questioned properties is hereby GRANTED in the following manner: A. In representation of his deceased mother, LILY BRAVO-DIAZ, intervenor DAVID DIAZ, JR., is entitled to onehalf (1/2) interest of the subject properties;

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B. Plaintiff-appellant EDWARD BRAVO and the rest of the five siblings, namely: LILY ELIZABETH, EDWARD, ROLAND, JR., SENIA, BENJAMIN and OFELIA are entitled to one-sixth (1/6) representing the other half portion of the subject properties; C. Plaintiff-appellant Edward Bravo, intervenor DAVID DIAZ, JR., SENIA and BENJAMIN shall reimburse the defendant-appellees LILY ELIZABETH, OFELIA and ROLAND the sum of One Thousand (P1,000.00) PESOS representing the consideration paid on the questioned deed of sale with assumption of mortgage with interest of six (6) percent per annum effective 28 October 1970 until fully paid. SO ORDERED.12 The Issues Petitioners seek a reversal of the Decision of the Court of Appeals, raising these issues: 1. WHETHER THE COURT OF APPEALS ERRED IN NOT UPHOLDING THE VALIDITY AND ENFORCEMENT OF THE DEED OF SALE WITH ASSUMPTION OF MORTGAGE. 2. WHETHER THE COURT OF APPEALS ERRED IN ORDERING THE PARTITION OF THE PROPERTY IN QUESTION.13 At the least, petitioners argue that the subject sale is valid as to Mauricios share in the Properties. On the other hand, respondents maintain that they are co-owners of the Properties by succession. Respondents argue that the sale of the conjugal Properties is void because: (1) Mauricio executed the D eed of Sale without Simonas consent; and (2) the sale was merely simulated, as shown by the grossly inadequate consideration Mauricio received for the Properties. While this case was pending, Leonida Andaya Lolong ("Leonida"), David Jr.s aunt, and Atty. Cendaa, respondents counsel, informed the Court that David Jr. died on 14 September 2004. Afterwards, Leonida and Elizabeth wrote separate letters asking for the resolution of this case. Atty. Cendaa later filed an urgent motion to annotate attorneys lien on TCT Nos. 58999 and 59000. In its Resolution dated 10 November 2004, 14 the Court noted the notice of David Jr.s death, the letters written by Leonida and Elizabeth, and granted the motion to annotate attorneys lien on TCT Nos. 58999 and 59000. The Ruling of the Court The petition is partly meritorious. The questions of whether Simona consented to the Deed of Sale and whether the subject sale was simulated are factual in nature. The rule is factual findings of the Court of Appeals are binding on this Court. However, there are exceptions, such as when the factual findings of the Court of Appeals and the trial court are contradictory, or when the evidence on record does not support the factual findings. 15 Because these exceptions obtain in the present case, the Court will consider these issues.

On the Requirement of the Wifes Consent

We hold that the Court of Appeals erred when it declared the Deed of Sale void based on Article 166, which states: Art. 166. Unless the wife has been declared a non compos mentis or a spendthrift, or is under civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership
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without the wifes consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same. This article shall not apply to property acquired by the conjugal partnerships before the effective date of this Code. Article 166 expressly applies only to properties acquired by the conjugal partnership after the effectivity of the Civil Code of the Philippines ("Civil Code"). The Civil Code came into force on 30 August 1950. 16 Although there is no dispute that the Properties were conjugal properties of Mauricio and Simona, the records do not show, and the parties did not stipulate, when the Properties were acquired. 17 Under Article 1413 of the old Spanish Civil Code, the husband could alienate conjugal partnership property for valuable consideration without the wifes consent. 18 Even under the present Civil Code, however, the Deed of Sale is not void. It is well-settled that contracts alienating conjugal real property without the wifes consent are merely voidable under the Civil Code that is, binding on the parties unless annulled by a competent court and not void ab initio.19 Article 166 must be read in conjunction with Article 173 of the Civil Code ("Article 173"). The latter prescribes certain conditions before a sale of conjugal property can be annulled for lack of the wifes consent, as follows: Art. 173. The wife may, during the marriage and within ten years from the transaction questioned, ask the courts for the annulment of any contract of the husband entered into without her consent, when such consent is required, or any act or contract of the husband which tends to defraud her or impair her interest in the conjugal partnership property. Should the wife fail to exercise this right, she or her heirs after the dissolution of the marriage, may demand the value of property fraudulently alienated by the husband. (Emphasis supplied) Under the Civil Code, only the wife can ask to annul a contract that disposes of conjugal real property without her consent. The wife must file the action for annulment during the marriage and within ten years from the questioned transaction. Article 173 is explicit on the remedies available if the wife fails to exercise this right within the specified period. In such case, the wife or her heirs can only demand the value of the property provided they prove that the husband fraudulently alienated the property. Fraud is never presumed, but must be established by clear and convincing evidence.20 Respondents action to annul the Deed of Sale based on Article 166 must fail for having been filed out of time. The marriage of Mauricio and Simona was dissolved when Mauricio died in 1973. More than ten years have passed since the execution of the Deed of Sale. Further, respondents, who are Simonas heirs, are not the parties who can invoke Article 166. Article 173 reserves that remedy to the wife alone. Only Simona had the right to have the sale of the Properties annulled on the ground that Mauricio sold the Properties without her consent. Simona, however, did not assail the Deed of Sale during her marriage or even after Mauricios death. The records are bereft of any indication that Simona questioned the sale of the Properties at any time. Simona did not even attempt to take possession of or reside on the Properties after Mauricios death. David Jr., who was raised by Simona, testified that he and Simona continued to live in Pasay City after Mauricios death, while her children and other grandchildren resided on the Properties.21 We also agree with the trial court that Simona authorized Mauricio to dispose of the Properties when she executed the GPA. True, Article 1878 requires a special power of attorney for an agent to execute a contract that transfers the ownership of an immovable. However, the Court has clarified that Article 1878 refers to the nature of the authorization, not to its form. 22 Even if a document is titled as a general power of attorney, the requirement of a special power of attorney is met if there is a clear mandate from the principal specifically authorizing the performance of the act.23
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In Veloso v. Court of Appeals,24 the Court explained that a general power of attorney could contain a special power to sell that satisfies the requirement of Article 1878, thus: An examination of the records showed that the assailed power of attorney was valid and regular on its face. It was notarized and as such, it carries the evidentiary weight conferred upon it with respect to its due execution. While it is true that it was denominated as a general power of attorney, a perusal thereof revealed that it stated an authority to sell, to wit: "2. To buy or sell, hire or lease, mortgage or otherwise hypothecate lands, tenements and hereditaments or other forms of real property, more specifically TCT No. 49138, upon such terms and conditions and under such covenants as my said attorney shall deem fit and proper." Thus, there was no need to execute a separate and special power of attorney since the general power of attorney had expressly authorized the agent or attorney in fact the power to sell the subject property. The special power of attorney can be included in the general power when it is specified therein the act or transaction for which the special power is required. (Emphasis supplied) In this case, Simona expressly authorized Mauricio in the GPA to " sell, assign and dispose of any and all of my property, real, personal or mixed, of any kind whatsoever and wheresoever situated, or any interest therein xxx" as well as to "act as my general representative and agent, with full authority to buy, sell, negotiate and contract for me and in my behalf."25 Taken together, these provisions constitute a clear and specific mandate to Mauricio to sell the Properties. Even if it is called a "general power of attorney," the specific provisions in the GPA are sufficient for the purposes of Article 1878. These provisions in the GPA likewise indicate that Simona consented to the sale of the Properties.

