Co-Ownership Digests (Except Tarnate Case)

PROPERTY | BLOCK 1| Title III: Co-Ownership, 208-256 | page

53. THE HEIRS OF SALUD DIZON SALAMAT, represented by Lucio Salamat and Danilo Salamat, VALENTA DIZON GARCIA, represented by Raymundo D. Garcia, Jr. as Attorney-in-Fact, THE HEIRS OF ANSELMA REYES DIZON, represented by Catalina Dizon Espinosa, v. NATIVIDAD DIZON TAMAYO, represented by Angela R. Dizon, THE HEIRS OF GAUDENCIO DIZON, represented by Maria Dizon Jocson G.R. No. 110644 October 30, 1998 ROMERO, J.:

Diagram: (For your easy viewing)

Facts:1. 1942 (5/15)- Agustin Dizon died leaving properties to his 5 children/heirs2. among the properties, is a parcel of land in San Nicolas, Bulacan – the land

in dispute3. 1944- Eduardo sold his hereditary rights to Salud for P3000 evidenced by a

private document4. 1949- Gaudencio sold his hereditary rights to Salud for P4000 evidenced by

a notarized document5. 1951- Gaudencio died, leaving his daughters Priscila and Maria as heirs6. 1987- Petitioners instituted an action for compulsory judicial partition of

real properties registered in the name of Agustin Dizon because Natividad Dizon refused to agree to the formal distribution of the properties among the deceased’s heirs. She desired to keep for herself the parcel of land, claiming that her father donated it to her sometime in 1936 and also the land is declared in her name under the Tax Declaration.

7. RTC & CA- ruled in favor of Natividad, property is owned by Natividada. Evidence: private letter signed by Eduardo, stating that there was

an oral donation from Agustin to Natividad.b. Tax declaration in the name of Natividad

8. Petitioners questioned the validity of the document stating that there were unexplained erasures and alterations.

Issue: Who owns the land?

Held: Decision of CA reversed and set aside. Land is declared to belong to the estate of Agustin Dizon.

a. CC749- a transfer of real property from one person to another cannot take effect as a donation unless embodied in public document, the alleged donation was done orally and not executed in a public document. Plus, the document (ancient document) had unexplained and suspicious alterations (originally in black ink, but alterations were in blue, witness’ signature and names were deleted by black pentel pen) and that the witnesses Priscila and Maria signed the document 2 days after the death of Gaudencio.

b. While it is true that a void donation may be the basis of ownership by prescription, possession must be adverse and under a claim of title to constitute the foundation of prescriptive right.

c. Respondent was never in adverse and continuous possession of the property. Petitioners and respondent are co-owners of the properties left by their father.

d. “Co-ownership is a form of trust, with each owner being a trustee for each other and possession of a co-owner shall not be regarded as adverse to other co-owner but in fact is beneficial to them. Mere actual possession by one will not give rise to the inference that the possession was adverse because a co-owner is entitled to possession of the property.”

e. “a mere silent possession by a co-owner, his receipt of rents, fruits or profits from the property, the erection of buildings and fences and the planting of trees thereon and the payment of land taxes, cannot serve as proof of exclusive ownership, if it is not borne out by clear and convincing evidence that he exercised acts of possession which unequivocably constituted an ouster or deprivation of the rights of the other co-owners.”

f. Elements in order that a co-owner’s possession may be deemed adverse to the co-owner:

a. He has performed unequivocal act of repudiation amounting to ouster of the other co-owners (cestui que trust)

b. Such positive acts or repudiation have been made known to the other co-owners

c. The evidence must be clear and convincingg. None of the requirements is present in this case. There are 2 houses

standing on the property, one where natividad presently resides, and another is built by Valenta. House where Natividad resides is the ancestral house of the Dizon.

h. No unequivocal acts of repudiation made, thus Natividad cannot acquire ownership over the property through acquisitive prescription.

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i. Tax declarations or realty tax payments are not conclusive evidence of ownership

j. Improvements made by respondent governed by CC500

Laws applicable/ terms: 1. CC 749- “in order that the donation of an immovable may be validm it

must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.”

2. Ancient Document- a private document which is more than 30 years old, produced from a custody in which it would naturally be found if genuine, and is unblemished by alteration or circumstances of suspicion.

3. CC 500- upon partition, there should be a mutual accounting for benefits received and reimbursements for expenses made.

54. Tarnate v Tarnate55. Jalandoni v. Guanzon

January 21, 1958; Reyes, J.B.L., J.: by Elle

Facts:1. Appellant spouses Amado P. Jalandoni and Paz Ramos began a suit against

the appellees Antonio Guanzon, eta al., for partition of lots Nos. 130-A, 130-B and 130-F of the Murcia Cadastre, as well as lots Nos. 1288 and 1376 of the Bogo Cadastre, and for recovery of damages caused by the defendants' unwarranted refusal to recognize plaintiffs' right and partition said lots, as was to account for and deliver plaintiff's share in the crops obtained during the agricultural years from 1941-1942 to 1946-1947

2. CFI: Held for plaintiffs and ordered the partition of the lands involved, but denied their claim for damages because of failure to "prove the exact and actual damages suffered by them.”

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

4. The court dismissed the second complaint for failure to state a cause of action; and after their motion to reconsider was denied.

Issue: W/N the appellant can file a case to compel the other co-owners to contribute.Held/ Ratio: NO.

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

Except as concomitant to physical injuries, moral and corrective damages (allegedly due to suffering, anguish and anxiety caused by the refusal of defendants in 1941 to partition the common property) were not recoverable under the Civil Code of 1899 which was the governing law at the time. Recovery of such damages was established for the first time in 1950 by the new Civil Code, and action not be made to apply retroactively to acts that occurred character of these damages.

As to the value of the plaintiff's share in the products of the land during the time that the former action was pending (which are the damages claimed under the second cause of action), their recovery is now barred by the previous judgment.

Petition was DENIED.56. Go Ong v. CASeptember 24, 1987 Paras, J.:

Facts: A parcel of land in Quezon City Identified as:

a. Lot No. 1, Psd 15021, with an area of 3,660.8 sq. m. is covered by TCT No. 188705 in the name of “Alfredo Ong Bio Hong married to Julita Go Ong.”

Alfredo Ong Bio Hong died on January 18, 1975. Julita Go Ong was appointed administratrix of her husband's estate. On June 8, 1981 Julita Go Ong through her attorney-in-fact Jovita K. Yeo

mortgaged Lot No. 1 to the Allied Banking Corporation to secure a loan of P900,000.00 obtained by JK Exports, Inc.

On the loan there was due the sum of P828,000.00 and Allied Banking Corporation tried to collect it from Julita Go Ong.

Go Ong complained alleging the nullity of the contract for lack of judicial approval which the bank had allegedly promised to secure from the court.

In response thereto, the bank averred that it was plaintiff Julita Go Ong who promised to secure the court's approval.

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The bank added that Julita Go Ong informed them that she was processed the sum of P300,000.00 by the JK Exports, Inc. which will also take charge of the interest of the loan.

Issue: W/N the mortgage constituted over the parcel of land under petitioner’s administration is null and void for want of judicial approval.

Held: No.1. The property under the administration of petitioner - the wife of the deceased, is a community property and not the separate property of Go Ong;2. The mortgage was constituted in the wife's personal capacity and not in her capacity as administratrix;3. The mortgage affects the wife's share in the community property and her inheritance in the estate of her husband.

The fact alone that in the settlement proceedings of the estate of the deceased spouse the entire conjugal partnership property of the marriage is under administration is not sufficient to invalidate the whole mortgage.

Art. 493 of the Civil Code applies where the heirs as co-owners shall each have the full ownership of his part and he may 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 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. (Philippine National Bank vs. Court of Appeals, 98 SCRA 207 [1980]).

The mortgage constituted on said property, upon express authority of plaintiff, notwithstanding the lack of judicial approval, is valid, with respect to her conjugal share thereon, together with her hereditary rights.

The fact that what had been mortgaged was in custodia legis is immaterial, insofar as her conjugal share and hereditary share in the property is concerned for she was the absolute owner thereof.57. Lopez –vs- Ilustre ~Diana SyJanuary 24, 1906; P: Willard

Facts: (1.) Francisco Martinez and Pedro Martinez Ilustre(his son-defendant) are

owners in common of 28 parcels of land as tenants in common. The land was acquired during Francisco’s marriage to Doña Germana

Ilustre, who has already passed away

(2.) On December 1902, Francisco conveyed his undivided half interest on the 2 parcels of land in Calle Dulumbayan, Manila to Fernando Lopez(plaintiff)

With a right to repurchase the property within one year(3.) In June 1903, the father and son made a voluntary partition of the lands,

which was approved by the CFI-Manila. Unfortunately, the 2 subject lands went to Pedro

(4.) Francisco failed to pay upLopez filed an action for partition of land between him and Pedro and for Pedro to pay the rent on the use of said property from December 1903 onwards – Granted by the courts

Issue: Can the fact the subject lands have been allotted to Pedro already bar their conveyance to Lopez?

