Property Cases No. 9.
No. L-29727. December 14, 1988.*
PEDRO OLIVERAS, TEODORA GASPAR, MELECIO OLIVERAS
and ANICETA MINOR, plaintiffs-appellees, vs. CANDIDO
LOPEZ, SEVERO LOPEZ, HIPOLITO LOPEZ, EUGENIA LOPEZ,
PRIMITIVO GASPAR, CORAZON LOPEZ, ALEJANDRO
CACAYURIN, FAUSTINA BOTUYAN, MODESTO SALAZAR,
ADORACION BOTUYAN, CLAUDIO GANOTICE and ENONG
BOTUYAN, defendants-appellants.
Co-ownership; Partition; Rule that no individual co-owner can claim
title to any definite portion thereof before the partition of a land or
thing held in common.—In a long line of decisions, this Court has
held that before the partition of a land or thing held in common, no
individual co-owner can claim title to any definite portion thereof. All
that the co-owner has is an ideal or abstract quota or proportionate
share in the entire land or thing.
Same; Same; Duration of the juridical condition of co-ownership;
Case at bar.—However, the duration of the juridical condition of co-
ownership is not limitless. Under Articles 494 and 1083 of the Civil
Code, co-ownership of an estate should not exceed the period of
twenty (20) years. And, under the former article, any agreement to
keep a thing or property undivided should be for a ten-year period
only. Where the parties stipulate a definite period of indivision which
exceeds the maximum allowed by law, said stipulation shall be void
only as to the period beyond such maximum. Although the Civil
Code is silent as to the effect of the indivision of a property for more
than twenty years, it would be contrary to public policy to sanction
co-ownership beyond the period set by the law. Otherwise, the 20-
year limitation expressly mandated by the Civil Code would be
rendered meaningless. In the instant case, the heirs of Lorenzo
Lopez maintained the co-ownership for more than twenty years. We
hold that when Candido and his mother (who died before the filing
of the complaint for partition) sold definite portions of Lot 4685,
they validly exercised dominion over them because, by operation of
law, the co-ownership had ceased. The filing of the complaint for
partition by the Oliverases who, as vendees, are legally considered
as subrogated to the rights of Candido over portions of Lot 4685 in
their possession, merely served to put a stamp of formality on
Candido’s otherwise accomplished act of terminating the co-
ownership.
Same; Same; Same; Prescription; The action for partition is
imprescriptible; Case at bar.—The action for partition has not
prescribed. Although the complaint was filed thirteen years from the
execution of the deeds of sale and hence, as contended by the
defendants-appellants, prescription might have barred its filing
under the general provision of Article 1144 (a) of the Civil Code,
Article 494 specifically mandates that each co-owner may demand at
any time the partition of the thing owned in common insofar as his
share is concerned. Hence, considering the validity of the
conveyances of portions of Lot 4685 in their favor and as subrogees
of Candido Lopez, the Oliverases’ action for partition was timely and
properly filed.
Same; Same; Same; Judgment; Meaning of “move in the premises”
resolution.—Obviously, said counsel interpreted literally the Court’s
directive “to move in the premises.” For the enlightenment of said
counsel and all others of similar perception, a “move in the
premises” resolution is not a license to occupy or enter the premises
subject of litigation especially in cases involving real property. A
“move in the premises” resolution simply means what is stated
therein: the parties are obliged to inform the Court of developments
pertinent to the case which may be of help to the Court in its
immediate disposition.
APPEAL from the decision of the Court of First Instance of Urdaneta,
Pangasinan, Br. 5.
The facts are stated in the opinion of the Court.
Venancio B. Fernando for defendants-appellants.
FERNAN, C.J.:
This case exemplifies the Filipino custom of keeping inherited
property in a prolonged juridical condition of co-ownership.
Lorenzo Lopez owned Lot 4685 of the Cadastral survey of Villasis,
Pangasinan with an area of 69,687 square meters as evidenced by

Original Certificate of Title No. 15262.1 In December, 1931, Lorenzo
Lopez died,2 leaving said property to his wife, Tomasa Ramos and
six (6) children. From that time on, the heirs of Lorenzo Lopez did
not initiate any moves to legally partition the property.
More than twenty-one years later, or on February 11, 1953, Tomasa
Ramos and her eldest son, Candido Lopez, executed a deed of
absolute sale of the “eastern undivided four thousand two hundred
and fifty seven-square meters (4,257) more or less, of the undivided
portion of (their) interests, rights and participation” over Lot 4685,
in favor of the spouses Melecio Oliveras and Aniceta Minor, in
consideration of the amount of one thousand pesos (P1,000).3
On the same day, Tomasa and Candido executed another deed of
absolute sale of the “undivided” four thousand two hundred and
fifty-seven (4,257) square meters of the “eastern part” of Lot 4685
in favor of the spouses Pedro Oliveras and Teodora Gaspar, also in
consideration of P1,000.4 Each of the said documents bear the
thumbmark of Tomasa and the signature of Candido.
In his affidavit also executed on February 11, 1953, Candido stated
that a month prior to the execution of the deed of sale in favor of
Melecio Oliveras, he offered his: “undivided portion” of Lot 4685 to
his “adjacent owners” but none of them was “in a position to
purchase” said property.5
Since the execution of the two deeds of absolute sale, the vendees,
brothers Melecio and Pedro, had been paying the real property taxes
for their respectively purchased properties.6 They also had been in
possession of their purchased properties which, being planted to
palay and peanuts, were segregated from the rest of Lot 4685 by
dikes.7
More than thirteen years later or on November 21, 1966, the
counsel of the Oliveras brothers wrote the heirs of Lorenzo Lopez
reminding them of the Oliverases’ demands to partition the property
so that they could acquire their respective titles thereto without
resorting to court action, and that, should they fail to respond, he
would be forced to file a case in court.8 Apparently, the Lopezes did
not answer said letter since on December 15, 1966, the Oliveras
Property Cases No. 9. 2
brothers and their wives filed a complaint for partition and
damages9 in the Court of First Instance of Pangasinan.10
The Oliverases stated in their complaint that possession of the
disputed properties was delivered to them with the knowledge and
consent of the defendants; that they had been paying the real
estate taxes thereon; that prior to the sale, said properties were
offered to the other co-owners for sale but they refused to buy
them; that on February 18, 1953, the transactions were duly
annotated and entered in the Memorandum of encumbrances of OCT
No. 15262 as adverse claims; and that their desire to segregate the
portions of Lot 4685 sold to them was frustrated by defendants’
adamant refusal to lend them the owner’s duplicate of OCT No.
15262 and to execute a deed of partition of the whole lot.
In claiming moral damages in the amount of P2,000.00 plaintiffs
alleged that defendants also refused to allow them to survey and
segregate the portions bought by them. Plaintiffs prayed that the
court order the defendants to partition Lot 4685 and to allow them
to survey and segregate the portions they had purchased. They also
demanded payment of P800.00 as attorney’s fees and cost of the
suit.
In their answer, the defendants alleged that no sale ever transpired
as the alleged vendors could not have sold specific portions of the
property; that plaintiffs’ possession and occupation of specific
portions of the properties being illegal, they could not ripen into
ownership; and that they were not under any obligation to lend their
copy of the certificate of title or to accede to plaintiffs’ request for
the partition or settlement of the property. As special and
affirmative defenses, the defendants contended that the deeds of
sale were null and void and hence, unenforceable against them; that
the complaint did not state a cause of action and that the cause or
causes of action, if any, had prescribed.
Defendants averred in their counterclaim that despite repeated
demands, plaintiffs refused and failed to vacate the premises; that
the properties occupied by the plaintiffs yielded an average net
produce in palay and peanuts in the amount of P1,600.00 annually,
and that the complaint was filed to harass them. They prayed for the

dismissal of the complaint and the payment of P1,600.00 per year
from 1953 until plaintiffs shall have vacated the premises and
P1,000.00 for attorney’s fees.
Plaintiffs filed an answer to defendants’ counterclaim, denying all the
allegations therein and stating that defendants never demanded that
plaintiffs vacate the portions of Lot 4685 they had bought.
The lower court explored the possibility of an amicable settlement
between the parties without success. Hence, it set the case for trial
and thereafter, it rendered a decision11 declaring valid the deeds of
absolute sale12 and ordering the defendants to allow the
segregation of the sold portions of Lot 4685 by a licensed surveyor
in order that the plaintiffs could obtain their respective certificates of
title over their portions of said lot.
In resolving the case, the lower court passed upon the issue of
whether the two deeds of absolute sale were what they purported to
be or merely mortgage documents. It considered as indicia of
plaintiffs’ absolute dominion over the portions sold to them their
actual possession thereof without any opposition from the
defendants until the filing of the complaint, their payment of taxes
thereon and their having benefited from the produce of the land.
The court ruled that the defendants’ testimonial evidence that the
deeds in question were merely mortgage documents cannot
overcome the evidentiary value of the public instruments presented
by the plaintiffs.
On the issue of whether the two deeds of absolute sale were null
and void considering that the land subject thereof had not yet been
partitioned, the court observed that the total area of 8,514 square
meters sold to plaintiffs by Candido was less than his share should
Lot 4685 with an area of 69,687 square meters be divided among
the six children of Lorenzo Lopez and their mother. In this
connection, the lower court also found that during his lifetime, and
before Candido got married, Lorenzo Lopez had divided Lot 4685
among his children who then took possession of their respective
shares.**
Property Cases No. 9. 3
The defendants appealed said decision to this Court contending that
the lower court erred in declaring the two deeds of absolute sale as
valid, in ordering the segregation of the sold portions of Lot 4685 to
enable the plaintiffs to obtain their respective certificates of title,
and in not considering their defense of prescription.
The extrinsic validity of the two deeds of absolute sale is not in issue
in this case in view of the finding of the trial court that the
defendants admittedly do not question their due execution.13 What
should pre-occupy the Court is the intrinsic validity of said deeds
insofar as they pertain to sales of designated portions of an
undivided, co-owned property.
In a long line of decisions, this Court has held that before the
partition of a land or thing held in common, no individual co-owner
can claim title to any definite portion thereof. All that the co-owner
has is an ideal or abstract quota or proportionate share in the entire
land or thing.14
However, the duration of the juridical condition of co-ownership is
not limitless. Under Article 494 and 1083 of the Civil Code, co-
ownership of an estate should not exceed the period of twenty (20)
years. And, under the former article, any agreement to keep a thing
or property undivided should be for a ten-year period only. Where
the parties stipulate a definite period of indivision which exceeds the
maximum allowed by law, said stipulation shall be void only as to
the period beyond such maximum.15
Although the Civil Code is silent as to the effect of the indivision of a
property for more than twenty years, it would be contrary to public
policy to sanction co-ownership beyond the period set by the law.
Otherwise, the 20-year limitation expressly mandated by the Civil
Code would be rendered meaningless.
In the instant case, the heirs of Lorenzo Lopez maintained the co-
ownership for more than twenty years. We hold that when Candido
and his mother (who died before the filing of the complaint for
partition) sold definite portions of Lot 4685, they validly exercised
dominion over them because, by operation of law, the co-ownership
had ceased. The filing of the complaint for partition by the
 Property Cases No. 9. 4

Oliverases who, as vendees, are legally considered as subrogated to WHEREFORE, the decision of the lower court insofar as it declares
the rights of Candido over portions of Lot 4685 in their the validity of the two deeds of sale and directs the partition of Lot
possession,16 merely served to put a stamp of formality on 4685, is AFFIRMED. The lower court is hereby ordered to facilitate
Candido’s otherwise accomplished act of terminating the co- with dispatch the preparation of a project of partition which it should
ownership. thereafter approve. This decision is immediately executory. No
costs.
The action for partition has not prescribed. Although the complaint
was filed thirteen years from the execution of the deeds of sale and SO ORDERED.
hence, as contended by the defendants-appellants, prescription
might have barred its filing under the general provision of Article Gutierrez, Jr., Bidin and Cortés, JJ., concur.
1144 (a) of the Civil Code, Article 494 specifically mandates that
each co-owner may demand at any time the partition of the thing Feliciano, J., I concur in the result.
owned in common insofar as his share is concerned. Hence,
Decision affirmed.
considering the validity of the conveyances of portions of Lot 4685 in
their favor and as subrogees of Candido Lopez, the Oliverases’ Note.—View that an undivided portion of a lot sold to a daughter-
action for partition was timely and properly filed.17 in-law is a sale to the conjugal partnership of gains, hence, her
sisters and brothers-in-law cannot exercise the co-owner’s right of
We cannot write finis to this decision without commenting on the
redemption (Villanueva vs. Florendo, 139 SCRA 329.)
compliance with the resolution of September 1, 1986 of counsel for
defendants-appellants. In said resolution, the court required the
parties to move in the premises “considering the length of time that
this case has remained pending in this Court and to determine
whether or not there might be supervening events which may
render the case moot and academic.”18 In his manifestation and
motion dated August 12, 1987, said counsel informed the Court that
he had contacted the defendants-appellants whom he advised “to
move in the premises which is the land in question and to maintain
the status quo with respect to their actual possession thereon” and
that he had left a copy of said resolution with the defendants-
appellants” for their guidance in the compliance of their obligations
(sic) as specified in said resolution.”19

Obviously, said counsel interpreted literally the Court’s directive “to

move in the premises.” For the enlightenment of said counsel and all
others of similar perception, a “move in the premises” resolution is
not a license to occupy or enter the premises subject of litigation
especially in cases involving real property. A “move in the premises”
resolution simply means what is stated therein: the parties are
obliged to inform the Court of developments pertinent to the case
which may be of help to the Court in its immediate disposition.

G.R. No. 46296. September 24, 1991.*
EPITACIO DELIMA, PACIANO DELIMA, FIDEL DELIMA,
VIRGILIO DELIMA, GALILEO DELIMA, JR., BIBIANO BACUS,
OLIMPIO BACUS and PURIFICACION BACUS, petitioners, vs.
HON. COURT OF APPEALS, GALILEO DELIMA (deceased),
substituted by his legal heirs, namely: FLAVIANA VDA. DE
DELIMA, LILY D. ARIAS, HELEN NIADAS, ANTONIO DELIMA,
DIONISIO DELIMA, IRENEA DELIMA, ESTER DELIMA AND
FELY DELIMA, respondents.
Civil Law; Co-ownership; Partition; Prescription; An action to compel
partition may be filed at anytime by any of the co-owners against
the actual possessor; No prescription shall run in favor of a coowner
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.—As a rule, possession by a
coowner will not be presumed to be adverse to the others, but will
be held to benefit all. It is understood that the co-owner or co-heir
who is in possession of an inheritance pro-indiviso for himself and in
representation of his co-owners or co-heirs, if, as such owner, he
administers or takes care of the rest thereof with the obligation of
delivering it to his co-owners or co-heirs, is under the same situation
as a depository, a lessee or a trustee (Bargayo v. Camumot, 40 Phil.
857; Segura v. Segura, No. L-29320, September 19, 1988, 165
SCRA 368). Thus, an action to compel partition may be filed at any
time by any of the co-owners against the actual possessor. In other
words, no prescription shall run in favor of a co-owner against his
co-owners or coheirs so long as he expressly or impliedly recognizes
the co-ownership.
Same; Same; Same; Same; Same; From the moment one of the
coowners claims that he is the absolute and exclusive owner of the
properties and denies the others any share therein, the question
involved is no longer one of partition but of ownership.—However,
from the moment one of the co-owners claims that he is the
absolute and exclusive owner of the properties and denies the
others any share therein, the question involved is no longer one of
partition but of ownership (De Castro v. Echarri, 20 Phil. 23;
Bargayo v. Camumot, supra; De los Santos v. Santa Teresa, 44 Phil.
811). In such case, the imprescriptibility of the action for partition
Property Cases No. 9. 5
can no longer be invoked or applied when one of the co-owners has
adversely possessed the property as exclusive owner for a period
sufficient to vest ownership by prescription.
Same; Same; Same; Same; Possession by a co-owner or co-heir is
that of a trustee; Requisites before possession is considered adverse
to the cestui que trust amounting to a repudiation of the co-
ownership.—It is settled that possession by a co-owner or co-heir is
that of a trustee. In order that such possession is considered
adverse to the cestui que trust amounting to arepudiation of the co-
ownership, the following elements must concur: 1) that the trustee
has performed unequivocal acts amounting to an ouster of the cestui
que trust; 2) that such positive acts of repudiation had been made
known to the cestui que trust; and 3) that the evidence thereon
should be clear and conclusive.
Same; Same; Same; Same; When a co-owner of the property in
question executed a deed of partition and on the strength thereof
obtained the cancellation of the title in the name of their
predecessor and the issuance of a new one wherein he appears as
the new owner of the property, the statute of limitations started to
run for the purposes of the action instituted by the latter seeking a
declaration of the existence of the co-ownership and of their rights
thereunder.—We have held that when a co-owner of the property in
question executed a deed of partition and on the strength thereof
obtained the cancellation of the title in the name of their
predecessor and the issuance of a new one wherein he appears as
the new owner of the property, thereby in effect denying or
repudiating the ownership of the other co-owners over their shares,
the statute of limitations started to run for the purposes of the
action instituted by the latter seeking a declaration of the existence
of the co-ownership and of their rights thereunder (Castillo v. Court
of Appeals, No. L-18046, March 31, 1964, 10 SCRA 549). Since an
action for reconveyance of land based on implied or constructive
trust prescribes after ten (10) years, it is from the date of the
issuance of such title that the effective assertion of adverse title for
purposes of the statute of limitations is counted.
Same; Same; Same; Same; The issuance of new title constituted an
open and clear repudiation of the trust or co-ownership and the

lapse of ten (10) years of adverse possession by Galileo Delima from
February 4, 1954 was sufficient to vest title in him by prescription.—
Evidence shows that TCT No. 2744 in the name of the legal heirs of
Lino Delima, represented by Galileo Delima, was cancelled by virtue
of an affidavit executed by Galileo Delima and that on February 4,
1954, Galileo Delima obtained the issuance of a new title in his
name numbered TCT No. 3009 to the exclusion of his co-heirs. The
issuance of this new title constituted an open and clear repudiation
of the trust or co-ownership, and the lapse of ten (10) years of
adverse possession by Galileo Delima from February 4, 1954 was
sufficient to vest title in him by prescription. As the certificate of title
was notice to the whole world of his exclusive title to the land, such
rejection was binding on the other heirs and started as against them
the period of prescription. Hence, when petitioners filed their action
for reconveyance and/or to compel partition on February 29, 1968,
such action was already barred by prescription. Whatever claims the
other co-heirs could have validly asserted before can no longer be
invoked by them at this time.
PETITION for review on certiorari of the decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Gabriel J. Canete for petitioners.
Emilio Lumontad, Jr. for private respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari of the decision of the Court
of Appeals reversing the trial court’s judgment which declared as
null and void the certificate of title in the name of respondents’
predecessor and which ordered the partition of the disputed lot
among the parties as co-owners.
The antecedent facts of the case as found both by the respondent
appellate court and by the trial court are as follows:
During his lifetime, Lino Delima acquired Lot No. 7758 of the
Talisay-Minglanilla Friar Lands Estate in Cebu by sale on installments
Property Cases No. 9. 6
from the government. Lino Delima later died in 1921 leaving as his
only heirs three brothers and a sister namely: Eulalio Delima,
Juanita Delima, Galileo Delima and Vicente Delima. After his death,
TCT No. 2744 of the property in question was issued on August 3,
1953 in the name of “The Legal Heirs of Lino Delima, deceased,
represented by Galileo Delima.”
On September 22, 1953, Galileo Delima, now substituted by
respondents, executed an affidavit of “Extra-judicial Declaration of
Heirs.” Based on this affidavit, TCT No. 2744 was cancelled and TCT
No. 3009 was issued on February 4, 1954 in the name of Galileo
Delima alone to the exclusion of the other heirs. Galileo Delima
declared the lot in his name for taxation purposes and paid the taxes
thereon from 1954 to 1965.
On February 29, 1968, petitioners, who are the surviving heirs of
Eulalio and Juanita Delima, filed with the Court of First Instance of
Cebu (now Regional Trial Court) an action for reconveyance and/or
partition of property and for the annulment of TCT No. 3009 with
damages against their uncles Galileo Delima and Vicente Delima,.
Vicente Delima was joined as party defendant by the petitioners for
his refusal to join the latter in their action.
On January 16, 1970, the trial court rendered a decision in favor of
petitioners, the dispositive portion of which states:
“IN VIEW OF THE FOREGOING CONSIDERATIONS, the following are
the declared owners of Lot No. 7758 of the TalisayMinglanilla Friar
Lands Estate presently covered by Transfer Certificate of Title No.
3009, each sharing a pro-indiviso share of one-fourth;
1. 1)
Vicente Delima (one-fourth)
2. 2)
Heirs of Juanita Delima, namely: Bibiano Bacus, Olimpio
Bacus and Purificacion Bacus (on-fourth);