Whether the Sale of the Properties was Simulated or is Void for Gross Inadequacy of Price
We point out that the law on legitime does not bar the disposition of property for valuable consideration to descendants or compulsory heirs. In a sale, cash of equivalent value replaces the property taken from the estate.26 There is no diminution of the estate but merely a substitution in values. Donations and other dispositions by gratuitous title, on the other hand, must be included in the computation of legitimes. 27 Respondents, however, contend that the sale of the Properties was merely simulated. As proof, respondents point to the consideration of P1,000 in the Deed of Sale, which respondents claim is grossly inadequate compared to the actual value of the Properties. Simulation of contract and gross inadequacy of price are distinct legal concepts, with different effects. When the parties to an alleged contract do not really intend to be bound by it, the contract is simulated and void. 28 A simulated or fictitious contract has no legal effect whatsoever29 because there is no real agreement between the parties. In contrast, a contract with inadequate consideration may nevertheless embody a true agreement between the parties. A contract of sale is a consensual contract, which becomes valid and binding upon the meeting of minds of the parties on the price and the object of the sale.30 The concept of a simulated sale is thus incompatible with inadequacy of price. When the parties agree on a price as the actual consideration, the sale is not simulated despite the inadequacy of the price. 31 Gross inadequacy of price by itself will not result in a void contract. Gross inadequacy of price does not even affect the validity of a contract of sale, unless it signifies a defect in the consent or that the parties actually intended a donation or some other contract. 32 Inadequacy of cause will not invalidate a contract unless there has been fraud,
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mistake or undue influence.33 In this case, respondents have not proved any of the instances that would invalidate the Deed of Sale. Respondents even failed to establish that the consideration paid by the vendees for the Properties was grossly inadequate. As the trial court pointed out, the Deed of Sale stipulates that, in addition to the payment of P1,000, the vendees should assume the mortgage loans from PNB and DBP. The consideration for the sale of the Properties was thus P1,000 in cash and the assumption of the P15,000 mortgage. Respondents argue that P16,000 is still far below the actual value of the Properties. To bolster their claim, respondents presented the following: (1) Tax Declarations No. A-001-0090534 and A-001-0090635 for the year 1979, which placed the assessed value of the Properties at P70,020 and their approximate market value atP244,290; and (2) a certified copy of the Department of Finances Department Order No. 62 -9736 dated 6 June 1997 and attached guidelines37 which established the zonal value of the properties along Evangelista Street atP15,000 per square meter. The subject Deed of Sale, however, was executed in 1970. The valuation of the Properties in 1979 or 1997 is of little relevance to the issue of whether P16,000 was a grossly inadequate price to pay for the Properties in 1970. Certainly, there is nothing surprising in the sharp increase in the value of the Properties nine or twenty-seven years after the sale, particularly when we consider that the Properties are located in the City of Makati. More pertinent are Tax Declarations No. 1581238 and No. 15813,39 both issued in 1967, presented by petitioners. These tax declarations placed the assessed value of both Properties at P16,160. Compared to this, the price ofP16,000 cannot be considered grossly inadequate, much less so shocking to the conscience 40 as to justify the setting aside of the Deed of Sale. Respondents next contend that the vendees did not make the mortgage payments on the Properties. Respondents allege that the rents paid by the tenants leasing portions of the Properties were sufficient to cover the mortgage payments to DBP and PNB. Again, this argument does not help respondents cause. Assuming that the vendees failed to pay the full price stated in the Deed of Sale, such partial failure would not render the sale void. In Buenaventura v. Court of Appeals,41 the Court held: xxx If there is a meeting of the minds of the parties as to the price, the contract of sale is valid, despite the manner of payment, or even the breach of that manner of payment. xxx It is not the act of payment of price that determines the validity of a contract of sale. Payment of the price has nothing to do with the perfection of the contract. Payment of the price goes into the performance of the contract. Failure to pay the consideration is different from lack of consideration. The former results in a right to demand the fulfillment or cancellation of the obligation under an existing valid contract while the latter prevents the existence of a valid contract. (Emphasis supplied.) Neither was it shown that the rentals from tenants were sufficient to cover the mortgage payments. The parties to this case stipulated to only one tenant, a certain Federico M. Puno, who supposedly leased a room on the Properties for P300 per month from 1992 to 1994.42 This is hardly significant, when we consider that the mortgage was fully paid by 1974. Indeed, the fact that the Properties were mortgaged to DBP and PNB indicates that the conjugal partnership, or at least Mauricio, was short of funds. Petitioners point out that they were duly employed and had the financial capacity to buy the Properties in 1970. Respondents did not refute this. Petitioners presented 72 receipts 43 showing the mortgage payments made to PNB and DBP, and the Release of the Real Estate Mortgage 44 ("Mortgage Release") dated 5 April 1974. True, these documents all bear Mauricios name. However, this tends to support, rather than detract from, petitioner -vendees explanation that they initially gave the mortgage payments directly to Mauricio, and then later directly to the banks,
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without formally advising the bank of the sale. The last 3 mortgage receipts and the Mortgage Release were all issued in Mauricios name even after his death in 1970. Obviously, Mauricio could not have secured the Mortgage Release and made these last payments.

Presumption of Regularity and Burden of Proof

The Deed of Sale was notarized and, as certified by the Regional Trial Court of Manila, entered in the notarial books submitted to that court. As a document acknowledged before a notary public, the Deed of Sale enjoys the presumption of regularity45 and due execution.46 Absent evidence that is clear, convincing and more than merely preponderant, the presumption must be upheld. 47 Respondents evidence in this case is not even preponderant. Respondents allegations, testimony and bare denials cannot prevail over the documentary evidence presented by petitioners. These documents the Deed of Sale and the GPA which are both notarized, the receipts, the Mortgage Release and the 1967 tax declarations over the Properties support petitioners account of the sale. As the parties challenging the regularity of the Deed of Sale and alleging its simulation, respondents had the burden of proving these charges.48 Respondents failed to discharge this burden. Consequentially, the Deed of Sale stands.

On the Partition of the Property

Nevertheless, this Court finds it proper to grant the partition of the Properties, subject to modification. Petitioners have consistently claimed that their father is one of the vendees who bought the Properties. Vendees Elizabeth and Ofelia both testified that the "Roland A. Bravo" in the Deed of Sale is their father, 49 although their brother, Roland Bravo, Jr., made some of the mortgage payments. Petitioners counse l, Atty. Paggao, made the same clarification before the trial court.50 As Roland Bravo, Sr. is also the father of respondent Edward Bravo, Edward is thus a compulsory heir of Roland Bravo, and entitled to a share, along with his brothers and sisters, in his fathers portion of the Properties. In short, Edward and petitioners are co-owners of the Properties. As such, Edward can rightfully ask for the partition of the Properties. Any co-owner may demand at any time the partition of the common property unless a co-owner has repudiated the co-ownership.51 This action for partition does not prescribe and is not subject to laches. 52 WHEREFORE, we REVERSE the Decision of 21 December 2001 of the Court of Appeals in CA-G.R. CV No. 67794. We REINSTATE the Decision of 11 May 2000 of the Regional Trial Court of Makati, Branch No. 139, in Civil Case No. 97137, declaring VALID the Deed of Sale with Assumption of Mortgage dated 28 October 1970, with the following MODIFICATIONS: 1. We GRANT judicial partition of the subject Properties in the following manner: a. Petitioner LILY ELIZABETH BRAVO-GUERRERO is entitled to one-third (1/3) of the Properties; b. Petitioner OFELIA BRAVO-QUIESTAS is entitled to one-third (1/3) of the Properties; and c. The remaining one-third (1/3) portion of the Properties should be divided equally between the children of ROLAND BRAVO.

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2. The other heirs of ROLAND BRAVO must reimburse ROLAND BRAVO, JR. for whatever expenses the latter incurred in paying for and securing the release of the mortgage on the Properties. SO ORDERED.