Held: No. This is because what was conveyed was half of Francisco’s undivided interest

-Judgment Affirmed-

Ruling: It’s okay for a co-owner to convey his undivided interest on a property

to another- “If he is the owner of an undivided half of a tract of land, he has a

right to sell and convey an undivided half, but he has no right to divide the lot into two parts, and convey the whole of one part by metes and bounds.” Here, Francisco properly applied his right when he conveyed

his undivided interest in the 2 properties. He had the “perfect right” to do so.

The conveyance of the undivided interest on a property deprives the grantor of any right over it- upon the conveyance of the undivided share, “the grantor loses

all interest in the property, and of course has no right to take any part in the partition of it”

- Here, the father’s share on the two lots was already lost upon the conveyance on December 1902. Therefore, the voluntary partition of which was made on June 1903 cannot apply on the subject lots

Law Applied: Article 399 of the Civil Code is as follows:

“Every co-owner shall have full ownership of his part and in the fruits and benefits derived therefrom, and he therefore may alienate, assign, or mortgage it, and even substitute another person in its enjoyment, unless

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personal rights are in question. But the effect of the alienation or mortgage, with regard to the coowners, shall be limited to the share which may be awarded him in the division on the dissolution of the community.”

58. RAMON MERCADO, BASILIA MERCADO joined by her husband, FRANCISCO RONQUILLO, plaintiffs appellants, vs. PIO D. LIWANAG, defendant-appellee.

G.R. No. L-14429 June 30, 1962MAKALINTAL, J.:

Facts: “1. A complaint was filed by the plaintiffs against Liwanag seeking to annul a Deed of Sale on the ground of fraud and on the provisions of Article 493 of the Civil Code.2. On July 14, 1956: Ramon Mercado and Pio D. Liwanag executed a Deed of Sale of a divided half with an area of 2,196 sq. meters at P7.00 per sq. meter (total amount of P15,372) of a parcel of land situated at Kangkong, Quezon City.3. The T.C.T. No. 20805 containing an area of 4,392 sq. meters, is issued in the name of Ramon Mercado and Basilia Mercado as co-owners PRO-INDIVISO, and the sale was without the knowledge and consent of Basilia.4. Out of the total area of 4,392 sq. m., an area consisting of 391 sq. meters was expropriated by the National Power Corporation sometime in Dec. 1953 at a price of P10.00 per sq. meter.5. But pursuant to the Deed of Sale, T.C.T. No. 32757 was issued in the name of Pio Liwanag and Basilia.6. Liwanag submits the receipt signed by Ramon Mercado dated July 14, 1956 and promissory note of the same date for P10,000.00, but plaintiff Ramon Mercado disclaims payment and receipt of such check and promissory note, the check being uncashed and is still in the possession of Atty. Eugenio de Garcia.7. The trial court held that under Article 493 of the Civil Code the sale in question was valid and dismissed the complaint.

Issue: W/N the Deed of Sale should be annulled under Article 4931 of the Civil Code

1 Article 493 provides:

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 alloted to him in the division upon the termination of the co-ownership.

Held: NO.1. What a co-owner may dispose of under Article 493 is only his undivided

aliquot share, which shall be limited to the portion which may be allotted to him upon the termination of the co-ownership. He has no right to divide the property into parts and then convey one part by metes and bounds.

The pertinent recitals in the disputed deed of sale read:I hereby sell, transfer and convey absolutely and irrevocably unto said Pio D. Liwanag, his heirs, successors, and assigns my rights, title and interest on my chosen portion of the above described property which consist of one-half of aforesaid ownership bounded on the West by Pacifico Gahudo, on the North by Hacienda de Piedad and on the South by Circumferential Road, consisting of 50 meters more or less frontal length along Circumferential Road, and with a total area of 2,196 square meters as indicated in Co-owners Transfer Certificate of Title No. 20805.

Nevertheless, upon registration of the sale and cancellation of transfer certificate of title No. 20805 in the names of the previous co-owners, the new transfer certificate that was issued (No. 32757) did not reproduce the description in the instrument but carried the names of appellee Pio D. Liwanag and Basilia Mercado as "co-owners pro-indiviso."

2. There is no suggestion by any of the parties that this new certificate of title is invalid, irregular or inaccurate. There is no prayer that it be canceled. As far as Basilia Mercado is concerned she retains in all their integrity her rights as co-owner which she had before the sale, and consequently, she has no cause to complain. Much less has Ramon Mercado, for it was he who was responsible for whatever indicia there may be in the deed of sale that a determinate portion of the property was being sold, as shown by the second paragraph thereof, quoted without contradiction in appellee's brief as follows:That the aforesaid Transfer Certificate of Title was originally in my name, but was split into two equal parts by virtue of my desire to donate to my sister-in-law Juana Gregorio an equal half thereof with the understanding that I as donor would have the absolute power to choose from the property owned in common that part which I would like to segregate for myself or my heir and assigns.

3. The title is the final and conclusive repository of the rights of the new co-owners. The question of whether or not the deed of sale should be annulled must be considered in conjunction with the title issued pursuant thereto. Since, according to this title, what appellee acquired by virtue of the sale is only an undivided half-share of the property, which under the law the vendor Ramon Mercado had the absolute right to dispose of, the trial court committed no error in dismissing the action. The end-result of

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the transaction is in accordance with Article 493 of the Civil Code.1äwphï1.ñët

The other point raised by appellants refers to the statement in the dispositive portion of the decision appealed from that "the stipulation with regards to the deed of sale based on the ground of fraud is insufficient for all purposes and besides, no proof showing the allegation of such fraud exists in the accord." It is contended that the trial court erred in making such statement, the same being contrary to the stipulation in which the parties expressly eliminated the issue of fraud. From the entire context of the decision, however, it can be gathered that the case was not decided on the basis of the said issue. In any event, even if the court did err in considering the question of fraud in spite of the stipulation, the error is not a prejudicial one. As far as the dismissal of the actions concerned, it makes no difference whether fraud has not been proven or fraud has been abandoned as an issue by express agreement.WHEREFORE, the decision appealed from is affirmed, with costs against appellants in this instance.”59. Francisco v BoiserGR 137677; May 31, 2000; 2nd Div; J.Mendoza; by Erwin Roxas

Facts:1. Francisco and 3 sisters own 4 lands on which stands “Ten Commandments

Building”2. They sold 1/5 of the undivided share to their mother, making the mother a

co-owner.3. Aug 8, 1986: Mother, without knowledge of her daughters, sold her 1/5

share to Boiser, another sister of Francisco.4. Aug 5, 1992: Francisco received summons for a complaint filed by Boiser

demanding her share in the rentals collected by Francisco from the building tenants.

5. Francisco however counterclaimed by exercising her right of redemption as co-owner.

6. However, Boiser was declared non-suited, so the case and the counterclaim were dismissed.

7. In a new case, Francisco filed for the redemption contending the 30-day redemption period had not yet begun since the vendor, the mother, never informed her and the other co-owners of the sale.

8. Boiser contended that Francisco knew of the sale as early as May 30, 1992 when Boiser sent her a letter demanding the rentals with the Deed of Sale attached.

9. RTC and CA dismissed Francisco’s complaint for legal redemption saying Art1623 does not prescribe any form of notifying co-owners of the sale to enable the co-owners to exercise the right of redemption. The letter sent

by Boiser to Francisico with a copy of the deed of sale was a substantial compliance to the required written notice, thus the 30-day period already expired before Francisco exercised her right of redemption.

Issue:Was there sufficient compliance with the required written notice? NO. Notice should come from vendor. However, SC in view of justice considered the receipt of summons by Francisco (when Boiser filed demand for rentals) as actual knowledge of the sale, so that Francisco can be allowed to exercise her right of redemption without waiting for the notice to be sent by the vendor (mother).

Law:Art 1623 NCC: The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case maybe. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners.The right of redemption of co-owners excludes that of adjoining owners.

Held:(Flip flop cases)“In Butte vs. Manuel Uy and Sons [4 SCRA 526 (1962)], the Court ruled that Art. 1623 of the Civil Code clearly and expressly prescribes that the (30) days for making the pre-emption or redemption are to be counted from notice in writing by the vendor.”Etcuban v. Court of Appeals [148 SCRA 507 (1987)]: “Despite the apparent meaning of Art. 1623, it was held… it was "of no moment" that the notice of sale was given not by the vendor but by the vendees. "So long as the [co-owner] is informed in writing of the sale and the particulars thereof, the 30 days for redemption stair running, and the redemptioner has no cause to complain.”In “Salatandol v. Retes [162 SCRA 568 (1988)]... the Court expressly affirmed the ruling in Butte that the notice required by Art. 1623 must be given by the vendor. In Salatandol, the notice given to the redemptioner by the Register of Deeds of the province where the subject land was situated was held to be insuffucient.”