3. 3)
Heirs of Eulalio Delima, namely Epitacio, Paciano, Fidel,
Virgilio and Galileo Jr., all surnamed Delima (one-fourth); and
4. 4)
The Heirs of Galileo Delima, namely Flaviana Vda. de Delima,
LIly D. Arias, Helen Niadas, and Dionisio, Antonio, Eotu,
Irenea, and Fely, all surnamed Delima (one-fourth).
“Transfer Certificate of Title No. 3009 is declared null and void and
the Register of Deeds of Cebu is ordered to cancel the same and
issue in lieu thereof another title with the above heirs as pro-indiviso
owners.
“After the payment of taxes paid by Galileo Delima since 1958, the
heirs of Galileo Delima are ordered to turn over to the other heirs
their respective shares of the fruits of the lot in question computed
at P1 70.00 per year up to the present time with legal (interest).
“Within sixty (60) days from receipt of this decision the parties are
ordered to petition the lot in question and the defendants are
directed to immediately turn over possession of the shares here
awarded to the respective heirs.
“Defendants are condemned to pay the costs of the suit.
“The counterclaims dismissed.
“SO ORDERED." (pp. 54–55, Rollo)
Not satisfied with the decision, respondents appealed to the Court of
Appeals. On May 19, 1977, respondent appellate court reversed the
trial court’s decision and upheld the claim of Galileo Delima that all
the other brothers and sister of Lino Delima, namely Eulalio, Juanita
and Vicente, had already relinquished and waived their rights to the
property in his favor, considering that he (Galileo Delima) alone paid
the remaining balance of the purchase price of the lot and the realty
taxes thereon (p. 26, Rollo).
Hence, this petition was filed with the petitioners alleging that the
Court of Appeals erred:
Property Cases No. 9. 7
1. “1)
In not holding that the right of a co-heir to demand partition
of inheritance is imprescriptible. If it does, the defenses of
prescription and laches have already been waived.
2. “2)
In disregarding the evidence of the petitioners.” (p. 13, Rollo)
The issue to be resolved in the instant case is whether or not
petitioners’ action for partition is already barred by the statutory
period provided by law which shall enable Galileo Delima to perfect
his claim of ownership by acquisitive prescription to the exclusion of
petitioners from their .shares in the disputed property.
Article 494 of the Civil Code expressly provides:
“Art. 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the partition of
the thing owned in common, insofar as his share is concerned.
“Nevertheless, an agreement to keep the thing undivided for a
certain period of time, not exceeding ten years, shall be valid. This
term may be extended by a new agreement.
“A donor or testator may prohibit partition for a period which shall
not exceed twenty years.
“Neither shall there be any partition when it is prohibited by law.
“No prescription shall run in favor of a co-owner or co-heir against
his co-owners or co-heirs so long as he expressly or impliedly
recognizes the co-ownership.”
As a rule, rule, possession by a co-owner will not be presumed to be
adverse to the others, but will be held to benefit all. It is understood
that the co-owner or co-heir who is in possession of an inheritance
pro-indiviso for himself and in representation of his co-owners or co-
heirs, if, as such owner, he administers or takes care of the rest
thereof with the obligation of delivering it to his co-owners or co-
heirs, is under the same situation as a depository, a lessee or a
trustee (Bargayo v. Camumot, 40 Phil. 857; Segura v. Segura, No.

L-29320, September 19, 1988, 165 SCRA 368). Thus, an action to
compel partition may be filed at any time by any of the co-owners
against the actual possessor. In other words, no prescription shall
run in favor of a co-owner against his co-owners or co-heirs so long
as he expressly or impliedly recognizes the co-ownership (Del
Blanco v. Intermediate Appellate Court, No. 72694, December 1,
1987, 156 SCRA 55).
However, from the moment one of the co-owners claims that he is
the absolute and exclusive owner of the properties and denies the
others any share therein, the question involved is no longer one of
partition but of ownership (De Castro v. Echarri, 20 Phil. 23;
Bargayo v. Camumot, supra; De los Santos v. Santa Teresa, 44 Phil.
811), In such case, the imprescriptibility of the action for partition
can no longer be invoked or applied when one of the co-owners has
adversely possessed the property as exclusive owner for a period
sufficient to vest ownership by prescription.
It is settled that possession by a co-owner or co-heir is that of a
trustee. In order that such possession is considered adverse to the
cestui que trust amounting to a repudiation of the coownership, the
following elements must concur: 1) that the trustee has performed
unequivocal acts amounting to an ouster of the cestui que trust; 2)
that such positive acts of repudiation had been made known to the
cestui que trust; and 3) that the evidence thereon should be clear
and conclusive (Valdez v. Olorga, No. L-22571, May 25, 1973, 51
SCRA 71; Pangan v. Court of Appeals, No. L-39299, October 18,
1988, 166 SCRA 375).
We have held that when a co-owner of the property in question
executed a deed of partition and on the strength thereof obtained
the cancellation of the title in the name of their predecessor and the
issuance of a new one wherein he appears as the new owner of the
property, thereby in effect denying or repudiating the ownership of
the other co-owners over their shares, the statute of limitations
started to run for the purposes of the action instituted by the latter
seeking a declaration of the existence of the co-ownership and of
their rights thereunder (Castillo v. Court of Appeals, No. L-18046,
March 31, 1964, 10 SCRA 549). Since an action for reconveyance of
land based on implied or constructive trust prescribes after ten (10)
Property Cases No. 9. 8
years, it is from the date of the issuance of such title that the
effective assertion of adverse title for purposes of the statute of
limitations is counted (Jaramil v. Court of Appeals, No. L-31858,
August 31, 1977, 78 SCRA 420).
Evidence shows that TCT No. 2744 in the name of the legal heirs of
Lino Delima, represented by Galileo Delima, was cancelled by virtue
of an affidavit executed by Galileo Delima and that on February 4,
1954, Galileo Delima obtained the issuance of a new title in his
name numbered TCT No. 3009 to the exclusion of his co-heirs. The
issuance of this new title constituted an open and clear repudiation
of the trust or coownership, and the lapse of ten (10) years of
adverse possession by Galileo Delima from February 4, 1954 was
sufficient to vest title in him by prescription. As the certificate of title
was notice to the whole world of his exclusive title to the land, such
rejection was binding on the other heirs and started as against them
the period of prescription. Hence, when petitioners filed their action
for reconveyance and/or to compel partition on February 29,1968,
such action was already barred by prescription. Whatever claims the
other co-heirs could have validly asserted before can no longer be
invoked by them at this time.
ACCORDINGLY, the petition is hereby DENIED and the assailed
decision of the Court of Appeals dated May 19, 1977 is AFFIRMED.
SO ORDERED.
Narvasa (Chairman), Cruz and Griño-Aquino, JJ., concur.
Petition denied. Decision affirmed.
Note.—An action for recovery of title or possession of real
property or an interest therein can only be brought within ten (10)
years from the time the cause of action accrues. (Arrazada us. Court
of Appeals, 170 SCRA 12.)

G.R. No. 57062. January 24, 1992.*
MARIA DEL ROSARIO MARIATEGUI, ET AL., petitioners, vs.
HON. COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN
MARIATEGUI and PAULINA MARIATEGUI, respondents.
Remedial Law; Civil Procedure; Complaint; The Court of Appeals
correctly adopted the settled rule that the nature of an action filed in
court is determined by the facts alleged in the complaint constituting
the cause of action.—A perusal of the entire allegations of the
complaint, however, shows that the action is principally one of
partition. The allegation with respect to the status of the private
respondents was raised only collaterally to assert their rights in the
estate of the deceased. Hence, the Court of Appeals correctly
adopted the settled rule that the nature of an action filed in court is
determined by the facts alleged in the complaint constituting the
cause of action (Republic vs. Estenzo, 158 SCRA 282 [1988]). It has
been held that, if the relief demanded is not the proper one which
may be granted under the law, it does not characterize or determine
the nature of plaintiffs' action, and the relief to which plaintiff is
entitled based on the facts alleged by him in his complaint, although
it is not the relief demanded, is what determines the nature of the
action (1 Moran, p. 127, 1979 ed., citing Baguioro vs. Barrios, et al.,
77 Phil. 120).
Same; Evidence; Disputable presumption; Once a man and woman
have lived as husband and wife and such relationship is not denied
nor contradicted, the presumption of their being married must be
admitted as a fact.—Courts look upon the presumption of marriage
with great favor as it is founded on the following rationale: "The
basis of human society throughout the civilized world is that of
marriage. Marriage in this jurisdiction is not only a civil contract, but
it is a new relation, an institution in the maintenance of which the
public is deeply interested. Consequently, every intendment of the
law leans toward legalizing matrimony. Persons dwelling together in
apparent matrimony are presumed, in the absence of any counter-
presumption or evidence special to that case, to be in fact married.
The reason is that such is the common order of society and if the
parties were not what they thus hold themselves out as being, they
would be living in the constant violation of decency and of law x x
Property Cases No. 9. 9
x." (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56 [1922] quoted in
Alavado vs. City Government of Tacloban, 139 SCRA 230 [1985]).
So much so that once a man and a woman have lived as husband
and wife and such relationship is not denied nor contradicted, the
presumption of their being married must be admitted as a fact
(Alavado v. City Gov't. of Tacloban, supra).
Civil Law; Family Code; Filiation; Art. 172 of the Family Code
provides that filiation of legitimate children may be established by
the record of birth appearing in the civil register or a final judgment
or by the open and continuous possession of the status of a
legitimate child.—Article 172 of the said Code provides that the
filiation of legitimate children may be established by the record of
birth appearing in the civil register or a final judgment or by the
open and continuous possession of the status of a legitimate child.
Evidence on record proves the legitimate filiation of the private
respondents. Jacinto's birth certificate is a record of birth referred to
in the said article. Again, no evidence which tends to disprove facts
contained therein was adduced before the lower court. In the case of
the two other private respondents, Julian and Paulina, they may not
have presented in evidence any of the documents required by Article
172 but they continuously enjoyed the status of children of Lupo
Mariategui in the same manner as their brother Jacinto.
Same; Same; Prescription; Prescription of an action for partition
does not lie except when the co-ownership is properly repudiated by
the co-owner.—In view of the foregoing, there can be no other
conclusion than that private respondents are legitimate children and
heirs of Lupo Mariategui and therefore, the time limitation
prescribed in Article 285 for filing an action for recognition is
inapplicable to this case. Corollarily, prescription does not run
against private respondents with respect to the filing of the action
for partition so long as the heirs for whose benefit prescription is
invoked, have not expressly or impliedly repudiated the co-
ownership. In other words, prescription of an action for partition
does not lie except when the co-ownership is properly repudiated by
the co-owner (Del Banco vs. Intermediate Appellate Court, 156
SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the

share of the other co-owners absent a clear repudiation of co-
ownership duly communicated to the other co-owners (Mariano vs.
De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand
partition is imprescriptible and cannot be barred by laches (Del
Banco vs. IAC, 156 SCRA 55 [1987]). On the other hand, an action
for partition may be seen to be at once an action for declaration of
coownership and for segregation and conveyance of a determinate
portion of the property involved (Roque vs. IAC, 165 SCRA 118
[1988]).
Same; Same; Wills and Succession; Repudiation; Petitioners'
registration of the properties in their names in 1971 did not operate
as a valid repudiation of the co-ownership.—Petitioners' registration
of the properties in their names in 1971 did not operate as a valid
repudiation of the co-ownership. In Adille vs. Court of Appeals (157
SCRA 455, 461-462 [1988]), the Court held: "Prescription, as a
mode of terminating a relation of co-ownership, must have been
preceded by repudiation (of the co-ownership). The act of
repudiation, in turn, is subject to certain conditions: (1) a co-owner
repudiates the co-ownership; (2) such an act of repudiation is
clearly made known to the other coowners; (3) the evidence thereon
is clear and conclusive; and (4) he has been in possession through
open, continuous, exclusive, and notorious possession of the
property for the period required by law." x x x "It is true that
registration under the Torrens system is constructive notice of title,
but it has likewise been our holding that the Torrens title does not
furnish shield for fraud. It is therefore no argument to say that the
act of registration is equivalent to notice of repudiation, assuming
there was one, notwithstanding the long-standing rule that
registration operates as a universal notice of title." Inasmuch as
petitioners registered the properties in their names in fraud of their
co-heirs prescription can only be deemed to have commenced from
the time private respondents discovered the petitioners' act of
defraudation (Adille vs. Court of Appeals, supra). Hence, prescription
definitely may not be invoked by petitioners because private
respondents commenced the instant action barely two months after
learning that petitioners had registered in their names the lots
involved.
Property Cases No. 9. 10
PETITION for review on certiorari of the decision of the Court of
Appeals. Asuncion, J.
The facts are stated in the opinion of the Court.
Montesa, Albon & Associates for petitioners.
Parmenio B. Patacsil, Patacsil Twins Law Office for the heirs of
the late Maria del Rosario Mariategui.
Tinga, Fuentes & Tagle Law Firm for private respondents.
BIDIN, J.:
This is a petition for review on certiorari of the decision** of the
Court of Appeals dated December 24,1980 in CA-G.R. No. 61841,
entitled "Jacinto Mariategui, et al. vs. Maria del Rosario Mariategui,
et al.," reversing the judgment of the then Court of First Instancce
of Rizal, Branch VIII*** at Pasig, Metro Manila. The undisputed facts
are as follows:
Lupo Mariategui died without a will on June 26, 1953 (Brief for
respondents, Rollo, pp. 116; 8). During his lifetime, Lupo Mariategui
contracted three (3) marriages. With his first wife, Eusebia
Montellano, who died on November 8,1904, he begot four (4)
children, namely: Baldomera, Maria del Rosario, Urbana and Ireneo.
Baldomera died and was survived by her children named Antero,
Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed
Espina. Ireneo also died and left a son named Ruperto. With his
second wife, Flaviana Montellano, he begot a daughter named
Cresenciana who was born on May 8,1910 (Rollo, Annex "A", p. 36).
Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married
sometime in 1930. They had three children, namely: Jacinto, born
on July 3, 1929, Julian, born on February 16, 1931 and Paulina, born
on April 19, 1938. Felipa Velasco Mariategui died in 1941 (Rollo,
Ibid).
At the time of his death, Lupo Mariategui left certain properties
which he acquired when he was still unmarried (Brief for
respondents, Rollo, pp. 116; 4). These properties are described in

the complaint as Lots Nos. 163, 66, 1346 and 156 of the
Muntinglupa Estate (Rollo, Annex "A", p. 39).
On December 2, 1967, Lupo's descendants by his first and second
marriages, namely, Maria del Rosario, Urbana, Ruperto, Cresencia,
all surnamed Mariategui and Antero, Rufina, Catalino, Maria,
Gerardo, Virginia and Federico, all surnamed Espina, executed a
deed of extrajudicial partition whereby they adjudicated unto
themselves Lot No. 163 of the Muntinglupa Estate. Thereafter, Lot
No. 163 was the subject of a voluntary registration proceedings filed
by the adjudicatees under Act No. 496, and the land registration
court issued a decree ordering the registration of the lot. Thus, on
April 1, 1971, OCT No. 8828 was issued in the name of the above-
mentioned heirs. Subsequently, the registered owners caused the
subdivision of the said lot into Lots Nos. 163-A to 163-H, for which
separate transfer certificates of title were issued to the respective
parties (Rollo, ibid).
On April 23, 1973, Lupo's children by his third marriage with Felipa
Velasco (Jacinto, Julian and Paulina) filed with the lower court an
amended complaint claiming that Lot No. 163 together with Lots
Nos. 669, 1346 and 154 were owned by their common father, Lupo
Mariategui, and that, with the adjudication of Lot No. 163 to their
co-heirs, they (children of the third marriage) were deprived of their
respective shares in the lots. Plaintiffs pray for partition of the estate
of their deceased father and annulment of the deed of extrajudicial
partition dated December 2, 1967 (Petition, Rollo, p. 10). Cresencia
Mariategui Abas, Flaviana Mariategui Cabrera and Isabel Santos
were impleaded in the complaint as unwilling defendants as they
would not like to join the suit as plaintiffs although they
acknowledged the status and rights of the plaintiffs and agreed to
the partition of the parcels of land as well as the accounting of their
fruits (Ibid., Rollo, p. 8; Record on Appeal, p. 4).
The defendants (now petitioners) filed an answer with counterclaim
(Amended Record on Appeal, p. 13). Thereafter, they filed a motion
to dismiss on the grounds of lack of cause of action and prescription.
They specifically contended that the complaint was one for
recognition of natural children. On August 14, 1974, the motion to
Property Cases No. 9. 11
dismiss was denied by the trial court, in an order the dispositive
portion of which reads:
"It is therefore the opinion of the Court that Articles 278 and 285 of
the Civil Code cited by counsel for the defendants are of erroneous
application to this case. The motion to dismiss is therefore denied
for lack of merit.
"SO ORDERED." (Ibid, p. 37).
However, on February 16, 1977, the complaint as well as petitioners'
counterclaim were dismissed by the trial court, in its decision stating
thus:
"The plaintiffs' right to inherit depends upon the acknowledgment or
recognition of their continuous enjoyment and possession of status
of children of their supposed father. The evidence fails to sustain
either premise, and it is clear that this action cannot be sustained.
(Ibid, Rollo, pp. 67-68)
The plaintiffs elevated the case to the Court of Appeals on the
ground that the trial court committed an error "x x x in not finding
that the parents of the appellants, Lupo Mariategui and Felipa
Velasco (were) lawfully married, and in holding (that) they
(appellants) are not legitimate children of their said parents, thereby
divesting them of their inheritance x x x." (Rollo, pp. 14-15).
On December 24,1980, the Court of Appeals rendered a decision
declaring all the children and descendants of Lupo Mariategui,
including appellants Jacinto, Julian and Paulina (children of the third
marriage) as entitled to equal shares in the estate of Lupo
Mariategui; directing the adjudicatees in the extrajudicial partition of
real properties who eventually acquired transfer certificates of title
thereto, to execute deeds of reconveyance in favor, and for the
shares, of Jacinto, Julian and Paulina provided rights of innocent
third persons are not prejudiced otherwise the said adjudicatees
shall reimburse the said heirs the fair market value of their shares;
and directing all the parties to submit to the lower court a project of
partition in the net estate of Lupo Mariategui after payment of taxes,
other government charges and outstanding legal obligations.