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G.R. No. 154322 August 22, 2006 EMILIA FIGURACION-GERILLA, Petitioner, vs. CAROLINA VDA. DE FIGURACION,* ELENA FIGURACION-ANCHETA,* HILARIA A. FIGURACION, FELIPA FIGURACION-MANUEL, QUINTIN FIGURACION and MARY FIGURACION-GINEZ, Respondents. DECISION CORONA, J.: In this petition for review on certiorari, 1 petitioner Emilia Figuracion-Gerilla challenges the decision2 and resolution3 of the Court of Appeals (CA) affirming the decision of the Regional Trial Court (RTC) of Urdaneta City, Pangasinan, Branch 49, which dismissed her complaint for partition. The properties involved are two parcels of land which belonged to her late father, Leandro Figuracion. The facts of the case follow.4 Spouses Leandro and respondent Carolina Figuracion (now both deceased) had six children: petitioner and respondents Elena Figuracion-Ancheta (now deceased), Hilaria Figuracion, Felipa Figuracion-Manuel, Quintin Figuracion and Mary Figuracion-Ginez. On August 23, 1955, Leandro executed a deed of quitclaim over his real properties in favor of his six children. When he died in 1958, he left behind two parcels of land: (1) Lot 2299 of the Cadastral Survey of Urdaneta consisting of 7,547 square meters with Transfer Certificate of Title (TCT) No. 4221-P in the name of "Leandro Figuracion, married to Carolina Adviento" and (2) Lot 705 of the Cadastral Survey of Urdaneta with an area of 2,900 sq. m. with TCT No. 4220-P also in the name of "Leandro Figuracion, married to Carolina Adviento." Leandro had inherited both lots from his deceased parents,5 as evidenced by Original Certificate of Title (OCT) Nos. 16731 and 16610, respectively, issued by the Register of Deeds of the Province of Pangasinan. Leandro sold a portion of Lot 2299 to Lazaro Adviento, as a result of which TCT No. 4221-P was cancelled and TCT No. 101331 was issued to "Lazaro Adviento, married to Rosenda Sagueped" as owner of the 162 sq. m. and "Leandro Figuracion, married to Carolina Adviento" as owner of 7,385 sq. m. This lot continued to be in the name of Leandro in Tax Declaration No. 616 for the year 1985. What gave rise to the complaint for partition, however, was a dispute between petitioner and her sister, respondent Mary, over the eastern half of Lot 707 of the Cadastral Survey of Urdaneta with an area of 3,164 sq. m. Lot 707 belonged to Eulalio Adviento, as evidenced by OCT No. 15867 issued on February 9, 1916. When Adviento died, his two daughters, Agripina Adviento (his daughter by his first wife) and respondent Carolina (his daughter by his second wife), succeeded him to it. On November 28, 1961, Agripina executed a quitclaim in favor of petitioner over the one-half eastern portion of Lot 707. Agripina died on July 28, 1963, single and without any issue. Before her half-sisters death, however, respondent Carolina adjudicated unto herself, via affidavit under Rule 74 of the Rules of Court, the entire Lot 707 which she later sold to respondents Felipa and Hilaria. The latter two immediately had OCT No. 15867 cancelled, on December 11, 1962. A new title, TCT No. 42244, was then issued in the names of Felipa and Hilaria for Lot 707. In February 1971, petitioner and her family went to the United States where they stayed for ten years. Returning in 1981,6 she built a house made of strong materials on the eastern half-portion of Lot 707. She continued paying her share of the realty taxes thereon.

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It was sometime later that this dispute erupted. Petitioner sought the extrajudicial partition of all properties held in common by her and respondents. On May 23, 1994, petitioner filed a complaint in the RTC of Urdaneta City, Branch 49, for partition, annulment of documents, reconveyance, quieting of title and damages against respondents, praying, among others, for: (1) the partition of Lots 2299 and 705; (2) the nullification of the affidavit of self-adjudication executed by respondent Carolina over Lot 707, the deed of absolute sale in favor of respondents Felipa and Hilaria, and TCT No. 42244; (3) a declaration that petitioner was the owner of one-half of Lot 707 and (4) damages. The case was docketed as Civil Case No. U-5826. On the other hand, respondents took the position that Leandros estate should first undergo settlement proceedings before partition among the heirs could take place. And they claimed that an accounting of expenses chargeable to the estate was necessary for such settlement. On June 26, 1997,7 the RTC8 rendered judgment nullifying Carolinas affidavit of self -adjudication and deed of absolute sale of Lot 707. It also declared Lots 2299 and 705 as exclusive properties of Leandro Figuracion and therefore part of his estate. The RTC, however, dismissed the complaint for partition, reconveyance and damages on the ground that it could not grant the reliefs prayed for by petitioner without any (prior) settlement proceedings wherein the transfer of title of the properties should first be effected. On appeal, the CA upheld the dismissal of petitioners action for partition for being premature. The CA reversed the decision, however, with respect to the nullification of the self-adjudication and the deed of sale. Upholding the validity of the affidavit of self-adjudication and deed of sale as to Carolinas one -half pro-indiviso share, it instead partitioned Lot 707. Dissatisfied, respondents elevated the CA decision to this Court in G.R. No. 151334, entitledCarolina vda. de Figuracion, et al. v. Emilia Figuracion-Gerilla.9 The issue for our consideration is whether or not there needs to be a prior settlement of Leandros intestate estate (that is, an accounting of the income of Lots 2299 and 705, the payment of expenses, liabilities and taxes, plus compliance with other legal requirements, etc.) before the properties can be partitioned or distributed. Respondents claim that: (1) the properties constituting Leandros estate cannot be partitioned before his estate is settled and (2) there should be an accounting before anything else, considering that they (respondents) had to spend for the maintenance of the deceased Leandro Figuracion and his wife in their final years, which support was supposed to come from the income of the properties. Among other things, respondents apparently wanted petitioner to share in the expenses incurred for the care of their parents during the ten years she stayed in the United States, before she could get her part of the estate while petitioner apparently wanted her gross share, without first contributing to the expenses. In any event, there appears to be a complication with respect to the partition of Lot 705. The records refer to a case entitled Figuracion, et al. v. Alejo currently pending in the CA. The records, however, give no clue or information regarding what exactly this case is all about. Whatever the issues may be, suffice it to say that partition is premature when ownership of the lot is still in dispute. 10 Petitioner faces a different problem with respect to Lot 2299. Section 1, Rule 69 of the Rules of Court provides: SECTION 1. Complaint in action for partition of real estate . A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. The right to an inheritance is transmitted immediately to the heirs by operation of law, at the moment of death of the decedent. There is no doubt that, as one of the heirs of Leandro Figuracion, petitioner has a legal interest in Lot 2299. But can she compel partition at this stage?
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There are two ways by which partition can take place under Rule 69: by agreement under Section 2 11 and through commissioners when such agreement cannot be reached, under Sections 3 to 6. 12 Neither method specifies a procedure for determining expenses chargeable to the decedents estate. While Section 8 of Rule 69 provides that there shall be an accounting of the real propertys income (rentals and profits) in the course of an action for partition, 13 there is no provision for the accounting of expenses for which property belonging to the decedents estate may be answerable, such as funeral expenses, inheritance taxes and similar expenses enumerated under Section 1, Rule 90 of the Rules of Court. In a situation where there remains an issue as to the expenses chargeable to the estate, partition is inappropriate. While petitioner points out that the estate is allegedly without any debt and she and respondents are Leandro Figuracions only legal heirs, she does not dispute the fi nding of the CA that "certain expenses" including those related to her fathers final illness and burial have not been properly settled. 14 Thus, the heirs (petitioner and respondents) have to submit their fathers estate to settlement because the determination of these expenses cannot be done in an action for partition. In estate settlement proceedings, there is a proper procedure for the accounting of all expenses for which the estate must answer. If it is any consolation at all to petitioner, the heirs or distributees of the properties may take possession thereof even before the settlement of accounts, as long as they first file a bond conditioned on the payment of the estates obligations.15 WHEREFORE, the petition is hereby DENIED. The Court of Appeals decision and resolution in CA -G.R. CV No. 58290 are AFFIRMED in so far as the issue of the partition of Lots 2299 and 705 is concerned. But with respect to Lot 707, we make no ruling on the validity of Carolina vda. de Figuracions affidavit of self adjudication and deed of sale in favor of Felipa and Hilaria Figuracion in view of the fact that Carolina vda. de Figuracion, et al. v. Emilia Figuracion-Gerilla (G.R. No. 151334) is still pending in this Division. Costs against petitioner. SO ORDERED.