“Reversion to the ruling in Butte is proper. Art. 1623 of the Civil Code is clear in requiring that the written notification should come from the vendor or prospective vendor, not from any other person. There is, therefore, no room for construction. Indeed, the principal difference between Art. 1524 of the former Civil Code and Art. 1623 of the present one is that the former did not specify who must give the notice, whereas the present one expressly says the notice must be given by the vendor. Effect must be given to this change in statutory language.”

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

“[However], it is… unjust when the subject sale has already been established before both lower courts and now, before this Court, to further delay petitioner's exercise of her right of legal redemption by requiring that notice be given by the vendor before petitioner can exercise her right. For this reason, we rule that the receipt by [Francisco] of summons in Civil Case No. 15510 [the case filed by Boiser] on August 5, 1992 constitutes actual knowledge on the basis of which [Francisco] may now exercise her right of redemption within 30 days from finality of this decision.”

“…receipt by [Francisco] of summons in Civil Case No. 15510 on August 5, 1992 amounted to actual knowledge of the sale from which the 30-day period of redemption commenced to run. [Francisco] had until September 4, 1992 within which to exercise her right of legal redemption, but on August 12, 1992 she deposited the P10,000.00 redemption price. As [Francisco’s] exercise of said right was timely, the same should be given effect.

RTC and CA reversed. RTC ordered to effect Francisco’s exercise of right her right of legal redemption.60. OSCAR C. FERNANDEZ, GIL C. FERNANDEZ and ARMANDO C. FERNANDEZ, petitioners, vs. Spouses CARLOS and NARCISA TARUN, respondents.November 14 , 2002; J. Panganiban

Facts: This case is about a dispute over a An 8,209-square meter fishpond situated at

Arellano-Bani, Dagupan City known as Lot No. 2991 of the Cadastral Survey of Dagupan

The brothers Antonio, Santiago, Demetria and Angel Fernandez and their uncle, Armando owned 1/6 of the fishpond. When Armando, who was single died, his share was distributed to the others so that they owned 1/5 of the fishpond

On June 4, 1967, Antonio Fernandez sold his share of about 547.27 square meters to the respondents

On June 18, 1967, Demetria Fernandez sold her share of 547.27 square meters to the respondents

The two sales were registered and annotated on OCT No. 43099 On November 14, 1969, the co-owners of the disputed fishpond and another

fishpond covered by TCT No. 10944 executed a Deed of Extrajudicial Partition of two parcels of registered land with exchange of shares. Antonio, Santiago, Demetria and Angel were among the parties to the Deed of Extrajudicial Partition.

The Deed of Extrajudicial Partition stipulated that the sale of the shares of Demetria and Antonio to the respondents be recognized and respected. The sold shares were excluded from the partition.

Angel Fernandez, by virtue of the Deed of Extrajudicial Partition, exchanged his share on the fishpond covered by TCT No. 10944 for the share of the other co-owners of the disputed fishpond. The result of this was that Angel and the respondents became co-owners of the disputed fishpond.

While the respondents were paying already realty taxes on their share of the disputed fishpond, Angel and later on his heirs were still in possession of the entire fishpond

The respondents wanted to partition the property but Angel refused. After Angel died, the respondents wrote the petitioners, being Angel’s heirs, of their desire to partition the disputed fishpond but this also was rejected by the petitioners

Respondents filed a suit for partition and damages. The RTC ruled in favor of the petitioners

Articles 16202 and 16213 of the Civil Code entitled the petitioners to redeem the property that they had sold to respondents.

The sale was highly iniquitous and void in contravention of Articles 16234 of the Civil Code

2 Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one.Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thing owned in common.3 Art. 1621. The owners of adjoining lands shall also have the right of redemption when a piece of rural land, the area of which does not exceed one hectare, is alienated, unless the grantee does not own any rural land.This right is not applicable to adjacent lands which are separated by brooks, drains, ravines, roads and other apparent servitudes for the benefit of other estates.If two or more adjoining owners desire to exercise the right of redemption at the same time, the owner of the adjoining land of smaller area shall be preferred; and should both lands have the same area, the one who first requested the redemption.4 Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless

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The CA ruled in favor of the respondents Since Angel Fernandez was the co-owner of the disputed fishpond at

the time of the sale, he was the one entitled to receive notice and to redeem the property but he did not choose to exercise that right

The execution of the Deed of Extrajudicial Partition was a substantial compliance with the notice requirement under that law.

It was too late in the day to declare the exchange highly iniquitous, when Angel Fernandez had not complained about it. As his successors-in-interest, petitioners were bound by the terms of the agreement.

Issue/s: Are the petitioners entitled to exercise their right of legal redemption? Is the transaction an equitable mortgage? Is the deed of extra-judicial partition void and inefficacious?Held: No, the petitioners are not entitled to exercise their right of legal redemption.

the right to redeem referred to in Article 1620 applies only when a portion is sold to a non-co-owner

The respondents became co-owners of the disputed fishpond because they were sold shares of it by Demetria and Antonio long before petitioners succeeded Angel.

Legal redemption is in the nature of a privilege created by law partly for reasons of public policy and partly for the benefit and convenience of the redemptioner, to afford him a way out of what might be a disagreeable or [an] inconvenient association into which he has been thrust. (10 Manresa, 4th. Ed., 317.)

It is intended to minimize co-ownership. The law grants a co-owner the exercise of the said right of redemption when the shares of the other owners are sold to a third person (Id., pp. 130-131, per Vasquez, J.)

The petitioner’s contention that the sales of the shares in the disputed fishpond to the respondents are void because a notice in writing to the other co-owners was not sent as required under Article 16255 of the Civil Code is not meritorious. The provision only states that the deed of sale shall not be recorded in the registry of property without such notice but it does not make the sale void.

accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners.The right of redemption of co-owners excludes that of adjoining owners. 5 Art. 1625. An assignment of a credit, right or action shall produce no effect as against third person, unless it appears in a public instrument, or the instrument is recorded in the Registry of Property in case the assignment involves real property.

Angel Fernandez is deemed to have been given notice of the sale to respondents by the execution and signing of the Deed of Extrajudicial Partition and Exchange of Shares. This is in accordance with the doctrine that the law does not require any specific form of written notice to the redemptioner

No, the transaction is not an equitable mortgage. Petitioners contend that the sale was only an equitable mortgage

because the price was grossly inadequate, and the vendors remained in possession of the land and enjoyed its fruits. This contention is untenable.

Per Art. 16026 of the Civil Code, the requisites of an equitable mortgage are:

when the price of the sale with the right to repurchase is unusually inadequate

when the vendor remains in possession as lessee or otherwise

While it is true that Angel remained in possession of the property, the sellers were Antonio and Demetria and they were not claiming that the sale was one of equitable mortgage.

Mere alleged inadequacy of the price does not necessarily void a contract of sale, although the inadequacy may indicate that there was a defect in the consent, or that the parties really intended a donation, mortgage, or some other act or contract (Art. 1470, Civil Code)

Unless the price is grossly inadequate or shocking to the conscience, a sale is not set aside. (Abapo v. Court of Appeals, 327 SCRA 180, 187, March 2, 2000.)

6 Art. 1602. The contract shall be presumed to be an equitable mortgage, in any of the following cases:(1) When the price of a sale with right to repurchase is unusually inadequate; (2) When the vendor remains in possession as lessee or otherwise; (3) When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed; (4) When the purchaser retains for himself a part of the purchase price; (5) When the vendor binds himself to pay the taxes on the thing sold; (6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation.In any of the foregoing cases, any money, fruits, or other benefit to be received by the vendee as rent or otherwise shall be considered as interest which shall be subject to the usury laws.

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Petitoners have not proven the inadequacy of the price because they failed to establish the fair market value of the property when it was sold in 1967.

No, the deed of extra-judicial partition is not void and inefficacious. Petitioners contend that the deed of extra-judicial partition is not void

and inefficacious because Angel stood to lose 5,498.14 square meters. This contention is untenable

The law will not relieve parties from the effects of an unwise, foolish or disastrous agreement they entered into with all the required formalities and with full awareness of what they were doing. Courts have no power to relieve them from obligations they voluntarily assumed, simply because their contracts turn out to be disastrous deals or unwise investments

Neither the law nor the courts will extricate them from an unwise or undesirable contract which they entered into with all the required formalities and with full knowledge of its consequences (Opulencia v. Court of Appeals, 293 SCRA 385, 396, July 30, 1998)

Petitioners herein are bound by the extrajudicial partition, because contracts not only take effect between the parties, but also extend to their assigns and heirs (Art. 1311, Civil Code; Smith, Bell & Co., Inc. v. Court of Appeals, 267 SCRA 530, 538-539, February 6, 1997; Bangayan v. Court of Appeals, 278 SCRA 379, 385, August 29, 1997)

The petitioners should have filed the proper action to annul the extra judicial partition if they believed it to be iniquitous.