The defendants-appellees filed a motion for reconsideration of said
decision but it was denied for lack of merit. Hence, this petition
which was given due course by the court on December 7, 1981.
The petitioners submit to the Court the following issues: (a) whether
or not prescription barred private respondents' right to demand the
partition of the estate of Lupo Mariategui, and (b) whether or not
the private respondents, who belatedly filed the action for
recognition, were able to prove their successional rights over said
estate. The resolution of these issues hinges, however, on the
resolution of the preliminary matter, i.e., the nature of the complaint
filed by the private respondents.
The complaint alleged, among other things, that "plaintiffs are the
children of the deceased spouses Lupo Mariategui x x x and Felipa
Velasco"; that "during his lifetime, Lupo Mariategui had repeatedly
acknowledged and confirmed plaintiffs as his children and the latter,
in turn, have continuously enjoyed such status since their birth";
and "on the basis of their relationship to the deceased Lupo
Mariategui and in accordance with the law on intestate succession,
plaintiffs are entitled to inherit shares in the foregoing estate
(Record on Appeal, pp. 5 & 6). It prayed, among others, that
plaintiffs be declared as children and heirs of Lupo Mariategui and
adjudication in favor of plaintiffs their lawful shares in the estate of
the decedent (Ibid, p. 10).
A perusal of the entire allegations of the complaint, however, shows
that the action is principally one of partition. The allegation with
respect to the status of the private respondents was raised only
collaterally to assert their rights in the estate of the deceased.
Hence, the Court of Appeals correctly adopted the settled rule that
the nature of an action filed in court is determined by the facts
alleged in the complaint constituting the cause of action (Republic
vs. Estenzo, 158 SCRA 282 [1988]).
It has been held that, if the relief demanded is not the proper one
which may be granted under the law, it does not characterize or
determine the nature of plaintiffs' action, and the relief to which
plaintiff is entitled based on the facts alleged by him in his
complaint, although it is not the relief demanded, is what
Property Cases No. 9. 12
determines the nature of the action (1 Moran, p. 127,1979 ed.,
citing Baguioro vs. Barrios, et al., 77 Phil. 120).
With respect to the legal basis of private respondents' demand for
partition of the estate of Lupo Mariategui, the Court of Appeals aptly
held that the private respondents are legitimate children of the
deceased.
Lupo Mariategui and Felipa Velasco were alleged to have been
lawfully married in or about 1930. This fact is based on the
declaration communicated by Lupo Mariategui to Jacinto who
testified that "when (his) father was still living, he was able to
mention to (him) that he and (his) mother were able to get married
before a Justice of the Peace of Taguig, Rizal." The spouses deported
themselves as husband and wife, and were known in the community
to be such. Although no marriage certificate was introduced to this
effect, no evidence was likewise offered to controvert these facts.
Moreover, the mere fact that no record of the marriage exists does
not invalidate the marriage, provided all requisites for its validity are
present (People vs. Borromeo, 133 SCRA 106 [1984]).
Under these circumstances, a marriage may be presumed to have
taken place between Lupo and Felipa. The laws presume that a man
and a woman, deporting themselves as husband and wife, have
entered into a lawful contract of marriage; that a child born in lawful
wedlock, there being no divorce, absolute or from bed and board is
legitimate; and that things have happened according to the ordinary
course of nature and the ordinary habits of life (Section 5 (z), (bb),
(cc), Rule 131, Rules of Court; Corpus v. Corpus, 85 SCRA 567
[1978]; Saurnaba v. Workmen's Compensation, 85 SCRA 502
[1978]; Alavado v. City Gov't. of Tacloban, 139 SCRA 230 [1985];
Reyes v. Court of Appeals, 135 SCRA 439 [1985]).
Courts look upon the presumption of marriage with great favor as it
is founded on the following rationale:
"The basis of human society throughout the civilized world is that of
marriage. Marriage in this jurisdiction is not only a civil contract, but
it is a new relation, an institution in the maintenance of which the
public is deeply interested. Consequently, every intendment of the

law leans toward legalizing matrimony. Persons dwelling together in
apparent matrimony are presumed, in the absence of any
counterpresumption or evidence special to that case, to be in fact
married. The reason is that such is the common order of society and
if the parties were not what they thus hold themselves out as being,
they would be living in the constant violation of decency and of law x
x x." (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56 [1922] quoted in
Alavado vs. City Government of Tacloban, 139 SCRA 230 [1985]).
So much so that once a man and a woman have lived as husband
and wife and such relationship is not denied nor contradicted, the
presumption of their being married must be admitted as a fact
(Alavado v. City Gov't. of Tacloban, supra).
The Civil Code provides for the manner under which legitimate
filiation may be proven. However, considering the effectivity of the
Family Code of the Philippines, the case at bar must be decided
under a new if not entirely dissimilar set of rules because the parties
have been overtaken by events, to use the popular phrase
(Uyguangco vs. Court of Appeals, G.R No 76873, October 26, 1989).
Thus, under Title VI of the Family Code, there are only two classes
of children—legitimate and illegitimate. The fine distinctions among
various types of illegitimate children have been eliminated (Castro
vs. Court of Appeals, 173 SCRA 656 [1989]).
Article 172 of the said Code provides that the filiation of legitimate
children may be established by the record of birth appearing in the
civil register or a final judgment or by the open and continuous
possession of the status of a legitimate child. Evidence on record
proves the legitimate filiation of the private respondents. Jacinto's
birth certificate is a record of birth referred to in the said article.
Again, no evidence which tends to disprove facts contained therein
was adduced before the lower court. In the case of the two other
private respondents, Julian and Paulina, they may not have
presented in evidence any of the documents required by Article 172
but they continuously enjoyed the status of children of Lupo
Mariategui in the same manner as their brother Jacinto.
While the trial court found Jacinto's testimonies to be
inconsequential and lacking in substance as to certain dates and
Property Cases No. 9. 13
names of relatives with whom their family resided, these are but
minor details. The nagging fact is that for a considerable length of
time and despite the death of Felipa in 1941, the private
respondents and Lupo lived together until Lupo's death in 1953. It
should be noted that even the trial court mentioned in its decision
the admission made in the affidavit of Cresenciana Mariategui Abas,
one of the petitioners herein, that "x x x Jacinto, Julian and Paulina
Mariategui ay pawang mga kapatid ko sa ama x x x" (Exh. M,
Record on Appeal, pp. 65-66).
In view of the foregoing, there can be no other conclusion than that
private respondents are legitimate children and heirs of Lupo
Mariategui and therefore, the time limitation prescribed in Article
285 for filing an action for recognition is inapplicable to this case.
Corollarily, prescription does not run against private respondents
with respect to the filing of the action for partition so long as the
heirs for whose benefit prescription is invoked, have not expressly or
impliedly repudiated the coownership. In other words, prescription
of an action for partition does not lie except when the co-ownership
is properly repudiated by the co-owner (Del Banco vs. Intermediate
Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117
SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the
share of the other co-owners absent a clear repudiation of co-
ownership duly communicated to the other co-owners (Mariano vs.
De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand
partition is imprescriptible and cannot be barred by laches (Del
Banco vs. IAC, 156 SCRA 55 [1987]). On the other hand, an action
for partition may be seen to be at once an action for declaration of
co-ownership and for segregation and conveyance of a determinate
portion of the property involved (Roque vs. IAC, 165 SCRA 118
[1988]).
Petitioners contend that they have repudiated the co-ownership
when they executed the extrajudicial partition excluding the private
respondents and registered the properties in their own names
(Petition, p. 16; Rollo, p. 20). However, no valid repudiation was
made by petitioners to the prejudice of private respondents.
Assuming petitioners' registration of the subject lot in 1971 was an
 Property Cases No. 9. 14

act of repudiation of the co-ownership, prescription had not yet set
in when private respondents filed in 1973 the present action for
partition (Ceniza vs. C.A., 181 SCRA 552 [1990]).
In their complaint, private respondents averred that in spite of their
demands, petitioners, except the unwilling defendants in the lower
court, failed and refused to acknowledge and convey their lawful
shares in the estate of their father (Record on Appeal, p. 6). This
allegation, though denied by the petitioners in their answer (Ibid, p.
14), was never successfully refuted by them. Put differently, in spite
of petitioners' undisputed knowledge of their relationship to private
respondents who are therefore their co-heirs, petitioners
fraudulently withheld private respondent's share in the estate of
Lupo Mariategui. According to respondent Jacinto, since 1962, he
had been inquiring from petitioner Maria del Rosario about their
(respondents) share in the property left by their deceased father
and had been assured by the latter (Maria del Rosario) not to worry
because they will get some shares. As a matter of fact, sometime in
1969, Jacinto constructed a house where he now resides on Lot No.
163 without any complaint from petitioners.
Petitioners' registration of the properties in their names in 1971 did
not operate as a valid repudiation of the co-ownership. In Adille vs.
Court of Appeals (157 SCRA 455, 461-462 [1988]), the Court held:
assuming there was one, notwithstanding the long-standing rule
that registration operates as a universal notice of title."
Inasmuch as petitioners registered the properties in their names in
fraud of their co-heirs prescription can only be deemed to have
commenced from the time private respondents discovered the
petitioners' act of defraudation (Adille vs. Court of Appeals, supra).
Hence, prescription definitely may not be invoked by petitioners
because private respondents commenced the instant action barely
two months after learning that petitioners had registered in their
names the lots involved.
WHEREFORE, the petition is DENIED and the assailed decision of
the Court of Appeals dated December 24, 1980 is Affirmed.
SO ORDERED.
Gutierrez, Jr. (Chairman), Feliciano, Davide, Jr. and Romero,
JJ., concur.
Petition denied; decision affirmed.

"Prescription, as a mode of terminating a relation of co-ownership,

must have been preceded by repudiation (of the co-ownership). The
act of repudiation, in turn, is subject to certain conditions: (1) a
coowner repudiates the co-ownership; (2) such an act of repudiation
is clearly made known to the other co-owners; (3) the evidence
thereon is clear and conclusive; and (4) he has been in possession
through open, continuous, exclusive, and notorious possession of
the property for the period required by law."

xxx xxx xxx

"It is true that registration under the Torrens system is constructive

notice of title, but it has likewise been our holding that the Torrens
title does not furnish shield for fraud. It is therefore no argument to
say that the act of registration is equivalent to notice of repudiation,

G.R. No. 109910. April 5, 1995.*
REMEDIOS G. SALVADOR and MA. GRACIA G. SALVADOR,
petitioners,vs. COURT OF APPEALS, ALBERTO and ELPIA
YABO, FRANCISCA YABO, et al., respondents.
Civil Law; Property; Conjugal Partnership; 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.—Article 160 of the Civil Code provides that all property of the
marriage is presumed to belong to the conjugal partnership, unless
it be proved that it pertains exclusively to the husband or to the
wife. Since the shares of Jose, Victoriano, Lope, Baseliza, Procopio,
and Francisca in Lot No. 6180 and Lot No. 6080 had been purchased
by Pastor during his marriage with Maria, and there is no proof that
these were acquired with his exclusive money, the same are deemed
conjugal properties.
Same; Same; Co-ownership; Partition; 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.—It has been said that Article 494 of the Civil Code which
provides that each co-owner may demand at any time the partition
of the common property implies that an action to demand partition
is imprescriptible or cannot be barred by laches. 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.
Same; Same; Same; Same; 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.—This Court has held
that the possession of a co-owner is like that of a trustee and shall
not be regarded as adverse to the other co-owners but in fact as
beneficial to all of them. 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
Property Cases No. 9. 15
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.
Same; Same; Same; Same; Elements in order that a co-owner’s
possession may be deemed adverse to the cestui que trust or the
other co-owners.—Thus, in order that a co-owner’s possession may
be deemed adverse to the cestui que trust or the other co-owners,
the following elements must concur: (1) that he has performed
unequivocal acts of repudiation amounting to an ouster of the cestui
que trust or the other co-owners; (2) that such positive acts of
repudiation have been made known to the cestui que trust or the
other co-owners; and (3) that the evidence thereon must be clear
and convincing.
Remedial Law; Appeal; When the findings of facts of the appellate
court vary with those of the trial court, the Court has to review the
evidence in order to arrive at the correct findings.—The issue
presented by the petitioners in their third assigned error involves a
question of fact. This Court is not ordinarily a trier of facts, its
jurisdiction being limited to errors of law. Thus, the findings of facts
of the Court of Appeals are as a rule deemed conclusive. However,
when the findings of facts of the appellate court vary with those of
the trial court, this Court has to review the evidence in order to
arrive at the correct findings.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Constancio G. Jaraula for petitioners.
Marvi Manuel B. Roa for private respondents.
DAVIDE, JR.,J.:
Assailed in this petition is the legal determination made by the Court
of Appeals on the issues of which portion of Lot No. 6080 and Lot
No. 6180 formed part of the conjugal assets of the spouses Pastor
Makibalo and Maria Yabo, and of whether or not the rights of

Pastor’s co-heirs in the estate of Maria Yabo were extinguished
through prescription or laches.
Alipio Yabo was the owner of Lot No. 6080 and Lot No. 6180
situated in Barrio Bulua, Cagayan de Oro City, containing an area of
1,267 and 3,816 square meters, respectively. Title thereto devolved
upon his nine children, namely, Victoriano, Procopio, Lope, Jose,
Pelagia, Baseliza, Francisca, Maria, and Gaudencia, upon his death
sometime before or during the second world war.
On 28 April 1976, Pastor Makibalo, who is the husband of Maria
Yabo, one of Alipio’s children, filed with the then Court of First
Instance of Misamis Oriental a complaint, docketed as Civil Case No.
5000, against the spouses Alberto and Elpia Yabo for “Quieting of
Title, Annulment of Documents, and Damages.” In the complaint, he
alleged that he owned a total of eight shares of the subject lots,
having purchased the shares of seven of Alipio’s children and
inherited the share of his wife, Maria, and that except for the portion
corresponding to Gaudencia’s share which he did not buy, he
occupied, cultivated, and possessed continuously, openly,
peacefully, and exclusively the two parcels of land. He then prayed
that he be declared the absolute owner of 8/9 of the lots in
question.1
On 8 October 1976, the grandchildren and great-grandchildren of
the late Alipio Yabo2 lodged with the same court a complaint for
partition and quieting of title with damages,3 docketed as Civil Case
No. 5174, against Pastor Makibalo, Enecia Cristal, and the spouses
Eulogio and Remedios Salvador. They alleged that Lot No. 6080 and
Lot No. 6180 are the common property of the heirs of Alipio Yabo,
namely, the plaintiffs, defendant Enecia Cristal, Maria Yabo, and
Jose Yabo, whose share had been sold to Alberto Yabo; that after
Alipio’s death, the spouses Pastor and Maria Makibalo, Enecia
Cristal, and Jose Yabo became the de facto administrators of the
said properties; and that much to their surprise, they discovered
that the Salvador spouses, who were strangers to the family, have
been harvesting coconuts from the lots, which act cast a cloud on
the plaintiffs’ title over the lots.
Property Cases No. 9. 16
The plaintiffs then prayed that (a) they, as well as defendant Pastor
Makibalo, in representation of his wife, and Enecia Cristal, in
representation of Gaudencia, be declared as the owners of the lots;
(b) the Salvador spouses be declared as having no rights thereto
except as possible assignees of their co-defendants, Pastor Makibalo
and Enecia Cristal; (c) the lots be partitioned according to law
among the aforementioned co-owners; and (d) the defendants be
made to pay for the value of the fruits they harvested from the lots
and for moral and exemplary damages, attorney’s fees, expenses of
the litigation, and costs of the suit.
The two cases were consolidated and jointly heard by Branch 5 of
the Court of First Instance of Cagayan de Oro City.
By evidence, Pastor Makibalo sought to prove the following
allegations:
He was married to Maria Yabo who died on 17 March 1962.4 In
August 1949, Jose and Victoriano, both surnamed Yabo, sold their
respective shares in the disputed lots to one Pedro Ebarat, and in
1952 the latter sold both shares to Pastor Makibalo.5 Ebarat
formalized this conveyance by executing an Affidavit of Waiver and
Quitclaim dated 30 May 1969 in favor of Pastor.6
On 16 January 1951, the heirs of the late Lope Yabo sold Lope’s
shares in the litigated properties to one Dominador Canomon,7 who,
in turn, sold the same to Pastor.8 Canomon afterwards executed an
Affidavit of Waiver and Quitclaim in favor of the latter.9
Pastor Makibalo likewise purchased the shares of Baseliza in the two
lots in 1942, of Procopio in 1957, of Francisca in 1958, and of
Pelagia in 1967. The only share he did not buy was that of
Gaudencia. After every purchase, he took possession of the portions
bought and harvested the products thereof.
In 1966, Pastor sold back to Alberto a portion of Lot No. 6180 which
was formerly the share of Alberto’s father, Procopio.11
In December 1968, Pastor mortgaged the two lots to the spouses
Eulogio and Remedios Salvador.12 On 26 September 1978, he

executed a document denominated as a “Confirmation and
Quitclaim” whereby he waived all his rights, interests, and
participation in the lots in favor of the Salvador spouses.13
On the other hand, by their evidence,14 the spouses Alberto and
Elpia Yabo tried to prove that they had repurchased from Pastor
Makibalo the share of Procopio, which was previously sold to Pastor,
and had bought the shares of Jose and Maria.15
Filoteo Yabo denied having sold the share of his father, Lope Yabo,
in the contested lots and disowned his signature and those of his
mother, brothers, and sisters appearing at the back of Exhibit “C.”16
Ignacio Yabo testified that his father, Victoriano Yabo, did not know
how to write and sign his name. He further declared that he had no
knowledge that his father affixed his thumbmark in the document
marked as Exhibit “A” purporting to alienate his father’s share in the
disputed lots.17
On 15 January 1983, the trial court rendered its decision18 holding
as follows:
Assuming that the thumbmark on the typewritten name “Jose Yabo”
in Exh. 3 was that of Jose Yabo, Alberto Yabo and Elpia R. Yabo
purchased the share of Jose Yabo in bad faith because they knew
before and up to the execution of Exh. 3 on October 24, 1972 that
Jose Yabo was no longer the owner of that area because from the
documents she borrowed from Mrs. Salvador they came to know
that Jose Yabo had sold his shares to Pedro Ebarat, and they have
seen that Pastor Makibalo has been in possession of those shares
together with the seven others exclusively as owner, he having
mortgaged them to Mrs. Salvador.
As Jose Yabo was no longer the owner of the one ninth (1/9) shares
which he sold to Alberto Yabo and Elpia Yabo under Exh. 3, the sale
is null and void, and Alberto and Elpia acquired nothing because
Jose Yabo had no more title, right or interest to dispose of.
...
Property Cases No. 9. 17
Pastor Makibalo had been in possession of Jose Yabo’s share since
1949 after purchasing it from Ebarat, and has been in possession
thereof up to September 26, 1978 when he sold it to the spouses
Eulogio Salvador and Remedios Salvador, who are now in possession
of the same.
Exh. A, evidencing the sale of Victoriano Yabo’s share to Pedro
Ebarat was identified by the latter who testified that he sold it to
Pastor Makibalo in 1951. Exh. A is an ancient document—1949 when
the document came to existence up to now is more than 30 years,
and the document had been in the possession of Pastor Makibalo,
then Remedios Salvador who had interest in its preservation.
As regards the shares of Lope Yabo, the same had been sold by his
surviving spouse Juana Legaspi, and his children Filoteo, Andresa,
Jovita, Bonifacio, and Rundino for P105.00 on January 16, 1951 to
Dominador Conomon (Exh. C and C-1), who in turn sold it to Pastor
Makibalo in 1952, executing a formal Deed of Waiver and Quitclaim
on May 30, 1969 (Exh. D).
Exh. C is an ancient document, being more than 30 years old and
has been in the possession of Pastor Makibalo and then the spouses
Eulogio and Remedios Salvador—who had an interest in its
preservation. The claim of Filoteo Yabo that the signatures
appearing in Exh. C are not his and those of his brothers and sisters
are of no avail, for if they were not the ones who affixed those
signatures and so they did not sell the shares of their father Lope
Yabo, why did they not then take possession of said shares—they
remained silent from 1951 to September 16, 1976 a period of 25
years. They are now [e]stopped by laches.
And as regards the shares of Baseliza, Francisca and Pelagia, there
is no evidence presented to effectively rebut the testimony of Pastor
Makibalo that he acquired the shares of Baseliza Yabo in 1942 by
changing it with a buffalo; that he bought the shares of Francisca
Yabo in 1958 and that he bought the shares of Pelagia Yabo in
1967; Pastor Makibalo had been in possession of these shares from
the time he acquired them, continuously, adversely, openly, and
peacefully, as owner up to the time he sold his rights and interest
therein to the spouses Eulogio and Remedios Salvador. The heirs of

Baseliza, Francisca and Pelagia have not taken any step to protect
their rights over those shares for over 40 years in the case of
Baseliza’s share, for about 20 years in the case of Francisca’s share,
and for more than 10 years in the case of Pelagia’s share. Laches,
likewise has rendered their rights stale.
On March 10, 1966 Pastor Makibalo sold back to Alberto Yabo the
share of Procopio Yabo in Lot 6180 (Exh. 1 and 2), but there is
nothing to show that Pastor Makibalo also sold back Procopio’s share
in Lot 6080.
So then, by purchase, Pastor Makibalo and Maria Yabo acquired the
shares of Baseliza, Victoriano, Jose, Lope, Procopio and Francisca, or
six (6) shares from Lots 6080 and 6180. These belonged to the
conjugal partnership of Pastor Makibalo and Maria Yabo. Maria Yabo
had also a share from Lots 6080 and 6180, and Pastor Makibalo
acquired the shares of Pelagia Yabo in both Lots 6080 and 6180. All
in all, Pastor Makibalo acquired eight shares in both Lot 6080 and
6180.
While Maria Yabo died on March 17, 1962, and so one-fourth (1/ 4)
of the shares of Baseliza, Victoriano, Jose, Lope, and Francisca, or
one-fourth of five-ninth (5/9) of both lots and one-fourth (1/4) of
Lot 6080 should go to the children of the brothers and sisters of
Maria Yabo by virtue of the provisions of Article 1001 of the New
Civil Code, the latter have lost their rights thereto by laches for their
inaction for a very long period and their rights have become stale.
On the other hand, Pastor Makibalo who had been in possession of
the whole of the eight shares in both Lots 6080 and 6180, enjoying
the fruits thereof exclusively, uninterruptedly, publicly, peacefully,
and continuously from the death of Maria Yabo up to the filing of the
complaint in Civil Case No. 5174 on October 8, 1976, or a period of
14 years, had acquired title to the whole of the eight shares in Lot
6080 and seven shares in Lot 6180 (the share of Procopio in Lot
6180 had been sold back to Alberto Yabo).
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered
finding Pastor Makibalo, now Eulogio Salvador and Remedios
Salvador the owner of eight (8) shares, equivalent to eight-ninth
(8/9) of Lot No. 6080, and of seven (7) shares, equivalent to seven-
Property Cases No. 9. 18
ninth (7/9) of Lot No. 6180, and therefore, ordering the partition of
Lot 6080 so that the one-ninth (1/9) alloted to Gaudencia Yabo will
go to her heirs or their assigns, and the remaining eight-ninth (8/9)
will go to the spouses Eulogio Salvador and Remedios Salvador, as
successor of Pastor Makibalo, and the partition of Lot 6180 so that
the seven-ninth (7/9) portion which formerly belonged to Baseliza,
Victoriano, Jose, Lope, Maria, Francisca, and Pelagia will go to the
spouses Eulogio and Remedios Salvador, the one-ninth (1/9) which
formerly belonged to Procopio, will go to Alberto Yabo, and the
remaining one-ninth (1/9) which formerly belonged to Gaudencia,
will go to Gaudencia’s heirs or their assigns. Doc. No. 720, recorded
on page 28 of Notarial Register No. VII, and acknowledged before
Notary Public Isidro S. Baculio (Exh. E) [purportedly executed by
Maria Yabo and Pastor Makibalo] is hereby declared null and void,
and so the Office of the City Fiscal is directed to cause an
investigation of this matter to find out the person or persons
responsible for the falsification of the said document, and if the
evidence warrants, to file the corresponding criminal action in court.
The Office of the City Assessor of Cagayan de Oro City is, likewise,
directed to cause the cancellation of Tax Declarations Nos. 33553,
marked as Exh. H-3, 33557, marked as Exh. H-2, both in the name
of Alberto Yabo, for having been issued on the basis of a falsified
document. Let copies of this decision be furnished the Offices of the
City Fiscal and City Assessor, both of Cagayan de Oro City.
No pronouncement as to damages, attorney’s fees and costs.
SO ORDERED.19
The defendants in Civil Case No. 5000 and the plaintiffs in Civil Case
No. 5174 appealed from the decision to the Court of Appeals on 19
August 1983.20
In its decision of 3 February 1993,21 the Court of Appeals held that
(a) Maria Yabo did not sell her share to Alberto and Elpia Yabo; (b)
prescription and laches have not run against the private respondents
with respect to the 1/9 share of Maria Yabo in the estate of her
father and to her conjugal share in the portions acquired from her
brothers and sisters; and (c) Procopio never sold his share in Lot No.
6080 to Pastor Makibalo. More specifically it stated:

Exh. E is the document found by the lower court to be a falsification.
This finding appellants do not dispute and have not raised an error.
...
While acknowledging that upon the death of Maria Yabo on March
17, 1962, one-half (1/2) of the share of Maria Yabo in Lots 6080 and
6180 and one-half (1/2) of Maria Yabo’s conjugal share in the
portions bought from Baseliza, Victoriano, Jose, Lope, Pelagia and
Francisca should go to the children of the brothers and sisters of
Maria in accordance with Article 1001 of the Civil Code, the lower
court rule that said children have lost their rights by laches “for their
inaction for a very long period and their rights have become stale”
(Decision, p. 16; Record, Vol. 2, p. 158).
Appellants in their second assignment of error aver that this is an
error.
We agree that the lower court erred.
While between March 17, 1962 when Maria Yabo died and October
8, 1976, when Civil Case No. 5174 for partition was filed, was a
period of more than fourteen (14) years, that alone to our mind
would not suffice to establish laches or prescription. Upon the death
of Maria Yabo, appellee Pastor Makibalo and appellants and the
other children of the brothers and sisters of Maria, by operation of
law become co-owners of the one-ninth (1/9) share of Maria as heir
of her father Alipio and the conjugal share of Maria in the portions
acquired from Baseliza, Victoriano, Jose, Lope, Pelagia and
Francisca. Time alone is not a decisive factor. Appellee Pastor
Makibalo, it must be remembered, is the husband of Maria and,
therefore, an uncle-in-law of appellants. In our culture, a demand by
an heir or heirs for partition immediately upon the death of a
relative is more often taken not as a legitimate assertion of a right
but of something else, like greed. It must also be noted that the
spouses, the appellee Pastor Makibalo and his deceased wife Maria,
were childless and, therefore, appellants and the other children of
the brothers and sisters of Maria must have felt that at any rate the
property would go to them in the course of time. This probably
explains why appellants started asserting their right over the
Property Cases No. 9. 19
property only after appellee Pastor Makibalo sold the same to the
spouses Eulogio and Remedios Salvador. Besides, Lots 6080 and
6180 have a combined area only of 5,083 square meters and before
the development of Northern Mindanao, and even in 1962 when
Maria Yabo died, were not that valuable. This is shown by the fact
that each heir sold his or her share only for P110.00.
As we have said not time alone. In the early case of Cortes v. Oliva,
33 Phil. 480, it was held that “(o)rdinarily, possession by one joint
owner will not be presumed to be adverse to the others, but will, as
a rule, be held to be for the benefit of all. Much stronger evidence is
required to show an adverse holding by one of several joint owners
than by a stranger; and in such cases, to sustain a plea of
prescription, it must always clearly appear that one who was
originally a joint owner has repudiated the claims of his co-owners,
and that his co-owners were apprised or should have been apprised
of his claim of adverse and exclusive ownership before the alleged
prescription began to run (at page 484). This ruling on prescription
should apply with equal force to laches.
The third assignment of error challenges the finding of the lower
court that “there is nothing to show that Pastor Makibalo also sold
back Procopio’s share in Lot 6080” (Decision, p. 16; Records, Vol. 2,
p. 158).
Exhibits 1 and 2 cover only Procopio’s share in Lot 6180. In other
words, Exhibits 1 and 2 conveyed back to Alberto Yabo only his
father, Procopio’s share in Lot 6180.
There is indeed no evidence that Pastor Makibalo also sold back to
Alberto, his father Procopio’s share in Lot 6080.
But from the evidence it appears that Procopio Yabo never sold his
share in Lot 6080 to Pastor Makibalo. So there was no need to
convey back Procopio’s share in Lot 6080.
This fact is evident from the Affidavit of Confirmation of Sale (Exh.
M) dated April 22, 1970, executed by Alberto Yabo, which is the very
document relied upon by the lower court (Decision, p. 11; Record,
Vol. 2, p. 153) in finding that “Alberto Yabo admitted that the share

of his father Procopio Yabo was previously bought by Pastor
Makibalo.” A look at Exh. M, particularly par. 3 thereof, reveals that
Alberto Yabo merely acknowledged or confirmed the sale of his
father’s share to Pastor Makibalo in Lot 6180. In effect, it at the
same time proves that Lot 6080 was never sold by Procopio to
appellee Pastor Makibalo; otherwise, it would have been included in
the said Affidavit of Confirmation of Sale. The Deed of Absolute Sale
(Exh. 2) subsequently executed by Pastor Makibalo in favor of
Alberto Yabo on April 23, 1970, further proves this point, since the
latter merely bought back what was previously sold, his father’s
share in Lot 6180.22
The respondent court then concluded and held as follows:
In summary, appellee Pastor Makibalo and his assigns, the spouses
Eulogio and Remedios Salvador, are entitled only to one-half (1/2)
of the one-ninth (1/9) share of Maria and three-fourths (3/4) of the
six-ninth (6/9) shares acquired from Baseliza, Victoriano, Jose,
Lope, Pelagia and Francisca. Accordingly, the partition should be
done as follows:
1. (1)
1/9 of Lots 6080 and 6180 should be given to the heirs of
Gaudencia Yabo or their successors and assigns;
2. (2)
1/9 of Lot 6180 should go to Alberto Yabo and his wife Elpia
Yabo;
3. 3)
1/9 of Lot 6080 should be given to the heirs of Procopio Yabo
and their successors and assigns, including Alberto Yabo;
4. (4)
The 1/9 share of Maria Yabo in Lots 6080 and 6180 should be
partitioned: One-half (1/2) for the surviving spouse Pastor
Makibalo (now the spouses Eulogio Salvador and Remedios
Salvador) and the other half for the children of the brothers
and sisters of Maria Yabo in equal shares.
Property Cases No. 9. 20
5. (5)
The remaining 6/9, one-half (1/2) of which is conjugal
between Maria Yabo and appellee Pastor Makibalo should be
partitioned three-fourths (3/4) for Pastor Makibalo (now the
spouses Eulogio Salvador and Remedios Salvador) and one-
fourth (1/4) for the children of the brothers and sisters of
Maria Yabo in equal shares.
6. (6)
Jose Yabo if he is still alive should participate in the partition
as heir of Maria; otherwise he shall be represented by his
children.
WHEREFORE, premises considered, subject to the modification in the
partition, as indicated above, the decision appealed from is
AFFIRMED, without pronouncement as to costs. The lower court is
directed if necessary to fully effect the partition, to conduct further
hearings and determine whether Jose Yabo is still alive and who are
the children of the brothers and sisters of Maria Yabo.23
Unable to obtain a reconsideration of the said decision, Remedios
Salvador, together with her daughter, Ma. Gracia Salvador, as one
of the successors-in-interest of Eulogio M. Salvador who died during
the pendency of the appeal,24 elevated the case to this Court
contending that the respondent court erred in ruling that: (1) the
shares of Pelagia Yabo should be included in the partition; (2)
prescription and laches have not run against the private respondents
in relation to the 1/9 share of Maria Yabo in the estate of her father
and to her 1/2 conjugal share in those acquired by purchase; (3)
Procopio Yabo never sold to Pastor Makibalo his share in Lot No.
6080; and (4) Jose Yabo should be allowed to participate as heir of
Maria even as he had openly rejected this option by refusing to
participate in both civil cases.
Article 160 of the Civil Code provides that all property of the
marriage is presumed to belong to the conjugal partnership, unless
it be proved that it pertains exclusively to the husband or to the
wife. Since the shares of Jose, Victoriano, Lope, Baseliza, Procopio,
and Francisca in Lot No. 6180 and Lot No. 6080 had been purchased
by Pastor during his marriage with Maria, and there is no proof that

these were acquired with his exclusive money, the same are deemed
conjugal properties. Not forming part of the conjugal partnership
are: (1) the 1/9 share inherited by Maria which remained as her
exclusive property pursuant to Article 148(2) of the Civil Code; (2)
the 1/9 share of Gaudencia which was not sold to Pastor; and (3)
the 1/9 share of Pelagia which was acquired by Pastor in 1967 or
five years after the death of his wife and which was therefore his
exclusive property.
There is, thus, merit in the petitioners’ first assigned error. The
Court of Appeals should have excluded from the conjugal
partnership the share of Pelagia which Pastor had acquired after his
wife’s death.
Upon Maria’s death in 1962, the conjugal partnership of gains was
dissolved.26 Half of the conjugal properties, together with Maria’s
1/9 hereditary share in the disputed lots, constituted Maria’s estate
and should thus go to her surviving heirs.27 Under Article 1001 of
the Civil Code, her heirs are her spouse, Pastor Makibalo, who shall
be entitled to one-half (1/2) of her estate, her brother, Jose, and the
children of her other brothers and sisters, who shall inherit the other
half. There having been no actual partition of the estate yet, the
said heirs became co-owners thereof by operation of law.28
We now determine whether prescription and laches can be applied
against the co-heirs of Pastor Makibalo.
It has been said that Article 494 of the Civil Code which provides
that each co-owner may demand at any time the partition of the
common property implies that an action to demand partition is
imprescriptible or cannot be barred by laches.29 The
imprescriptibility of the action cannot, however, be invoked when
one of the co-owners has possessed the property as exclusive owner
and for a period sufficient to acquire it by prescription.30
What needs to be addressed first is whether or not Pastor Makibalo
has acquired by prescription the shares of his other co-heirs or co-
owners. Prescription as a mode of acquiring ownership requires a
continuous, open, peaceful, public, and adverse possession for a
period of time fixed by law.
Property Cases No. 9. 21
This Court has held that the possession of a co-owner is like that of
a trustee and shall not be regarded as adverse to the other co-
owners but in fact as beneficial to all of them.31 Acts which may be
considered adverse to strangers may not be considered adverse
insofar as co-owners are concerned. A mere silent possession by a
co-owner, his receipt of rents, fruits or profits from the property, the
erection of buildings and fences and the planting of trees thereon,
and the payment of land taxes, cannot serve as proof of exclusive
ownership, if it is not borne out by clear and convincing evidence
that he exercised acts of possession which unequivocably
constituted an ouster or deprivation of the rights of the other co-
owners.32
Thus, in order that a co-owner’s possession may be deemed adverse
to the cestui que trust or the other co-owners, the following
elements must concur: (1) that he has performed unequivocal acts
of repudiation amounting to an ouster of the cestui que trust or the
other co-owners; (2) that such positive acts of repudiation have
been made known to the cestui que trust or the other co-owners;
and (3) that the evidence thereon must be clear and convincing.33
In Pangan vs. Court of Appeals,34 this Court had occasion to lay
down specific acts which are considered as acts of repudiation:
Filing by a trustee of an action in court against the trustor to quiet
title to property, or for recovery of ownership thereof, held in
possession by the former, may constitute an act of repudiation of
the trust reposed on him by the latter.
Theissuance of the certificate of title would constitute an open and
clear repudiation of any trust, and the lapse of more than 20 years,
open and adverse possession as owner would certainly suffice to
vest title by prescription.
An action for the reconveyance of land based on implied or
constructive trust prescribes within 10 years. And it is from the date
of the issuance of such title that the effective assertion of adverse
title for purposes of the statute of limitation is counted.

The prescriptive period may only be counted from the time
petitioners repudiated the trust relation in 1955 upon the filing of
the complaint for recovery of possession against private respondents
so that the counterclaim of the private respondents contained in
their amended answer wherein they asserted absolute ownership of
the disputed realty by reason of the continuous and adverse
possession of the same is well within the 10-year prescriptive
period.
There is clear repudiation of a trust when one who is an apparent
administrator of property causes the cancellation of the title thereto
in the name of the apparent beneficiaries and gets a new certificate
of title in his own name.
It is only when the defendants, alleged co-owners of the property in
question, executed a deed of partition and on the strength thereof
obtained the cancellation of the title in the name of their
predecessor and the issuance of a new one wherein they appear as
the new owners of a definite area each, thereby in effect denying or
repudiating the ownership of one of the plaintiffs over his alleged
share in the entire lot, that the statute of limitations started to run
for the purposes of the action instituted by the latter seeking a
declaration of the existence of the co-ownership and of their rights
thereunder.
The records do not show that Pastor Makibalo adjudicated to himself
the whole estate of his wife by means of an affidavit filed with the
Office of the Register of Deeds as allowed under Section 1, Rule 74
of the Rules of Court, or that he caused the issuance of a certificate
of title in his name or the cancellation of the tax declaration in
Alipio’s name and the issuance of a new one in his own name. The
only act which may be deemed as a repudiation by Pastor of the co-
ownership over the lots is his filing on 28 April 1976 of an action to
quiet title (Civil Case No. 5000). The period of prescription started to
run only from this repudiation. However, this was tolled when his
co-heirs, the private respondents herein, instituted on 8 October
1976 an action for partition (Civil Case No. 5174) of the lots. Hence,
the adverse possession by Pastor being for only about six months
would not vest in him exclusive ownership of his wife’s estate, and
Property Cases No. 9. 22
absent acquisitive prescription of ownership, laches and prescription
of the action for partition will not lie in favor of Pastor.35
The issue presented by the petitioners in their third assigned error
involves a question of fact. This Court is not ordinarily a trier of
facts, its jurisdiction being limited to errors of law. Thus, the findings
of facts of the Court of Appeals are as a rule deemed conclusive.
However, when the findings of facts of the appellate court vary with
those of the trial court, this Court has to review the evidence in
order to arrive at the correct findings.36
In the instant case, a conflict in the findings of facts of the lower
courts exists. The trial court found that Pastor was the owner of
Procopio’s share in Lot No. 6080, as there was nothing to show that
he sold it back to Alberto Yabo. The respondent court, on the other
hand, held that Procopio Yabo never sold his share in Lot No. 6080
to Pastor, thus, there was no need to convey it back to Procopio’s
son, Alberto.
At this juncture, it is worthy to quote pertinent portions of the
testimony of Pastor Makibalo:
COURT: (To the witness.)
Q Where is Alberto Yabo living?
A It is there in their house at Bulua.
ATTY. JARAULA: (Continuing.)
Q In whose land?
A Alipio Yabo’s land.
Q What relation has that land to the two (2) parcels of land under litigation?
A I bought already.
 Property Cases No. 9. 23

Q So, will you please tell the Honorable Court, why Alberto Q You mean to say, that the receipt which Procopio signed when
Yabo is staying on that land when you said you have he sold his share for [sic] the document which Alberto got?
bought that land already? A Yes.
A So, I sold back a portion to them because they requested me.
COURT:
COURT: (To the witness.)
All right.
Q When was that when you said that Alberto Yabo requested
a portion? ATTY. JARAULA (Continuing.)
A In 1967. Q Now, for how much did you buy the shares of each of the
brothers and sisters of your wife?
COURT:
A One Hundred Ten (P110.00) Pesos.
Q Did you give that portion which they requested?
Q When you sold back to Alberto Yabo, the portion corresponding
A Their share being inherited from their father Procopio was to the share of his father Procopio in the Poblacion,
the portion they requested.
COURT:
how much did he pay you?
Q Yes. Did you grant that?
A The same.
A Yes.
Q By the same, you are referring by the same amount of
Q That is the area you sold to Alberto Yabo, pursuant to his request? One Hundred Ten (P110.00) Pesos?
A Because that was the land they inherited from their father A Yes, Sir. The same amount.37
that was what they requested.
Q All right. So that, the area now being occupied by Alberto Yabo?
The petitioners contend that the sales or conveyances made by
A Yes. That land in the Centro. Alipio’s heirs were for their consolidated shares in the two lots. If
Q This is now identified as Lot No. 6180? this was so, and the receipt which Procopio signed when he sold his
consolidated share to Pastor was turned over to Alberto, the
A Yes, Your Honor. inevitable conclusion is that Alberto redeemed his father’s share in
both lots, not only in Lot No. 6180. This conclusion is further
ATTY. JARAULA: (Continuing.) buttressed by the above-quoted testimony of Pastor that he bought
Q Where did you sign a document ceding that portion requested the shares (consolidated) of each of Alipio’s heirs for P110.00 and
by Alberto Yabo? that when he sold back to Alberto the former share of Procopio,
Alberto paid him the same amount of P110.00.
A We did not make any receipt in favor of Alberto Yabo because
they got only the receipt of that of his father. However, since the share of Procopio in the two litigated parcels of
COURT: (To the witness.) land was purchased by Pastor during his marriage with Maria, the
same became conjugal property, and half of it formed part of Maria’s

estate upon her death in 1962. Accordingly, Pastor’s resale in favor
of Alberto could only be valid with respect to Pastor’s one-half (1/2)
conjugal share and one-fourth (1/4) hereditary share as heir of
Maria.38 The remaining one-fourth (1/4) should go to Pastor’s co-
heirs, the private respondents herein.
Now on the fourth assigned error.
Section 1, Rule 69 of the Rules of Court requires that all persons
interested in the land sought to be partitioned must be joined as
defendants in the complaints. All co-owners and persons having an
interest in the property are considered indispensable parties and an
action for partition will not lie without the joinder of said persons.39
It has been held that the absence of an indispensable party in a case
renders ineffective all the proceedings subsequent to the filing of the
complaint including the judgment.40
It must be recalled that in Civil Case No. 5174 the private
respondents sought the partition of the two lots based on the co-
ownership which arose from the right of succession to Alipio’s
estate. Since Jose Yabo confirmed, through his thumbmark in the
verification of the complaint, that he had already parted with his
share in Alipio’s estate, he in effect admitted that he had ceased to
be a co-owner of the two lots which comprised his father’s estate.
Thus, his non-joinder as a party-plaintiff in the complaint would
appear to be proper. He does not, as well, appear to be an
indispensable party in Civil Case No. 5000.
As it turned out, however, the evidence and the issues which
cropped up rendered imperative the determination of the conjugal
assets of Pastor Makibalo and Maria Yabo and the partition of the
latter’s estate among her heirs. Her estate consists of one-half (1/
2) of the conjugal properties, which should then be divided pursuant
to Article 1001 of the Civil Code since the marriage produced no
child; thus: one-half (1/2) to Pastor, and the other half to her
brother, Jose, and to her nephews and nieces.
Insofar as the partition of Maria Yabo’s estate is concerned, Jose is
an indispensable party. Strictly, the rule on indispensable parties
may bar a partition of Maria’s estate. Considering, however, that
Property Cases No. 9. 24
such estate or its partition are but incidents in Civil Case No. 5000
and Civil Case No. 5174, and the parties have not offered any
objection to the propriety of the determination and partition of her
estate, then in the light of Section 11 of Rule 3 and Sections 1 and
5, Rule 1042 of the Rules of Court, and following the rulings of this
Court in the 1910 case of Alonso vs. Villamor43 and the 1947 case
of Cuyugan vs. Dizon,44 an amendment of the complaint in Civil
Case No. 5174 to implead Jose Yabo as party plaintiff would be in
order.
InAlonso, it was held that under Section 110 of the Code of Civil
Procedure—whose first paragraph is substantially the same as the
aforesaid Section 1 of Rule 10—and Section 503 thereof, this Court
“has full power, apart from that power and authority which is
inherent, to amend the process, pleadings, proceedings, and
decision in this case by substituting, as party plaintiff, the real party
in interest.” Our ruling in Cuyugan states:
We, however, do not believe that the case should be dismissed for
plaintiff’s failure to join her husband. (Sec. 11, Rule 2, Rules of
Court). Nor should the case be remanded to the court below and a
new trial ordered on this account. The complaint may and should be
amended here, to cure the defect of party plaintiffs, after final
decision is rendered. Section 11, Rule 2, and Section 2, Rule 17,
explicitly authorize such procedure. As this Court had occasion to
say in Quison vs. Salud, (12 Phil., 109, 116), “a second action would
be but a repetition of the first and would involve both parties,
plaintiffs and defendant, in much additional expense and would
cause much delay, in that way defeating the purpose of the section,
which is expressly stated to be ‘that the actual merits of the
controversy may speedily be determined without regard to
technicalities and in the most expeditious and inexpensive manner.’”
(See also Diaz vs. De la Rama, 73 Phil., 104)
To avoid further delay in the disposition of this case, we declare Civil
Case No. 5174 as thus duly amended. Consequently, Jose Yabo may
participate in the partition of the estate of Maria Yabo. The fourth
assigned error must then be rejected.

