REALTY SALES ENTERPRISE vs. IAC

The Court does not agree.

There are two modes by which cases decided by the then Courts of First Instance in their original jurisdiction may be reviewed: (1) an ordinary appeal either to the Supreme Court or to the Court of Appeals, or (2) an appeal on certiorari to the Supreme Court. To the latter category belong cases in which only errors or questions of law are involved. Each of these modes have different procedural requirements.

As stated earlier, Realty originally filed a Petition for certiorari with this Court docketed as G.R. No. L-56471 questioning the decision of the Vera Court, and asking that it be allowed to appeal directly to this Court as it was raising only questions of law. However, this Court referred the case to the Court of Appeals "in aid of its appellate jurisdiction for proper determination on the merits of the appeal."

It may thus be observed that even this Court treated the petition first filed as an appeal, and not as a special civil action for certiorari. After as, a petition for review by certiorari is also a form of appeal. (People v. Resuello L-30165, August 22, 1969, 69 SCRA 35).

This mode of appeal under Rule 42 is in the form and procedure outlined in Rule 45 which, unlike ordinary appeals, does not require a notice of appeal, an appeal bond and a record on appeal.

Thus it was error for the IAC to hold that the Decision of the Vera Court "cannot be passed upon anymore in the Court of Appeals decision because appeal and not certiorari was the proper remedy." Precisely, petitioners brought the case to this Court on appeal, albeit by way of certiorari.

Respondent Carpo cited authorities holding that certiorari is not a substitute for appeal. Those cases are not in point. They refer to the special civil action of certiorari under Rule 65, and not to appeal by way of certiorari under Rule 45.

Similarly, the IAC Special Civil Cases Division erred in interpreting the Resolution dated July 25, 1983 of the Second Special Cases Division (to which the case was assigned after the reorganization under BP 129) as having "erased or cancellation" the validity of the Decision of the Ninth Division. A perusal of said Resolution shows that it merely made clarification about the nature of the case and why it should be reassigned to the Civil Cases Division of the IAC. There was not the slightest implication that it "erased or cancelled" the validity of the Decision of the Ninth Division.

Even the IAC Special Third Civil Cases Division impliedly admitted the validity of the Decision of the Ninth Division when it granted Carpo's motion for reconsideration. It would have been incongruous to grant a motion to reconsider a decision, reverse and set it aside, if in the first place it did not have any validity. It would have been necessary only to decide its invalidity.

3. In the third assigned error, Petitioners contend that the Vera Court, and the IAC Special Third Civil Cases Division, erred in upholding the validity of the title in the name of Carpo and declaring null and void the titles in the names of Realty and of QCDFC.

The basis of the complaint fired by Carpo, which was the same basis for the of the Vera Court and the IAC Special Division, is that the Reyes Court had no authority to issue the order of May 21, 1958 directing the issuance of a decree of registration in favor of Mayuga, predecessor-in-interest of Realty, as it was not sitting as a land registration court and also because the original records of LRC Case No. 657, Record No. N-29882 were lost and/or destroyed during World War II and were still pending reconstitution.

Under Act No. 496, Land Registration Act, (1902) as amended by Act No. 2347 (1914), jurisdiction over all applications for registration of title to and was conferred upon the Courts of First Instance of the respective provinces in which the land sought to be registered is situated.

Jurisdiction over land registration cases, as in ordinary actions, is acquired upon the filing in court of the application for registration, and is retained up to the end of the litigation. The issuance of a decree of registration is but a step in the entire land registration process; and as such, does not constitute a separate proceeding.

In the case at bar, it appears that it was Estanislao Mayuga, father of Dominador Mayuga, predecessor-in-interest of Realty, who originally filed on June 24, 1927 a registration proceeding docketed as LRC Case No. 657, GLRO Record No. N-29882 in the Court of First Instance of Rizal to confirm his title over parcels of land described as Lots 1, 2 and 3, Plan Psu-47035. (Lots 2 and 3 the subject of the instant litigation among Carpo, RRealty and QCDFC.) Case No. 657 was jointly tried with two other cases, LRC Case No. 976, GLRO Record No. 43516 filed by Eduardo Guico and LRC Case No. 758, GLRO Record No. 33721 filed by Florentino Baltazar, as the three cases involved Identical parcels of land, and Identical applicants/oppositors.

On August 19, 1935 the CFI-Rizal acting as a land registration court issued a consolidated decision on the three cases, the dispositive portion of which reads:

On appeal, the above decision of the CFI was affirmed by the Court of Appeals in its decision dated November 17, 1939. the dispositive portion of which reads:

Por todas last consideraciones expuestas confirmamos la decision apelada en cuanto adjudica a Estanislao Mayuga los lotes, 1, 2 y 3 de such piano y que equivalent a lost lotes, 4, 5 y 6 del plano de Baltazar y 4 y 5 del plans de Guico.

xxx xxx xxx

Guico filed a petition for review on certiorari before this Court, but the petition was dismissed and the Court of Appeals decision was affirmed (See Guico v. San Pedro, 72 Phil. 415 [1941]).

Before he could secure a decree of registration in his name, Estanislao died.

On May 13, 1958 Dominador Mayuga, son of Estanislao, filed a petition with the Reyes Court docketed as Case No. 2689 alleging that he was the only heir of the deceased Estanislao Mayuga and praying for the issuance of a decree of registration over the property adjudicated in favor of Estanislao. At this point, it cannot be overemphasized that the petition filed by Dominador is NOT a distinct and separate proceeding from, but a continuation of, the original land registration proceedings initiated by Estanislao Mayuga, Florentino Baltazar and Eduardo Guico. In the same vein, the Reyes Court, as Branch VI of the Court of First Instance of Rizal, was continuing in the exercise of jurisdiction over the case, which jurisdiction was vested in the CFI-Rizal upon filing of the original applications.

On May 21, 1958 the Reyes Court issued an order granting the petition of Dominador Mayuga and directing the Commissioner of Land Registration to issue a decree of registration over Lots 1, 2 and 3 of Plan Psu-47035, substituting therein as registered owner Dominador Mayuga in liue of Estanislao.

Respondent Carpo, however, contends, that since the records of LRC Case No. 657 were not properly reconstituted, then there was no pending land registration case. And since the Reyes Court was acting without a pending case, it was acting without jurisdiction. (Respondent Carpo's Memorandum, pp, 2-8.)

He cites the case of Villegas v. Fernando (L-27347, April 29, 1969, 27 SCRA 1119) where this Court said that upon failure to reconstitute pursuant to law, "the parties are deemed to have waived the effects of the decision rendered in their favor and their only alternative is to file an action anew for the registration in their names of the lots in question," citing the case of Ambat v. Director of Lands, (92) Phil. 567 [1953]) and other cases. The basis of said ruling is Section 29 of Act No. 3110, an Act to provide an adequate procedure for the reconstitution of the records of pending judicial proceedings and books, documents, and files of the office of the register of deeds, destroyed by fire or other public calamities, and for other purposes.

However, the Ambat case, in so far as it ruled on the effect of failure to reconstitute records on the status of the case in its entirety, was modified in the case of  Nacua v. de Beltran, (93) Phil. 595 [1953]). where this Court said:

(W)e are inclined to modify the ruling (in the Ambat case) in the sense that Section 29 of Act No. 3110 should be applied only where the records in the Court of First Instance as well as in the appellate court were destroyed or lost and were not reconstituted, but not where the records of the Court of First Instance are intact and complete, and only the records in the appellate court were lost or destroyed, and were not reconstituted. One reason for this view is that section 29 of Act 3110 is found among the sections and provisions dealing with the reconstitution of records in the Court of First Instance in pending civil cases, special proceedings, cadastral cases and criminal cases. A study of Act (No.) 3110 ... who show that there are separate procedures for the reconstitution of records in the Justice of the Peace Courts, from Sec. 48 to Sec. 53; for the reconstitution of records in the Supreme Court, now including the Court of Appeals, from Sec. 54 to Sec. 74; for the reconstitution of records in the office of the Register of Deeds, from Sec. 75 to Sec. 90 and for the reconstitution of destroyed records in the Courts of First Instance, from Sec. 1 to Sec. 47, under which sections, Sec. 29 is obviously comprehended.

The whole theory of reconstitution is to reproduce or replace records lost or destroyed so that said records may be complete and court proceedings may continue from the point or stage where said proceedings stopped due to the loss of the records. The law contemplates different stages for purposes of reconstitution. . . .

. . . (S)ection 4 covers the stage were a civil case was pending trial in the Court of First Instance at the time the record was destroyed or lost; section 6 evidently refers to the stage where the case had been tried and decided but was still pending in the Court of First Instance at the time the record was destroyed or lost; section 6 covers the stage where the case was pending in the Supreme Court (or Court of Appeals) at the time the record was destroyed or lost. *

If the records up to a certain point or stage are lost and they are not reconstituted, the parties and the court should go back to the next preceding age where records are available, but not beyond that; otherwise to ignore and go beyond the stage next preceding would be voiding and unnecessarily ignoring proceedings which are duly recorded and documented, to the great prejudice not only of the parties and their witnesses, but also of the court which must again perforce admit pleadings, rule upon them and then try the

case and decide it anew,-all of these, when the records up to said point or stage are intact and complete, and uncontroverted.

xxx xxx xxx

. . . (T)o require the parties to file their action anew and incur the expenses and (suffer) the annoyance and vexation incident to the filing of pleadings and the conduct of hearings, aside from the possibility that some of the witnesses may have died or left the jurisdiction, and also to require the court to again rule on the pleadings and hear the witnesses and then decide the case, when an along and all the time the record of the former pleadings of the trial and evidence and decision are there and are not disputed, all this would appear to be not exactly logical or reasonable, or fair and just to the parties, including the trial court which has not committed any negligence or fault at all.