The extra judicial partition was more beneficial to Angel. By swapping shares of the other fishpond with shares in the disputed fishpond, his ownership became contiguous and compact in only one fishpond, instead of being merely shared with the other co-heirs in two different fishponds.

61. REMEDIOS G. SALVADOR and GRACIA G. SALVADOR, vs. CA, ALBERTO and ELPIA YABO, FRANCISCA YABO, et al.

G.R. No. 109910 April 5, 1995 | Tiff (sorry it’s a long digest, it’s a long case) | DAVIDE, JR., J.

Parties: Alipio Yabo’s 9 children – Victoriano, Procopio, Lope, Jose, Pelagia,

Baseliza, Francisca, Maria, and Gaudencia Pastor Makibalo – married to Maria Yabo-Makibalo Alberto Yabo – son of Procopio Yabo; married to Elpia Yabo Enecia Cristal – representative of Gaudencia Yabo Spouses Eulogio and Remedios Salvador - strangers to the Yabo

family; assignees of Pastor Makibalo

Facts:1. Alipio Yabo - owner of Lot No. 6080 and Lot No. 6180 situated in Barrio

Bulua, Cagayan de Oro City. Upon Ailipio’s death, the land title was transferred upon his 9 children sometime before or during the WWII.

2. Apr 28 1976 - Pastor Makibalo filed @CFI a complaint, against the spouses Alberto and Elpia Yabo for "Quieting of Title, Annulment of Documents, and Damages."

a. Pastor alleged - he owned a total of 8 shares of the subject lots (he purchased the shares of 7 of Alipio's children and inherited the share of his wife)

b. That he (Pastor) occupied, cultivated, and possessed continuously, openly, peacefully, and exclusively the 2 parcels of land.

c. Pastor prayed that he be declared the absolute owner of 8/9 of the lots in question

3. Oct 8 1976 - grandchildren and great-grandchildren of Alipio filed @same CFI a complaint for partition and quieting of title with damages against Pastor Makibalo, Enecia Cristal, and the spouses Salvador.

a. They alleged - Lot No. 6080 and Lot No. 6180 are the common property of the heirs of Alipio namely, the plaintiffs, defendant Enecia Cristal, Maria Yabo and Jose Yabo, whose share had been sold to Alberto Yabo;

b. Also alleged - after Alipio's death, the spouses Pastor and Maria Makibalo, Enecia Cristal and Jose Yabo became the de facto administrators of the said properties;

c. And that much to their surprise, they discovered that the Salvador spouses have been harvesting coconuts from the lots, which act as a cloud on the plaintiffs' title over the lots.

d. They prayed that (i) they, as well as defendant Pastor Makibalo and Enecia Cristal,

be declared as the owners of the lots; (ii) the Salvador spouses be declared as having no rights thereto

except as possible assignees of their co-defendants, Pastor Makibalo and Enecia Cristal;

(iii) the lots be partitioned according to law among the aforementioned co-owners (Pastor Makibalo and Enecia Cristal); and

(iv) the defendants be made to pay for the value of the fruits they harvested from the lots and for moral and exemplary damages, attorney's fees, expenses of the litigation, and costs of the suit.

4. Dec 1968 - Pastor mortgaged the two lots to the spouses Eulogio and Remedios Salvador. On Sept 26, 1978, Pastor executed a document denominated as a "Confirmation and Quitclaim" whereby he waived all his

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rights, interests, and participation in the lots in favor of the Salvador spouses. (**see Table at the end for the allegations and proof of the RTC and CA)

5. RTC : Spouses Salvador are the owners of 8 shares, equivalent to 8/9 of Lot No. 6080, and of 7 shares, equivalent to 7/9 of Lot No. 6180, and therefore, ordering the partition of Lot 6080 so that the 1/9 alloted to Gaudencia Yabo will go to her heirs or their assigns, and the remaining 8/9 will go to the spouses Salvador, as successor of Pastor Makibalo, and the partition of Lot 6180 so that the 7/9 portion which formerly belonged to Baseliza, Victoriano, Jose, Lope, Maria, Francisca, and Pelagia will go to the spouses; the 1/9 which formerly belonged to Procopio, will go to Alberto Yabo (Procopio’s son), and the remaining 1/9 which formerly belonged to Gaudencia, will go to Gaudencia's heirs or their assigns.

6. CA : RTC affirmed. Pastor Makibalo and his assigns, the spouses Salvador, are entitled only to ½ of the 1/9 share of Maria and 3/4 of the 6/9 shares acquired from Basiliza, Victoriano, Jose, Lope, Pelagia and Francisca. The lower court is directed if necessary to fully effect the partition, to conduct further hearings and determine whether Jose Yabo is still alive and who are the children of the brothers and sisters of Maria. The partition:(1) 1/9 of Lots 6080 & 6180 to the heirs of Gaudencia or their successors and assigns; (2) 1/9 of Lot 6180 to Alberto and his wife Elpia; (3) 1/9 of Lot 6080 to the heirs of Procopio and their successors and assigns, including Alberto; (4) The 1/9 share of Maria in Lots 6080 and 6180 be partitioned: 1/2 for the surviving spouse Pastor Makibalo (now spouses Salvador) and the other half for the children of the brothers and sisters of Maria in equal shares; (5) The remaining 6/9: 1/2 of which is conjugal between Maria and Pastor Makibalo be partitioned 3/4 for Pastor Makibalo (now spouses Salvador) and 1/4 for the children of the brothers and sisters of Maria in equal shares; (6) Jose Yabo if he is still alive should participate in the partition as heir of Maria otherwise he shall be represented by his children.

Issues:1. Which portion of Lot No. 6080 and Lot No. 6180 formed part of the

conjugal assets of the spouses Pastor Makibalo and Maria Yabo?2. Whether or not Pastor Makibalo has acquired by prescription the shares of

his other co-heirs or co-owners?

Held:

1. “Article 160 NCC - all property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife. Since the shares of Jose, Victoriano, Lope, Baseliza, Procopio, and Francisca in Lot No. 6180 and Lot No. 6080 had been purchased by Pastor during his marriage with Maria, and there is no proof that these were acquired with his exclusive money, the same are deemed conjugal properties.”

a. “Not forming part of the conjugal partnership are: (i) the 1/9 share inherited by Maria which remained as her exclusive property pursuant to Article 146 (2) NCC; (ii) the 1/9 share of Gaudencia which was not sold to Pastor; and (iii) the 1/9 share of Pelagia which was acquired by Pastor in 1967 or 5 years after the death of his wife and which was therefore his exclusive property.”

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

2. NO. “Article 494 NCC which provides that each co-owner may demand at any time the partition of the common property implies that an action to demand partition is imprescriptible or cannot be barred by laches. The imprescriptibility of the action cannot, however, be invoked when one of the co-owners has possessed the property as exclusive owner and for a period sufficient to acquire it by prescription.”

a. “Prescription as a mode of acquiring ownership requires a continuous, open, peaceful, public, and adverse possession for a period of time fixed by law.”

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

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acts of possession which unequivocably constituted an ouster or deprivation of the rights of the other co-owners.”

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

d. “Records do not show that Pastor Makibalo adjudicated to himself the whole estate of his wife by means of an affidavit filed with the Office of the Register of Deeds as allowed under Section 1 Rule 74 of the RoC, or that he caused the issuance of a certificate of title in his name or the cancellation of the tax declaration in Alipio's name and the issuance of a new one in his own name.”

i. “The only act which may be deemed as a repudiation by Pastor of the co-ownership over the lots is his filing on April 28, 1976 of an action to quiet title. The period of prescription started to run only from this repudiation. However, this was tolled when his co-heirs, the private respondents herein, instituted on Oct 8, 1976 an action for partition of the lots. Hence, the adverse possession by Pastor being for only about 6 months would not vest in him exclusive ownership of his wife's estate, and absent acquisitive prescription of ownership, laches and prescription of the action for partition will not lie in favor of Pastor.”

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

SC: CA decision affirmed and modified: “(a) the former 1/9 share of Pelagia in Lots No. 6180 and 6080 which she sold to Pastor should be treated as Pastor's exclusive property which should now pertain to the Spouses Salvador, his successors-in-interest; and (b) the former 1/9 share of Procopio in both lots should be divided as follows: 3/4 (Pastor's 1/2 conjugal share and 1/4 as his share as Maria's heir) for the

spouses Alberto and Elpia Yabo, and 1/4 (the share of Maria's collateral relatives as Maria's heirs) for the private respondents, including Alberto and Jose Yabo.”