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G.R. No. 156536

October 31, 2006

JOSEPH CUA, petitioner, vs. GLORIA A. VARGAS, AURORA VARGAS, RAMON VARGAS, MARITES VARGAS, EDELINA VARGAS AND GEMMA VARGAS, respondents. DECISION AZCUNA, J.: This is a petition for review under Rule 45 of the Rules of Court seeking the reversal of the decision 1 dated March 26, 2002, and the resolution2 dated December 17, 2002, of the Court of Appeals in CA-G.R. SP No. 59869 entitled "Gloria A. Vargas, Aurora Vargas, Ramon Vargas, Marites Vargas, Edelina Vargas and Gemma Vargas v. Joseph Cua." The facts are as follows: A parcel of residential land with an area of 99 square meters located in San Juan, Virac, Catanduanes was left behind by the late Paulina Vargas. On February 4, 1994, a notarized Extra Judicial Settlement Among Heirs was executed by and among Paulina Vargas' heirs, namely Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V. Matienzo, Rosario V. Forteza, Andres Vargas, Gloria Vargas, Antonina Vargas and Florentino Vargas, partitioning and adjudicating unto themselves the lot in question, each one of them getting a share of 11 square meters. Florentino, Andres, Antonina and Gloria, however, did not sign the document. Only Ester, Visitacion, Juan, Zenaida and Rosario signed it. The Extra Judicial Settlement Among Heirs was published in the Catanduanes Tribune for three consecutive weeks. 3 On November 15, 1994, an Extra Judicial Settlement Among Heirs with Sale 4 was again executed by and among the same heirs over the same property and also with the same sharings. Once more, only Ester, Visitacion, Juan, Zenaida and Rosario signed the document and their respective shares totaling 55 square meters were sold to Joseph Cua, petitioner herein. According to Gloria Vargas, the widow of Santiago Vargas and one of respondents herein, she came to know of the Extra Judicial Settlement Among Heirs with Sale dated November 16, 1994 only when the original house built on the lot was being demolished sometime in May 1995.5 She likewise claimed she was unaware that an earlier Extra Judicial Settlement Among Heirs dated February 4, 1994 involving the same property had been published in the Catanduanes Tribune.6 After knowing of the sale of the 55 square meters to petitioner, Gloria Vargas tried to redeem the property, with the following letter7 sent to petitioner on her behalf: 29th June 1995 Mr. Joseph Cua Capilihan, Virac, Catanduanes Sir: This is in behalf of my client, Ms. Aurora Vargas,8 (c/o Atty. Prospero V. Tablizo) one of the lawful heirs of the late Paulina Vargas, original owner of Lot No. 214 of Virac, Poblacion covered by ARP No. 031-0031 in her name. I understand that a document "Extra Judicial Settlement Among Heirs with Sale" was executed by some of my client's co-heirs and alleged representatives of other co-heirs, by virtue of which document you acquired
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by purchase from the signatories to the said document, five (5) shares with a total area of fifty-five square meters of the above-described land. This is to serve you notice that my client shall exercise her right of legal redemption of said five (5) shares as well as other shares which you may likewise have acquired by purchase. And you are hereby given an option to agree to legal redemption within a period of fifteen (15) days from your receipt hereof. Should you fail to convey to me your agreement within said 15-day-period, proper legal action shall be taken by my client to redeem said shares. Thank you. Very truly yours, (Sgd.) JUAN G. ATENCIA When the offer to redeem was refused and after having failed to reach an amicable settlement at the barangay level,9 Gloria Vargas filed a case for annulment of Extra Judicial Settlement and Legal Redemption of the lot with the Municipal Trial Court (MTC) of Virac, Catanduanes against petitioner and consigned the amount of P100,000 which is the amount of the purchase with the Clerk of Court on May 20, 1996. 10 Joining her in the action were her children with Santiago, namely, Aurora, Ramon, Marites, Edelina and Gemma, all surnamed Vargas. Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged primitive owner of the lot in question, Pedro Lakandula, intervened in the case. 11 Respondents claimed that as co-owners of the property, they may be subrogated to the rights of the purchaser by reimbursing him the price of the sale. They likewise alleged that the 30-day period following a written notice by the vendors to their co-owners for them to exercise the right of redemption of the property had not yet set in as no written notice was sent to them. In effect, they claimed that the Extra Judicial Settlement Among Heirs and the Extra Judicial Settlement Among Heirs with Sale were null and void and had no legal and binding effect on them. 12 After trial on the merits, the MTC rendered a decision13 in favor of petitioner, dismissing the complaint as well as the complaint-in-intervention for lack of merit, and declaring the Deed of Extra Judicial Settlement Among Heirs with Sale valid and binding. The MTC upheld the sale to petitioner because the transaction purportedly occurred after the partition of the property among the co-owner heirs. The MTC opined that the other heirs could validly dispose of their respective shares. Moreover, the MTC found that although there was a failure to strictly comply with the requirements under Article 1088 of the Civil Code 14 for a written notice of sale to be served upon respondents by the vendors prior to the exercise of the former's right of redemption, this deficiency was cured by respondents' actual knowledge of the sale, which was more than 30 days before the filing of their complaint, and their consignation of the purchase price with the Clerk of Court, so that the latter action came too late. Finally, the MTC ruled that respondents failed to establish by competent proof petitioner's bad faith in purchasing the portion of the property owned by respondents' co-heirs.15 On appeal, the Regional Trial Court (RTC), Branch 42, of Virac, Catanduanes affirmed the MTC decision in a judgment dated November 25, 1999. The matter was thereafter raised to the Court of Appeals (CA). The CA reversed the ruling of both lower courts in the assailed decision dated March 26, 2002, declaring that the Extra Judicial Settlement Among Heirs and the Extra Judicial Settlement Among Heirs with Sale, dated February 4, 1994 and November 15, 1994, respectively, were void and without any legal effect. The CA held that, pursuant to Section 1, Rule 74 of the Rules of Court, 16 the extrajudicial settlement made by the other co-heirs is not binding upon respondents considering the latter never participated in it nor did they ever signify their consent to the same.
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His motion for reconsideration having been denied, petitioner filed the present petition for review. The issues are: Whether heirs are deemed constructively notified and bound, regardless of their failure to participate therein, by an extrajudicial settlement and partition of estate when the extrajudicial settlement and partition has been duly published; and, Assuming a published extrajudicial settlement and partition does not bind persons who did not participate therein, whether the written notice required to be served by an heir to his co-heirs in connection with the sale of hereditary rights to a stranger before partition under Article 1088 of the Civil Code 17 can be dispensed with when such co-heirs have actual knowledge of the sale such that the 30-day period within which a co-heir can exercise the right to be subrogated to the rights of a purchaser shall commence from the date of actual knowledge of the sale. Petitioner argues, as follows: Firstly, the acquisition by petitioner of the subject property subsequent to the extrajudicial partition was valid because the partition was duly published. The publication of the same constitutes due notice to respondents and signifies their implied acquiescence thereon. Respondents are therefore estopped from denying the validity of the partition and sale at this late stage. Considering that the partition was valid, respondents no longer have the right to redeem the property. Secondly, petitioner is a possessor and builder in good faith. Thirdly, the MTC had no jurisdiction over the complaint because its subject matter was incapable of pecuniary estimation. The complaint should have been filed with the RTC. Fourthly, there was a non-joinder of indispensable parties, the co-heirs who sold their interest in the subject property not having been impleaded by respondents. Fifthly, the appeal to the CA should have been dismissed as it was not properly verified by respondents. Gloria Vargas failed to indicate that she was authorized to represent the other respondents (petitioners therein) to initiate the petition. Moreover, the verification was inadequate because it did not state the basis of the alleged truth and/or correctness of the material allegations in the petition. The petition lacks merit. The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby. 18 It contemplates a notice that has been sent out or issued before any deed of settlement and/or partition is agreed upon (i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition), and not after such an agreement has already been executed 19 as what happened in the instant case with the publication of the first deed of extrajudicial settlement among heirs. The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent's estate. In this connection, the records of the present case confirm that respondents never signed either of the settlement documents, having discovered their existence only shortly before the filing of the present complaint. Following Rule 74, these extrajudicial settlements do not bind respondents, and the partition made without their knowledge and consent is invalid insofar as they are concerned.
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This is not to say, though, that respondents' co-heirs cannot validly sell their hereditary rights to third persons even before the partition of the estate. The heirs who actually participated in the execution of the extrajudicial settlements, which included the sale to petitioner of their pro indiviso shares in the subject property, are bound by the same. Nevertheless, respondents are given the right to redeem these shares pursuant to Article 1088 of the Civil Code. The right to redeem was never lost because respondents were never notified in writing of the actual sale by their co-heirs. Based on the provision, there is a need for written notice to start the period of redemption, thus: Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the coheirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. (Emphasis supplied.) It bears emphasis that the period of one month shall be reckoned from the time that a co-heir is notified in writing by the vendor of the actual sale. Written notice is indispensable and mandatory, 20 actual knowledge of the sale acquired in some other manner by the redemptioner notwithstanding. It cannot be counted from the time advance notice is given of an impending or contemplated sale. The law gives the co-heir thirty days from the time written notice of the actual sale within which to make up his or her mind and decide to repurchase or effect the redemption. 21 Though the Code does not prescribe any particular form of written notice nor any distinctive method for written notification of redemption, the method of notification remains exclusive, there being no alternative provided by law.22 This proceeds from the very purpose of Article 1088, which is to keep strangers to the family out of a joint ownership, if, as is often the case, the presence of outsiders be undesirable and the other heir or heirs be willing and in a position to repurchase the share sold. 23 It should be kept in mind that the obligation to serve written notice devolves upon the vendor co-heirs because the latter are in the best position to know the other co-owners who, under the law, must be notified of the sale. 24 This will remove all uncertainty as to the fact of the sale, its terms and its perfection and validity, and quiet any doubt that the alienation is not definitive. 25 As a result, the party notified need not entertain doubt that the seller may still contest the alienation. 26 Considering, therefore, that respondents' co-heirs failed to comply with this requirement, there is no legal impediment to allowing respondents to redeem the shares sold to petitioner given the former's obvious willingness and capacity to do so. Likewise untenable is petitioner's contention that he is a builder in good faith. Good faith consists in the belief of the builder that the land the latter is building on is one's own without knowledge of any defect or flaw in one's title.27 Petitioner derived his title from the Extra Judicial Settlement Among Heirs With Sale dated November 15, 1994. He was very much aware that not all of the heirs participated therein as it was evident on the face of the document itself. Because the property had not yet been partitioned in accordance with the Rules of Court, no particular portion of the property could have been identified as yet and delineated as the object of the sale. This is because the alienation made by respondents' co-heirs was limited to the portion which may be allotted to them in the division upon the termination of the co-ownership. Despite this glaring fact, and over the protests of respondents, petitioner still constructed improvements on the property. For this reason, his claim of good faith lacks credence. As to the issue of lack of jurisdiction, petitioner is estopped from raising the same for the first time on appeal. Petitioner actively participated in the proceedings below and sought affirmative ruling from the lower courts to uphold the validity of the sale to him of a portion of the subject property embodied in the extrajudicial settlement among heirs. Having failed to seasonably raise this defense, he cannot, under the peculiar circumstances of this case, be permitted to challenge the jurisdiction of the lower court at this late stage. While it is a rule that a jurisdictional question may be raised at any time, an exception arises where estoppel has already supervened.