The ruling in Nacua is more in keeping with the spirit and intention of the reconstitution law. As stated therein, "Act 3110 was not promulgated to penalize people for failure to observe or invoke its provisions. It contains no penal sanction. It was enacted rather to aid and benefit litigants, so that when court records are destroyed at any stage of judicial proceedings, instead of instituting a new case and starting all over again, they may reconstitute the records lost and continue the case. If they fail to ask for reconstitution, the worst that can happen to them is that they lose the advantages provided by the reconstitution law" (e.g. having the case at the stage when the records were destroyed).

Applying the doctrine in the Nacua decision to LRC Case No. 657, the parties thereto did not have to commence a new action but only had to go back to the preceding stage where records are available. The land registration case itself re. mained pending and the Court of First Instance of Rizal continued to have jurisdiction over it.

The records were destroyed at that stage of the case when an that remained to be done was the ministerial duty of the Land Registration Office to issue a decree of registration (which would be the basis for the issuance of an Original Certificate of Title) to implement a judgment which had become final (See Government v. Abural, 39 Phil. 996 [1919] at 1002; Sta. Ana v. Menla, 111 Phil. 947 [1961], 1 SCRA 1294; Heirs of Cristobal Marcos v. De Banuvar, 134 Phil. 257 [1968], 26 SCRA 316). There are however authentic copies of the decisions of the CFI and the Court of Appeals adjudicating Lots 1, 2 and 3 of Plan Psu-47035 to Estanislao Mayuga. Moreover, there is an official report of the decision of this Court affirming both the CFI and the CA decisions. A final order of adjudication forms the basis for the issuance of a decree of registration.

Considering that the Reyes court was actually in the exercise of its jurisdiction as a land registration court when it issued the order directing the issuance of a decree of registration,

"substituting therein as registered owner Dominador Mayuga, in hue of the original adjudicates, Estanislao Mayuga, based on the affidavit of self-adjudication, subject to the provisions of Sec. 4, Rule 74 of the Rules of Court," which order is in consonance with the ruling of this Court in the Guico decision, and the decisions of the CFI-Rizal and the CA dated August 19, 1935 and November 17, 1939, respectively, We uphold the validity of said order and rule that Judge Vera was without jurisdiction to set it aside.

4. In upholding the title of Carpo as against those of Realty and QCDFC, the Special Division also relied on Carpo's being an innocent purchaser for value.

Whether or not Carpo is an innocent purchaser for value was never raised as an issue in the trial court. A perusal of the records of the case reveals that no factual basis exists to support such a conclusion. Even Carpo himself cites no factual proof of his being an innocent purchaser for value. He merely relies on the presumption of good faith under Article 527 of the Civil Code.

It is settled that one is considered an innocent purchaser for value only if, relying on the certificate of title, he bought the property from the registered owner, "without notice that some other person has a right to, or interest in, such property and pays a full and fair price for the same, at the time of such purchase, or before he has notice of the claim or interest of some other persons in the property." (Cui v. Henson, 51 Phil. 606 [1928], Fule v. De Legare, 117 Phil. 367 [1963], 7 SCRA 351.) He is not required to explore farther than what the Torrens title upon its face indicates. (Fule v. De Legare supra.)

Carpo bought the disputed property from the Baltazars, the original registered owners, by virtue of a deed executed before Iluminada Figueroa, Notary Public of Manila dated October 9, 1970. However, it was only later, on October 13, 1970, that the decree of registration in favor of the Baltazars was transcribed in the Registration Book for the Province of Rizal and that an Original Certificate of Title was issued. It was on the same day, October 13, 1970, that the deed evidencing the sale between the Baltazars and Carpo was inscribed in the Registry of Property, and the Original Certificate of Title was cancelled as Transfer Certificate of Title No. 303961 in the name of Carpo was issued. (Exhibit 12, Rollo pp. 270-273.)

Thus, at the time of sale there was as yet no Torrens title which Carpo could have relied upon so that he may qualify as an innocent purchaser for value. Not being a purchaser for value and in good faith, he is in no better position than his predecessors-in-interest.

The Baltazars, predecessors-in-interest of Carpo are heirs of Florentino Baltazar, an oppositor in the original application filed by Estanislao Mayuga in 1927. As stated earlier, the CFI-Rizal confirmed the title of Estanislao to Lots 1, 2 and 3 of Plan Psu-47035 "desestimando oposicion de Florentino Baltazar . . . con respeto a dichos lotes . . ." As such successors of Florentino, they could not pretend ignorance of the land registration

proceedings over the disputed parcels of land earlier initiated by Eduardo Guico, Florentino Baltazar and Estanislao Mayuga, as when as the decisions rendered therein.

Moreover, it is not disputed that the title in the name of Dominador Mayuga, from whom Realty derived its title, was issued in 1958, or twelve years before the issuance of the title in the name of the Baltazars in 1970.

In this jurisdiction, it is settled that "(t)he general rule is that in the case of two certificates of title, purporting to include the same land, the earlier in date prevails . . . . In successive registrations, where more than one certificate is issued in respect of a particular estate or interest in land, the person claiming under the prior certificate is entitled to the estate or interest; and that person is deemed to hold under the prior certificate who is the holder of, or whose claim is derived directly or indirectly from the person who was the holder of the earliest certificate issued in respect thereof . . . ." (Legarda and Prieto v. Saleeby, 31 Phil. 590 [1915] at 595-596; Garcia V. CA, Nos. L-48971 and 49011, January 22, 1980, 95 SCRA 380.)

TCT No. 20408 derived from OCT 1609, is therefore superior to TCT No. 303961 derived from OCT 8629.

5. For its part, respondent Quezon City Development and Financing Corporation (QCDFC) alleges that it has been improperly impleaded as thirty-party defendant inasmuch as Realty's alleged cause of action against it is neither for contribution, indemnity, subrogation or any other relief in respect of Carpo's claim against Realty. It likewise alleges that Realty had no cause of action against it since the third party complaint did not allege that QCDFC violated any legal right of Realty, QCDFC also assails the Vera Court decision in that it declares QCDFC directly liable to Carpo and not to Realty.

In the first place, QCDFC did not appeal from the decision of the Vera Court, nor from the decision of the Court of Appeals dated December 29, 1982, nor from the resolution of the IAC Special Third Civil Cases Division dated May 2, 1984 — all of which voided QCDFCs title to the disputed property. Hence, said decisions/resolution have become final and executory as regards QCDFC.

Moreover, even as this Court agrees with QCDFC that the third-party complaint filed against it by Realty was procedurally defective in that the relief being sought by the latter from the former is not in respect of Carpo's claim, policy considerations and the factual circumstances of the case compel this Court now to rule as well on QCDFC's claim to the disputed property. ** To rule on QCDFC's claim now is to avoid multiplicity of suits and to put to rest these conflicting claims over the property. After an, QCDFC was afforded fun opportunity, and exercised its right, to prove its claim over the land. It presented documentary as well as testimonial evidence. It was even permitted to file a fourth-party complaint which, however, was dismissed since it failed to prosecute its case.

QCDFC derived its title from Carmelino Alvendia et. al., the original registered owners. Original Certificate of Title No. 8931 in the name of Spouses Carmelino Alvendia, et. al. was issued on July 27, 1971, or thirteen (13) years after the issuance of Mayuga's title in 1958.

Since Realty is claiming under TCT No. 1609 which was issued earlier than OCT No. 8931 from which QCDFC's title was derived, Realty's title must prevail over that of QCDFC.

6. During the pendency of this case, Petitioners filed a manifestation alleging that the case at bar is closely connected with G.R. No. L-469953, Jose N. Mayuga et. al. v. The Court of Appeals, Macondray Farms, Inc., Realty Sales Enterprise, inc., et. al. and moved for consolidation of the two cases involving as they do the same property. By Resolution of August 29, 1984, this Court denied the motion for consolidation.

In this connection, it must be emphasized that the action filed by Carpo against Realty is in the nature of an action to remove clouds from title to real property. By asserting its own title to the property in question and asking that Carpo's title be declared null and void instead, and by filing the third-party complaint against QCDFC, Realty was similarly asking the court to remove clouds from its own title. Actions of such nature are governed by Articles 476 to 481, Quieting of Title, Civil Code (Republic Act No. 386), and Rule 64, Declaratory Relief and Similar Remedies, Rules of Court.

Suits to quiet title are not technically suits in rem, nor are they, strictly speaking, in personam, but being against the person in respect of the res, these proceedings are characterized as quasi in rem. (McDaniel v. McElvy, 108 So. 820 [1926].) The judgment in such proceedings is conclusive only between the parties. (Sandejas v. Robles, 81 Phil. 421 [1948]).

The ruling in this case is therefore without any prejudice to this Court's final determination of G.R. No. L-46953.

WHEREFORE, the Resolution of May 2,1984 of the Intermediate Appellate Court and the Decision of January 20, 1981 of the CFI-Rizal Branch XXIII, are SET ASIDE and the Decision of December 29, 1982 of the Court of Appeals is AFFIRMED.