“In sum, Lots Nos. 6180 anid 6080 should be partitioned as follows: 1/9 or 4/36 — to Guadencia Yabo's heirs or successors-in-interest; 3/4 of 1/9 or 3/36 — to the spouses Alberto and Elpina Yabo; 8/36 — to the private respondents, including Jose Yabu or his

heirs; 21/36 — to the Spouses Salvador as successors-in-interest of

Pastor Makibalo.”

“And let this case be forthwith remanded to the court a quo for further proceedings on the partition of Lots Nos. 6180 and 6080 in conformity with this decision.”

Allegations that Pastor Makibalo had to prove:

Proof / evidence as found by the RTC:

Findings of the Court of Appeals:

He was married to Maria Yabo who died on 17 March 1962.

Upon Maria Yabo’s death, by virtue of Article 1001 NCC, the children of her brothers and sisters should have inherited 5/9 of both lots and 1/4 of Lot 6080, however, they have lost their rights thereto by laches for their inaction for a very long period and their rights have become stale. Pastor Makibalo who had been in possession of the whole of the 8 shares in both Lots 6080 and 6180, enjoying the fruits thereof exclusively, uninterruptedly, publicly, peacefully, and continuously from the death of his wife up to the filing of the complaint on Oct. 8, 1976, or for 14 yrs, had acquired title to the whole of the 8 shares in Lot 6080 and 7 shares in Lot

Upon the death of Maria, 1/2 of her share in Lots 6080 and 6180 and 1/2 of her conjugal share in the portions bought from Basiliza, Victoriano, Jose, Lope, Pelagia and Francisca should go to the children of her brothers and sisters in accordance with Article 1001 NCC.**Mar 17, 1962 (Maria Yabo’s death) upto Oct 8, 1976, when a case for partition was filed = 14 years-> would not suffice to establish laches or prescription. Upon the death of Maria, Pastor Makibalo, appellants and the other children of Maria’s brothers and sisters, by operation of law become co-owners of the 1/9 share of Maria as heir of her father Alipio and the conjugal share of Maria in the portions acquired from Basiliza, Victoriano, Jose, Lope, Pelagia and Francisca. Time alone is not a

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6180 (the share of Procopio in Lot 6180 had been sold back to Alberto Yabo)

decisive factor. Pastor Makibalo is an uncle in-law of appellants. In our culture, a demand by an heir or heirs for partition immediately upon the death of a relative is more often taken not as a legitimate assertion of a right but of something else, like greed. It must also be noted that the spouses Salvador, Pastor Makibalo and Maria, were childless and, therefore, appellants and the other children of the brothers and sisters of Maria must have felt that at any rate the property would go to them in the course of time. This probably explains why appellants started asserting their right over the property only after Pastor Makibalo sold it to the spouses Salvador. Besides, before the development of Northern Mindanao, and even in 1962 when Maria died, combined area of 5,083 m2 were not that valuable. Thus, each heir sold his other share only for P110.00.

In August 1949, Jose and Victoriano, sold their shares to Pedro Ebarat, and in 1952 Ebarat sold both shares to Pastor Makibalo. Ebarat executed an

Pastor Makibalo had been in possession of Jose Yabo's share since 1949 after purchasing it from Ebarat, and has been in possession up to Sept 26, 1978 when he sold it to the spouses Eulogio Salvador and Remedios Salvador, who are now in possession of the same.Exh. A – evidence of sale of Victoriano Yabo's share to Ebarat was identified by Ebarat who testified that he

Affidavit of Waiver and Quitclaim dated May 30, 1969 in favor of Pastor.

sold it to Pastor Makibalo in 1951. Exh. A is an ancient document — 1949 when the document came to existence up to now is more than 30 years, and the document had been in the possession of Pastor Makibalo, then Remedios Salvador who had interest in its preservation.

Jan 16 1951- heirs of Lope Yabo sold Lope's shares to Dominador Canomon, who in turn, sold the same to Pastor. Canomon executed an Affidavit of Waiver and Quitclaim in favor of Pastor.

On the shares of Lope Yabo, it was sold by his surviving spouse Juana Legaspi, and his children Filoteo, Andresa, Jovita, Bonifacio, and Rundino for P105.00 on Jan 16, 1951 to Dominador Conomon (Exh. C and C-1), who in turn sold it to Pastor Makibalo in 1952, executing a formal Deed of Waiver and Quitclaim on May 30, 1969 (Exh. D).Exh. C is an ancient document, being more than 30 yrs old and has been in the possession of Pastor Makibalo and then the spouses Salvador — who had an interest in its preservation. The claim of Filoteo Yabo that the signatures appearing in Exh. C are not his and those of his brothers and sisters are of no avail, for if they were not the ones who affixed those signatures and so they did not sell the shares of their father Lope Yabo, why did they not then take possession of said shares —

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they remained silent from 1951 to Sept 16, 1976 a period of 25 years. They are now estopped by laches.

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

There is no evidence presented to effectively rebut the testimony of Pastor Makibalo that he acquired the shares of Baseliza Yabo in 1942 by changing it with a buffalo; that he bought the shares of Francisca Yabo in 1958 and that he bought the shares of Pelagia Yabo in 1967.Pastor Makibalo had been in possession of these shares from the time he acquired them, continuously, adversely, openly, and peacefully, as owner up to the time he sold his rights and interest therein to the spouses Salvador. The heirs of Baseliza, Francisca and Pelagia have not taken any step to protect their rights over those shares for over 40 yrs in the case of Baseliza's share, for about 20 yrs in the case of Francisca's share, and for more than 10 yrs in the case of Pelagia's share. Laches, likewise has rendered their rights stale.

Mar 10, 1966 - Pastor sold back to Alberto a portion of Lot No. 6180 which was

There is nothing to show that Pastor Makibalo also sold back Procopio's share in Lot 6080.

Exhibits 1 and 2 cover only Procopio's share in Lot 6180. In other words, Exhibits 1 and 2 conveyed back to Alberto Yabo only Procopio's share in Lot 6180.There is indeed no evidence that Pastor Makibalo also sold back to

formerly the share of Alberto's father, Procopio.

Alberto, his father Procopio's share in Lot 6080.But from the evidence it appears that Procopio never sold his share in Lot 6080 to Pastor Makibalo. So there was no need to convey back Procopio's share in Lot 6080.This fact is evident from the Affidavit of Confirmation of Sale (Exh. M) dated April 22, 1970 executed by Alberto. A look at Exh. M, particularly par. 3 thereof, reveals that Alberto merely acknowledged or confirmed the sale of his father's share to Pastor Makibalo in Lot 6180. In effect, it at the same time proves that Lot 6080 was never sold by Procopio to Pastor Makibalo; otherwise, it would have been included in the Affidavit of Confirmation of Sale. The Deed of Absolute Sale (Exh. 2) subsequently executed by Pastor Makibalo in favor of Alberto on April 23, 1970, further proves this point, since Alberto merely bought back what was previously sold, his father's share in Lot 6180.

62. Heirs of Restar –vs-Heirs of Cichon ~DianaNovember 20, 2005; P: Carpio-Morales

FACTS:1. Emilio Restar owns a 5,918 sqm land in Aklan

He has 8 children:i. Flores Restar (dead)

ii. Dolores Restar-Cichon (dead) -------heirs as co-plaintiffs/defendants

iii. Perpetua Restar-Sta. Maria (dead) -------heirs as co-plaintiffs/defendants

iv. Paciencia Restar-Manares (plaintiff)

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v. Dominica Restar-Relojero (plaintiff)vi. Policarpio Restar

vii. Maria Rose Restar (dead) -------heirs as co-plaintiffs/defendants

viii. Adolfo Restar2. In 1935, Emilio died intestate

- Since then, Flores (the eldest son) took over the land- He gave his siblings the shares of palay harvested from the

land (up to 1991)\3. In 1945, the lands owned by Emilio (aside from subject land) were divided

among the siblings4. In 1960, Flores executed a joint affidavit to have:

a. the tax declaration under Emilio to be cancelledb. The tax declaration be issued under his name

5. In 1989, Flores died6. In 1998, the plaintiffs discovered the change in the tax declarations7. In 1999, the plaintiffs filed a case against the heirs of Flores for “partition

[of the lot], declaration of nullity of documents, ownership with damages and preliminary injunction”

They contend that:o After Flores’ death, his heirs were only allowed to stay in the

land until all of his children has finished studyingo They have “agreed” that the lot will be partitioned to the 8

siblings thereafter Heirs of Flores argued that:

o They have been in possession of the lot for more than 30 yearso By 1977, all of the children were already done with their studieso They have been paying the real estate taxes since time

immemorial8. RTC-Aklan ruled in favor of Flores’ heirs:

there was repudiation of co-ownership lot acquired by prescription

9. CA reversed the RTC decision- The possession was during the existence of co-ownership- no adequate notice by Flores to his other co-heirs/co-owners

of the repudiation of the co-ownership- no categorical assertion by the defendants of their exclusive

right to the entire lot that barred the plaintiffs' claim of ownership.