In view of the foregoing disquisitions, the appealed judgment should
be modified as follows: (a) the former 1/9 share of Pelagia Yabo in
Lots No. 6180 and 6080 which she sold to Pastor should be treated
as the latter’s exclusive property which should now pertain to the
petitioners, his successors-in-interest; and (b) the former 1/9 share
of Procopio Yabo in both lots should be divided as follows: 3/4
(respondent Pastor’s 1/2 conjugal share and 1/4 representing his
share therein as Maria’s heir) for the spouses Alberto and Elpia
Yabo, and 1/4 (representing the share therein of Maria’s collateral
relatives as Maria’s heirs) for the private respondents, including
Alberto and Jose Yabo. The partition of the two lots in controversy
should therefore be made in this wise:
(1)
1/9 share of Gaudencia Yabo should be allotted to her heirs or
successors-in-interest;
(2)
1/9 share formerly belonging to Pelagia Yabo—to the
petitioners as successors-in-interest of Pastor Makibalo;
(3)
1/9 hereditary share of Maria Yabo to be divided as follows:
(a)
1/2 for the petitioners (as successors-in-interest of Pastor
Makibalo), and
(b)
1/2 for the private respondents, including Jose Yabo or his
heirs;
(4)
1/9 share formerly belonging to Procopio Yabo to be divided
thus:
(a)
3/4 for Spouses Alberto and Elpia Yabo, and
Property Cases No. 9. 25
(b)
1/4 for the other private respondents, including Jose Yabo or
his heirs;
(5)
5/9 shares which became the conjugal properties of Pastor
Makibalo and Maria Yabo to be divided thus:
(a)
3/4 for the petitioners (as successors-in-interest of Pastor
Makibalo), and
(b)
1/4 for the private respondents, including Jose Yabo or his
heirs.
In sum, Lots Nos. 6180 and 6080 should be partitioned as follows:
1/9 or 4/36—to Gaudencia Yabo’s heirs or successors-in-interest;
3/4 of 1/9 or 3/36—to the spouses Alberto and Elpia Yabo; 8/36—to
the private respondents, including Jose Yabo or his heirs; 21/36—to
the petitioners as successors-in-interest of Pastor Makibalo.
WHEREFORE, the challenged decision of the Court of Appeals of 8
February 1993 in CA-G.R. CV No. 12839 is AFFIRMED, subject to the
modifications indicated above. Upon the finality of this decision, let
this case be forthwith remanded to the court a quo for further
proceedings on the partition of Lots Nos. 6180 and 6080 in
conformity with this decision.
No pronouncement as to costs.
SO ORDERED.
Padilla (Chairman), Bellosillo, Quiason and Kapunan, JJ., concur.
Judgment affirmed with modifications.
Note.—Where there are two or more heirs, the whole estate of
the decedent is before its partition, owned in common by such heirs.
(Mendoza vs. Court of Appeals, 199 SCRA 778 [1991])

G.R. No. 184109. February 1, 2012.*
CELERINO E. MERCADO, petitioner, vs. BELEN**
ESPINOCILLA*** AND FERDINAND ESPINOCILLA,
respondents.
Civil Law; Property; Prescription; Words and Phrases;
Prescription, as a mode of acquiring ownership and other real rights
over immovable property, is concerned with lapse of time in the
manner and under conditions laid down by law, namely, that the
possession should be in the concept of an owner, public, peaceful,
uninterrupted, and adverse.—Prescription, as a mode of acquiring
ownership and other real rights over immovable property, is
concerned with lapse of time in the manner and under conditions
laid down by law, namely, that the possession should be in the
concept of an owner, public, peaceful, uninterrupted, and adverse.
Acquisitive prescription of real rights may be ordinary or
extraordinary. Ordinary acquisitive prescription requires possession
in good faith and with just title for 10 years. In extraordinary
prescription, ownership and other real rights over immovable
property are acquired through uninterrupted adverse possession for
30 years without need of title or of good faith.
Same; Same; Constructive Trusts; In a constructive trust, there
is neither a promise nor any fiduciary relation to speak of and the
so-called trustee neither accepts any trust nor intends holding the
property for the beneficiary.—Petitioner himself admits the adverse
nature of respondents’ possession with his assertion that Macario’s
fraudulent acquisition of Dionisia’s share created a constructive
trust. In a constructive trust, there is neither a promise nor any
fiduciary relation to speak of and the so-called trustee (Macario)
neither accepts any trust nor intends holding the property for the
beneficiary (Salvacion, Aspren, Isabel). The relation of trustee and
cestui que trust does not in fact exist, and the holding of a
constructive trust is for the trustee himself, and therefore, at all
times adverse. Prescription may supervene even if the trustee does
not repudiate the relationship.
Same; Same; Reconveyance; Prescription; An action for
reconveyance based on an implied or constructive trust prescribes in
Property Cases No. 9. 26
10 years from the time the right of action accrues.—The CA correctly
dismissed petitioner’s complaint as an action for reconveyance
based on an implied or constructive trust prescribes in 10 years from
the time the right of action accrues. This is the other kind of
prescription under the Civil Code, called extinctive prescription,
where rights and actions are lost by the lapse of time. Petitioner’s
action for recovery of possession having been filed 55 years after
Macario occupied Dionisia’s share, it is also barred by extinctive
prescription. The CA while condemning Macario’s fraudulent act of
depriving his three sisters of their shares in Dionisia’s share, equally
emphasized the fact that Macario’s sisters wasted their opportunity
to question his acts.
PETITION for review on certiorari of the decision and resolution of
the Court of Appeals.
The facts are stated in the opinion of the Court.
Juan Sanchez Dealca for petitioner.
Public Attorney’s Office for respondents.
VILLARAMA, JR., J.:
The Case
Petitioner Celerino E. Mercado appeals the Decision1 dated April
28, 2008 and Resolution2 dated July 22, 2008 of the Court of
Appeals (CA) in CA-G.R. CV No. 87480. The CA dismissed
petitioner’s complaint3 for recovery of possession, quieting of title,
partial declaration of nullity of deeds and documents, and damages,
on the ground of prescription.
The antecedent facts
Doroteo Espinocilla owned a parcel of land, Lot No. 552, with an
area of 570 sq. m., located at Magsaysay Avenue, Zone 5, Bulan,
Sorsogon. After he died, his five children, Salvacion, Aspren, Isabel,
Macario, and Dionisia divided Lot No. 552 equally among
themselves. Later, Dionisia died without issue ahead of her four
siblings, and Macario took possession of Dionisia’s share. In an

affidavit of transfer of real property4 dated November 1, 1948,
Macario claimed that Dionisia had donated her share to him in May
1945.
Thereafter, on August 9, 1977, Macario and his daughters Betty
Gullaba and Saida Gabelo sold5 225 sq. m. to his son Roger
Espinocilla, husband of respondent Belen Espinocilla and father of
respondent Ferdinand Espinocilla. On March 8, 1985, Roger
Espinocilla sold6 114 sq. m. to Caridad Atienza. Per actual survey of
Lot No. 552, respondent Belen Espinocilla occupies 109 sq. m.,
Caridad Atienza occupies 120 sq. m., Caroline Yu occupies 209 sq.
m., and petitioner, Salvacion’s son, occupies 132 sq. m.7
The case for petitioner
Petitioner sued the respondents to recover two portions: an area of
28.58 sq. m. which he bought from Aspren and another 28.5 sq. m.
which allegedly belonged to him but was occupied by Macario’s
house.9 His claim has since been modified to an alleged
encroachment of only 39 sq. m. that he claims must be returned to
him. He avers that he is entitled to own and possess 171 sq. m. of
Lot No. 552, having inherited 142.5 sq. m. from his mother
Salvacion and bought 28.5 sq. m. from his aunt Aspren. According
to him, his mother’s inheritance is 142.5 sq. m., that is, 114 sq. m.
from Doroteo plus 28.5 sq. m. from Dionisia. Since the area he
occupies is only 132 sq. m.,10 he claims that respondents encroach
on his share by 39 sq. m.11
The case for respondents
Respondents agree that Doroteo’s five children each inherited 114
sq. m. of Lot No. 552. However, Macario’s share increased when he
received Dionisia’s share. Macario’s increased share was then sold to
his son Roger, respondents’ husband and father. Respondents claim
that they rightfully possess the land they occupy by virtue of
acquisitive prescription and that there is no basis for petitioner’s
claim of encroachment.12
The trial court’s decision
Property Cases No. 9. 27
On May 15, 2006, the Regional Trial Court (RTC) ruled in favor of
petitioner and held that he is entitled to 171 sq. m. The RTC found
that petitioner inherited 142.5 sq. m. from his mother Salvacion and
bought 28.5 sq. m. from his aunt Aspren. The RTC computed that
Salvacion, Aspren, Isabel and Macario each inherited 142.5 sq. m. of
Lot No. 552. Each inherited 114 sq. m. from Doroteo and 28.5 sq.
m. from Dionisia. The RTC further ruled that Macario was not
entitled to 228 sq. m. Thus, respondents must return 39 sq. m. to
petitioner who occupies only 132 sq. m.13
There being no public document to prove Dionisia’s donation, the
RTC also held that Macario’s 1948 affidavit is void and is an invalid
repudiation of the shares of his sisters Salvacion, Aspren, and Isabel
in Dionisia’s share. Accordingly, Macario cannot acquire said shares
by prescription. The RTC further held that the oral partition of Lot
No. 552 by Doroteo’s heirs did not include Dionisia’s share and that
partition should have been the main action. Thus, the RTC ordered
partition and deferred the transfer of possession of the 39 sq. m.
pending partition.14 The dispositive portion of the RTC decision
reads:
“WHEREFORE, in view of the foregoing premises, the court issues
the following ORDER, thus—
a) Partially declaring the nullity of the Deed of Absolute Sale of
Property dated August 9, 1977 x x x executed by Macario
Espinocilla, Betty E. Gullaba and Saida E. Gabelo in favor of
Roger Espinocilla, insofar as it affects the portion or the
share belonging to Salvacion Espinocilla, mother of
[petitioner,] relative to the property left by Dionisia
Espinocilla, including [Tax Declaration] No. 13667 and other
documents of the same nature and character which
emanated from the said sale;
b) To leave as is the Deeds of Absolute Sale of May 11, 1983 and
March 8, 1985, it having been determined that they did not
involve the portion belonging to [petitioner] x x x.
c) To effect an effective and real partition among the heirs for
purposes of determining the exact location of the share (114

sq. m.) of the late Dionisia Espinocilla together with the 28.5
sq. m. belonging to [petitioner’s] mother Salvacion, as well
as, the exact location of the 39 sq. m. portion belonging to
the [petitioner] being encroached by the [respondents], with
the assistance of the Commissioner (Engr. Fundano)
appointed by this court.
d) To hold in abeyance the transfer of possession of the 39 sq. m.
portion to the [petitioner] pending the completion of the real
partition above-mentioned.”15
The CA decision
On appeal, the CA reversed the RTC decision and dismissed
petitioner’s complaint on the ground that extraordinary
acquisitive prescription has already set in in favor of
respondents. The CA found that Doroteo’s four remaining
children made an oral partition of Lot No. 552 after
Dionisia’s death in 1945 and occupied specific portions. The
oral partition terminated the co-ownership of Lot No. 552 in
1945. Said partition also included Dionisia’s share because
the lot was divided into four parts only. And since
petitioner’s complaint was filed only on July 13, 2000, the
CA concluded that prescription has set in.16 The CA
disposed the appeal as follows:
“WHEREFORE, the appeal is GRANTED. The assailed May 15, 2006
Decision of the Regional Trial Court (RTC) of Bulan, Sorsogon is
hereby REVERSED and SET ASIDE. The Complaint of the [petitioner]
is hereby DISMISSED. No costs.”17
The instant petition
The core issue to be resolved is whether petitioner’s action to
recover the subject portion is barred by prescription.
Petitioner confirms oral partition of Lot No. 552 by Doroteo’s heirs,
but claims that his share increased from 114 sq. m. to 171 sq. m.
and that respondents encroached on his share by 39 sq. m. Since an
Property Cases No. 9. 28
oral partition is valid, the corresponding survey ordered by the RTC
to identify the 39 sq. m. that must be returned to him could be
made.18 Petitioner also alleges that Macario committed fraud in
acquiring his share; hence, any evidence adduced by him to justify
such acquisition is inadmissible. Petitioner concludes that if a person
obtains legal title to property by fraud or concealment, courts of
equity will impress upon the title a so-called constructive trust in
favor of the defrauded party.19
The Court’s ruling
We affirm the CA ruling dismissing petitioner’s complaint on the
ground of prescription.
Prescription, as a mode of acquiring ownership and other real rights
over immovable property, is concerned with lapse of time in the
manner and under conditions laid down by law, namely, that the
possession should be in the concept of an owner, public, peaceful,
uninterrupted, and adverse. Acquisitive prescription of real rights
may be ordinary or extraordinary. Ordinary acquisitive prescription
requires possession in good faith and with just title for 10 years. In
extraordinary prescription, ownership and other real rights over
immovable property are acquired through uninterrupted adverse
possession for 30 years without need of title or of good faith.20
Here, petitioner himself admits the adverse nature of respondents’
possession with his assertion that Macario’s fraudulent acquisition of
Dionisia’s share created a constructive trust. In a constructive trust,
there is neither a promise nor any fiduciary relation to speak of and
the so-called trustee (Macario) neither accepts any trust nor intends
holding the property for the beneficiary (Salvacion, Aspren, Isabel).
The relation of trustee and cestui que trust does not in fact exist,
and the holding of a constructive trust is for the trustee himself, and
therefore, at all times adverse.21 Prescription may supervene even
if the trustee does not repudiate the relationship.22
Then, too, respondents’ uninterrupted adverse possession for 55
years of 109 sq. m. of Lot No. 552 was established. Macario
occupied Dionisia’s share in 1945 although his claim that Dionisia
donated it to him in 1945 was only made in a 1948 affidavit. We
 Property Cases No. 9. 29

also agree with the CA that Macario’s possession of Dionisia’s share Corona (C.J., Chairperson), Leonardo-De Castro, Bersamin and
was public and adverse since his other co-owners, his three other Del Castillo, JJ., concur.
sisters, also occupied portions of Lot No. 552. Indeed, the 1977 sale
made by Macario and his two daughters in favor of his son Roger Petition denied, judgment and resolution affirmed.
confirms the adverse nature of Macario’s possession because said
sale of 225 sq. m.23 was an act of ownership over Macario’s original Notes.—The ten year ordinary prescriptive period to acquire title
share and Dionisia’s share. In 1985, Roger also exercised an act of through possession of real property in the concept of an owner
ownership when he sold 114 sq. m. to Caridad Atienza. It was only requires uninterrupted possession coupled with just title and good
in the year 2000, upon receipt of the summons to answer faith. (Villanueva vs. Branoco, 640 SCRA 308 [2011]).
petitioner’s complaint, that respondents’ peaceful possession of the
An action for reconveyance based on a constructive implied trust
remaining portion (109 sq. m.) was interrupted. By then, however,
prescribes in 10 years in accordance with Article 1144 of the Civil
extraordinary acquisitive prescription has already set in in favor of
Code. (Estate of Margarita D. Cabacungan vs. Laigo, 655 SCRA 366
respondents. That the RTC found Macario’s 1948 affidavit void is of
[2011]).
no moment. Extraordinary prescription is unconcerned with
Macario’s title or good faith. Accordingly, the RTC erred in ruling that
Macario cannot acquire by prescription the shares of Salvacion,
Aspren, and Isabel, in Dionisia’s 114-sq. m. share from Lot No. 552.

Moreover, the CA correctly dismissed petitioner’s complaint as an

action for reconveyance based on an implied or constructive trust
prescribes in 10 years from the time the right of action accrues.24
This is the other kind of prescription under the Civil Code, called
extinctive prescription, where rights and actions are lost by the
lapse of time.25 Petitioner’s action for recovery of possession having
been filed 55 years after Macario occupied Dionisia’s share, it is also
barred by extinctive prescription. The CA while condemning
Macario’s fraudulent act of depriving his three sisters of their shares
in Dionisia’s share, equally emphasized the fact that Macario’s
sisters wasted their opportunity to question his acts.

WHEREFORE, we DENY the petition for review on certiorari for lack

of merit and AFFIRM the assailed Decision dated April 28, 2008 and
Resolution dated July 22, 2008 of the Court of Appeals in CA-G.R.
CV No. 87480.

No pronouncement as to costs.

SO ORDERED.

No. L-22621. September 29, 1967.
JOSE MARIA RAMIREZ, plaintiff-appellee, vs. JOSE EUGENIO
RAMIREZ,RITA D.RAMIREZ,BELEN T. RAMIREZ,DAVID
MARGOLIES,MANUEL UY & SONS,INC., BANK OF THE
PHILIPPINE ISLANDS, in its capacity as judicial administrator
of the Testate Estate of the late Jose Vivencio Ramirez,
defendants-appellants, ANGELA M. BUTTE, defendant-
appellee.
Civil law; Co-ownership property; Where division thereof is proper.—
Where, as in this case, no evidence was introduced to support the
claim that a physical division of the property will cause inestimable
damage to the interest of the co-owners thereof, a court order
requiring its division was proper.
Same; Expenses of division to be defrayed by parties benefited.—
Since the segregation of the property in question inured to the
benefit not only of plaintiff but also of defendants, both parties must
defray the incidental expenses.
APPEAL from a decision of the Court of First Instance of Manila.
The facts are stated in the opinion of the Court.
Sycip, Salazar, Luna & Associates for plaintiff-appellee.
Ramirez & Ortigas for defendants-appellants.
CONCEPCION, C.J.:
Appeal by the defendants from a decision of the Court of First
Instance of Manila.
Plaintiff, Jose Maria Ramirez, brought this action1 against
defendants Jose Eugenio Ramirez, Rita D. Ramirez, Belen T.
Ramirez, David Margolies, Manuel Uy & Sons, Inc., the Estate of the
late Jose Vivencio Ramirez represented by its judicial administrator,
the Bank of the Philippine Islands, and Angela M. Butte—hereinafter
referred to collectively as defendants—for the partition of a parcel of
land situated at the Northwestern corner of Escolta street and Plaza
Property Cases No. 9. 30
Sta. Cruz, Manila—otherwise known as Lot 1 of Block 2120 of the
Cadastral Survey of Manila and more particularly described in
Transfer Certificate of Title No. 53946 of the Register of Deeds for
said City—and belonging pro indiviso to both parties, one-sixth (1/6)
to the plaintiff and five-sixths (5/6) to the defendants.
Manuel Uy & Sons expressed its conformity to the partition, “if the
same can be done without great prejudice to the interests of the
parties.” Defendant Butte agreed to the partition prayed for. The
other defendants objected to the physical partition of the property in
question, upon the theory that said partition is “materially and
legally” impossible and “would work great harm and prejudice ta the
co-owners.” By agreement of the parties the lower Court referred
the matter to a Commission composed of:
1. (1)
Delfin Gawaran, Deputy Clerk of said court, as Chairman,
2. (2)
Artemio U. Valencia, President of the Manila Board of Realtors,
as commissioner for plaintiff, and
3. (3)
Ramon F. Cuervo, President of the Perpetual Investment
Corporation, Inc, as commissioner for defendants,
to determine whether the property is susceptible of partition, and
submit a plan therefor, if feasible, as well as to report thereon.
Subsequently, the commissioners submitted their individual reports
with their respective plans for the segregation of plaintiff’s share.
After due hearing, the Court rendered a decision de. daring that
plaintiff is entitled to the segregation of his share, and directing that
the property be partitioned in accordance with the plan submitted by
commissioner Valencia, and that the expenses incident thereto be
paid by both parties proportionately. Hence, this appeal by the
defendants, except Mrs. Butte. Appellants maintain that the lower
court has erred: 1) in holding that said property is legally
susceptible of physical division; 2) in accepting the recommendation
of commissioner Valencia, instead of that of commissioner Cuervo,