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Estoppel sets in when a party participates in all stages of a case before challenging the jurisdiction of the lower court. One cannot belatedly reject or repudiate its decision after voluntarily submitting to its jurisdiction, just to secure affirmative relief against one's opponent or after failing to obtain such relief. The Court has, time and again, frowned upon the undesirable practice of a party submitting a case for decision and then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction when adverse. 28 Petitioner's fourth argument, that there is a non-joinder of indispensable parties, similarly lacks merit. An indispensable party is a party-in-interest without whom there can be no final determination of an action and who is required to be joined as either plaintiff or defendant.29 The party's interest in the subject matter of the suit and in the relief sought is so inextricably intertwined with the other parties that the former's legal presence as a party to the proceeding is an absolute necessity. Hence, an indispensable party is one whose interest will be directly affected by the court's action in the litigation. In the absence of such indispensable party, there cannot be a resolution of the controversy before the court which is effective, complete, or equitable. 30 In relation to this, it must be kept in mind that the complaint filed by respondents ultimately prayed that they be allowed to redeem the shares in the property sold by their co-heirs. Significantly, the right of the other heirs to sell their undivided share in the property to petitioner is not in dispute. Respondents concede that the other heirs acted within their hereditary rights in doing so to the effect that the latter completely and effectively relinquished their interests in the property in favor of petitioner. Petitioner thus stepped into the shoes of the other heirs to become a co-owner of the property with respondents. As a result, only petitioner's presence is absolutely required for a complete and final determination of the controversy because what respondents seek is to be subrogated to his rights as a purchaser. Finally, petitioner contends that the petition filed by respondents with the CA should have been dismissed because the verification and certificate of non-forum shopping appended to it were defective, citing specifically the failure of respondent Gloria Vargas to: (1) indicate that she was authorized to represent her co-respondents in the petition, and (2) state the basis of the alleged truth of the allegations. The general rule is that the certificate of non-forum shopping must be signed by all the plaintiffs or petitioners in a case and the signature of only one of them is insufficient. 31 Nevertheless, the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert their own ultimate and legitimate objective. Strict compliance with the provisions regarding the certificate of non-forum shopping merely underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded. 32 Under justifiable circumstances, the Court has relaxed the rule requiring the submission of such certification considering that although it is obligatory, it is not jurisdictional.33 Thus, when all the petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the certification against forum shopping substantially complies with the rules. 34The corespondents of respondent Gloria Vargas in this case were her children. In order not to defeat the ends of justice, the Court deems it sufficient that she signed the petition on their behalf and as their representative. WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner. SO ORDERED.

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G.R. No. 160556

August 3, 2007

TEOFILO BAUTISTA, represented by FRANCISCO MUOZ, Attorney-in-Fact, Petitioner, vs. ALEGRIA BAUTISTA, ANGELICA BAUTISTA, PRISCILLA BAUTISTA, GILBERT BAUTISTA, JIM BAUTISTA, GLENDA BAUTISTA, GUEN BAUTISTA, GELACIO BAUTISTA, GRACIA BAUTISTA, PEDRO S. TANDOC and CESAR TAMONDONG, Respondents. DECISION CARPIO MORALES, J.: During her lifetime, Teodora Rosario was the owner of a 211.80-square meter parcel of land (the property) in Poblacion, San Carlos City, Pangasinan, covered by Transfer Certificate of Title (TCT) No. 12951. She died intestate on January 19, 1970, leaving behind her spouse Isidro Bautista (Isidro) and five children, namely: Teofilo Bautista (Teofilo), Alegria Bautista (Alegria), Angelica Bautista (Angelica), Pacita Bautista (Pacita) and Gil Bautista (Gil). On April 21, 1981, Isidro and four of his five children Pacita, Gil, Alegria, and Angelica executed a Deed of ExtraJudicial Partition1 of the property in which Isidro waived his share in favor of his said four children. Teofilo was excluded from the partition. Alegria and Angelica, who, under the Deed of Extra-Judicial Partition, acquired of the property, sold the same, by Deed of Absolute Sale dated May 14, 1981, to their sibling Pacita and her common-law husband Pedro Tandoc (Pedro). 2 Pacita and Pedro soon obtained tax declarations 3 and TCT No. 187774 in their names over 209.85 square meters of the property including the shares they purchased from Angelica and Alegria. Pacita, with Pedros conformity, later conveyed via Deed of Absolute Sale 5 dated April 13, 1993 of the property in favor of Cesar Tamondong, Pedros nephew. On January 24, 1994, herein petitioner Teofilo, represented by his attorney-in-fact Francisco Muoz, filed a Complaint6 against his siblings Alegria and Angelica, along with Pedro (the common-law husband of his already deceased sister Pacita), Priscilla Bautista (wife of his already deceased brother Gil), Pricillas children Gilbert, Jim, Glenda, Guen, and Gelacio and Cesar Tamondong before the Regional Trial Court (RTC) of San Carlos City, for annulment of documents, partition, recovery of ownership, possession and damages. In his complaint, petitioner claimed that his co-heirs defrauded him of his rightful share of the property and that the deed of sale executed by Pacita in favor of Cesar Tamondong was fictitious as it was impossible for her to have executed the same in Manila, she being already seriously ill at the time. 7 In their Answer,8 the defendants-herein respondents sisters Alegria and Angelica, who were joined therein by their co-defendants-respondents Priscilla, Gilbert, Jim, Glenda, Guen, Gelacio, and Gracia, claimed that it was Pacita who caused the execution of the Deed of Extra-Judicial Partition and because they trusted Pacita, they signed the document without scrutinizing it; and that they learned about the contents of the partiti on only upon Teofilos filing of the Complaint. By way of cross-claim9 against Pedro and Cesar Tamondong, the answering defendants-respondents claimed that a few weeks after the partition, Pacita approached Angelica and Alegria to borrow their share in the property on her representation that it would be used as security for a business loan; and that agreeing to accommodate Pacita, Angelica and Alegria signed a document which Pacita prepared which turned out to be the deed of absolute sale in Pacitas favor.
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In their Answer with Counterclaim, 10 Pedro and Cesar Tamondong claimed that they were buyers in good faith. 11In any event, they contended that prescription had set in, and that the complaint was a mere rehash of a previous complaint for falsification of public document which had been dismissed by the prosecutors office. 12 By Decision13 of June 24, 1999, Branch 57 of the RTC of San Carlos City rendered judgment in favor of Teofilo, disposing as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1) Declaring as null and void and of no force and effect the following documents: a) Deed of Extra-Judicial Partition dated April 21, 1981; b) Deed of Absolute Sale [d]ated May 14, 1981; c) Transfer Certificate of Title No. 18777; d) Tax Declaration Nos. 59941, 45999, and 46006; e) Deed of Absolute Sale dated April 13, 1993; 2) Ordering the partition of the land in question among the compulsory heirs of the late Spouses Isidro Bautista and Teodora Rosario 3) Ordering defendants Cesar Tamondong and Pedro Tandoc to vacate the premises. No pronouncement[s] as to cost. 14 (Underscoring supplied) On appeal by Pedro and Cesar Tamondong, the Court of Appeals, by Decision 15 of February 21, 2003, reversed and set aside the trial courts decision and dismissed Teofilos complaint on the ground of prescription. 16 His Motion for Reconsideration17 having been denied,18 Teofilo filed the present Petition for Review on Certiorari. 19 The petition is impressed with merit. The Court of Appeals, in holding that prescription had set in, reasoned: Unquestionably, the Deed of Extra-judicial Partition is invalid insofar as it affects the legitimate share pertaining to the defendant-appellee in the property in question. There can be no question that the Deed of Extra-judicial Partition was fraudulently obtained. Hence, an action to set it aside on the ground of fraud could be instituted. Such action for the annulment of the said partition, however, must be brought within four years from the discovery of the fraud. Significantly, it cannot be denied, either, that by its registration in the manner provided by law, a transaction may be known actually or constructively.
1avvphi1