ISSUE: Can there be prescription of the action to demand partition of a co-owned property?

HELD: Generally, this is not allowed, EXCEPT if there’s a clear repudiation of the co-ownership and the co-owners were apprised of the claim of adverse and exclusive ownership

-Petition Granted-

RULING:1. Jurisprudence allows a co-owner to acquire ownership by prescription of a

co-owned property. (cases not discussed)“While the action to demand partition of a co-owned

property does not prescribe, a co-owner may acquire ownership thereof by prescription where there exists a clear repudiation of the co-ownership, and the co-owners are apprised of the claim of adverse and exclusive ownership.”

Requisites: a. Clear Repudiation of Co-Ownership b. Co-owners apprised of the claim of adverse and exclusive

ownership 2 types of acquisitive prescription:

a. Ordinary: possession of things in good faith and with just title for a period of ten years

b. Extraordinary: (No good faith and Just title) - uninterrupted adverse possession for thirty years

2. There is Extraordinary Prescription in this case Flores took possession of the land after Emilio’s death and

exercised acts of dominion over it Statutory Prescription started in 1960:

- Flores applied for a tax declaration under his name, with neither title or good faith

- His siblings are deemed aware of it – public document After 30 years of possession, “his possession ripened into

ownership through acquisitive prescription” [ Apply Art. 1137, CC]

“Flores and his heirs had for more than 38 years possessed the land in open, adverse and continuous possession in the concept of owner − which length of possession had never been questioned, rebutted or disputed by any of respondents, being thus duly

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supported by substantial evidence, he and his heirs have become owner of the lot by extraordinary prescription.”

Other evidence: Tax declarations and receipts, when coupled with actual possession, can be the basis of a claim of ownership through prescription

3. Flores committed acts showing adverse possession to his co-heirs: Cancellation of the tax declaration certificate in the name of

Emilio and securing another in his name; Execution of a Joint Affidavit stating that he is the owner and

possessor thereof to the exclusion of respondents; Payment of real estate tax and irrigation fees without

respondents having ever contributed any share therein; Continued enjoyment of the property and its produce to the

exclusion of respondents**Flores' adverse possession was continued by his heirs.

CASES MENTIONED: No case was directly mentioned

LAWS APPLIED:A. Co-ownership

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

x x xNo prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership.

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

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

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

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

63. ANGELA I. TUASON, plaintiff-appellant, vs. ANTONIO TUASON, JR., and GREGORIO ARANETA, INC., defendants-appellees. G.R. No. L-3404

April 2, 1951 88 Phil 428 Montemayor

FACTS: In 1941 the sisters Angela I. Tuason and Nieves Tuason de Barreto and their

brother Antonio Tuason Jr., held a parcel of land with an area of 64,928.6 sq. m. covered by Certificate of Title No. 60911 in Sampaloc, Manila, in common, each owning an undivided 1/3 portion

Nieves wanted and asked for a partition of the common property, but failing in this, she offered to sell her 1/3 portion. The share of Nieves was offered for sale to her sister, brother and mother but all declined to buy it. Finally, the share of Nieves was sold to Gregorio Araneta Inc., a domestic corporation, and a new Certificate of Title No. 61721 was issued in lieu of the old title No. 60911 covering the same property.

The three owners agreed to have the whole parcel subdivided into small lots and sold with the proceeds to be divided among them. They recorded it in a Memorandum of Agreement in June 30, 1941.

Before, during and after the execution of this contract (Exh. 6), Atty. J. Antonio Araneta was acting as the attorney-in-fact and lawyer of the two co-owners, Angela I. Tuason and her brother Antonio Tuason Jr. At the same time he was a member of the Board of Director of the third co-owner, Araneta, Inc

In the contract: The three co-owners agreed to improve the property by filling it and constructing roads and curbs on the same and then subdivide it into small lots for sale. Araneta Inc. would finance the development , was authorized to sell, pay taxes, expenses, and furnish copies to Angela and Antonio. In exchange, Araneta Inc would received 50 of gross selling price, rents, and the other 50% to be divided between the three co-owners or 16.33% of gross receipts.

o Par 9 The contract shall remain in full force and effect during all the time that it may be necessary for the PARTY OF THE SECOND PART (araneta) to fully sell the said property in small and subdivided lots, to collect prices, and if no sale, then rent.

o Par 11 PARTY OF THE SECOND PART (meaning Araneta Inc.) is hereby given full power and authority to sign for and in behalf of all the said co-owners of said property all contracts of sale and deeds of sale, and can delegate powers to any employees, 3rd persons

o Par 15 No co-owner of the property subject-matter of this contract shall sell, alienate or dispose of his ownership, interest or participation therein without first giving preference to the other co-owners to purchase and acquire the same under the same terms and conditions as those offered by any other prospective purchaser. Should none of

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the co-owners of the property subject-matter of this contract exercise the said preference to acquire or purchase the same, then such sale to a third party shall be made subject to all the conditions, terms, and dispositions of this contract; provided, the PARTIES OF THE FIRST PART (meaning Angela and Antonio) shall be bound by this contract as long as the PARTY OF THE SECOND PART, namely, the GREGORIO ARANETA, INC. is controlled by the members of the Araneta family, who are stockholders of the said corporation at the time of the signing of this contract and/or their lawful heirs.

On September 16, 1944, Angela I. Tuason revoked the powers conferred on her attorney-in-fact and lawyer, J. Antonio Araneta. In October 19, 1946, Angela notified Araneta, Inc. that because of alleged breach of the terms of the "Memorandum of Agreement" and abuse of powers granted she had decided to rescind said contract and she asked for partition of the property.

The suit was filed first against Araneta but since Antonio Tuason was not in favour with the suit and for that purpose joined Araneta as co-defendant.

Trial Court Dismissed the complaint. Angela Tuason appealed. Angela Tuason asked to rescind the contract (Exh 6), or declare it null and void.

She alleged that she was tricked into signing it, not knowing it was favourable to Araneta. She thought it (Exh. 6) was similar to another contract she signed with Araneta Inc (exhibit L). She alleged Araneta was disqualified to be her legal advisor as he was an officer at Araneta Inc and that there was a violation when Araneta failed to furnish copies of plans, prices, and conditions and for not making the improvements, and not delivering her share in rents/profits.

ISSUE:

1. Whether or not the contract between Tuason and Araneta Inc is null and void? NO. 2. Whether or not Gregorio Araneta Inc violated the contract by a) failing to make the improvements and b) failing to deliver copies of documents and amounts due to Tuason? NO, NO. 3. Whether or not Tuason can rescind the contract? NO.

HELD:

1. The contract is valid and binding. Petitioner argues that its stipulations are prohibited under Art 400 of the Civil Code. Th SC hold that the provision of Art 400 are not applicable. The contract’s purpose and object is dissolution of the co-ownership and of the community by selling the parcel held in common and dividing the proceeds of the sale among the co-owners.

“The obligation imposed in the contract to preserve the co-ownership until all the lots shall have been sold, is a mere incident to the main object of dissolving the co-owners. By virtue of the document Exh. 6, the parties thereto practically and substantially entered into a contract of partnership as the best and most expedient means of eventually dissolving the co-ownership, the life of said partnership to end when the object of its creation shall have been attained.”2. No violation was committed. a) failing to make the improvementsGregorio Araneta, Incorporated has substantially complied with obligation imposed by the contract exhibit 6 in its paragraph 1, and that for improvements alone, it has disbursed the amount of P117,167.09. It has likewise paid taxes, commissions and other expenses incidental to its obligations as denied in the agreement.b) failing to deliver copies of documents and amounts dueThe plaintiff’s claim has no basis. “The evidence shows that the defendant corporation submitted to the plaintiff periodically all the data relative to prices and conditions of the sale of the subdivided lots, together with the amount corresponding to her. But without any justifiable reason, she refused to accept them. With the indifferent attitude adopted by the plaintiff, it was thought useless for Gregorio Araneta, Incorporated to continue sending her statement of accounts, checks and other things. She had shown on various occasions that she did not want to have any further dealings with the said corporation. So, if the defendant corporation proceeded with the sale of the subdivided lots without the approval of the plaintiff, it was because it was under the correct impression that under the contract exhibit 6 the decision of the majority co-owners is binding upon all the three.”3. No, the contract cannot be rescinded. As no violations were committed and if any were committed such were minor. In which case "recission will not be permitted for a slight or casual breach of the contract, but only for such breaches as are so substantial and fundamental as to defeat the object of the parties in making the agreement"

LAWS CITED:Art. 400 of the Civil CodeART. 400. No co-owner shall be obliged to remain a party to the community. Each may, at any time, demand the partition of the thing held in common.Nevertheless, an agreement to keep the thing undivided for a specified length of time, not exceeding ten years, shall be valid. This period may be a new agreement.