SO ORDERED.

INOCENCIO LUCASAN vs. PDIC

WHICH IS LIKEWISE APPLICABLE TO THE CASE AT BAR.[17]

  

Lucasan posits that he has sufficient cause of action against PDIC; thus, he chides the RTC for dismissing his complaint, and the CA for affirming the dismissal. In support of his thesis, he cites Section 75 of Presidential Decree (PD) No. 1529, or the Property Registration Decree[18] and Cometa v. Court of Appeals.[19]

 As gleaned from the averments of the complaint, Lucasans action was one

for quieting of title under Rule 63 of the Rules of Court. Essentially, he sought the cancellation of the notice of embargo and the certificate of sale annotated on TCT Nos. T-68115 and T-13816 claiming that the said annotations beclouded the validity and efficacy of his title. The RTC, however, dismissed his complaint for lack of cause of action which was affirmed by the CA in its assailed Decision. Thus, the key issue for our consideration is whether the dismissal of Lucasans complaint was proper. 

Quieting of title is a common law remedy for the removal of any cloud of doubt or uncertainty with respect to real property. The Civil Code authorizes the said remedy in the following language:

 ART. 476.  Whenever there is a cloud on title to real property or any

interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. 

An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein.

 ART. 477. The plaintiff must have legal or equitable title to, or

interest in the real property which is the subject-matter of the action. He need not be in possession of said property.

  

To avail of the remedy of quieting of title, two (2) indispensable requisites must concur, namely: (1) the plaintiff or complainant has a legal or an equitable title to or interest in the real property subject of the action; and (2) the deed, claim, encumbrance or proceeding claimed to be casting a cloud on his title must be shown to be in fact invalid or inoperative despite its prima facieappearance of validity or legal efficacy.[20] Stated

differently, the plaintiff must show that he has a legal or at least an equitable title over the real property in dispute, and that some deed or proceeding beclouds its validity or efficacy.

 Unfortunately, the foregoing requisites are wanting in this case.

 Admittedly, the subject parcels of land were levied upon by virtue of a writ of

execution issued in Civil Case No. 12188. On May 13, 1981, a public auction of the subject parcels of land was held and the lots were awarded to PBC as the highest bidder.  A certificate of sale in favor of PBC was issued on the same day, and was registered and annotated on TCT Nos. T-68115 and T-13816 as Entry No. 112552 on June 5, 1981.

 Under the 1964 Rules of Court, which were in effect at that time, the judgment

debtor or redemptioner had the right to redeem the property from PBC within twelve (12) months from the registration of the certificate of sale.[21] With the expiration of the twelve-month period of redemption and no redemption having been made, as in this case, the judgment debtor or the redemptioner lost whatever right he had over the land in question.[22]

 Lucasan admitted that he failed to redeem the properties within the redemption

period, on account of his then limited financial situation.[23] It was only in January 1997 or fifteen (15) years later that he manifested his desire to reacquire the properties. Clearly thus, he had lost whatever right he had over Lot Nos. 1500-A and 229-E.

 The payment of loans made by Lucasan to PNB and RPB in 1997 cannot, in any way,

operate to restore whatever rights he had over the subject properties.  Such payment only extinguished his loan obligations to the mortgagee banks and the liens which Lucasan claimed were subsisting at the time of the registration of the notice of embargo and certificate of sale. 

Neither can Lucasan capitalize on PBCs failure to file a petition for consolidation of ownership after the expiration of the redemption period. As we explained in Calacala v. Republic:[24]

 [P]etitioners' predecessors-in-interest lost whatever right they had over [the] land in question from the very moment they failed to redeem it during the 1-year period of redemption. Certainly, the Republic's failure to execute the acts referred to by the petitioners within ten (10) years from the registration of the Certificate of Sale cannot, in any way, operate to restore whatever rights petitioners' predecessors-in-interest had over the same. For sure, petitioners have yet to cite any provision of law or rule of jurisprudence, and we are not aware of any, to the effect that the failure of a buyer in a foreclosure sale to secure a Certificate of Final Sale, execute an Affidavit of Consolidation of Ownership and obtain a writ of possession over

the property thus acquired, within ten (10) years from the registration of the Certificate of Sale will operate to bring ownership back to him whose property has been previously foreclosed and sold.

 x x x x

 Moreover, with the rule that the expiration of the 1-year

redemption period forecloses the obligor's right to redeem and that the sale thereby becomes absolute, the issuance thereafter of a final deed of sale is at best a mere formality and mere confirmation of the title that is already vested in the purchaser. As this Court has said in Manuel vs. Philippine National Bank, et al.: 

Note must be taken of the fact that under the Rules of Court the expiration of that one-year period forecloses the owner's right to redeem, thus making the sheriff's sale absolute. The issuance thereafter of a final deed of sale becomes a mere formality, an act merely confirmatory of the title that is already in the purchaser and constituting official evidence of that fact. (Emphasis supplied.)  

Certainly, Lucasan no longer possess any legal or equitable title to or interest over the subject parcels of land; hence, he cannot validly maintain an action for quieting of title.

 Furthermore, Lucasan failed to demonstrate that the notice of embargo and the

certificate of sale are invalid or inoperative. In fact, he never put in issue the validity of the levy on execution and of the certificate of sale duly registered on June 5, 1981. It is clear, therefore, that the second requisite for an action to quiet title is, likewise, absent. 

Concededly, Lucasan can pursue all the legal and equitable remedies to impeach or annul the execution sale prior to the issuance of a new certificate of title in favor of PBC. Unfortunately, the remedy he had chosen cannot prosper because he failed to satisfy the requisites provided for by law for an action to quiet title. Hence, the RTC rightfully dismissed Lucasans complaint. Lucasan tries to find solace in our ruling in Cometa v. Court of Appeals. Sadly for him, that case is not on all fours with his case, for it was not for  quieting of title but a petition for issuance of a writ of possession and cancellation of lis pendens. Likewise, in Cometa the registered owner assailed the validity of the levy and sale, which Lucasan failed to do. 

Undoubtedly, Lucasans right to redeem the subject properties had elapsed on June 5, 1982. His offer to redeem the same in 1997 or long after the expiration of the redemption period is not really one for redemption but for repurchase. Thus, PBC and PDIC, its receiver and liquidator, are no longer bound by the bid price. It is entirely within their discretion to set a higher price. As we explained in De Robles v. Court of Appeals:[25]

 The right to redeem becomes functus officio on the date of its expiry,

and its exercise after the period is not really one of redemption but a repurchase. Distinction must be made because redemption is by force of law; the purchaser at public auction is bound to accept redemption. Repurchase however of foreclosed property, after redemption period, imposes no such obligation. After expiry, the purchaser may or may not re-sell the property but no law will compel him to do so. And, he is not bound by the bid price; it is entirely within his discretion to set a higher price, for after all, the property already belongs to him as owner.

  

Accordingly, the condition imposed by the PDIC for the re-acquisition of the property cannot be considered unjust or unreasonable.

 Verily, in several cases,[26] this Court allowed redemption even after the lapse of the

redemption period. But in those cases a valid tender was made by the original owners within theredemption period. Even in Cometa, the redemption was allowed beyond the redemption period because a valid tender of payment was made within the redemption period. The same is not true in the case before us.

 In fine, we find that the RTC correctly dismissed Lucasans complaint for quieting of

title. Thus, the CA committed no reversible error in sustaining the RTC. 

WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 81518, are AFFIRMED. Costs against the petitioner.

SO ORDERED.

THE HEIRS OF PROTACIO GO, SR, et al. VS. ESTER L. SERVACIO, et al.,

The appeal lacks merit.

 

Article 130 of the Family Code reads: 

Article 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

 If no judicial settlement proceeding is instituted, the surviving spouse

shall liquidate the conjugal partnership property either judicially or extra-judicially within one year from the death of the deceased spouse. If upon the lapse of the six month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.

 Should the surviving spouse contract a subsequent marriage without

compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

 

Article 130 is to be read in consonance with Article 105 of the Family Code, viz: 

Article 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership of gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application.

 The provisions of this Chapter shall also apply to conjugal

partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. (n) [emphasis supplied]

 

It is clear that conjugal partnership of gains established before and after the

effectivity of the Family Code are governed by the rules found in Chapter 4 (Conjugal

Partnership of Gains) of Title IV (Property Relations Between Husband And Wife) of

the Family Code. Hence, any disposition of the conjugal property after the dissolution of the

conjugal partnership must be made only after the liquidation; otherwise, the disposition is

void.