In the present case, defendant-appellee is deemed to have been constructively notified of the extra-judicial settlement by reason of its registration and annotation in the certificate of title over the subject lot on December 21, 1981. From the time of its registration, defendant-appellee had four (4) years or until 21 December 1985, within which to file his objections or to demand the appropriate settlement of the estate. Unfortunately, defendantappellee failed to institute the present civil action within said period, having filed the same only on 17 January 1994 or more than twelve (12) years from the registration of the deed of extra-judicial partition. Hence, defendantappellees right to question the deed of extra -judicial partition has prescribed.

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Even on the extreme assumption that defendant-appellees complaint in Civil Case No. SC-1797 is an action for reconveyance of a portion of the property which rightfully belongs to him based upon an implied trust resulting from fraud, said remedy is already barred by prescription. An action of reconveyance of land based upon an implied or constructive trust prescribes after ten years from the registration of the deed or from the issuance of the title. xxxx The complaint of defendant-appellee was filed only on 17 January 1994, while the deed of extra-judicial partition was registered and inscribed on Transfer Certificate of Title 12951, on 21 December 1981. Clearly, the complaint was filed twelve (12) years and twenty-seven (27) days after the inscription of the deed of extra-judicial partition on TCT 12951. Hence, even if We consider defendant-appellees complaint as an action for reconveyance against plaintiff-appellants on the basis of implied trust, we find and so hold that his remedy for reconveyance has also prescribed.20 (Underscoring supplied) As gathered from the above-quoted portion of its decision, the Court of Appeals applied the prescriptive periods for annulment on the ground of fraud and for reconveyance of property under a constructive trust. The extra-judicial partition executed by Teofilos co-heirs was invalid, however. So Segura v. Segura21 instructs: x x x The partition in the present case was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule, "no extra-judicial settlement shall be binding upon any person who has not participated therein or had no notice thereof." As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the partition had prescribed after two years x x x22 (Underscoring supplied) The deed of extra-judicial partition in the case at bar being invalid, the action to have it annulled does not prescribe.23 Since the deed of extra-judicial partition is invalid, it transmitted no rights to Teofilos co -heirs.24 Consequently, the subsequent transfer by Angelica and Alegria of of the property to Pacita and her husband Pedro, as well as the transfer of of the property to Cesar Tamondong is invalid, hence, conferring no rights upon the transferees under the principle of nemo dat quod non habet.25 WHEREFORE, the petition is GRANTED. The decision of the court a quo is SET ASIDE and the Decision of the Regional Trial Court of San Carlos City, Pangasinan, Branch 57 is REINSTATED. SO ORDERED.