or a proposal made by the very plaintiff; and 3) in not ordering that
the incidental expenses be borne exclusively by him.
We find no merit in the appeal.
With respect to the first alleged error, it is urged that a physical
division of the property will cause “inestimable damage” to the
interest of the co-owners. No evidence, however, has been
introduced, or sought to be introduced, in support of this allegation.
Moreover, the same is predicated upon the assumption that a real
estate suitable for commercial purposes—such as the one herein
sought to be partitioned—is likely to suffer a proportionately great
diminution in value when its area becomes too small. But, then, if
plaintiffs share of 260.26 square meters were segregated from the
property in question, there would still remain a lot of 1,301.34
square meters for appellants herein and Mrs. Butte. A real estate of
this size, in the very heart of Manila, is not, however,
inconsequential, in comparison to that of the present property of the
community. In other words, we do not believe that its value would
be impaired, on account of the segregation of plaintiff’s share, to
such an extent as to warrant the conclusion that the property is
indivisible.
Appellants argue that, instead of making the aforementioned
segregation, plaintiff’s share should be sold to them. In support of
this pretense, they cite the provision of Article 495 of our Civil Code,
to the effect that:
“xxx Notwithstanding the provisions of the preceding article, the co-
owners cannot demand a physical division of the thing owned in
common, when to do so would render it unserviceable for the use
for which it is intended. But the coownership may be terminated in
accordance with article 498.”
They apparently assume, once again, that the alleged “inestimable
damage” to be suffered by the property, if plaintiff’s share were
segregated, is equivalent to rendering it “unserviceable for the use
for which it is intended.” Independently of the fact that the minor
premise of this syllogism—the alleged “inestimable damage”—has
not been established, the conclusion drawn by appellants does not
Property Cases No. 9. 31
follow necessarily. Indeed, the record shows that there are two (2)
buildings on the land in question, namely: 1) a two-storey
commercial building—known as “Sta. Cruz Building”—abutting, on
the one (1) side,2 on the Escolta, and, on the other3 on Plaza Santa
Cruz; and 2) a small two-storey residential building, on the
Northwestern end of the lot, and behind the first building, adjoining
the Estero de la Reina, which constitutes the Southwestern
boundary of the property. There is nothing to show that, after
segregating plaintiff’s share, the buildings left on the remaining
1,301.34 square meters, representing defendants’ share, would be
unserviceable, either for commercial or for residential purposes. On
the contrary, it seems obvious that plaintiff would not insist upon
the partition prayed for, if his share4 were unserviceable for either—
particularly the commercial—purpose. In fact, every one of the
aforementioned commissioners, including the one representing
defendants herein, recommended the segregation of plaintiffs share.
The commissioners merely failed to agree on the precise
configuration thereof.
This brings us to the second issue raised by appellants: whether the
lower court should have adopted the plan submitted by their own
commissioner, or “in not taking into consideration,” at least, a
proposal made by plaintiff herein. In this connection, it appears that
said commissioner5 recommended that plaintiff’s share be given a
frontage of 6.14 lineal meters at Plaza Sta. Cruz, whereas the
commissioner for the Court6 favored a frontage of 12.66 square
meters at said Plaza; that defendants’ main objection to the plan
recommended by commissioner Valencia7 and adopted by the lower
court, is that it left, behind the portion awarded to plaintiff, a lot of
169 square meters, which would have to be divided among the
defendants, should they later wish to have their individual shares
segregated; and that, in order to offset this objection, plaintiff
expressed—in one of the pre-trials held in the lower court and in
order to “facilitate early termination” of the case—the willingness “to
buy from the other co-owners the remaining portion of the land
behind his lot at Pl,000 per square meter.”
The record does not show that this offer of the plaintiff had not been
“taken into consideration” by the lower court. Moreover, defendants
 Property Cases No. 9. 32

had not accepted it. And neither do they accept it now, for they
would want the plaintiff to pay a price higher than that offered by
him. Upon the other hand, the disadvantage resulting to the
defendants from the existence of said lot of 169 square meters,
behind that awarded to the plaintiff, is offset by the fact that the
remaining portion of the land in question—representing defendants’
collective share—has, in addition to a frontage of around 40 meters
on Plaza Santa Cruz, a frontage of 24.13 meters on Escolta Street,
which apart from being, admittedly, the most valuable one, is totally
denied to the plaintiff. Then, again the Cuervo plan giving plaintiff a
6.14 meters frontage of Plaza Sta. Cruz, goes all the way down to
the Western end of the property, the Estero de la Reina, and would
require a partition of the residential building, on that part of the
property in question, which the very plaintiff says is indivisible,
because it would render said building “unserviceable for the purpose
for which it is intended.”8

As regards the last alleged error, it is obvious that the segregation

of plaintiff’s share inures to the benefit not only of the plaintiff, but,
also, of the defendants, and that both should, consequently, defray
the incidental expenses.

WHEREFORE, the decision appealed from is hereby affirmed, with

the costs of this instance against herein defendants-appellants. It is
so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro,

Angeles and Fernando, JJ., concur. Bengzon, J.P., J., is on leave.

Decision affirmed.

G.R. No. 45142. April 26, 1991.*
SIMPROSA VDA. DE ESPINA, RECAREDO ESPINA, TIMOTEO
ESPINA, CELIA ESPINA, GAUDIOSA ESPINA and NECIFORA
ESPINA, petitioners, vs. THE HON. OTILIO ABAYA and SOFIA
ESPINA and JOSE ESPINA, respondents.
Remedial Law; Civil Procedure; Partition; When an action for
partition among co-heirs which is imprescriptible becomes one for
title.—We already ruled in Lebrilla, et al. v. Intermediate Appellate
Court (G.R. No. 72623, December 18, 1989, 180 SCRA 188; 192)
that an action for partition is imprescriptible. However, an action for
partition among co-heirs ceases to be such, and becomes one for
title where the defendants allege exclusive ownership. In the case at
bar, the imprescriptibility of the action for partition cannot be
invoked because two of the co-heirs, namely private respondents
Sofia and Jose Espina possessed the property as exclusive owners
and their possession for a period of twenty one (21) years is
sufficient to acquire it by prescription. Hence, from the moment
these co-heirs claim that they are the absolute and exclusive owners
of the properties and deny the others any share therein, the
question involved is no longer one of partition but of ownership.
Same; Same; Same; Civil Law; Statute of Frauds; An oral
agreement for the partition of the property owned in common is
valid and enforceable upon the parties.—Anent the issue of oral
partition, We sustain the validity of said partition. “An agreement of
partition may be made orally or in writing. An oral agreement for the
partition of the property owned in common is valid and enforceable
upon the parties. The Statute of Frauds has no operation in this kind
of agreements, for partition is not a conveyance of property but
simply a segregation and designation of that part of the property
which belong to the co-own-ers.” (Tolentino, Commentaries and
Jurisprudence on the Civil Code of the Philippines, Vol. II, 1983
Edition, 182-183 citing Hernandez v. Andal, et. al., G.R. No. L-275,
March 29, 1957)
Same; Same; Motion For Reconsideration; The refusal of the court
to hear a motion for reconsideration does not constitute a denial of
due process in the absence of a showing of abuse of discretion.—The
Property Cases No. 9. 33
absence of a formal hearing on the petitioners’ motion for
reconsideration is thoroughly explained in the order of the
respondent judge dated August 13, 1975, which is hereunder quoted
as follows: “When the court issued its order of June 5, 1975
requiring counsel for defendants to answer plaintiffs’ motion for
reconsideration, the court opted to resolve plaintiffs’ motion based
on the pleadings of the parties, without further oral arguments. The
court considered the arguments of the parties stated in their
pleadings as already sufficient to apprise the court of the issues
involved in said motion. Plaintiffs’ allegation that the Clerk of Court
failed to calendar their motion for reconsideration for oral argument
has not deprived the plaintiffs of any substantial right or his right to
due process.
Same; Same; Same; Notice of Appeal; The lower court committed
no error when it held that the notice of appeal was filed after the
lapse of thirty five (35) days, which is clearly beyond the period of
thirty (30) days allowed by the rules.—Therefore, it is very evident
that the second motion for reconsideration being pro-forma did not
suspend the running of the period of appeal. Thus, the lower court
committed no error when it held that the notice of appeal was filed
after the lapse of thirty five (35) days, which is clearly beyond the
period of thirty (30) days allowed by the rules.
Same; Same; Certiorari under Rule 65; A special civil action under
Rule 65 of the Rules of Court will not be a substitute or cure for
failure to file a timely petition for review on certiorari (appeal) under
Rule 45 of the Rules of Court.—Finally, it has been a basic rule that
certiorari is not a substitute for appeal which had been lost. (see
Edra v. Intermediate Appellate Court, G.R. No. 75041, November
13, 1989, 179 SCRA 344) A special civil action under Rule 65 of the
Rules of Court will not be a substitute or cure for failure to file a
timely petition for review on certiorari (appeal) under Rule 45 of the
Rules of Court. (Escudero v. Dulay, G.R. No. 60578, February 23,
1988, 158 SCRA 69, 77)
PETITION for certiorari to review the orders of the then Court of
First Instance of Surigao del Sur, Br. 2 Abaya, J.
The facts are stated in the opinion of the Court.

Cipriano C. Alvizo, Sr. for private respondents.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the issuance of a writ
of preliminary injunction seeking the nullification of the orders
issued by the respondent Judge Otilio Abaya, in his capacity as the
presiding judge of the Court of First Instance of Surigao del Sur,
Branch II, Lianga, Surigao del Sur in Civil Case No. L-108, entitled
“Simprosa Vda. de Espina, et. al. v. Sofia Espina, et. al.” dated May
9, 1975 dismissing the complaint for partition; July 25, 1975
denying the motion for reconsideration; August 13, 1975 denying
the second motion for reconsideration and March 15, 1976 denying
plaintiffs’ notice of appeal.
The antecedent facts are as follows:
Marcos Espina died on February 14, 1953 and was survived by his
spouses, Simprosa Vda. de Espina and their children namely,
Recaredo, Timoteo, Celia, Gaudiosa, Necifora, Sofia and Jose, all
surnamed Espina. Decedent’s estate comprises of four (4) parcels of
land located at the Municipality of Barobo, Province of Surigao del
Sur.
On August 23, 1973 an action for partition of the aforementioned
parcels of land was filed by petitioners Simprosa and her children
Recaredo, Timoteo, Celia, Gaudencia and Necifora.
The complaint alleges that parcel No. 1 is the exclusive property of
the deceased, hence the same is owned in common by petitioners
and private respondents in eight (8) equal parts, while the other
three (3) parcels of land being conjugal properties, are also owned
in common, one-half (1/2) belongs to the widow Simprosa and the
other half is owned by her and her children in eight (8) equal parts.
It also alleges that parcel No. 1 has been subdivided into two lots.
Lot No. 994 PL8-44 is covered by Original Certificate of Title No.
5570 in the name of one of the heirs, Sofia Espina, who acquired the
title as a trustee for the beneficiaries or heirs of Marcos Espina,
while lot No. 1329 PCS-44 is covered by Original Certificate of Title
Property Cases No. 9. 34
No. 3732 issued in the name of one of the heirs, Jose Espina as
trustee for the heirs of Marcos Espina. Said parcel of land is in the
possession of petitioners and private respondents who have their
respective houses thereon.
Simprosa presently occupies parcel No. 2 while parcel No. 3 is
occupied by Timoteo, although the same is actually titled in the
name of Sofia. Parcel No. 4 is occupied by Recaredo.
Petitioners have several times demanded the partition of the afore-
mentioned properties, but notwithstanding such demands, private
respondents refused to accede.
Private respondents alleged in their answer that in or about April,
1951, the late Marcos Espina and his widow, Simprosa, together
with their children made a temporary verbal division and assignment
of shares among their children. After the death of Marcos, the
temporary division was finalized by the heirs. Thereafter the heirs
took immediate possession of their respective shares on April 20,
1952. Private respondents took actual physical possession of their
respective shares including the portions ceded to them by Simprosa
upon their payment of P50.00 each per quarter starting April, 1952
until the latter’s death pursuant to their contract of cession. The
assignment of shares was as follows:
1. “(a)
To the surviving spouses, (sic) Simprosa Vda. de Espina,
herein plaintiffs, one-half (1/2) of the parcel of land
adjudicated to each of said plaintiffs-heirs and defendants;
2. (b)
To each of the following compulsory heirs, to wit:
1. 1.
To Recarida (sic) Espina, one-half (1/2) portion which contains
an area of one and three-fourths (1 3/4) hectares and which
forms part of Parcel 4 whose description is given in paragraph
III of the complaint, the said Parcel IV has been in the
possession of both Recaredo Espina and plaintiff Simprosa
Vda. de Espina from April 20, 1952 until the present time;

2. 2.
To Timoteo Espina, one half (1/2) portion which contains an
area of not less than one-half (1/2) hectare and which forms
part of Parcel 3 whose description is given in paragraph III of
the complaint, the said Parcel III was originally assigned by
Marcos Espina who thereupon obtained an Original Certificate
of Title in her (sic) name but was finally adjudicated to said
Timoteo Espina in April, 1952, the other half (1/2) portion of
which parcel III was the share of the surviving spouses (sic),
Simprosa Vda. de Espina, and said Parcel III has been in the
possession of said Timoteo Espina and Simprosa Vda. de
Espina from April, 1952 until the present time as their share;
3. 3.
To Cecilia (sic) Espina, Gaudiosa Espina and Necifora Espina,
one-half (1/2) portion, share and share alike which contains
two (2) hectares and which forms part of Parcel II whose
description is given in paragraph III of the complaint, the
other half (1/2) of said Parcel III (sic) is the share of the
surviving spouses (sic) Simprosa Vda. de Espina, and said
Parcel III (sic) has been in the possession of said Cecilia. (sic)
Espina, Gaudiosa Espina and Necifora Espina and Simprosa
Vda. de Espina from April, 1952 until the present time;
4. 4.
To Sofia Espina, one-half (1/2) portion of the parcel of land
included in the description of Parcel 1 in paragraph III of the
complaint, the other half (1/2) of said parcel being the share
of the surviving spouses (sic) Simprosa Vda. de Espina and
having been ceded by said Simprosa Vda. de Espina to said
Sofia Espina for a valuable consideration payable quarterly at
the rate of P50.00 beginning April, 1952 until her death, and
said Sofia Espina has been regularly paying to said Simprosa
Vda. de Espina quarterly from April, 1952 the said amount of
P50.00 until the present time, and by virtue of said
agreement, Sofia Espina obtained Original Certificate of Title
in her name of said parcel of land which is included in the
description of said parcel 1, as her exclusive property;
Property Cases No. 9. 35
5. 5.
To Jose Espina, one-half (1/2) portion of the other parcel of
land included in the description of Parcel 1 in paragraph 1 of
the complaint, the other half (1/2) of said parcel being the
share of the surviving spouses (sic) Simprosa Vda. de Espina
and having been coded (sic) by said Simprosa Vda. de Espina
to said Jose Espina for a valuable consideration payable
quarterly at the rate of P50.00 beginning April, 1952 until her
death, and said Jose Espina has been regularly quarterly
paying to said Simprosa Vda. de Espina from April, 1952 until
the present time, the said amount of P50.00, and by virtue of
said agreement, Jose Espina obtained Original Certificate of
Title in his name of said parcel of land which is included in the
description of said Parcel 1 as his exclusive property. (Rollo,
pp. 27-28)
On February 13, 1974 private respondents filed a motion to dismiss
the complaint alleging the following grounds, to wit:
“I
“THAT THE FACTS ALLEGED IN THE COMPLAINT FAIL TO CON-FER
UPON THE COURT COMPLETE AND LAWFUL JURISDICTION OVER
THE CASE FOR NON-COMPLIANCE WITH THE CONDITION SINE QUA
NON CONCERNING SUIT BETWEEN MEMBERS OF THE SAME FAMILY.
“x x x xxx xxx
“II
“THAT THE CAUSE OF ACTION IS BARRED BY x x x STATUTE OF
LIMITATIONS.
“x x x xxx xxx
“THAT THE PLAINTIFFS HAS NO LEGAL CAPACITY TO SUE. (Motion
to Dismiss Complaint, pp. 1-5; Rollo, pp. 34-38)
“x x x xxx xxx
 Property Cases No. 9. 36

On May 9, 1975 the trial court granted the motion and thereafter 3. “3.
dismissed the complaint. Whether or not a hearing on a motion for reconsideration is
indispensable the lack of which is a denial of due process.
On May 23, 1975 petitioners filed a motion for reconsideration on
the following grounds, to wit: 4. “4.
Whether or not the second motion for reconsideration is pro
1. “1. forma. (Rollo, p. 10)
THAT THE ORDER OF DISMISSAL HAS NO LEGAL BASIS IN
FACT AND IN LAW. Petitioners maintain that the present action is not for reconveyance
but one for partition. Hence, the rule insisted by the private
2. “2. respondents on prescriptibility of an action for reconveyance of real
THAT THE STATUTE OF LIMITATIONS IS NOT APPLICABLE IN property based on an implied trust is not applicable in the case at
THE CASE AT BAR.” (Rollo, p. 50) bar. In addition, petitioners, argue that private respondents cannot
set up the defense of prescription or laches because their possession
However, petitioners’ motion was denied in an order dated July 23, of the property no matter how long cannot ripen into ownership.
1975. On August 11, 1975 petitioners filed another motion for (Memorandum for Petitioners, p. 7)
reconsideration stressing that they were denied due process when
their motion was not heard. Again said motion was denied on August However, the private respondents stress that “any supposed right of
13, 1975. the petitioners to demand a new division or partition of said estate
of Marcos Espina has long been barred by the Statute of Limitations
Thereafter, petitioners filed their notice of appeal on September 11, and has long prescribed.” (Memorandum for Private Respondents, p.
1975 and a motion for extension of time to file their Record on 5)
Appeal on September 18, 1975.
The petitioners claim that the alleged oral partition is invalid and
On March 15, 1976, the respondent judge disapproved petitioners’ strictly under the coverage of the statute of Frauds on two grounds,
Record on Appeal and appeal bond on the ground that the notice of to wit:
appeal was filed out of time.
Firstly, parcel No. 1 being an exclusive property of the deceased
Hence, this petition. should have been divided into eight (8) equal parts. Therefore,
Simprosa could only cede her share of the land which is 1/8 portion
The petitioners raised four (4) assignment of errors:
thereof and cannot validly cede the shares of her then minor
1. “1. children without being duly appointed as guardian.
Whether or not an action for partition among co-heirs
Secondly, under Article 1358 of the New Civil Code, Simprosa could
prescribes.
not have ceded her right and that of her other children except by a
2. “2. public document. (Memorandum of Petitioners, pp. 8-9)
Whether or not an oral partition among co-heirs is valid.
On the other hand, private respondents insist that the oral partition
is valid and binding and does not fall under the coverage of the
Statute of Frauds.

Petitioners claim that they were denied due process when the
motion for reconsideration was denied without any hearing.
However, private respondents maintain that the hearing of a motion
for reconsideration in oral argument is a matter which rest upon the
sound discretion of the Court.
Finally, petitioners stress that the second motion for reconsideration
is not pro forma, thus, it suspend the running of the period of
appeal. Hence, the notice of appeal was timely filed.
On this point, private respondent maintain that the order of
respondent judge dated March 15, 1976 disapproving petitioners’
Record on Appeal and appeal bond may not properly be a subject of
a petition for certiorari. (Memorandum of Private Respondents, p.
13)
We find the petition devoid of merit.
We already ruled in Lebrilla, et al. v. Intermediate Appellate Court
(G.R. No. 72623, December 18, 1989, 180 SCRA 188; 192) that an
action for partition is imprescriptible. However, an action for
partition among co-heirs ceases to be such, and becomes one for
title where the defendants allege exclusive ownership.
In the case at bar, the imprescriptibility of the action for partition
cannot be invoked because two of the co-heirs, namely private
respondents Sofia and Jose Espina possessed the property as
exclusive owners and their possession for a period of twenty one
(21) years is sufficient to acquire it by prescription. Hence, from the
moment these co-heirs claim that they are the absolute and
exclusive owners of the properties and deny the others any share
therein, the question involved is no longer one of partition but of
ownership.
Anent the issue of oral partition, We sustain the validity of said
partition. “An agreement of partition may be made orally or in
writing. An oral agreement for the partition of the property owned in
common is valid and enforceable upon the parties. The Statute of
Frauds has no operation in this kind of agreements, for partition is
Property Cases No. 9. 37
not a conveyance of property but simply a segregation and
designation of the part of the property which belong to the co-
owners.” (Tolentino, Commentaries and Jurisprudence on the Civil
Code of the Philippines, Vol. II, 1983 Edition, 182-183 citing
Hernandez v. Andal, et. al., G.R. No. L-275, March 29, 1957)
Time and again, the Court stresses that the hearing of a motion for
reconsideration in oral argument is a matter which rests upon the
sound discretion of the Court. Its refusal does not constitute a denial
of due process in the absence of a showing of abuse of discretion.
(see Philippine Manufacturing Co. v. Ang Bisig ng PMC, et. al., 118
Phil. 431, 434)
The absence of a formal hearing on the petitioners’ motion for
reconsideration is thoroughly explained in the order of the
respondent judge dated August 13, 1975, which is hereunder quoted
as follows:
“When the court issued its order of June 5, 1975 requiring counsel
for defendants to answer plaintiffs’ motion for reconsideration, the
court opted to resolve plaintiffs’ motion based on the pleadings of
the parties, without further oral arguments. The court considered
the arguments of the parties stated in their pleadings as already
sufficient to apprise the court of the issues involved in said motion.
Plaintiffs’ allegation that the Clerk of Court failed to calendar their
motion for reconsideration for oral argument has not deprived the
plaintiffs of any substantial right or his right to due process.
SO ORDERED.” (Memorandum of Private Respondents, pp. 12-13)
A cursory reading of the aforequoted order will show that there was
indeed no formal hearing on the motion for reconsideration. There is
no question however, that the motion is grounded on the lack of
basis in fact and in law of the order of dismissal and the existence or
lack of it is determined by a reference to the facts alleged in the
challenged pleading. The issue raised in the motion was fully
discussed therein and in the opposition thereto. Under such
circumstances, oral argument on the motion is reduced to an
 Property Cases No. 9. 38

unncessary ceremony and should be overlooked (see Ethel Case, et bar is totally devoid of merit, thus, the strict application of the said
al. v. Jugo, 77 Phil. 517, 522). rule will not in any way override substantial justice.