 

Before applying such rules, however, the conjugal partnership of gains must be

subsisting at the time of the effectivity of the Family Code. There being no dispute that

Protacio, Sr. and Marta were married prior to the effectivity of the Family Code on August 3,

1988, their property relation was properly characterized as one of conjugal partnership

governed by the Civil Code. Upon Martas death in 1987, the conjugal partnership was

dissolved, pursuant to Article 175 (1) of the Civil Code,[15] and an implied ordinary co-

ownership ensued among Protacio, Sr. and the other heirs of Marta with respect to her share

in the assets of the conjugal partnership pending a liquidation following its liquidation.[16] The ensuing implied ordinary co-ownership was governed by Article 493 of the Civil

Code,[17] to wit:

 Article 493. Each co-owner shall have the full ownership of his part

and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. (399)

 

Protacio, Sr., although becoming a co-owner with his children in respect of Martas share in

the conjugal partnership, could not yet assert or claim title to any specific portion of Martas

share without an actual partition of the property being first done either by agreement or by

judicial decree. Until then, all that he had was an ideal or abstract quota in Martas share.[18] Nonetheless, a co-owner could sell his undivided share; hence, Protacio, Sr. had the right

to freely sell and dispose of his undivided interest, but not the interest of his co-owners.[19] Consequently, the sale by Protacio, Sr. and Rito as co-owners without the consent of the

other co-owners was not necessarily void, for the rights of the selling co-owners were

thereby effectively transferred, making the buyer (Servacio) a co-owner of Martas share.[20] This result conforms to the well-established principle that the binding force of a contract

must be recognized as far as it is legally possible to do so (quando res non valet ut ago, valeat

quantum valere potest).[21]

 

Article 105 of the Family Code, supra, expressly provides that the applicability of the

rules on dissolution of the conjugal partnership is without prejudice to vested rights already

acquired in accordance with the Civil   Code  or other laws. This provision gives another

reason not to declare the sale as entirely void. Indeed, such a declaration prejudices the

rights of Servacio who had already acquired the shares of Protacio, Sr. and Rito in the

property subject of the sale.

 

In their separate comments,[22] the respondents aver that each of the heirs had

already received a certain allotted portion at the time of the sale, and that Protacio, Sr. and

Rito sold only the portions adjudicated to and owned by them. However, they did not

present any public document on the allocation among her heirs, including themselves, of

specific shares in Martas estate. Neither did they aver that the conjugal properties had

already been liquidated and partitioned. Accordingly, pending a partition among the heirs of

Marta, the efficacy of the sale, and whether the extent of the property sold adversely affected

the interests of the petitioners might not yet be properly decided with finality. The

appropriate recourse to bring that about is to commence an action for judicial partition, as

instructed in Bailon-Casilao v. Court of Appeals,[23] to wit:

 From the foregoing, it may be deduced that since a co-owner is

entitled to sell his undivided share, a sale of the entire property by one   

co-owner without the consent of the other co-owners is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.

 The proper action in cases like this is not for the nullification of the

sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property as if it continued to remain in the possession of the co-owners who possessed and administered it [Mainit v. Bandoy, supra].

 Thus, it is now settled that the appropriate recourse of co-owners

in cases where their consent were not secured in a sale of the entire

property as well as in a sale merely of the undivided shares of some of the co-owners is an action for PARTITION under Rule 69 of the Revised Rules of Court. xxx[24]

 

In the meanwhile, Servacio would be a trustee for the benefit of the co-heirs of her

vendors in respect of any portion that might not be validly sold to her. The following

observations of Justice Paras are explanatory of this result, viz:

 xxx [I]f it turns out that the property alienated or mortgaged really would pertain to the share of the surviving spouse, then said transaction is valid. If it turns out that there really would be, after liquidation, no more conjugal assets then the whole transaction is null and void. But if it turns out that half of the property thus alienated or mortgaged belongs to the husband as his share in the conjugal partnership, and half should go to the estate of the wife, then that corresponding to the husband is valid, and that corresponding to the other is not. Since all these can be determined only at the time the liquidation is over, it follows logically that a disposal made by the surviving spouse is not void ab initio. Thus, it has been held that the sale of conjugal properties cannot be made by the surviving spouse without the legal requirements. The sale is void as to the share of the deceased spouse (except of course as to that portion of the husbands share inherited by her as the surviving spouse). The buyers of the property that could not be validly sold become trustees of said portion for the benefit of the husbands other heirs, the cestui que trust ent. Said heirs shall not be barred by prescription or by laches (See Cuison, et al. v. Fernandez, et al.,L-11764, Jan.31, 1959.)[25]

WHEREFORE, we DENY the petition for review on certiorari;

and AFFIRM the decision of the Regional Trial Court.

 

 The petitioners shall pay the costs of suit.

 

SO ORDERED.

LEONOR CRUZ vs. TEOFILA CATAPANG

Petitioner prays in her petition that we effectively reverse the Court of Appeals decision.

Simply put, the main issue before us is whether consent given by a co-owner of a parcel of land to a person to construct a house on the co-owned property warrants the dismissal of a forcible entry case filed by another co-owner against that person.

In her memorandum,[16] petitioner contends that the consent and knowledge of co-owner Norma Maligaya cannot defeat the action for forcible entry since it is a basic principle in the law of co-ownership that no individual co-owner can claim title to any definite portion of the land or thing owned in common until partition.

On the other hand, respondent in her memorandum[17] counters that the complaint for forcible entry cannot prosper because her entry into the property was not through strategy or stealth due to the consent of one of the co-owners. She further argues that since Norma Maligaya is residing in the house she built, the issue is not just possession de facto but also one of possession de jure since it involves rights of co-owners to enjoy the property.

As to the issue of whether or not the consent of one co-owner will warrant the dismissal of a forcible entry case filed by another co-owner against the person who was given the consent to construct a house on the co-owned property, we have held that a co-owner cannot devote common property to his or her exclusive use to the prejudice of the co-ownership.[18] In our view, a co-owner cannot give valid consent to another to build a house on the co-owned property, which is an act tantamount to devoting the property to his or her exclusive use.

Furthermore, Articles 486 and 491 of the Civil Code provide:

Art. 486. Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights. The purpose of the co-ownership may be changed by agreement, express or implied.

Art. 491. None of the co-owners shall, without the consent of the others, make alterations in the thing owned in common, even though benefits for all would result therefrom. However, if the withholding of the consent by one or more of the co-owners is clearly prejudicial to the common interest, the courts may afford adequate relief.

Article 486 states each co-owner may use the thing owned in common provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights. Giving consent to a third person to construct a house on the co-owned property will injure the interest of the co-ownership and prevent other co-owners from using the property in accordance with their rights.

Under Article 491, none of the co-owners shall, without the consent of the others, make alterations in the thing owned in common. It necessarily follows that none of the co-owners can, without the consent of the other co-owners, validly consent to the making of an alteration by another person, such as respondent, in the thing owned in common. Alterations include any act of strict dominion or ownership and any encumbrance or disposition has been held implicitly to be an act of alteration.[19] The construction of a house on the co-owned property is an act of dominion. Therefore, it is an alteration falling under Article 491 of the Civil Code. There being no consent from all co-owners, respondent had no right to construct her house on the co-owned property.

Consent of only one co-owner will not warrant the dismissal of the complaint for forcible entry filed against the builder. The consent given by Norma Maligaya in the absence of the consent of petitioner and Luz Cruz did not vest upon

respondent any right to enter into the co-owned property. Her entry into the property still falls under the classification through strategy or stealth.

The Court of Appeals held that there is no forcible entry because respondents entry into the property was not through strategy or stealth due to the consent given to her by one of the co-owners.We cannot give our imprimatur to this sweeping conclusion. Respondents entry into the property without the permission of petitioner could appear to be a secret and clandestine act done in connivance with co-owner Norma Maligaya whom respondent allowed to stay in her house. Entry into the land effected clandestinely without the knowledge of the other co-owners could be categorized as possession by stealth.[20] Moreover, respondents act of getting only the consent of one co-owner, her sister Norma Maligaya, and allowing the latter to stay in the constructed house, can in fact be considered as a strategy which she utilized in order to enter into the co-owned property. As such, respondents acts constitute forcible entry.

Petitioners filing of a complaint for forcible entry, in our view, was within the one-year period for filing the complaint. The one-year period within which to bring an action for forcible entry is generally counted from the date of actual entry to the land. However, when entry is made through stealth, then the one-year period is counted from the time the petitioner learned about it.[21] Although respondent constructed her house in 1992, it was only in September 1995 that petitioner learned of it when she visited the property. Accordingly, she then made demands on respondent to vacate the premises. Failing to get a favorable response, petitioner filed the complaint on January 25, 1996, which is within the one-year period from the time petitioner learned of the construction.

WHEREFORE, the petition is GRANTED. The Decision dated September 16, 2003 and the Resolution dated June 11, 2004 of the Court of Appeals in CA-G.R. SP No. 69250 areREVERSED and SET ASIDE. The Decision dated October 22, 2001 of the Regional Trial Court, Branch 86, Taal, Batangas is REINSTATED. Costs against respondent.

SO ORDERED.

LILIA SANCHEZ vs. CA

Thus, we now look into the merits of the petition.

This case overlooks a basic yet significant principle of civil law: co-ownership. Throughout the proceedings from the MeTC to the Court of Appeals, the notion of co-ownership[11] was not sufficiently dealt with.We attempt to address this controversy in the interest of substantial justice. Certiorari should therefore be granted to cure this grave abuse of discretion.