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G.R. No. 159578

July 28, 2008

ROGELIA DACLAG and ADELINO DACLAG (deceased) Substituted by RODEL M. DACLAG and ADRIAN M. DACLAG, Petitioners, vs. ELINO MACAHILIG, ADELA MACAHILIG CONRADO MACAHILIG, LORENZA HABER and BENITA DEL ROSARIO, Respondents. DECISION AUSTRIA-MARTINEZ, J.: Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to annul and set aside the Decision1 dated October 17, 2001 and the Resolution2 dated August 7, 2003 of the Court of Appeals (CA) in CA G.R. CV No. 48498. The antecedent facts: During their lifetime, the spouses Candido and Gregoria Macahilig were the owners of seven parcels of land, all located in Numancia, Aklan. They had seven children, namely: Dionesio, Emeliano, Mario, Ignacio, Eusebio, Tarcela and Maxima. On March 18, 1982, Maxima, a daughter of Candido and Gregoria entered into a Deed of Extra-judicial Partition3with the heirs of her deceased brothers, Mario and Eusebio Macahilig, over the seven parcels of land. The same deed stated that Dionesio was already deceased but was survived by his daughter, Susana Briones; Emeliano was out of the country; Ignacio and Tarcela were also both deceased but were survived by three children each. One of the properties partitioned in the Deed was a parcel of irrigated riceland located at Poblacion, Numancia, Aklan, with an area of 1,896 square meters declared in the name of Maxima under Tax Declaration No. 644 which was denominated as "Parcel One." This Parcel One was divided between Vicenta Macahilig Galvez for the heirs of Mario Macahilig, who was given the one half southern portion of the land; and Adela Macahilig for the heirs of Eusebio Macahilig, who got the one half northern portion. The Deed was notarized by Municipal Judge Francisco M. Ureta in his capacity as ex-officio notary public. The heirs of Eusebio Macahilig are the herein respondents. On March 19, 1982, Maxima executed a Statement of Conformity4 in which she confirmed the execution of the Deed of Extra-judicial Partition and conformed to the manner of partition and adjudication made therein. She also attested that five parcels of land in the deed were declared in her name for taxation purposes, although said lands were actually the property of her deceased parents Candido and Gregoria Macahilig; that she waived, renounced and relinquished all her rights to the land adjudicated to all her co-heirs in the deed; and that she had already sold one parcel before the deed was executed, which was considered as her advance share. Pedro Divison, Maxima's husband, also affixed his signature to the Statement of Conformity. On May 23, 1984, Maxima sold Parcel One to spouses Adelino and Rogelia Daclag (petitioners) as evidenced by a Deed of Sale5. On July 17, 1984, OCT No. P-138736 was issued in the name of petitioner Rogelia M. Daclag by virtue of her free patent application. On December 16, 1991, Elino Macahilig, Adela Macahilig, Conrado Macahilig, Lorenza Haber and Benita del Rosario (respondents) filed with the Regional Trial Court (RTC) of Kalibo, Aklan a complaint for recovery of possession and ownership, cancellation of documents and damages against Maxima and petitioners, docketed as Civil Case No. 4334.
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Respondents alleged that they were the lawful owners and previous possessors of the one half northern portion of Parcel One by virtue of a Deed of Extra-judicial Partition; that since they were all residents of Caloocan City, their land was possessed by their first cousin, Penicula Divison Quijano, Maxima's daughter, as tenant thereon, as she was also in possession of the one half southern portion as tenant of the heirs of Mario Macahilig; that sometime in 1983, upon request of Maxima and out of pity for her as she had no share in the produce of the land, Penicula allowed Maxima to farm the land; that without their knowledge, Maxima illegally sold on May 23, 1984, the entire riceland to petitioners, who are now in possession of the land, depriving respondents of its annual produce valued at P4,800.00. In their Answer with Cross-Claim, petitioners contended that: petitioner Rogelia had been the registered owner of the entire riceland since 1984 as evidenced by OCT No. P-13873; her title had become incontrovertible after one year from its issuance; they purchased the subject land in good faith and for value from co-defendant Maxima who was in actual physical possession of the property and who delivered and conveyed the same to them; they were now in possession and usufruct of the land since then up to the present; respondents were barred by laches for the unreasonable delay in filing the case. They also filed a cross-claim against Maxima for whatever charges, penalties and damages that respondents may demand from them; and they prayed that Maxima be ordered to pay them damages for the fraud and misrepresentation committed against them. Respondents subsequently filed an Amended Complaint, upon learning that petitioners were issued OCT No. 13873 by virtue of their free patent application, and asked for the reconveyence of the one half northern portion of the land covered by such title. The land in question was delimited in the Commissioner's Report and sketch submitted by Bernardo G. Sualog as the one half northern portion, which had an area of 1178 sq. meters. The Report and the sketch were approved by the RTC on June 22, 1991. For failure of Maxima to file an answer, the RTC declared her in default both in the complaint and cross-claim against her. After trial, the RTC rendered its Decision7 dated November 18, 1994, the dispositive portion of which reads: WHEREFORE, finding preponderance of evidence in favor of plaintiffs [respondents], judgment is hereby rendered as follows: 1. The deed of sale dated May 23, 1984, executed by Maxima Divison in favor of Adelino Daclag and Rogelia Daclag before Notary Public Edgar R. Peralta and docketed in his notarial register as Doc. No. 137, Page No. 30, Book No. VII, Series of 1984 is declared NULL and VOID; 2. The plaintiffs are hereby declared the true and lawful owners and entitled to the possession of the northern one-half (1/2) portion of the land described under paragraph 2 of the amended complaint and designated as Exhibit "F-1" in the commissioners sketch with an area of 1,178 square meters; 3. The defendants-spouses Adelino and Rogelia Daclag [petitioners] are hereby ordered and directed to vacate the land described in the preceding paragraph and restore and deliver the possession thereof to the plaintiffs; 4. The defendants are ordered to execute a deed of reconveyance in favor of the plaintiffs over the land described in paragraph 2 hereof; 5. The defendants are ordered, jointly and severally, to pay the plaintiffs ten (10) cavans of palay per annum beginning the second cropping of 1984 until the time the possession of the land in question is restored to the plaintiffs; and
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6. The defendants are ordered, jointly and severally, to pay the plaintiffs reasonable attorneys fees in the amount of P3,000.00 plus cost of the suit. 8 The RTC found that respondents were able to establish that Parcel One was divided between the heirs of Mario and the heirs of Eusebio, with the former getting the one half southern portion and the latter the one half northern portion embodied in a Deed of Extra-judicial partition, which bore Maxima's thumbmarks; that nobody questioned the Deed's validity, and no evidence was presented to prove that the document was not validly and regularly executed; that Maxima also executed a duly notarized Statement of Conformity dated March 19, 1982 with the conformity of her husband, Pedro. The RTC concluded that when Maxima executed the Deed of Sale in favor of petitioners on May 23, 1984, Maxima had no right to sell that land as it did not belong to her; that she conveyed nothing to petitioners; and that the deed of sale should be declared null and void. In disposing the issue of whether petitioners could be considered innocent purchasers for value, the RTC ruled that petitioners could not even be considered purchasers, as they never acquired ownership of the land since the sale to them by Maxima was void; and that petitioners' act of reflecting only the price of P5,000.00 in the Deed of Sale to avoid paying taxes to the BIR should be condemned for defrauding the government and thus should not be given protection from the courts. The RTC further ruled that since petitioners were able to obtain a free patent on the whole land in petitioner Rogelia's name, reconveyance to respondents of the 1,178 sq. meter northern portion of the land was just and proper; that the respondents were entitled to a share in the harvest at two croppings per year after deducting the share of the tenant; that since Maxima died in October 1993, whatever charges and claims petitioners may recover from her expired with her. Aggrieved, petitioners filed their appeal with the CA. On October 17, 2001, the CA dismissed the appeal and affirmed the RTC decision. The CA ruled that since Maxima had no right to sell the land as she was not the rightful owner thereof, nothing was conveyed to petitioners; that a person who acquired property from one who was not the owner and had no right to dispose of the same, obtained the property without right of title, and the real owner may recover the same from him. The CA found that since respondents were unaware of the sale, it was not a surprise that they did not question petitioners' application for a free patent on the subject land; that the possession by Maxima of the subject land did not vest ownership in her, as her possession was not in the concept of an owner; and that petitioners were not purchasers in good faith. It also found that the right to enjoy included the right to receive the produce of the thing; that respondents as true owners of the subject land were deprived of their property when Maxima illegally sold it to petitioners; and thus, equity demanded that respondents be given what rightfully belonged to them under the principle that a person cannot enrich himself at the expense of another. Hence, herein petition on the following grounds: A. THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS ERROR WHEN IT DECLARED THAT HEREIN PETITIONERS HAD NO VALID TITLE OVER THE LAND IN QUESTION. B. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONERS ARE NOT PURCHASERS OR BUYERS IN GOOD FAITH. C. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE DECISION OF THE LOWER COURT IN ORDERING THE DEFENDANTS-PETITIONERS JOINTLY AND SEVERALLY TO PAY PER ANNUM BEGINNING THE SECOND CROPPING OF 1984 UNTIL THE TIME THE POSSESSION OF THE LAND IN QUESTION IS RESTORED TO THE PLAINTIFFS [respondents]. 9
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The issues for resolution are (1) whether Maxima was the previous owner of Parcel One, which included respondents' one half northern portion, now covered by OCT No. P-13873; 2) whether petitioners could validly invoke the defense of purchasers in good faith; and (3) whether reconveyance is the proper remedy. Preliminarily, we would like to state the inescapable fact that the Extra-judicial partition of the estate of Candido Macahilig involving the seven parcels of land was made only between Maxima and the heirs of her two deceased brothers Mario and Eusebio. Section 1 of Rule 74 of the Rules of Court provides: Section 1. Extrajudicial settlement by agreement between heirs . - If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action for partition. x x x The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. Records do not show that there has been any case filed by the other heirs who had not participated in the Deed of Extra-judicial Partition and were questioning the validity of such partition. Thus, the resolution of the present case concerns only the issues between the parties before us and will not in any way affect the rights of the other heirs who have not participated in the partition. The first two issues raised for resolution are factual. It is a settled rule that in the exercise of the Supreme Court's power of review, the Court is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case, considering that the findings of facts of the CA are conclusive and binding on the Court. 10 While jurisprudence has recognized several exceptions in which factual issues may be resolved by this Court, namely: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, could justify a different conclusion,11 none of these exceptions has been shown to apply to the present case and, hence, this Court may not review the findings of fact made by the lower courts. We find no cogent reason to depart from the findings of both the trial court and the CA that Maxima was not the owner of the land she sold to petitioners, and that the one half northern portion of such land was owned by the respondents; that Maxima had no right to dispose of the land and, thus, she had no right to convey the same. To repeat, records show that Maxima entered into a Deed of Extra-judicial Partition with the heirs of her two deceased brothers, namely: Mario and Eusebio, over seven parcels of land owned by Candido and Gregoria Macahilig. One of these lands was the irrigated riceland with an area of 1,896 sq. meters which, per the Deed of Partition, was divided between the heirs of Mario and Eusebio; and the former got the one half southern portion, while the latter got the one half northern portion. Maxima affixed her thumbmark to the Deed. This parcel of riceland was sold by Maxima to petitioners. However, Maxima, at the time of the execution of the Deed of Sale over this parcel of land in favor of petitioner on May 23, 1984, had no right to sell the same as she was not the owner thereof.
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In fact, Maxima, with the conformity of her husband Pedro, had even executed a Statement of Conformity, in which she affirmed the execution of the Deed of Extra-judicial Partition and conformed to the manner of the partition of shares therein. She attested to the fact that the five parcels of land subject of the Deed of Extra-judicial Partition, which were declared in her name under different tax declarations, were actually properties of her deceased parents; and that she waived all her rights over the lands or portions thereof adjudicated to all her co-heirs. Neither Maxima nor any of her heirs ever questioned the validity of these two above-mentioned documents to which she affixed her thumbmarks. Notably, when the instant complaint was filed by respondents against Maxima and petitioners in 1991, in which respondents claimed as basis of their ownership of the one half northern portion of the riceland was the Deed of Extra-judicial Partition, Maxima, while still living at that time, as she died in 1993, never denied the same. As already stated, she failed to file an answer and was declared in default. In a contract of sale, it is essential that the seller is the owner of the property he is selling. 12 Under Article 1458 of the Civil Code, the principal obligation of a seller is to transfer the ownership of the property sold. 13 Also, Article 1459 of the Civil Code provides that the thing must be licit and the vendor must have a right to transfer the ownership thereof at the time it is delivered. Maxima's execution of the Deed of Sale selling Parcel One, part of which is respondents' one half northern portion, was not valid and did not transfer ownership of the land to petitioners, as Maxima had no title or interest to transfer. It is an established principle that no one can give what one does not have -- nemo dat quod non habet. Accordingly, one can sell only what one owns or is authorized to sell, and the buyer can acquire no more than what the seller can transfer legally. 14 Petitioners insist that Maxima owned the subject land as shown by her actual and continuous possession of the same; that it was declared in her name for taxation purposes; that throughout the time that Maxima and her children were in possession of the property, she never gave any share of the produce to respondents; and that Maxima even mortgaged the land to a bank. We are not persuaded. Maxima's possession of the subject land was by reason of her request to her daughter Penicula, who was installed by respondents as tenant after the execution of the Deed of Extra-judicial Partition, as Maxima wanted to farm the land so that she could have a share in the produce, to which Penicula acceded out of pity. 15 It was also established that after the execution of the Deed of Extra-judicial Partition, Penicula as tenant was able to farm the subject land for one cropping year before she allowed her mother Maxima to farm the land thereafter; and, at that time, Penicula gave the corresponding share of the produce of that one crop year to Adela,16 one of herein respondents, thus establishing respondents' ownership of the subject land. Evidently, Maxima's possession of the land was not in the concept of an owner. While the land was declared in Maxima's name for taxation purposes, it did not establish Maxima's ownership of the same. We have held that a tax declaration, by itself, is not considered conclusive evidence of ownership. 17 It is merely an indicium of a claim of ownership. 18 Because it does not by itself give title, it is of little value in proving one's ownership.19 Petitioners' reliance on Maxima's tax declaration in assuming that she owned Parcel One is an erroneous assumption that should not prejudice the rights of the real owners. The fact that a mortgage was constituted on the land while the same was in Maxima's name would not make Maxima the owner thereof. Maxima's non-ownership of Parcel One was clearly established by the Deed of Extra-judicial Partition and the Statement of Conformity, wherein she categorically declared that the land was actually owned by her deceased parents, to which she separately affixed her thumbmarks. Both documents showed declarations against her interest in the land. A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute.20