We adhere to the findings of the trial court that the second motion
for reconsideration dated August 11, 1975 is pro forma, to wit:
“The grounds stated in said motion being in reiteration of the same
grounds alleged in his first motion, the same is pro-forma.” (Order
dated March 15, 1976, p. 2, Rollo, p. 74)
xxx xxx
“Furthermore, the second motion for reconsideration has not stated
new grounds considering that the alleged failure of the Clerk of
Court to set plaintiffs’ motion for reconsideration, although
seemingly a different ground than those alleged in their first motion
for reconsideration, is only incidental to the issues raised in their
first motion for reconsideration, as it only refers to the right of
plaintiffs’ counsel to argue his motion in court just to amplify the
same grounds already denied by the court.” (Ibid, p. 3, Rollo, p. 75)
Therefore, the delay of five (5) days in filing a notice of appeal and a
motion for extension to file a record on appeal cannot be excused on
the basis of equity.
All premises considered, the Court is convinced that the acts of
respondent judge, in dismissing the action for partition and in
subsequently denying the motions for reconsideration of the
petitioners, does not amount to grave abuse of discretion.
ACCORDINGLY, the petition is DISMISSED.
SO ORDERED.
Narvasa (Chairman), Cruz, Gancayco and Griño-Aquino, JJ.,
concur.
Petition dismissed.

Therefore, it is very evident that the second motion for Note.—Remedy of certiorari does not lie where appeal has been
reconsideration being pro-forma did not suspend the running of the lost. Certiorari cannot take the place of an appeal. (De la Cruz v.
period of appeal. Thus, the lower court committed no error when it Intermediate Appellate Court, 134 SCRA 417.)
held that the notice of appeal was filed after the lapse of thirty five
(35) days, which is clearly beyond the period of thirty (30) days
allowed by the rules.

Finally, it has been a basic rule that certiorari is not a substitute for
appeal which had been lost. (see Edra v. Intermediate Appellate
Court, G.R. No. 75041, November 13, 1989, 179 SCRA 344) A
special civil action under Rule 65 of the Rules of Court will not be a
substitute or cure for failure to file a timely petition for review on
certiorari (appeal) under Rule 45 of the Rules of Court. (Escudero v.
Dulay, G.R. No. 60578, February 23, 1988, 158 SCRA 69, 77)

The application of the abovecited rule should be relaxed where it is

shown that it will result in a manifest failure or miscarriage of
justice. (Ibid, p. 77) However, as emphasized earlier, the case at

G.R. No. 180269 February 20, 2013.*
JOSE Z. CASILANG, SR., substituted by his heirs, namely:
FELICIDAD CUDIAMAT VDA. DE CASILANG, JOSE C.
CASILANG, JR., RICARDO C. CASILANG, MARIA LOURDES C.
CASILANG, CHRISTOPHER C. CASILANG, BEN C. CASILANG,
DANTE C. CASILANG, GREGORIO C. CASILANG, HERALD C.
CASILANG; and FELICIDAD Z. CASILANG, MARCELINA Z.
CASILANG, JACINTA Z. CASILANG, BONIFACIO Z. CASILANG,
LEONORA Z. CASILANG, and FLORA Z. CASILANG, petitioners,
vs. ROSARIO Z. CASILANG-DIZON, MARIO A. CASILANG,
ANGELO A. CASILANG, RODOLFO A. CASILANG, and ATTY.
ALICIA B. FABIA, in her capacity as Clerk of Court and Ex-
Officio Sheriff of Pangasinan and/or her duly authorized
representative, respondents.
Remedial Law; Courts; Special Civil Actions; Ejectment; Actions;
Inferior courts are empowered to rule on the question of ownership
raised by the defendant in such suits, only to resolve the issue of
possession and its determination on the ownership issue is not
conclusive.—It is well to be reminded of the settled distinction
between a summary action of ejectment and a plenary action for
recovery of possession and/or ownership of the land. What really
distinguishes an action for unlawful detainer from a possessory
action (accion publiciana) and from a reinvindicatory action (accion
reinvindicatoria) is that the first is limited to the question of
possession de facto. Unlawful detainer suits (accion interdictal)
together with forcible entry are the two forms of ejectment suit that
may be filed to recover possession of real property. Aside from the
summary action of ejectment, accion publiciana or the plenary
action to recover the right of possession and accion reinvindicatoria
or the action to recover ownership which also includes recovery of
possession, make up the three kinds of actions to judicially recover
possession. Under Section 3 of Rule 70 of the Rules of Court, the
Summary Procedure governs the two forms of ejectment suit, the
purpose being to provide an expeditious means of protecting actual
possession or right to possession of the property. They are not
processes to determine the actual title to an estate. If at all, inferior
courts are empowered to rule on the question of ownership raised
Property Cases No. 9. 39
by the defendant in such suits, only to resolve the issue of
possession and its determination on the ownership issue is not
conclusive.
Same; Same; Supreme Court; The Supreme Court is not a trier
of facts, and unless the case falls under any of the well-defined
exceptions, the Supreme Court will not delve once more into the
findings of facts.—The Supreme Court is not a trier of facts, and
unless the case falls under any of the well-defined exceptions, the
Supreme Court will not delve once more into the findings of facts. In
Sps. Sta. Maria v. CA, 225 SCRA 351 (1998), this Court stated:
Settled is the rule that the jurisdiction of this Court in cases brought
before it from the Court of Appeals via Rule 45 of the Rules of Court
is limited to reviewing errors of law. Findings of fact of the latter are
conclusive, except in the following instances: (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 fact are conflicting; (6) when in making its findings the
Court of Appeals 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; and (10) when the
findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record.
Civil Law; Property; Partition; An agreement of partition may be
made orally or in writing. An oral agreement for the partition of the
property owned in common is valid and enforceable upon the
parties.—The validity of an oral partition is well-settled in our
jurisdiction. In Vda. de Espina v. Abaya, 196 SCRA 312 (1991), this
Court declared that an oral partition is valid: Anent the issue of oral
partition, We sustain the validity of said partition. “An agreement of
partition may be made orally or in writing. An oral agreement for the
partition of the property owned in common is valid and enforceable

upon the parties. The Statute of Frauds has no operation in this kind
of agreements, for partition is not a conveyance of property but
simply a segregation and designation of the part of the property
which belong to the co-owners.”
Same; Same; Under Article 541 of the Civil Code, one who
possesses in the concept of owner has in his favor the legal
presumption that he possesses with a just title, and he cannot be
obliged to show or prove it.—A possessor of real estate property is
presumed to have title thereto unless the adverse claimant
establishes a better right. Moreover, under Article 541 of the Civil
Code, one who possesses in the concept of owner has in his favor
the legal presumption that he possesses with a just title, and he
cannot be obliged to show or prove it. Similarly, Article 433 of the
Civil Code provides that actual possession under a claim of
ownership raises a disputable presumption of ownership. Thus,
actual possession and exercise of dominion over definite portions of
the property in accordance with an alleged partition are considered
strong proof of an oral partition which the Court will not hesitate to
uphold.
Same; Same; Ownership; Tax Declarations; Tax Receipts; It is
settled that tax declarations and tax receipts alone are not
conclusive evidence of ownership.—It is settled that tax declarations
and tax receipts alone are not conclusive evidence of ownership.
They are merely indicia of a claim of ownership, but when coupled
with proof of actual possession of the property, they can be the
basis of claim of ownership through prescription. In the absence of
actual, public and adverse possession, the declaration of the land for
tax purposes does not prove ownership.
PETITION for review on certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Pedro M. Surdilla for petitioners.
REYES, J.:
Property Cases No. 9. 40
Before us is a petition for review of the Decision1 dated July 19,
2007 of the Court of Appeals (CA) in CA-G.R. CV No. 79619, which
reversed and set aside the Decision2 dated April 21, 2003 of the
Regional Trial Court (RTC) of Dagupan City, Branch 41, in Civil Case
No. 98-02371-D.
Antecedent Facts
The late spouses Liborio Casilang (Liborio) and Francisca Zacarias
(Francisca) had eight (8) children, namely: Felicidad Casilang
(Felicidad), Ireneo Casilang (Ireneo), Marcelina Casilang (Marcelina),
Jacinta Casilang (Jacinta), Bonifacio Casilang (Bonifacio), Leonora
Casilang (Leonora), Jose Casilang (Jose) and Flora Casilang (Flora).
Liborio died intestate on October 11, 1982 at the age of 83, followed
not long after by his wife Francisca on December 25, 1982. Their
son Bonifacio also died in 1986, survived by his child Bernabe
Casilang (Bernabe), while son Ireneo died on June 11, 1992,
survived by his four (4) children, namely: Mario Casilang (Mario),
Angelo Casilang (Angelo), Rosario Casilang-Dizon (Rosario) and
Rodolfo Casilang (Rodolfo), herein respondents.
The estate of Liborio, which left no debts, consisted of three (3)
parcels of land located in Barangay Talibaew, Calasiao, Pangasinan,
namely: (1) Lot No. 4676, with an area of 4,164 square meters; (2)
Lot No. 4704, containing 1,164 sq m; and (3) Lot No. 4618, with
897 sq m.
On May 26, 1997, respondent Rosario filed with the Municipal Trial
Court (MTC) of Calasiao, Pangasinan a complaint for unlawful
detainer, docketed as Civil Case No. 847, to evict her uncle,
petitioner Jose from Lot No. 4618. Rosario claimed that Lot No. 4618
was owned by her father Ireneo, as evidenced by Tax Declaration
(TD) No. 555 issued in 1994 under her father’s name. On April 3,
1997, the respondents executed a Deed of Extrajudicial Partition
with Quitclaim3 whereby they adjudicated Lot No. 4618 to
themselves. In the same instrument, respondents Mario, Angelo and
Rodolfo renounced their respective shares in Lot No. 4618 in favor of
Rosario.

In his Answer, Jose raised the defense that he was the “lawful,
absolute, exclusive owner and in actual possession” of the said lot,
and that he acquired the same “through intestate succession from
his late father.”4 For some reason, however, he and his lawyer, who
was from the Public Attorney’s Office, failed to appear at the
scheduled pre-trial conference, and Jose was declared in default;
thus, the adverse judgment against him.5
On February 18, 1998, the MTC rendered judgment finding Rosario
to be the owner of Lot No. 4618, and ordering Jose to remove his
house, vacate Lot No. 4618, and pay Rosario P500.00 in monthly
rentals from the filing of the complaint until she was placed in
possession, plus attorney’s fees of P5,000.00, litigation expenses
and costs. On March 23, 1998, the MTC issued a writ of execution;
and on August 28, 1998, a Writ of Demolition6 was issued.
On June 2, 1998, the petitioners, counting 7 of the 8 children of
Liborio and Francisca,7 filed with the RTC of Dagupan City a
Complaint,8 docketed as Civil Case No. 98-02371-D for “Annulment
of Documents, Ownership and Peaceful Possession with Damages”
against the respondents. On June 10, 1998, the petitioners moved
for the issuance of a writ of preliminary injunction or temporary
restraining order, which the RTC however denied on June 23, 1998.
Among the documents sought to be annulled was the 1997 Deed of
Extrajudicial Partition executed by Ireneo’s children over Lot No.
4618, as well as TD No. 555, and by necessary implication its
derivatives, TD No. 15177 (for the lot) and TD No. 15176 (for the
house), both of which were issued in 1998 in the name of Rosario
Casilang-Dizon.
The petitioners alleged in their complaint that all eight (8) children
of Liborio entered into a verbal partition of his estate, pursuant to
which Jose was allotted Lot No. 4618 as his share; that Ireneo never
claimed ownership of Lot No. 4618, nor took possession of it,
because his share was the southwestern 1/5 portion of Lot No.
4676, containing an area of 1,308 sq m,10 of which he took
exclusive possession during his lifetime; that Jose has always
resided in Lot No. 4618 since childhood, where he built his family’s
semi-concrete house just a few steps away from his parents’ old
Property Cases No. 9. 41
bamboo hut; that he took in and cared for his aged parents in his
house until their deaths in 1982; that one of his children has also
built a house on the lot.11 Jose, said to be the most educated of the
Casilang siblings, worked as an insurance agent.12 The complete
disposition of the intestate estate of Liborio per the parties’ verbal
partition appears as follows:
1. Lot No. 4676, with 4,164 sq m, declared under TD No. 534
in Liborio’s name,13 was verbally partitioned among Marcelina
(236 sq m), Leonora (1,965 sq m), Flora (655 sq m), and
Ireneo, represented by his children, the herein respondents-
defendants (1,308 sq m), as shown in a Deed of Extrajudicial
Partition with Quitclaim dated January 8, 1998, subsequently
executed by all the Casilang siblings and their representatives.
2. Lot No. 4704, with 1,164 sq m, declared under TD No. 276
in Liborio’s name,14 was divided among Jacinta and Bonifacio,
who died in 1986 and is now represented by his son Bernabe;
and
3. Lot No. 4618, containing 897 sq m, declared since 1994
under TD No. 555 in Ireneo’s name,15 is now the subject of
the controversy below. Jose insists that he succeeded to it per
verbal partition, and that he and his family have always
occupied the same peacefully, adversely and exclusively even
while their parents were alive.16
For her part, Rosario alleged in her answer with counterclaim,17
which she filed on September 15, 1998, that:
a) She is the actual and lawful owner of Lot No. 4618 with an area
of 897 square meters, having acquired the same by way of a Deed
of Extra judicial Partition with Quitclaim dated 3 April 1997 which
was duly executed among herein Appellant ROSARIO and her
brothers, namely, MARIO, ANGELO and RODOLFO, all surnamed
CASILANG;
b) Her ownership over subject property could be traced back to her
late father IR[E]NEO which the latter inherited by way of intestate
succession from his deceased father LIBORIO sometime in 1992;

that the residential house described in herein Appellee JOSE’s
complaint is an illegal structure built by him in 1997 without her
(ROSARIO’s) knowledge and consent; that in fact, an ejectment suit
was filed against Appellee JOSE with the Municipal Trial Court in
Calasiao, Pangasinan in Civil Case No. 847;
c) The subject lot is never a portion of Appellee JOSE’s share from
the intestate of his deceased father, LIBORIO; that on the contrary,
the lot is his deceased brother IR[E]NEO’s share from the late
LIBORIO’s intestate estate; that in fact, the property has long been
declared in the name of the late IR[E]NEO as shown by Tax
Declaration No. 555 long before his children ROSARIO DIZON,
MARIO[,] ANGELO and RODOLFO, all surnamed CASILANG, executed
the Deed of Partition dated 18 February 1998; that Appellee JOSE
had actually consumed his shares which he inherited from his late
father, and after a series of sales and dispositions of the same made
by him, he now wants to take Appellants’ property;
d) Appellee JOSE is never the rightful owner of the lot in question
and has not shown any convincing proof of his supposed ownership;
that the improvements introduced by him, specifically the structures
he cited are the subject of a Writ of Demolition dated 28 August
1998 pursuant to the Order [dated] 17 August 1998 of the MTC of
Calasiao, Pangasinan;
e) No protestation or objection was ever made by Appellee JOSE in
Civil Case No. 847 (Unlawful Detainer case) where he was the
defendant; that the truth was that his possession of the subject
property was upon the tolerance and benevolence of his late brother
IR[E]NEO during the latter’s lifetime and that Appellant ROSARIO;
f) The RTC Clerk of Court and Ex-officio Provincial Sheriff would
just be doing her job if she and her deputies would implement the
writ of execution/demolition issued by the MTC of Calasiao,
Pangasinan since it is its ministerial duty to do so;
g) The Appellees have no cause of action; not having shown in
their complaint the basis, the reason and the very core of their claim
as to why the questioned document should be nullified.18 (Citation
omitted)
Property Cases No. 9. 42
In their reply19 to Rosario’s aforesaid answer, the petitioners
asserted that the MTC committed a grave error in failing to consider
a material fact―that Jose had long been in prior possession under a
claim of title which he obtained by partition.
At the pre-trial conference in Civil Case No. 98-02371-D, the parties
entered into the following stipulations:
1. That the late LIBORIO is the father of FELICIDAD,
MARCELINA, JUANITA, LEONORA, FLORA and IR[E]NEO, all
surnamed CASILANG[;]
2. That the late LIBORIO died in 1982; That the late LIBORIO
and his family resided on Lot [No.] 4618 up to his death in
1982; That the house of the late LIBORIO is located on Lot
[No.] 4618;
3. That Plaintiff JOSE used to reside on the lot in question
because there was a case for ejectment filed against him;
4. That the house which was demolished is the family house
of the late LIBORIO and FRANCISCA ZACARIAS with the
qualification that it was given to the defendants;
5. That the action involves members of the same family; and
6. That no earnest efforts were made prior to the institution
of the case in court.20
Ruling of the RTC
After a full trial on the merits, the RTC in its Decision21 dated April
21, 2003 decreed as follows:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiffs and against the defendants as follows:
1. Declaring the Deed of Extrajudicial Partition with Quitclaim
dated April 3, 1997 null and void;