Sanchez Roman defines co-ownership as the right of common dominion which two or more persons have in a spiritual part of a thing, not materially or physically divided.[12] Manresa defines it as the manifestation of the private right of ownership, which instead of being exercised by the owner in an exclusive manner over the things subject to it, is exercised by two or more owners and the undivided thing or right to which it refers is one and the same.[13]

The characteristics of co-ownership are: (a) plurality of subjects, who are the co-owners, (b) unity of or material indivision, which means that there is a single object which is not materially divided, and which is the element which binds the subjects, and, (c) the recognition of ideal shares, which determines the rights and obligations of the co-owners.[14]

In co-ownership, the relationship of such co-owner to the other co-owners is fiduciary in character and attribute. Whether established by law or by agreement of the co-owners, the property or thing held pro-indiviso is impressed with a fiducial nature so that each co-owner becomes a trustee for the benefit of his co-owners and he may not do any act prejudicial to the interest of his co-owners.[15]

Thus, the legal effect of an agreement to preserve the properties in co-ownership is to create an express trust among the heirs as co-owners of the properties. Co-ownership is a form of trust and every co-owner is a trustee for the others.[16]

Before the partition of a land or thing held in common, no individual or 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.[17]

Article 493 of the Civil Code gives the owner of an undivided interest in the property the right to freely sell and dispose of it, i.e., his undivided interest. He

may validly lease his undivided interest to a third party independently of the other co-owners.[18] But he has no right to sell or alienate a concrete, specific or determinate part of the thing owned in common because his right over the thing is represented by a quota or ideal portion without any physical adjudication.[19]

Although assigned an aliquot but abstract part of the property, the metes and bounds of petitioners lot has not been designated. As she was not a party to the Deed of Absolute Sale voluntarily entered into by the other co-owners, her right to 1/6 of the property must be respected. Partition needs to be effected to protect her right to her definite share and determine the boundaries of her property. Such partition must be done without prejudice to the rights of private respondent Virginia Teria as buyer of the 5/6 portion of the lot under dispute.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals dated 23 May 2001 as well as its Resolution dated 8 January 2002 in CA-G.R. SP No. 59182 is ANNULLED and SET ASIDE.A survey of the questioned lot with TCT No. 289216 (formerly TCT No. 263624) by a duly licensed geodetic engineer and the PARTITION of the aforesaid lot are ORDERED.

Let the records of this case be REMANDED to MeTC-Br. 49, Caloocan City to effect the aforementioned survey and partition, as well as segregate the 1/6 portion appertaining to petitioner Lilia Sanchez.

The Deed of Absolute Sale by the other co-owners to Virginia Teria shall be RESPECTED insofar as the other undivided 5/6 portion of the property is concerned.

SO ORDERED.

THE HEIRS of SALUD DIZON SALAMAT, et al, VS. NATIVIDAD DIZON TAMAYO

We reverse.

Art 749 of the Civil Code reads:

In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form and this step shall be noted in both instruments.

It is clear from Article 749 that a transfer of real property from one person to another cannot take effect as a donation unless embodied in a public document.

The alleged donation in the case at bar was done orally and not executed in a public document. Moreover, the document which was presented by respondent in support of her claim that her father donated the subject parcel of land to her was a mere private document of conformity which was executed by her elder brother, Eduardo in 1956.[5] It may not be amiss to point out that the brothers Eduardo and Gaudencio had already ceded their hereditary interests to petitioner Salud Dizon Salamat even before 1950.

The Court of Appeals, however, placed much reliance on the said document and made the dubious observation that x x x a cursory reading of the signed statement of Eduardo Dizon, which execution is undisputed, shows that there was an oral donation x x x.

Significantly, the document relied upon by the Court of Appeals could hardly satisfy the requirements of the rule on ancient documents on accounts of unexplained alterations.

An ancient document refers to a private document which is more than thirty (30) years old, produced from a custody in which it would naturally be found if genuine, and is unblemished by alterations or circumstances of suspicion.[6]

To repeat, the document which was allegedly executed by Eduardo was marred by unexplained erasures and alterations. While the document was originally penned in black ink, the number thirty-six (36) in blue ink was superimposed on the number fifty-six (56) to make it appear that the document was executed in 1936 instead of in 1956. Moreover, a signature was blotted out with a black pentel pen and the three other signatures[7] of the alleged witnesses to the execution of the document at the lower portion of the document were dated June 1, 1951. This could only mean that the witnesses attested to the veracity of the document 5 years earlier, if the document was executed in 1956 or 15 years later, if we are to give credence to respondents claim, that the document was executed in 1936. Curiously, two of the signatories, namely, Priscila D. Rivera and Maria D. Jocson signed the document as witnesses two days after the death of their father Gaudencio, who, as earlier mentioned, had already sold his hereditary rights to his elder sister Salud in 1949.

In any case, assuming that Agustin really made the donation to respondent, albeit orally, respondent cannot still claim ownership over the property. While it is true that a void donation may be the basis of ownership which may ripen into title by prescription,[8] it is well settled that possession, to constitute the foundation of a prescriptive right, must be adverse and under a claim of title.

Respondent was never in adverse and continous possession of the property. It is undeniable that petitioners and respondent, being heirs of the deceased, are co-owners of the properties left by the latter. A co-ownership is a form of a trust, with each owner being a trustee for each other[9] and possession of a co-owner shall not be regarded as adverse to other co-owners but in fact is beneficial to them. Mere actual possession by one will not give rise to the inference that the possession was adverse because a co-owner is, after all, entitled to possession of the property.

In the case of Salvador v. Court of Appeals,[10] we had occasion to state that 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.

The elements in order that a co-owners possession may be deemed adverse to the cestui que trust or the co-owner are: (1) that he has performed unequivocal acts of repudiation amounting to ouster cestui que trust or other co-owners (2) that such positive acts or repudiation have been made known to the cestui que trust or other co-owners and (3) that the evidence thereon must be clear and convincing.[11]

Not one of the aforesaid requirements is present in the case at bar. There are two houses standing on the subject property. One is the house where respondent presently resides while the other is a house built by respondents sister Valenta. Records show that the house on Lot 227 where the respondent lives is actually the ancestral house of the Dizons although respondent has remodelled it, constructed a piggery and has planted trees thereon.[12] Respondent herself testified:

x x x x x x x x x

Q Now, who is in the possession of this particular residential land in Bo. San Nicolas, Hagonoy, Bulacan?

A I am in possession of that land, Sir.

Q Do you have your residential house there?

A Yes, sir.

Q Now, you said that you have your residential house there, since when have you stayed there?

A I was born there, Sir.

Q And you are staying there up to the present?

A Yes, sir.

x x x x x x x x x.[13]

It is obvious from the foregoing that since respondent never made unequivocal acts of repudiation, she cannot acquire ownership over said property through acquisitive prescription. The testimony of her son that she

merely allowed her sister Valenta to build a house on the lot [14] is pure hearsay as respondent herself could have testified on the matter but chose not to.

Finally, the fact that the subject property is declared for taxation purposes in the name of respondent who pays realty taxes thereon under Tax Declaration No. 14376 is of no moment. It is well settled that tax declarations or realty tax payments are not conclusive evidence of ownership.[15]

As regards the improvements introduced by the respondent on the questioned lot, the parties should be guided by Article 500 of the Civil Code which states that: Upon partition, there shall be a mutual accounting for benefits received and reimbursements for expenses made. x x x

WHEREFORE, the decision of the Court of Appeals is hereby REVERSED. Lot 2557, Hagonoy Cadastre 304-D covered by Original Certificate of Title No. 10384 is hereby declared to belong the estate of Agustin Dizon. No costs.

SO ORDERED.

BETTY LACBAYAN vs. BAYANI S. SAMOY, JR.

Noticeably, the last argument is essentially a question of fact, which we feel has been squarely threshed out in the decisions of both the trial and appellate courts. We deem it wise not to disturb the findings of the lower courts on the said matter absent any showing that the instant case falls under the exceptions to the general rule that questions of fact are beyond the ambit of the Court’s jurisdiction in petitions under Rule 45 of the 1997 Rules of Civil Procedure, as amended. The issues may be summarized into only three:

I. Whether an action for partition precludes a settlement on the issue of ownership;

II. Whether the Torrens title over the disputed properties was collaterally attacked in the action for partition; and

III. Whether respondent is estopped from repudiating co-ownership over the subject realties.

We find the petition bereft of merit.

Our disquisition in Municipality of Biñan v. Garcia28 is definitive. There, we explained that the determination as to the existence of co-ownership is necessary in the resolution of an action for partition. Thus:

The first phase of a partition and/or accounting suit is taken up with the determination of whether or not a co-ownership in fact exists, and a partition is proper (i.e., not otherwise legally proscribed) and may be made by voluntary agreement of all the parties interested in the property. This phase may end with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exist, or partition is legally prohibited. It may end, on the other hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order. x x x

The second phase commences when it appears that "the parties are unable to agree upon the partition" directed by the court. In that event[,] partition shall be done for the parties by the [c]ourt with the assistance of not more than three (3) commissioners. This second stage may well also deal with the rendition of the accounting itself and its approval by the [c]ourt after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share in the rents and profits of the real estate in question. x x x29 (Emphasis supplied.)

While it is true that the complaint involved here is one for partition, the same is premised on the existence or non-existence of co-ownership between the parties. Petitioner insists she is a co-owner pro indiviso of the five real estate properties based on the transfer certificates of title (TCTs) covering the subject properties. Respondent maintains otherwise. Indubitably, therefore, until and unless this issue of co-ownership is definitely and finally resolved, it would be premature to effect a partition of the disputed properties.30 More importantly, the complaint will not even lie if the claimant, or petitioner in this case, does not even have any rightful interest over the subject properties.31

Would a resolution on the issue of ownership subject the Torrens title issued over the disputed realties to a collateral attack? Most definitely, it would not.