64. Teyengco vs. Sideco-HauteaG.R. No. L-17294 November 29, 1965

REGALA, J.:Facts:

Conchita Sydeco-Hautea, Mary Sydeco de Tayengco, Ramon Militante and

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his children (as heirs of Rosario Sydeco-Militante), Cu Bie (as heir of Cipriano Sydeco) and Salvacion Sydeco-Tayengco own in common and in equal shares a 225 square meters piece of land in Iloilo. (TCT No. 15994)

1954 - Salvacion filed in the CFI of Iloilo an action for partition, naming as defendants her co-owners and a certain Maraindas T. Malvani, who, it was alleged, was in possession of the land as well as of the house and building thereon.

After the answers had been filed, the parties submitted to the court an "Agreement" in which they asked that the lot in question be sold "at public auction and to the highest bidder for cash" and that the proceeds be divided among the co-owners.

July 11, 1955 - the court approved the "Agreement" of the parties and directed the sheriff to proceed with the public auction and award the land to the higest bidder, excluding, however the residential house and commercial building constructed on the ground.

Net proceeds of such sale, after expenses and costs paid as well as the millage of the land, will be divided among the 5 co-owners as follows:

Salvacion Sydeco-Tayengco, one fifth share;Mary Sydeco Vda. de Tayengco, one fifth share;Heirs of the deceased Rosario Sydeco de Militante, one fifth shareConchita Sydeco-Hautea, one fifth share; andTo Cu Bie as heir of the deceased Cipriano Sydeco, one fifth share.

Notice was given that the lot would be sold at public auction in the office of the sheriff at 10 a.m. on August 10, 1955.

First bidder was Mr. Jose Hautea who offered the price of 11,250. The price went up to 40,500 offered by Conchita Sydecar Hautea. However, when the sheriff demanded the payment they could not pay in full.

A new bidding happened at 3 pm wherein Robert Tirol came out as the highest bidder for the price of 12,000 an amount that was paid on the spot and where a receipt was issued by the Sheriff.

Salvacion asked the court to confirm the sale to Roberto H. Tirol, divide the proceeds among the co-owners and award to her the sum of P5,642.00 as damages. (The amount is said to represent the difference between what she would have received as share had the lot been sold for P40,500.00 and what she would actually receive as share in the P12,000.00 bid of Tirol).

Tirol likewise asked the court to confirm the sale in his favor and to order the sheriff to execute in his favor a certificate of sale and to pay him damages for any delay. On the other hand, the four other co-owners asked the court to declare the lot as having been sold to them.

* Lower court set aside the first sale even as it confirmed the second one to Roberto H. Tirol. It also ordered Conchita and Mary to pay Salvacion damages.

*The appellate court upheld the sale to Tirol, but modified the decision of the lower court regarding payment of damages.Issue: WON partition sales become valid and binding only upon confirmation by the court so that before such confirmation, the bidder acquires no contract right thereunder.Held: CA is correct. The sale must be finally confirmed, for until confirmation, the bids are mere offers to purchase, the contract is not complete, and therefore, the purchaser cannot be in default thereunder (Cf. Civil Code, art. 1326) Hence, if the property is resold before the confirmation of the first sale, and the resale is duly confirmed by the court, the original purchaser is released thereby from further liability upon his purchase, and cannot be held for the deficiency upon the resale. (30A Am. Jur., Sec. 272, 1059). Statutory recognition of this rule is found in Rule 69, section 6 of the Rules of Court which states that "none of the proceedings had before the commissioners shall be effectual to pass the title to the property or bind the parties until the court shall have accepted the report of the commissioners and rendered judgment in accordance with its recommendations."

65. ARCENAS v CINCONovember 29, 1976

ANTONIO, J.

GENERAL FACTS: August 11, 1966—respondent Teodora Vda. de Arcenas, widow of the

deceased Alfonso Arcenas, filed an action Jovencio Arcenas, Nemesio Acain & Rosa Diongson for the partial annulment of certain deeds of pacto de retro and or sale executed by her only son, Jovencio Arcenas, in favor of Spouses Nemesio Acain & Rosa Diongson insofar as it encroached upon her rights as co-owner.

In addition she also prayed for the return to her of the possession of the portions of the property taken from her by defendants, the accounting by defendants of her share of the produce, and the partition of the properties by the segregation of the portion belonging to her.

February 24, 1967—the parties in the said civil case submitted a "Stipulation of Facts"

MAIN FACTS:1. Alfonso Arcenas died intestate on March 4, 1962, leaving as his heirs his

wife, Teodora Vda. de Arcenas, and his only son, Jovencio Arcenas;2. He left to his heirs three (3) real properties, namely:

a. A parcel of agricultural land in Cabangbang, Bantayan, Cebu, with an area of 77,250 square meters, more or less;

b. A parcel of agricultural land in Sillon, Bantayan, Cebu, containing an area of 18,375 square meters, more or less; and

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c. a parcel of land in the Poblacion of Bantayan, Cebu, containing an area of 235 square meters, more or less;

3. The parcels of land in Cabangbang & Sillon were sold, with right of repurchase, by Jovencio Arcenas to Nemesio Acain and Rosa Diongson sometime on July 5, 1963 and June 26, 1963, respectively, without the knowledge and conformity of Teodora Vda. de Arcenas;

4. March 23, 1966—Jovencio Arcenas executed a deed of absolute sale of the agricultural land in Sillon in favor of Nemesio Acain & Rosa Diongson who planted there about 400 to 500 coconut trees "more or less one year old" aside from fencing the said parcel;

5. It was said that from the date of the pacto de retro sale executed by Jovencio, Teodora Vda. de Arcenas has not received her share of the produce of said property;

6. Teodora Vda. de Arcenas waives her right to the residential lot in the Poblacion of Bantayan in favor of her son, Jovencio, but "seeks to enforce her rights as heir" on the properties in Cabangbang and Sillon;

7. Now, Jovencio Arcenas, Nemesio Acain & Rosa Diongson agreed" to return voluntarily the share of said Teodora Vda. de Arcenas in the properties" situated at Cabangbang and Sillon, Bantayan, Cebu;

8. Also, the parties agreed "to partition the properties" situated in Cabangbang & Sillon, "submitting for the decision of the Court the issue in the interpretation of Article 996, New Civil Code, as to the share of the surviving spouse Teodora Vda. de Arcenas", and finally, all the parties waived all their demands "for accounting, reimbursement of improvements introduced, and any or all claims for damages, attorney's fees or costs.

PROCEDURAL FACTS: So, the parties submitted their respective memoranda. Teodora cited

Santillon v. Miranda saying that the surviving spouse is entitled to a share equivalent to one-half of the estate, while her son, Jovencio Arcenas, is entitled to the other half, under Article 996 of the New Civil Code. On the other hand, the herein petitioners claimed that since the surviving spouse survived with one legitimate son, she is entitled to only one-fourth of the entire estate, while her son is entitled to three-fourths.

June 9, 1967—the court rendered judgment declaring Teodora, as "the lawful owner in fee simple of an undivided one-half share of the land & declared Jovencio Arcenas the exclusive owner of the land & ordered defendants Nemesio Acain and Rosa Diongson to deliver the undivided one-half portions of the two parcels of land just described which correspondingly pertain to the surviving spouse, but erroneously ceded by the son, Jovencio, to the Acains.

It also ordered the parties to partition the agricultural lands in Cabangbang & Sillon & to "submit the corresponding deed of partition to the Court for its approval.

September 16, 1967—Teodora, moved for the issuance of a Writ of Execution which was opposed by petitioners contending that the decision is interlocutory as it did not finally dispose of the action but left something for the parties to do, that is, to partition the property & submit the corresponding agreement of partition to the court for its approval.

They likewise prayed that the decision be modified in order that the land situated in Sillon, which was sold to the spouses Nemesio Acain & Rosa Diongson & wherein they have introduced improvements, be awarded to them, while the land in Cabangbang be given in its entirety to Teodora Vda. de Arcenas.

Again this was opposed by the widow, hence, on September 30, 1967, the respondent Judge appointed Municipal Judge Marcelino M. Escalona of Madridejos Cebu as Commissioner to partition the properties & to submit the project of partition to the court for approval.

In his report Commissioner Escalona recommended to the court that the said property should be awarded to the Acain Spouses in full, while the Cabangbang should be awarded to Teodora.

This was opposed by Teodora & insisted that it would modify the judgment which ordered a physical division into two parts each of the two parcels so the court directed the Commissioner to make a "physical division of each of the two properties in the presence of the parties or their representatives" & to make the necessary recommendation as to which half should pertain to Jovencio and which half should pertain to the widow.