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While petitioners were able to secure a certificate of title covering Parcel One in petitioner Rogelia's name, their possession of a certificate of title alone does not necessarily make them the true owners of the property described therein. Our land registration laws do not give the holder any better title than what he actually has. 21 In Naval v. Court of Appeals,22 we held: Registration of a piece of land under the Torrens System does not create or vest title, because it is not a mode of acquiring ownership. A certificate of title is merely an evidence of ownership or title over the particular property described therein. It cannot be used to protect a usurper from the true owner; nor can it be used as a shield for the commission of fraud; neither does it permit one to enrich himself at the expense of others. Its issuance in favor of a particular person does not foreclose the possibility that the real property may be co-owned with persons not named in the certificate, or that it may be held in trust for another person by the registered owner. x x x notwithstanding the indefeasibility of the Torrens title, the registered owner may still be compelled to reconvey the registered property to its true owners. The rationale for the rule is that reconveyance does not set aside or re-subject to review the findings of fact of the Bureau of Lands. In an action for reconveyance, the decree of registration is respected as incontrovertible. What is sought instead is the transfer of the property or its title which has been wrongfully or erroneously registered in another person's name, to its rightful or legal owner, or to the one with a better right.23 We find that reconveyance of the subject land to respondents is proper. The essence of an action for reconveyance is that the free patent and certificate of title are respected as incontrovertible. What is sought is the transfer of the property, which has been wrongfully or erroneously registered in another person's name, to its rightful owner or to one with a better right.24 Respondents have specifically prayed that petitioners be ordered to restore and reconvey to them the subject land. In an action for reconveyance, the issue involved is one of ownership; and for this purpose, evidence of title may be introduced. Respondents had sufficiently established that Parcel One, covered by OCT No. P-13873, of which respondents' northern one half portion formed a part, was not owned by Maxima at the time she sold the land to petitioners. We have earlier discussed the evidence presented by respondents establishing that Maxima had no claim of ownership over the land sold by her to petitioners. An action for reconveyance prescribes in 10 years, the point of reference being the date of registration of the deed or the date of issuance of the certificate of title over the property. 25 Records show that while the land was registered in the name of petitioner Rogelia in 1984, the instant complaint for reconveyance was filed by the respondents in 1991, and was thus still within the ten-year prescriptive period. Petitioners claim that they were innocent buyers in good faith and for value; that there was no evidence showing that they were in bad faith when they purchased the subject land; that Article 526 of the Civil Code provides that he is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it; and that good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof. Notably, petitioners bought the property when it was still an unregistered land. The defense of having purchased the property in good faith may be availed of only where registered land is involved and the buyer had relied in good faith on the clear title of the registered owner. 26 In Ong v. Olasiman27 in which a claim of good faith was raised by petitioner who bought an unregistered land, we held: Finally, petitioners' claim of good faith does not lie too as it is irrelevant:

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[T]he issue of good faith or bad faith of the buyer is relevant only where the subject of the sale is registered land and the purchaser is buying the same from the registered owner whose title to the land is clean x x x in such case the purchaser who relies on the clean title of the registered owner is protected if he is a purchaser in good faith for value. Since the properties in question are unregistered lands, petitioners as subsequent buyers thereof did so at their peril. Their claim of having bought the land in good faith, i.e., without notice that some other person has a right to or interest in the property, would not protect them if it turns out, as it actually did in this case, that their seller did not own the property at the time of the sale. 28 Petitioners claim that the subject land is a public land, and that petitioners were issued title over this land in 1984; that respondents did not present any evidence to prove that the subject land was already a private land prior to their acquisition and the issuance of a free patent title to them; that the presumption that the subject land was formerly part of the mass of alienable lands of public domain under the Regalian doctrine, and was regularly granted to petitioners by way of free patent and certificate of title, remains incontrovertible in favor of petitioner.
1avvphi1

This issue was only raised for the first time in petitioners' Memorandum filed with us. Well-settled is the rule that issues not raised and/or ventilated in the trial court cannot be raised for the first time on appeal and cannot be considered for review to consider questions belatedly raised tramples on the basic principles of fair play, justice and due process.29 Finally, we find no error committed by the CA in affirming the RTC's order for petitioners to pay respondents their corresponding share in the produce of the subject land from the time they were deprived thereof until the possession is restored to them. As aptly stated by the CA, thus: It is said that one of the attributes of ownership is the right to enjoy and dispose of the the thing owned, The right to enjoy included the right to receive the produce of the thing. The plaintiffs-appellees, as true owners of the subject land were deprived of their property when Maxima Divison illegally sold it to spouses Daclags. As such, equtiy demands that the plaintiff-appeellees be given what rightfully belonged to them under the time honored principle that a person cannot enrich himself at the expense of another. WHEREFORE, the petition for review is DENIED. The Decision dated October 17, 2001 and Resolution dated August 7, 2003 of the Court of Appeals are AFFIRMED. Costs against petitioners. SO ORDERED.

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