There is no dispute that a Torrens certificate of title cannot be collaterally attacked,32 but that rule is not material to the case at bar. What cannot be collaterally attacked is the certificate of title and not the title itself.33 The certificate referred to is that document issued by the Register of Deeds known as the TCT. In contrast, the title referred to by law means ownership which is, more often than not, represented by that document.34 Petitioner apparently confuses title with the certificate of title. Title as a concept of ownership should not be confused with the certificate of title as evidence of such ownership although both are interchangeably used.35

Moreover, placing a parcel of land under the mantle of the Torrens system does not mean that ownership thereof can no longer be disputed. Ownership is different from a certificate of title, the latter only serving as the best proof of ownership over a piece of land. The certificate cannot always be considered as conclusive evidence of ownership.36 In fact, mere issuance of the certificate of title in the name of any person does not foreclose the possibility that the real

property may be under co-ownership with persons not named in the certificate, or that the registrant may only be a trustee, or that other parties may have acquired interest over the property subsequent to the issuance of the certificate of title.37 Needless to say, registration does not vest ownership over a property, but may be the best evidence thereof.1avvphi1

Finally, as to whether respondent’s assent to the initial partition agreement serves as an admission against interest, in that the respondent is deemed to have admitted the existence of co-ownership between him and petitioner, we rule in the negative.

An admission is any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him.38 Admission against interest is governed by Section 26 of Rule 130 of the Rules of Court, which provides:

Sec. 26. Admissions of a party. – The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.

To be admissible, an admission must (a) involve matters of fact, and not of law; (b) be categorical and definite; (c) be knowingly and voluntarily made; and (d) be adverse to the admitter’s interests, otherwise it would be self-serving and inadmissible.39

A careful perusal of the contents of the so-called Partition Agreement indicates that the document involves matters which necessitate prior settlement of questions of law, basic of which is a determination as to whether the parties have the right to freely divide among themselves the subject properties. Moreover, to follow petitioner’s argument would be to allow respondent not only to admit against his own interest but that of his legal spouse as well, who may also be lawfully entitled co-ownership over the said properties. Respondent is not allowed by law to waive whatever share his lawful spouse may have on the disputed properties. Basic is the rule that rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, good customs or prejudicial to a third person with a right recognized by law.40

Curiously, petitioner herself admitted that she did not assent to the Partition Agreement after seeing the need to amend the same to include other matters.

Petitioner does not have any right to insist on the contents of an agreement she intentionally refused to sign.

As to the award of damages to respondent, we do not subscribe to the trial court’s view that respondent is entitled to attorney’s fees. Unlike the trial court, we do not commiserate with respondent’s predicament. The trial court ruled that respondent was forced to litigate and engaged the services of his counsel to defend his interest as to entitle him an award of P100,000.00 as attorney’s fees. But we note that in the first place, it was respondent himself who impressed upon petitioner that she has a right over the involved properties. Secondly, respondent’s act of representing himself and petitioner as husband and wife was a deliberate attempt to skirt the law and escape his legal obligation to his lawful wife. Respondent, therefore, has no one but himself to blame the consequences of his deceitful act which resulted in the filing of the complaint against him.

WHEREFORE, the petition is DENIED. The September 14, 2004 Decision of the Court of Appeals in CA-G.R. CV No. 67596 is AFFIRMED with MODIFICATION. Respondent Bayani S. Samoy, Jr. is hereby declared the sole owner of the disputed properties, without prejudice to any claim his legal wife may have filed or may file against him. The award of P100,000.00 as attorney’s fees in respondent’s favor is DELETED.

No costs.

SO ORDERED.

HEIRS OF FLORES RESTAR, et al. VS. HEIRS of DOLORES R. CICHON, et al.

The appellate court having denied reconsideration of its decision, only the

defendants Heirs of Flores filed the present petition, assigning the following

errors: 

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

 B.             THE COURT OF APPEALS PATENTLY ERRED IN NOT

RULING THAT THERE WAS ACQUISITIVE PRESCRIPTION ON THE LAND IN QUESTION NOTWITHSTANDING THAT THE LAND IN QUESTION HAS BEEN DECLARED IN THE NAME OF FLORES RESTAR, FATHER OF PETITIONERS, AS EARLY AS 1960 AND THAT PETITIONERS AND THEIR PREDECESSOR-IN-INTEREST HAVE BEEN IN OPEN, CONTINUOUS, EXCLUSIVE AND NOTORIOUS POSSESSION OF THE LAND IN QUESTION IN THE CONCEPT OF OWNER FOR MORE THAN THIRTY (30) YEARS.[20]

  

The petition is impressed with merit. 

Article 494 of the New Civil Code expressly provides: ART. 494. No co-owner shall be obliged to remain in the co-ownership.

Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned.

 x x x

 No prescription shall run in favor of a co-owner or co-heir against his co-

owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership.

  

While the action to demand partition of a co-owned property does not prescribe,

a co-owner may acquire ownership thereof by prescription[21] where there exists

a clear repudiation of the co-ownership, and the co-owners are apprised of the

claim of adverse and exclusive ownership.[22]

 

Acquisitive prescription of dominion and other real rights may be ordinary or

extraordinary. Ordinary acquisitive prescription requires possession of things in

good faith and with just title for a period of ten years. Without good faith and just

title, acquisitive prescription can only be extraordinary in character which

requires uninterrupted adverse possession for thirty years. 

Thus, the New Civil Code provides: 

ART. 1117. Acquisitive prescription of dominion and other real rights may be ordinary or extraordinary. Ordinary acquisitive prescription requires possession of things in good faith and with just title for the time fixed by law. ART. 1134. Ownership and other real rights over immovable property are acquired by ordinary prescription through possession of ten years. 

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

  

Resolving the main issue of whether petitioners acquired ownership over the lot

by extraordinary prescription, the appellate court held in the negative.

 

While this Court is not a trier of facts, if the inference drawn by the

appellate court from the facts is manifestly mistaken, it may, in the interest of

justice, review the evidence in order to arrive at the correct factual conclusions

based on the record.[23]

 

Contrary to the findings of the appellate court, the records of the case

amply support petitioners claim that the requirements for extraordinary

prescription had been duly met. 

When Restar died in 1935, his eight children became pro indiviso co-

owners of the lot by intestate succession. Respondents never possessed the lot,

however, much less asserted their claim thereto until January 21, 1999 when

they filed the complaint for partition subject of the present petition. 

In contrast, Flores took possession of the lot after Restars death and

exercised acts of dominion thereon tilling and cultivating the land, introducing

improvements, and enjoying the produce thereof. 

The statutory period of prescription, however, commenced not in 1935

but in 1960 when Flores, who had neither title nor good faith, secured a tax

declaration in his name and may, therefore, be said to have adversely claimed

ownership of the lot. And respondents were also deemed to have been on said

date become aware of the adverse claim.[24]

 

Flores possession thus ripened into ownership through acquisitive

prescription after the lapse of thirty years in accordance with the earlier quoted

Article 1137 of the New Civil Code. 

The following observations of the trial court thus merit this Courts

approval. 

The evidence proved that as far back as 1959, Flores Restar adjudicated unto himself the whole land in question as his share from his father by means of a joint affidavit which he executed with one Helen Restar, and he requested the Provincial Treasurer/Assessor to have the land declared in his name. It was admitted by the parties during the pre-trial that this affidavit was the basis of the transfer of Tax Declaration No. 6686 from Emilio Restar to Flores Restar. So that from 1960 the land was declared in the name of Flores Restar (Exhibit 10). This was the first concrete act of repudiation made by Flores of the co-ownership over the land in question. x x x Plaintiffs did not deny that aside from the verbal partition of one parcel of land in Carugdog, Lezo, Aklan way back in 1945, they also had an amicable partition of the lands of Emilio Restar in Cerrudo and Palale, Banga Aklan on September 28, 1973 (exhibit 20). If they were able to demand the partition, why then did they not demand the inclusion of the land in question in order to settle once and for all the inheritance from their father Emilio Restar, considering that at that time all of the brothers and sisters, the eight heirs of Emilio Restar, were still alive and participated in the signing of the extra-judicial partition? Also it was admitted that Flores died only in 1989. Plaintiffs had all the chances (sic) to file a case against him from 1960, or a period of 29 years when he was still alive, yet they failed to do so. They filed the instant case only on January 22, 1999, almost ten (10) years after Flores death. 

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

 

While tax declarations and receipts are not conclusive evidence of

ownership and do not prove title to the land, nevertheless, when coupled with

actual possession, they constitute evidence of great weight[26] and can be the basis

of a claim of ownership through prescription.[27]

 

As for respondents claim that they have been receiving shares from the

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

  

Unless there are strong and impelling reasons to disturb the trial courts findings

of facts which must, as a matter of judicial policy, be accorded with the highest

respect, they must remain. Respondents have not, however, proffered any

reason warranting the disturbance of the trial courts findings of facts.

 

Indeed, the following acts of Flores show possession adverse to his co-

heirs: the cancellation of the tax declaration certificate in the name of Restar and

securing another in his name; the execution of a Joint Affidavit stating that he is

the owner and possessor thereof to the exclusion of respondents; payment of

real estate tax and irrigation fees without respondents having ever contributed

any share therein; and continued enjoyment of the property and its produce to

the exclusion of respondents. And Flores adverse possession was continued by

his heirs.

 

The appellate courts crediting of respondents justification for failing to

immediately take legal action to protect their rights forbearance toward Flores

and/or his wife who asked to be allowed to cultivate the land to support their

childrens education does not impress. For assuming such justification to be true,

why did not any of respondents assail Flores continuous possession after his

children completed their college education in 1977? 