2. Declaring plaintiff Jose Z. Casilang Sr. as the lawful owner
and possessor of the subject Lot [No.] 4618 and as such,
entitled to the peaceful possession of the same;
3. Ordering the defendants to pay to plaintiff Jose Z. Casilang
Sr. attorney’s fees in the amount of [P]20,000.00 and
litigation expenses in the amount of [P]5,000.00, and to pay
the costs of suit.
SO ORDERED.22
The RTC affirmed Jose’s ownership and possession of Lot No. 4618
by virtue of the oral partition of the estate of Liborio by all the
siblings. In the Deed of Extrajudicial Partition with Quitclaim23 dated
January 8, 1998, subsequently executed by all the eight (8) Casilang
siblings and their legal representatives―with Ireneo represented by
his four (4) children, and Bonifacio by his son Bernabe―petitioners
Jose, Felicidad, Jacinta and Bernabe, acknowledged that they had
“already received their respective shares of inheritance in
advance,”24 and therefore, renounced their claims over Lot No.
4676 in favor of co-heirs Marcelina, Leonora, Flora and Ireneo, as
follows:
[W]e hereby RENOUNCED, WAIVED AND QUITCLAIM, all our rights,
interests and participations over the WHOLE parcel of land [Lot No.
4676], left by the late, LIBORIO CASILANG, in favor of our co-heirs,
namely[:] MARCELINA Z. CASILANG-PARAYNO, LEONORA Z.
CASILANG-SARMIENTO, FLORA Z. CASILANG, MARIO A. CASILANG,
ANGELO A. CASILANG, ROSARIO A. CASILANG- DIZON AND
RODOLFO A. CASILANG[.]25
Thus, Jose expressly renounced his share in Lot No. 4676, which has
an area of 4,164 sq m, because he had already received in advance
his share in his father’s estate, Lot No. 4618 with 897 sq m:
To the mind of the court, Jose Casilang could have not [sic]
renounced and waived his rights and interests over Lot [No.] 4676 if
he believes that Lot [No.] 4618 is not his, while the other lot, Lot
[No.] 470[4], was divided between sister Jacinta Casilang and
brother Bonifacio Casilang[,] Sr., who was represented by his son.
Property Cases No. 9. 43
In the same [way] as testified to by plaintiffs Felicidad Casilang and
Jacinta Casilang, they signed the Deed of Extrajudicial Partition with
Quitclaim wherein they waived and renounced their rights and
interests over Lot [No.] 4676 because they have already received
their share, which is Lot [No.] 470[4].26
The RTC found baseless the claim of Rosario that Lot No. 4618 was
an inheritance of her father Ireneo considering that a tax declaration
is not conclusive proof of ownership. The RTC even noted that the
tax declaration of Ireneo started only in 1994, although he had been
dead since 1992. “Such being the case, the heirs of Ir[e]neo
Casilang has [sic] no basis in adjudicating unto themselves Lot No.
4618 and partitioning the same by executing the Deed of
Extrajudicial Partition with Quitclaim.”27
Appeal to the CA
Undeterred, Rosario appealed to the CA averring that: (1) the lower
court erred in declaring the Deed of Extrajudicial Partition with
Quitclaim dated April 3, 1997 as null and void; and (2) the lower
court erred in declaring Jose as the lawful owner and possessor of
the subject Lot No. 4618.28
In the now assailed decision, the CA reversed the RTC by relying
mainly on the factual findings and conclusions of the MTC in Civil
Case No. 847, viz.:
Per the records, the above described property was subject of Civil
Case No. 847 decided by the MTC of Calasiao, First Judicial Region,
Province of Pangasinan which rendered a judgment, supra, in favor
of Appellant ROSARIO ordering herein Appellee JOSE and all persons
claiming rights under him to vacate the land of Appellant ROSARIO.
It was found by the MTC that the latter is the owner of the subject
parcel of land located at Talibaew, Calasiao, Pangasinan; that the
former owner of the land is the late IRENEO (who died on 11 June
1992), father of Appellant ROSARIO; that Extrajudicial Partition with
Quitclaim was executed by and among the heirs of the late IRENEO;
that MAURO [sic], ANGELO and RODOLFO, all surnamed CASILANG
waived and quitclaimed their respective shares over the subject
property in favor of Appellant ROSARIO; that Appellee JOSE was

allowed by the late IRENEO during his lifetime to occupy a portion of
the land without a contract of lease and no rentals being paid by the
former; that Appellant ROSARIO allowed Appellee JOSE to continue
occupying the land after the Extrajudicial Partition with Quitclaim
was executed.29
Moreover, noting that the decision in Civil Case No. 847 in favor of
Rosario was issued on February 18, 1998 while the petitioners’
complaint in Civil Case No. 98-02371-D was filed on June 2, 1998,
the CA concluded that the latter case was a mere afterthought:
If the latter has really a strong and valid reason to question the
validity of the Deed of Extrajudicial Partition with Quitclaim, supra,
he could have done it soon after the said Deed was executed on 3
April 1997. However, curiously enough, it was only when the MTC
ordered his eviction from the subject property that he decided to file
the instant case against the Appellants.30
Petition for Review in the Supreme Court
Now in this petition for review on certiorari, petitioners maintain
that:
IN UPHOLDING THE LEGALITY [OF] THE DEED OF EXTRAJUDICIAL
PARTITION AND QUITCLAIM DATED APRIL 3, 1997, THE
HONORABLE COURT OF APPEALS GROSSLY VIOLATED THE
SUBSTANTIVE RIGHT OF JOSE Z. CASILANG[,] SR. AS DIRECT
COMPULSORY HEIR.31
Our Ruling and Discussions
There is merit in the petition.
Inferior courts are empowered to rule
on the question of ownership raised
by the defendant in an ejectment suit,
but only to resolve the issue of pos-
Property Cases No. 9. 44
session; its determination is not con-
clusive on the issue of ownership.
It is well to be reminded of the settled distinction between a
summary action of ejectment and a plenary action for recovery of
possession and/or ownership of the land. What really distinguishes
an action for unlawful detainer from a possessory action (accion
publiciana) and from a reinvindicatory action (accion
reinvindicatoria) is that the first is limited to the question of
possession de facto. Unlawful detainer suits (accion interdictal)
together with forcible entry are the two forms of ejectment suit that
may be filed to recover possession of real property. Aside from the
summary action of ejectment, accion publiciana or the plenary
action to recover the right of possession and accion reinvindicatoria
or the action to recover ownership which also includes recovery of
possession, make up the three kinds of actions to judicially recover
possession.32
Under Section 3 of Rule 70 of the Rules of Court, the Summary
Procedure governs the two forms of ejectment suit, the purpose
being to provide an expeditious means of protecting actual
possession or right to possession of the property. They are not
processes to determine the actual title to an estate. If at all, inferior
courts are empowered to rule on the question of ownership raised
by the defendant in such suits, only to resolve the issue of
possession and its determination on the ownership issue is not
conclusive.33 As thus provided in Section 16 of Rule 70:
Sec. 16. Resolving defense of ownership.―When the defendant
raises the defense of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to
determine the issue of possession.
It is apropos, then, to note that in contrast to Civil Case No. 847,
which is an ejectment case, Civil Case No. 98-02371-D is for
“Annulment of Documents, Ownership and Peaceful Possession;” it is
an accion reinvindicatoria, or action to recover ownership, which
necessarily includes recovery of possession34 as an incident thereof.

Jose asserts his ownership over Lot No. 4618 under a partition
agreement with his co-heirs, and seeks to invalidate Ireneo’s “claim”
over Lot No. 4618 and to declare TD No. 555 void, and
consequently, to annul the Deed of Extrajudicial Partition and
Quitclaim executed by Ireneo’s heirs.
It is imperative to review the CA’s
factual conclusions since they are
entirely contrary to those of the RTC,
they have no citation of specific sup-
porting evidence, and are premised
on the supposed absence of evidence,
particularly on the parties’ verbal
partition, but are directly contra-
dicted by the evidence on record.
It must be noted that the factual findings of the MTC, which the CA
adopted without question, were obtained through Summary
Procedure and were based solely on the complaint and affidavits of
Rosario, after Jose had been declared in default. But since a full trial
was had in Civil Case No. 98-02371-D, the CA should have pointed
out the specific errors and weaknesses in the RTC’s factual
conclusions before it could rule that Jose was unable to present “any
evidentiary support” to establish his title, and that his continued
possession of Lot No. 4618 was by mere tolerance of Rosario. At
most, however, the CA only opined that it was conjectural for the
RTC to conclude, that Jose had already received his inheritance
when he renounced his share in Lot No. 4676. It then ruled that the
RTC erred in not considering the findings of the MTC in Civil Case
No. 847—that Jose’s possession over subject property was by mere
tolerance. Said the appellate court:
Property Cases No. 9. 45
Given the claim of the Appellee that Lot [No.] 4618 was orally
given/assigned to him by his deceased father LIBORIO, or that his
claim was corroborated by his sisters (his co-plaintiffs-Appellees), or
that their claim is indubitably tied up with the Deed of Extrajudicial
Partition with Quitclaim over Lot No. 4676, still We cannot fully
agree with the pronouncement of the court a quo that Appellee JOSE
could not have renounced and waived his rights and interest over
Lot [No.] 4676 if he believes that Lot [No.] 4618 is not his. Wanting
any evidentiary support, We find this stance as conjectural being
unsubstantiated by law or convincing evidence. At the most and
taking the factual or legal circumstances as shown by the records,
We hold that the court a quo erred in not considering the findings of
the MTC in Civil Case No. 847 ruling that herein Appellee JOSE’s
possession over subject property was by mere tolerance. Based as it
is on mere tolerance, Appellee JOSE’s possession therefore could
not, in any way, ripen into ownership.35 (Citations omitted)
By relying solely on the MTC’s findings, the CA completely ignored
the testimonial, documentary and circumstantial evidence of the
petitioners, obtained by the RTC after a full trial on the merits. More
importantly, the CA did not point to any evidence of Rosario that
Ireneo had inherited Lot No. 4618 from Liborio. All it did was adopt
the findings of the MTC.
The Supreme Court is not a trier of facts, and unless the case falls
under any of the well-defined exceptions, the Supreme Court will not
delve once more into the findings of facts. In Sps. Sta. Maria v.
CA,36 this Court stated:
Settled is the rule that the jurisdiction of this Court in cases brought
before it from the Court of Appeals via Rule 45 of the Rules of Court
is limited to reviewing errors of law. Findings of fact of the latter are
conclusive, except in the following instances: (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 fact are conflicting; (6) when in making its findings the
Court of Appeals 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; and (10) when the
findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record.37 (Citation omitted)
In the instant case, the factual findings of the CA and the RTC are
starkly contrasting. Moreover, we find that the CA decision falls
under exceptions (7), (8) and (10) above, which warrants another
review of its factual findings.
The evidence supporting Rosario’s claim of sole ownership of Lot No.
4618 is the Deed of Extrajudicial Partition with Quitclaim, which she
executed with her brothers Mario, Angelo and Rodolfo. There is no
question that by itself, the said document would have fully conveyed
to Rosario whatever rights her brothers might have in Lot No. 4618.
But what needs to be established first is whether or not Ireneo did in
fact own Lot No. 4618 through succession, as Rosario claims. And
here now lies the very crux of the controversy.
A review of the parties’ evidence
shows that they entered into an oral
partition, giving Lot No. 4618 to Jose
as his share, whereas Rosario pre-
sented no proof whatsoever that her
father inherited Lot No. 4618 from
his father Liborio.
Rosario’s only proof of Ireneo’s ownership is TD No. 555, issued in
his name, but she did not bother to explain why it was dated 1994,
although Ireneo died on June 11, 1992. Liborio’s ownership of Lot
No. 4618 is admitted by all the parties, but it must be asked
whether in his lifetime Liborio did in fact transmit it to Ireneo, and if
Property Cases No. 9. 46
not, whether it was conveyed to him by Liborio’s heirs. It is
imperative for Rosario to have presented proof of this transfer to
Ireneo, in such a form as would have vested ownership in him. We
find, instead, a preponderance of contrary evidence.
1. In his testimony, Jose claimed that his parents’ bamboo house in
Lot No. 4618 disintegrated from wear and tear; so he took them in
to his semi-concrete house in the same lot, which was just a few
steps away, and he cared for them until they died; shortly before
Liborio’s death, and in the presence of all his siblings, his father
Liborio assigned Lot No. 4618 to him as his inheritance; his house
was demolished in 1998 as a result of the ejectment case filed
against him; but his family continued to live thereat after
reconstructing the house; Ireneo and his family did not live in Lot
No. 4618; although Jose’s job as an insurance agent took him
around Pangasinan, he always came home to his family in his house
in Lot No. 4618, which he used as his permanent address; only Lot
No. 4676 was included in the Deed of Extrajudicial Partition dated
January 8, 1998 because Lot No. 4618 had already been distributed
to Jose, and Lot No. 4704 had already been assigned to Jacinta and
Bonifacio as their share in their father’s estate.38
2. Jose’s testimony was corroborated by petitioners Felicidad,39
Jacinta,40 Leonora,41 and Flora,42 who all confirmed that their
brother Jose has always resided in Lot No. 4618 from his childhood
up to the present, that he took their aged parents into his house
after their bamboo house was destroyed, and he attended to their
needs until they died in 1982. The sisters were also one in saying
that their father Liborio verbally willed Lot No. 4618 to Jose as his
share in his estate, and that their actual partition affirmed their
father’s dispositions. Jacinta claimed that she and Bonifacio have
since taken possession of Lot No. 4704 pursuant to their partition,
and have also declared their respective portions for tax purposes.43
Flora corroborated Jacinta on their taking possession of Lot No.
4704, as well as that Jose built his house on Lot No. 4618 next to
his parents and they came to live with him in their old age. Flora
affirmed that Exhibit “F” correctly reflects their verbal partition of
Lot No. 4676, and that she was fully in accord with it. She added
that Felicidad and Marcelina had since constructed their own houses

on the portions of Lot No. 4676 assigned to them.44 Felicidad
mentioned that in their partition, Ireneo was given a portion of Lot
No. 4676, while Lot No. 4704 was divided between Jacinta and
Bonifacio, and Jose alone got Lot No. 4618. Leonora confirmed that
they were all present when their father made his above dispositions
of his estate.
3. Benjamin Lorenzo, a long-time neighbor of the Casilangs
testified that Jose’s house stands on Lot No. 4618 and Ireneo did
not live with his family on the said lot but was a tenant in another
farm some distance away.45
4. For her part, Rosario merely asserted that her father Ireneo
succeeded to Lot No. 4618 from Liborio, as shown in TD No. 555
(Exhibit “1”); that she and her brothers extrajudicially settled
Ireneo’s estate, and that they each waived their shares in her favor;
and, that she has been paying taxes on Lot No. 4618. Rosario
admitted, however, that Jose has lived in the lot since he was a
child, and he has reconstructed his house thereon after its court-
ordered demolition.46 But Rosario on cross-examination
backtracked by claiming that it was her father Ireneo and
grandfather Liborio who built the old house in Lot No. 4618, where
Ireneo resided until his death; he even planted various fruit trees.
Yet, there is no mention whatsoever to this effect by any of the
witnesses. Rosario also contradicted herself when she denied that
Jose lived there because his job as insurance agent took him away
often and yet admitted that Jose’s house stands there, which he
reconstructed after it was ordered demolished by the MTC.
Inexplicably, Rosario disclaimed knowledge of Ireneo’s share in Lot
No. 4676, although she was a signatory, along with her brothers and
all the petitioners, in the deed of partition of the said lot, whereby
she got 1,308 sq m. Rosario also admitted that taxes were paid on
the lot only beginning in 1997, not before.47
5. Benjamin Dizon, husband of Rosario, testified that Rosario was
losing appetite and sleep because of the case filed by Jose; that
Ireneo died in another farm; that Ireneo had a house in Lot No.
4618 but Jose took over the house after he died in 1992.48
Respondent Angelo, brother of Rosario, claimed that when he was
13 or 14 years old, he heard his grandfather tell his father Ireneo
Property Cases No. 9. 47
that he would inherit Lot No. 4618. On cross-examination, Angelo
insisted that his father had always lived with his family in his
grandfather’s house in Lot No. 4618, that Jose did not live there but
was given another lot, although he could not say which lot it was; he
admitted that his grandmother lived with Jose when she died, and
Ireneo’s share was in Lot No. 4676.49
6. On rebuttal, Jose recounted that after his four children were
married, Ireneo lived as a tenant in another farm; that during a
period of illness he lived in Manila for some time, and later resided
in Cagayan with his two married sons; and lastly on his return,
worked as a tenant of the Maningding family for about 10 years in
Calasiao, staying in a hut one kilometer away. Jose also claimed that
Ireneo had asked Liborio for a portion of Lot No. 4676, a lot which is
bigger than Lot No. 4618 by several hundreds of square meters.50
7. On sur-rebuttal, Rosario claimed that her grandparents, father
and mother lived in Lot No. 4618 when she was a child until she
married and left in 1976; that her uncle Jose asked permission from
Liborio to be allowed to stay there with his family. She admitted that
Jose built his house in 1985, three years after Liborio died, but as if
to correct herself, she also claimed that Jose built his house in Lot
No. 4676, and not in Lot No. 4618. (Contrarily, her aunt Leonora
testified that Jose built his house in Lot No. 4618 while their parents
were alive.)51 Moreover, if such was the case, Rosario did not
explain why she filed Civil Case No. 847, if she thought her uncle
built his house in Lot No. 4676, and not in Lot No. 4618.52 Rosario
also claimed that Ireneo always came home in the evenings to his
father Liborio’s house from the Maningding farm, which he tenanted
for 10 years, but obviously, by then Liborio’s house had long been
gone. Again, confusedly, Rosario denied that she knew of her
father’s share in Lot No. 4676.
From the testimonies of the parties, we are convinced that the
conclusion of the RTC is well-supported that there was indeed a
verbal partition among the heirs of Liborio, pursuant to which each
of his eight children received his or her share of his estate, and that
Jose’s share was Lot No. 4618.
The parties’ verbal partition is

alid, and has been ratified by
their taking possession of their
respective shares.
The validity of an oral partition is well-settled in our jurisdiction. In
Vda. de Espina v. Abaya,53 this Court declared that an oral partition
is valid:
Anent the issue of oral partition, We sustain the validity of said
partition. “An agreement of partition may be made orally or in
writing. An oral agreement for the partition of the property owned in
common is valid and enforceable upon the parties. The Statute of
Frauds has no operation in this kind of agreements, for partition is
not a conveyance of property but simply a segregation and
designation of the part of the property which belong to the co-
owners.”54
In Maestrado v. CA,55 the Supreme Court upheld the partition after
it found that it conformed to the alleged oral partition of the heirs,
and that the oral partition was confirmed by the notarized quitclaims
executed by the heirs subsequently.56
In Maglucot-Aw v. Maglucot,57 the Supreme Court elaborated on
the validity of parol partition:
On general principle, independent and in spite of the statute of
frauds, courts of equity have enforce [sic] oral partition when it has
been completely or partly performed.
Regardless of whether a parol partition or agreement to partition is
valid and enforceable at law, equity will [in] proper cases[,] where
the parol partition has actually been consummated by the taking of
possession in severalty and the exercise of ownership by the parties
of the respective portions set off to each, recognize and enforce
such parol partition and the rights of the parties thereunder. Thus, it
has been held or stated in a number of cases involving an oral
partition under which the parties went into possession, exercised
acts of ownership, or otherwise partly performed the partition
Property Cases No. 9. 48
agreement, that equity will confirm such partition and in a proper
case decree title in accordance with the possession in severalty.
In numerous cases it has been held or stated that parol partition
may be sustained on the ground of estoppel of the parties to assert
the rights of a tenant in common as to parts of land divided by parol
partition as to which possession in severalty was taken and acts of
individual ownership were exercised. And a court of equity will
recognize the agreement and decree it to be valid and effectual for
the purpose of concluding the right of the parties as between each
other to hold their respective parts in severalty.
A parol partition may also be sustained on the ground that the
parties thereto have acquiesced in and ratified the partition by
taking possession in severalty, exercising acts of ownership with
respect thereto, or otherwise recognizing the existence of the
partition.
A number of cases have specifically applied the doctrine of part
performance, or have stated that a part performance is necessary,
to take a parol partition out of the operation of the statute of frauds.
It has been held that where there was a partition in fact between
tenants in common, and a part performance, a court of equity would
have regard to and enforce such partition agreed to by the
parties.58
Jose’s possession of Lot No. 4618 under a claim of ownership is well
borne out by the records. It is also consistent with the claimed
verbal partition with his siblings, and fully corroborated by his sisters
Felicidad, Jacinta, Leonora, and Flora, who further testified that they
each had taken possession of their own shares and built their houses
thereon.
A possessor of real estate property is presumed to have title thereto
unless the adverse claimant establishes a better right.59 Moreover,
under Article 541 of the Civil Code, one who possesses in the
concept of owner has in his favor the legal presumption that he
possesses with a just title, and he cannot be obliged to show or
prove it. Similarly, Article 433 of the Civil Code provides that actual
possession under a claim of ownership raises a disputable
 Property Cases No. 9. 49

presumption of ownership. Thus, actual possession and exercise of Notes.―Tax declarations are good indicia of possession in the
dominion over definite portions of the property in accordance with concept of owner for no one in his right mind would be paying taxes
an alleged partition are considered strong proof of an oral for a property that is not in his actual or constructive possession;
partition60 which the Court will not hesitate to uphold. What is categorically required by law is open, continuous, exclusive
and notorious possession and occupation under a bona fide claim of
Tax declarations and tax receipts ownership since June 12, 1945 or earlier. (Republic vs. Rizalvo, Jr.,
644 SCRA 516 [2011])
are not conclusive evidence of
The validity of an oral partition is already well-settled; The Supreme
ownership. Court has held that after exercising acts of ownership over their
respective portions of the contested estate, petitioners are estopped
It is settled that tax declarations and tax receipts alone are not
from denying the existence of an oral partition. (Notarte vs. Notarte,
conclusive evidence of ownership. They are merely indicia of a claim
679 SCRA 378 [2012])
of ownership,61 but when coupled with proof of actual possession of
the property, they can be the basis of claim of ownership through
prescription.62 In the absence of actual, public and adverse
possession, the declaration of the land for tax purposes does not
prove ownership.63 We have seen that there is no proof that
Liborio, or the Casilang siblings conveyed Lot No. 4618 to Ireneo.
There is also no proof that Ireneo himself declared Lot No. 4618 for
tax purposes, and even if he or his heirs did, this is not enough
basis to claim ownership over the subject property. The Court notes
that TD No. 555 was issued only in 1994, two years after Ireneo’s
death. Rosario even admitted that she began paying taxes only in
1997.64 More importantly, Ireneo never claimed Lot No. 4618 nor
took possession of it in the concept of owner.

WHEREFORE, premises considered, the Petition is GRANTED. The

Decision dated July 19, 2007 of the Court of Appeals in CA-G.R. CV
No. 79619 is hereby REVERSED and SET ASIDE, and the Decision
dated April 21, 2003 of the Regional Trial Court of Dagupan City,
Branch 41 in Civil Case No. 98-02371-D is REINSTATED.

SO ORDERED.

Sereno (C.J., Chairperson), Leonardo-De Castro,

Bersamin and Villarama, Jr., JJ., concur.

Petition granted, judgment reversed and set aside.