After that, the Commissioner on his 2nd report informed the court that he had divided the two parcels into two portions. He, however, opined that it would be inequitable to award one-half of the Cabangbang property to the Acain spouses considering that the Cabangbang property has been mortgaged by Jovencio Arcenas to the Bantayan Rural Bank to secure a loan of P2,000.00, with the knowledge and consent of his mother, Teodora, and the same is about to be foreclosed.

Moreover, it would be unfair to deprive the Acain spouses of the Sillon property since they have introduced in good faith valuable improvements thereon by planting about 300 coconut trees.

March 27, 1968—issued an Order awarding Cabangbang A & Sillon B to Teodora while Cabangbang B and Sillon A were awarded to Jovencio Arcenas.

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April 25, 1967—petitioners filed with the respondent court their Notice of Appeal, stating that they were appealing the trial court's Orders dated January 6, 1968 & March 27, 1968 to this Court "on questions of law".

May 18, 1968—the court issued an Order dismissing the appeal of petitioners on the ground that the decision of June 9, 1967 had already become final and executory & that the orders sought to be reviewed are merely orders issued to implement the afore-mentioned decision.

June 20, 1968—Petitioner's motion for reconsideration was denied by the trial court, hence, this petition for certiorari and mandamus.

ISSUE:Whether or not the decision of respondent court in Civil Case No. P-118,

dated June 9, 1967, is immediately executory and, therefore, not appealable.

SUPREME COURT:NO. THE SUPREME COURT RULED THAT THE DECISION OF THE RESPONDENT

COURT IS NOT UNAPPEALABLE.

1. The court explained that although it is true that if the parties to the litigation submitted a compromise agreement to the court for approval and in the absence of opposition, the court renders judgment strictly in accordance with such agreement, the judgment rendered is not appealable and It is immediately executory except that in case a motion to set aside the compromise on the ground of fraud, an order of the court denying such motion may be appealed.

2. HOWEVER, that the decision of June 9, 1967 was not a judgment based on a judicial compromise but one based on an agreed statement of facts.

A "compromise" under Article 2028 of the Civil Code is a contract whereby the parties in interest, by making reciprocal concessions, avoid a litigation or terminate one already commenced. It is likewise defined as "an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their difficulties by mutual consent in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing."

3. While the parties in the "Stipulation of Facts" were in agreement that Teodora Vda. de Arcenas had a share in the said properties, they were in disagreement as to the extent of the share of said widow.

4. As a matter of fact, in the respective memoranda of the parties, there was a marked disparity in the view of said parties as to the share of the surviving spouse, the widow insisting on her claim to one-half (1/2) of the

estate, while the other party was willing to concede to her only one-fourth (1/4) of said estate.

5. The agreed statement of facts submitted by the parties did not, therefore, put an end to the lawsuit because it did not definitely determine which specific portion of the property sold by Jovencio Arcenas to the Acain spouses should be returned to the surviving spouse, which was the main purpose of the action instituted by the latter.

6. In addition, Civil Case No. P-118 is also an action of partition, hence, the Order of the court directing the partition of the properties and requiring the parties "to submit the corresponding deed of partition to the Court for its approval", could not be final.

7. It left something more to be done in the trial court for the complete disposition of the case, such as appointment of the commissioner and submission by the latter of his report which must be set for hearing.

8. It is only after said hearing that the court may render a final judgment finally disposing of the action. The court, after the parties were unable to agree on the partition, had to appoint a commissioner to make the partition. Even assuming that the judgment terminated the action with respect to the claim of the widow for a one-half (1/2) share in the estate, there is no question that the Order of the court of March 27, 1968, approving the project of partition even when considered as incident to the judgment, could still be appealable.

9. According to Moran, "when the terms of the judgment are not entirely clear and there is room for interpretation and the interpretation given is wrong in the opinion of the defeated party, the latter should be allowed to appeal from said order so that the appellate tribunal may pass upon the legality and correctness of the said order."

10. The court pointed out as well that since its inception, this case has been pending in the courts for more than ten (10) years, Teodora Vda. de Arcenas is already 86 years of age and so taking that into consideration, it cannot be denied that if petitioners continue with their appeal, there will be further delays in its termination.

11. Thus, on the question regarding the share of the surviving spouse in the estate of the deceased, SC ruled that the trial court was correct in declaring that Teodora Vda. de Arcenas is entitled to one-half (1/2) of the estate.

12. Citing Santillon v. Miranda the court said that when intestacy occurs, a surviving spouse concurring with only one legitimate child of the deceased is entitled to one-half (1/2) of the estate of the deceased spouse under Article 996 of the Civil Code.

13. Also, the court in error in insisting that each and every parcel should be physically divided and apportioned to the parties in the manner indicated.

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Section 4 of Rule 69 of the Rules specifically requires that in making the partition, the commissioners shall:1. View and examine the real estate, after due notice to the parties, to

attend at such view and examination; 2. To hear the parties as to their preference in the portion of the

property to be set apart to them and the comparative value thereof; and

3. To set apart the same to the several parties in such lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof.

The court pointed out that certain circumstances should have been carefully considered, specifically the fact that as the report of the Commissioner provided that the 150 coconut trees were planted by Nemesio Acain on the Sillon parcel, and this land is adjacent to the Acain's property.

Also, one-half (1/2) portion of the Cabangbang parcel cannot possibly compensate for the loss which Acain will suffer by losing one-half (1/2) of the Sillon parcel since the Cabangbang land is mortgaged to the Bantayan Rural Bank by Jovencio and "will probably be foreclosed any time now for the loan is now due, and the prospect of the loan to be paid is bleak."

14. It appears to be the settled rule that in an action for partition, where it is practicable to make a division of the property—

"the generally if not universally recognized rule is that a court of equity, on ascertaining that one of two or more tenants in common has made permanent and valuable improvements on the property involved, will allot to him that portion on which the improvements are located, or so much thereof as represents his share of the whole tract."

"in keeping with the familiar principle of equity jurisprudence requiring that one who seeks equity must do equity, the rule has been generally adopted that a court of equity should take improvements into account when decreeing partition, and should award to the cotenant in possession who has necessarily and in good faith improved the common property and enhanced its value at his own cost such equitable compensation as will leave only the value of the estate without the improvements to be divided among the tenants in common."

Indeed, the rule requires that the properties should be partitioned in a manner that would be most advantageous and equitable to the parties, having "due

regard to the improvements, situation and quality of the different parts" of the properties subject of the partition.

CERTIORARI IS GRANTED.

66. Lopez vs. Ilustre, 5 Phil. 567FACTS:

December 26, 1902, Francisco Martinez and Pedro Martinez (defendant), his son, were owners as tenants in common 28 parcels of land, each being the owners of undivided tracts of land.

In the same day, Francisco conveyed to the plaintiff his undivided share in two parcels of land to Lopez. Francisco (father) reserved to himself the right to repurchase within one year until December 26, 1903.

He was not able to repurchase it and on December 28, 1903, the plaintiff caused the proper marginal entry to be made upon the books in the registry of property. The conveyance had been recorded also.

He now files a case against Francisco’s son asking for a partition of the two lots of land and that Pedro account for and pay him his part of the rents of the said property from December 26, 1903.

o Pedro made a voluntary partition of the twenty-eight tracts of land mentioned earlier; this was approved by the CFI on June 15, 1903. In thus partition the two parcels of land(the lands conveyed to Lopez) was given to Pedro and he claimed that due to this partition plaintiff lost all his interest in the property.

ISSUE: WON Lopez had the right to recover his share in the two parcels of land in question?HELD: Yes.RATIO: Article 399 of the Civil Code is as follows:

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

As clearly stated in this article a co-owner has the right to freely sell and dispose his undivided interest. He can sell and convey an undivided half, but he has no right to divide the lot into two parts, and convey the whole of one part by metes and bounds. Since there is no partition yet, hence the metes and bounds of each share is not yet determined.

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“All that Francisco Martinez undertook to do in this case was to convey his undivided interest in these two properties. He had a right to do so under the article above mention. That declares simply that when the property is divided the purchaser gets an interest only in that part which may be assigned to him. There is no difference between this case and a case wherein a tenant in common makes an absolute conveyance of his undivided interest in the property, without reserving the right to repurchase. In the case of an absolute conveyance of that character, the relation between the grantor in the deed and his cotenant is terminated. They are no longer cotenants. The grantee in the deed takes the place of the grantor, and he and the other owner of the property become cotenants. In such a case the grantor loses all interest in the property, and of course has no right to take any part in the partition of it. It would be absurd to say that after such conveyance the grantor, who had lost all his interest in the property, could by agreement with the other owner make a partition of property in which he had no interest that would be binding upon his grantee.”

The partition made by Pedro and his father of the lands they inherited did not affect the rights of Lopez who already acquired an undivided half interest in the two parcels of land in question.

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Co-Ownership Digests (Except Tarnate Case)

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