The trial courts finding and conclusion that Flores and his heirs had for

more than 38 years possessed the land in open, adverse and continuous

possession in the concept of owner − which length of possession had never been

questioned, rebutted or disputed by any of respondents, being thus duly

supported by substantial evidence, he and his heirs have become owner of the

lot by extraordinary prescription. It is unfortunate that respondents slept on

their rights. Dura lex sed lex. 

WHEREFORE, the petition is GRANTED. The decision of the Court of

Appeals is REVERSED and SET ASIDE and the June 30, 1999 decision of the trial

court is REINSTATED. 

No pronouncement as to costs. 

SO ORDERED.

REYNALDO BALOLOY vs. ALFREDO HULAR

The Present Petition 

 The petitioners, who are still residing on the subject property, filed their

petition for review on certiorari for the reversal of the decision and resolution of the Court of Appeals.

 The issues for resolution are: (1) whether all the indispensable parties had been impleaded by the respondent

in the trial court;(2) whether the said respondent had a cause of action against the petitioners for

the nullification of Free Patent No. 384019 and OCT No. P-16540; for reconveyance and for possession of the subject property; and for damages; and

(3) whether the respondent had acquired ownership over the property through acquisitive prescription. The first issue, while not raised by the parties in the trial court and in the Court of Appeals, is so interwoven with the other issues raised therein and is even decisive of the outcome of this case; hence, such issue must be delved into and resolved by this Court.[26]

 We note that the action of the respondent in the trial court is for: (a) reinvidicatoria, to declare the respondent the absolute owner of the subject property and its reconveyance to him as a consequence of the nullification of Free Patent No. 384019 and OCT No. P-16540; (b) publiciana, to order the petitioners and the other heirs of Iluminado Baloloy to vacate the property and deliver possession thereof to him; and (c) damages and attorneys fees.

 It is the contention of the respondent that the subject property was sold by

Lagata to his father, Astrologo Hular, in 1961. He adduced evidence that when his parents died intestate, they were survived by their children, the respondent and his siblings Elena, Jose, Romeo, Anacleto, Leo, and Teresita. Article 1078 of the Civil Code provides that where there are two or more heirs, the whole estate of the decedent is, before partition, owned in common by such heirs, subject to the payment of the debts of the deceased. Until a division is made, the respective share of each cannot be determined and every co-owner exercises, together with his co-participants, joint ownership over the pro indiviso property, in addition to the use and enjoyment of the same.

 Under Article 487 of the New Civil Code, any of the co-owners may bring an

action in ejectment. This article covers all kinds of actions for the recovery of possession, including an accion publiciana and a reinvidicatory action. A co-owner may bring such an action without the necessity of joining all the other co-owners as co-plaintiffs because the suit is deemed to be instituted for the benefit of all. [27] Any judgment of the court in favor of the co-owner will benefit the others but if such judgment is adverse, the same cannot prejudice the rights of the unimpleaded co-owners. If the action is for the benefit of the plaintiff alone who claims to be the sole owner and entitled to the possession thereof, the action will not prosper unless he impleads the other co-owners who are indispensable parties.

 In this case, the respondent alone filed the complaint, claiming sole ownership

over the subject property and praying that he be declared the sole owner thereof.  There is no proof that the other co-owners had waived their rights over the subject property or conveyed the same to the respondent or such co-owners were aware of the case in the trial court. The trial court rendered judgment declaring the respondent as the sole owner of the property and entitled to its possession, to the prejudice of the latters siblings. Patently then, the decision of the trial court is erroneous.

 Under Section 7, Rule 3 of the Rules of Court, the respondent was mandated to

implead his siblings, being co-owners of the property, as parties. The respondent failed to comply with the rule.It must, likewise, be stressed that the Republic of the Philippines is also an indispensable party as defendant because the respondent sought the nullification of OCT No. P-16540 which was issued based on Free Patent No. 384019. Unless the State is impleaded as party-defendant, any decision of the Court would not be binding on it. 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.[28] The absence of the respondents siblings, as parties, rendered all proceedings subsequent to the filing thereof, including the judgment of the court, ineffective for want of authority to act, not only as to the absent parties but even as to those present.[29]

 Even if we glossed over the procedural lapses of the respondent, we rule that he

failed to prove the material allegations of his complaint against the petitioners; and that he is not entitled to the reliefs prayed for.

 The burden of proof is on the plaintiff to establish his case by the

requisite quantum of evidence. If he claims a right granted as created by law or under a contract of sale, he must prove his claim by competent evidence. He must rely on the strength of his own evidence and not on the weakness or absence of the evidence of that

of his opponent.[30] He who claims a better right to real estate property must prove not only his ownership of the same but also the identity thereof. [31] In Huy v. Huy,[32] we held that where a property subject of controversy is duly registered under the Torrens system, the presumptive conclusiveness of such title should be given weight and in the absence of strong and compelling evidence to the contrary, the holder thereof should be considered as the owner of the property until his title is nullified or modified in an appropriate ordinary action. A Torrens Certificate is evidence of an indefeasible title to property in favor of the person in whose name appears therein.[33] Such holder is entitled to the possession of the property until his title is nullified.

 The petitioners aver that Lot No. 3347 owned by the Spouses Estopin was

coconut, and not residential, land. The petitioners contend that, under the deed of absolute sale, Victoriana Lagata executed on November 25, 1961 in favor of Astrologo Hular, she sold the residential portion of Lot No. 3347; however, the latter constructed his house on a portion of Lot No. 3353 which Iluminado had purchased from Balbedina, now covered by OCT No. P-16540. The petitioners assert that along with their mother Anacorita and their brother Antonio Baloloy, they constructed their houses on a part of Lot No. 3353, titled in the name of their father Iluminado; hence, they could not be dispossessed of the said property. The petitioners posit that, whether the house of Hular was constructed on a portion of Lot No. 3353 of the property of Balbedina or Gruta is irrelevant because both properties are now covered by OCT No. P-16540 under the name of Iluminado, their predecessor-in-interest.

 The Court of Appeals ruled that Victoriana Lagata owned the subject property,

which turned out to be 1,405 square meters, and sold the same to Hular.  In contrast, the RTC declared in its decision that while under the deed of absolute sale executed by Irene Griarte in favor of Balbedina, Lot No. 3353 had an area of 6,666 square meters, Griarte actually owned only 4,651 square meters; a portion of the lot was actually owned by Lino Estopin. Hence, Balbedina sold only 4,651 square meters to Iluminado[34] because he was aware that he owned only 4,651 square meters of the land. It also held that, unknown to Lagata, a portion of Lot No. 3347 was declared as part of Lot No. 3353 when the lands in Juban were surveyed. The trial court concluded that Lagata erroneously declared, under the deed of absolute sale executed on November 25, 1961 in favor of Hular, that the property was part of Lot No. 3347.

 The trial and appellate courts erred in their decisions. The evidence on record shows that Irene Griarte owned a parcel of land with an

area of 6,666 square meters, more or less.[35] When she sold the property to Martiniano Balbedina on August 14, 1945, it was bounded on the south by the property of Lino Estopin. There was no trail yet between the property of Griarte on the south and of Lino

Estopin on the north. In the meantime, however, a road (trail) leading to Biriran was established between the property of Balbedina on the south and that of Lino Estopin on the north. Thereafter, a cadastral survey of the lands in Juban was conducted by the Bureau of Lands. The property of Balbedina was designated as a portion of Lot No. 3353, while that of Estopin was designated as Lot No. 3347. The other portion of Lot No. 3353, with an area of 4,561 square meters, belonged to Alejandro Gruta. Because of the construction of the road, the property of Balbedina, which was a part of Lot No. 3353, was reduced to 4,651 square meters. Balbedina declared, under Tax Declaration No. 391, that Lot No. 3353 had an area of 4,651 square meters and was coconut land[36] and that his property was bounded on the south by a trail (road). Lino Estopin declared Lot No. 3347 under his name for taxation purposes, in which he stated that his property was bounded on the north by the trail going to Biriran.[37]Clearly, then, Lot No. 3353 and Lot No. 3347 had a common boundary the trail (road) going to Biriran.

 Balbedina sold his property, which was a portion of Lot No. 3353, with an area

of 4,651 square meters to Iluminado Baloloy on June 4, 1951. [38] Under the deed of absolute sale, the property was bounded on the south by the trail (road) owned by Lino Estopin.[39] The English translation of the deed of sale attached as page 85 to the RTC Records, which both the trial court and the appellate court relied upon, is incorrect.

The original deed of absolute sale, which is in Spanish, states that the boundary of the property on the south is con camino, Lino Estopin, while the English version of the deed, indicates that the property is bounded on the south by Lino Estopin. Being an earlier document, the deed in Spanish signed by the parties therefore should prevail. Conformably to such deed, Iluminado Baloloy declared in Tax Declaration No. 5359 under his name that the property is bounded on the south by a trail, [40] and not by Lot No. 3347 owned by Lino Estopin.

 The respondent failed to adduce any documentary evidence to prove how the

Spouses Estopin acquired the disputed property. The respondents reliance on the testimonies of Melissa Estopin, the daughter of the Spouses Estopin, and on Porfirio Guamos as well as the May 8, 1993 Affidavit of Martiniano Balbedina, and the deed of sale executed by Victoriana Lagata on November 27, 1961 in favor of Astrologo Hular to corroborate his claim over the lot in question, is misplaced.

 First. Per the testimony of Porfirio Guamos, the witness of the respondent, Lino

Estopin purchased the disputed property in 1941 from Irene Griarte and insisted that there was a deed of sale evidencing the sale:

 

Atty. Dealca:Q The area of the land in question is 1,405 sq. m., you claim that way

back in 1944 the owner of the land was Lino Estopin; 41 to 44?

A 1941. Q And you said that Lino Estopin was able to acquire the land by

purchase?A That was very long time when Lino Estopin sold the property. Q My question is whether you know because you testified earlier that

Lino Estopin was able to acquire the land by purchase; do you confirm that?

A Yes, Sir. Q From whom?A From Irene Griarte. Q Were you present when that sale was consummated?A I was not there. Q So you do not know how much was it bought by Lino Estopin from

Irene Griarte?A No, Sir. Q You do not know whether a document to that effect was actually

drafted and executed?A There was. Q Have you seen the document?A I did not see but there was a document.Q You maintain there was a document but you did not see a document, is

that it?A In my belief there was a document. Q In your belief, how did you organize that belief when you did not see a

document?A I insist there was a document. Q That is why, why are you insisting when you did not see a document?A Well, during the sale that document was used. Q How was it used when you did not see that document?A When the deed of sale was executed I did not see the document, but I

insist there was a document.

 Q Thats why, how were you able to say before the court that there was a

document when you contend that you did not see any?A There was basis in the sale the sale was based on a document.  You

cannot sell a property without document? (sic) Q Is that your belief?A Yes, Sir. Q But you did not see any document? Atty. Diesta: Already answered. Witness: A I did not see. Atty. Dealca: Q You said that that document was used when the property was sold by

Lino Estopin to Alfredo Hular. . .A In 1961. Yes.[41]

  

However, the respondent failed to adduce in evidence the said deed or even an authentic copy thereof. The respondent did not offer any justification for his failure to adduce the same in evidence. As against the respondents verbal claim that his father acquired the property from Lagata, the Torrens title of Iluminado Baloloy must prevail.[42]

Second. The respondent even failed to adduce in evidence any tax declarations over the disputed property under the name of Irene Griarte and/or Lino Estopin, or realty tax payment receipts in their names from 1941 to November 1961. The documents are circumstantial evidence to prove that Irene Griarte claimed ownership over the disputed property and that Lino Estopin acquired the same from her.  After all, such tax declarations and tax receipts can be strong evidence of ownership of land when accompanied by possession for a period sufficient for acquisitive prescription.[43]

 Third. The respondent even failed to adduce in evidence Tax Declaration No. 4790 covering the two parcels of land under the name of Lino Estopin to prove his claim that

Lot No. 3347 consisted of agricultural and residential lands. We note that the petitioners appended a certified true copy of Tax Declaration No. 4790 under the name of Victoriana Lagata over Lot No. 3347 to their Motion to Reopen the Case. In the said declaration, Lot No. 3347 was described as coconut land; this is contrary to the respondents claim that the said lot was then residential, and that the boundary of the property on the north was the road to Biriran which, in turn, is consistent with the petitioners claim.[44] Unfortunately, the trial court denied the said motion on the ground that it was mooted by its decision. Fourth. During the cadastral survey of lands in Juban, the lot of Gruta and that of Balbedina, inclusive of the subject property, were designated as Lot No. 3353 with a total area of 9,302 square meters under their names, while that of Lino Estopin was designated as Lot No. 3347 with an area of 15,906 square meters. Iluminado Baloloy applied for a free patent over Lot No. 3353, including the disputed property, under his name. The respondent failed to adduce any evidence that the Spouses Estopin and/or Astrologo Hular opposed Balbedina and/or Iluminados claim of ownership of Lot No. 3353 during the survey and after the filing of the application. A propos is our ruling in Urquiaga v. Court of Appeals: [45]

 As succinctly observed by respondent Court of Appeals in

assessing the totality of the evidence We do not agree with defendants that they are also the occupants and possessors of the subject lot just because it is adjacent to their titled property. Precisely, the boundaries of defendants titled property were determined, delineated and surveyed during the cadastral survey of Dipolog and thereafter indicated in their certificate of title in order that the extent of their property will be known and fixed. Since the subject lot was already found to be outside their titled property, defendants have no basis in claiming it or other adjacent lots for that matter. Otherwise, the very purpose of the cadastral survey as a process of determining the exact boundaries of adjoining properties will be defeated. Defendants own title, O.C.T. No. 0-357 (in the names of Jose Aguirre and Cristina Gonzales), in fact belies their claim of occupation and possession over the adjacent subject lot. Examining said title, we note that: (1) the cadastral survey of Dipolog was conducted from January, 1923 to November 1925; (2) defendants titled property was one of those lots surveyed and this was designated as Lot No. 2623; (3) during the survey, it was already determined and known that Lot No. 2623 is bounded on the northeast, southeast, southwest and west by Lot No. 4443 (as we

have seen in our narration of facts, the subject lot is a subdivision lot of Lot No. 6552 which was originally identified as Lot No. 4443-B-1, Dipolog Cadastre 85 Ext.: hence, the subject lot is a portion of Lot No. 4443); and (4) O.C.T. No. 0-357 was issued on October 11, 1965 on the strength of the judgment rendered on July 31 (sic), 1941 by the then Court of First Instance of Zamboanga del Norte in Cadastral Case No. 6, LRC Cadastral Record No. 756. From the foregoing facts, we find that as early as January, 1923 when the cadastral survey was started, the boundaries of Lot Nos. 2623 and 4443 were already determined and delineated. Since the subject lot was surveyed to be part of Lot No. 4443, it means that during that time defendants predecessors-in-interest never claimed ownership or possession over the subject lot. Otherwise, they would have complained so that the subject lot could be excluded from Lot No. 4443 and included in Lot No. 2623, they being adjacent lots. It is obvious then that defendants predecessors only claimed Lot No. 2623 and they pursued their claim in Cadastral Case No. 6, LRC Cadastral Record No. 756 until O.C.T. No. 0-357 was issued to them. The contention of defendants that they and their predecessors-in-interest occupied and possessed the subject lot since time immemorial therefore is not true.[46]

 Fifth. Under the deed of absolute sale dated November 25, 1961, Lagata sold to

Astrologo Hular Lot No. 3347, and not Lot No. 3353. In Veterans Federation of the Philippines v. Court of Appeals,[47] we ruled that:

 Petitioner VFP maintains that the deed of sale was valid and

enforceable and that it was perfected at the very moment that the parties agreed upon the thing which was the object of the sale and upon the price.The parties herein had agreed on the parcel of land that petitioner would purchase from respondent PNR, and the same was described therein; thus, petitioner VFP cannot conveniently set aside the technical description in this agreement and insist that it is the legal owner of the property erroneously described in the certificate of title. Petitioner can only claim right of ownership over the parcel of land that was the object of the deed of sale and nothing else.[48]

 Sixth. Under the said deed of sale dated November 11, 1961, Victoriana Lagata

sold Lot No. 3347 which had an area of 15,906 square meters and covered by Tax Declaration No. 4790. The deed does not state that what was sold was only a portion of Lot No. 3347, excluding therefrom the disputed property. This is understandable, since

the subject property is a portion of Lot No. 3353 owned by Alejandro Gruta and Iluminado Baloloy, and not of Lino Estopin and/or Victoriana Lagata. Lagata could not have sold a portion of Lot No. 3353 which she does not own. As the Latin adage goes: NEMO DAT QUOD NON HABET.

Seventh. The Balbedinas Affidavit dated May 8, 1993 offered by the respondent to prove the contents thereof is inadmissible in evidence against the petitioners. Balbedina did not testify; as such, the petitioners were deprived of their right to cross-examine him. The said affidavit is thus hearsay and barren of probative weight. The affidavit varies the contents of the deed of absolute sale which he (Balbedina) executed in favor of Iluminado more than forty years earlier. In the said affidavit, it was made to appear that Balbedina sold to Iluminado on June 4, 1951 only a portion of Lot 3353 with an area of 3,333 square meters, when under the said deed of absolute sale, the property that was sold consisted of 4,651 square meters. The affidavit is proscribed by Section 9, Rule 130 of the Rules of Court, which provides:

Section 9. Evidence of written agreements. - When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.

. . . It bears stressing that the deed of absolute sale executed by Balbedina in favor

of Baloloy was notarized by the Justice of the Peace who was an Ex-Officio Notary Public; hence, entitled to full probative weight.

 Eighth. The Special Sketch Plan of Lot No. 3353 prepared by Geodetic Engineer Rodolfo P. Cunanan[49] cannot prevail over OCT No. P-16540. In fact, the plan even buttressed the case for the petitioners because it shows that the subject property is a portion of Lot No. 3353, and not of Lot No. 3347, covered by OCT No. P-16540 under the name of Iluminado Baloloy, the deceased father of the petitioners. Ninth. The conclusion of the RTC that Lagata in fact sold a portion of Lot No. 3347 under the deed of absolute sale dated November 25, 1961, unaware that the property was a part of Lot No. 3353, is based on mere speculations and surmises. Iluminado Baloloy included in his application for a free patent the property of Alejandro Gruta, and was able to secure a free patent over said property in addition to his own.  As such, Gruta, not the respondent, is the proper party to assail such free patent, as well as OCT No. P-16540 which was issued based thereon. 

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The decisions of the Regional Trial Court and the Court of  Appeals are REVERSED and SET ASIDE. The complaint of the respondent is DISMISSED. No costs. SO ORDERED.