AGUSTIN V. IAC

FACTS:

Private respondents, Maria Melad and Pablo Binuyag are among those who are occupying the western bank of the Cagayan River while on the eastern bank is owned by petitioner Eulogio Agustin. From 1919 to 1968, the Cagayan river has eroded the lands on the eastern bank including Agustin’s Lot depositing alluvium on the land possessed by Pablo Binuyag. In 1968, after a typhoon which caused a big flood, the Cagayan River changed its course and returned it to its 1919 bed and it cut through the lands of respondents whose lands were transferred on the eastern side. To cultivate the lands they had to cross the river. When they were cultivating said lands, (they were planting corn) Agustin accompanied by the mayor and some policemen claimed the land and drove them away. So Melad and Binuyag filed separate complaints for recovery of their lots and its accretions. The Trial Court held ordered Agustin et. al to vacate the lands and return them to respondents. On appeal, the IAC affirmed in toto the judgment thus the case at bar.

ISSUE:

Whether or not private respondents own the accretion and such ownership is not affected by the sudden and abrupt change in the course of the Cagayan River when it reverted to its old bed

HELD: YES

Art. 457 states that the owner of the lands adjoining river banks own the accretion which they gradually receive from the effects of the currents of the waters. Accretion benefits a riparian owner provided that these elements are present: 1) deposit be gradual and imperceptible 2) it resulted from the effects of the current of the water and 3) the land is adjacent to the river bank. When the River moved from 1919 to 1968, there was alluvium deposited and it was gradual and imperceptible.

Accretion benefits the riparian owner because these lands are exposed to floods and other damage due to the destructive force of the waters, and if by virtue of law they are subject to encumbrances and various kinds of easements, it is only just that such risks or dangers should in some way be compensated by the right of accretion. Also, respondent’s ownership over said lots was not removed when due to the sudden and abrupt change in the course of the river; their accretions were transferred to the other side. Art. 459 states when the current of a river x x x segregates from an estate on its bank a known portion of land and transfers it to another estate, the owner of segregated portion retains ownership provided he removes the same w/in 2 years. And Art. 463 states that whenever the current of a river divides itself into branches, leaving a piece of land or part thereof isolated, the owner of the land retains ownership. He also retains it if a portion of land is separated from the estate by the current.

GRANDE v. CA

FACTS:

The Grandes are owners of a parcel of land in Isabela, by inheritance from their deceased mother, Patricia Angui, who likewise, inherited it from her parents. In the early 1930’s, the Grandes decided to have their land surveyed for registration purposes. The land was described to have Cagayan River as the northeastern boundary, as stated in the title.

By 1958, a gradual accretion took place due to the action of the current of the river, and an alluvial deposit of almost 20,000 sq.m. was added to the registered area. The Grandes filed an action for quieting of title against the Calalungs, stating that they were in peaceful and continuous possession of the land created by the alluvial deposit until 1948, when the Calalungs allegedly trespassed into their property. The Calalungs, however, stated that they were the rightful owners since prior to 1933.

The CFI found for the Grandes and ordered the Calalungs to vacate the premises and pay for damages. Upon appeal to the CA, however, the decision was reversed.

ISSUE:

Whether or not the alluvium deposited land automatically belongs to the riparian owners?

HELD:

Art. 457 dictates that alluvium deposits on land belong to the owners of the adjacent land. However, this does not ipso jure become theirs merely believing that said land have become imprescriptible. The land of the Grandes only specifies a specific portion, of which the alluvial deposits are not included, and are thus, subject to acquisition by prescription. Since the Calalungs proved that they have been in possession of the land since 1934 via two credible witnesses, as opposed to the Grande’s single witness who claims that the Calalungs only entered the land in 1948, the Calalungs have been held to have acquired the land created by the alluvial deposits by prescription. This is because the possession took place in 1934, when the law to be followed was Act 190, and not the New Civil Code, which only took effect in 1950.

PRESIDENTIAL DECREE No. 1067 December 31, 1976

A DECREE INSTITUTING A WATER CODE, THEREBY REVISING AND CONSOLIDATING THE LAWS GOVERNING THE OWNERSHIP, APPROPRIATION, UTILIZATION, EXPLOITATION,

DEVELOPMENT, CONSERVATION AND PROTECTION OF WATER RESOURCES

Article 58. When a river or stream suddenly changes its course to traverse private lands, the owners of the affected lands may not compel the government to restore the river to its former bed; nor can they restrain the government from taking steps to revert the river or stream to its former course. The owners of the land thus affected are not entitled to compensation for any damage sustained thereby. However, the former owners of the new bed shall be the owners of the abandoned bed in proportion to the area lost by each.

RICARDO PARDELL Y CRUZ and VICENTA ORTIZ Y FELIN DE PARDELL, plaintiffs-appellees, vs. GASPAR DE BARTOLOME Y ESCRIBANO and MATILDE ORTIZ Y FELIN DE BARTOLOME, defendants-appellants. 1912 Nov 18 1st Division G.R. No. 4656

FACTS:

Spouses Miguel Ortiz and Calixta Felin died in Vigan, Ilocos Sur, in 1875 and 1882, respectively. Prior to her death, Calixta, executed, on August 17, 1876, a nuncupative will in Vigan, whereby she made her four children, named Manuel, Francisca, Vicenta, and Matilde, surnamed Ortiz y Felin, her sole and universal heirs of all her property. Manuel and Francisca were already deceased, leaving Vicenta and Matilda as heirs.

In 1888, the defendants (Matilde and Gaspar), without judicial authorization, nor friendly or extrajudicial agreement, took upon themselves the administration and enjoyment of the properties left by Calixta and collected the rents, fruits, and products thereof, to the serious detriment of Vicenta’s interest. Despite repeated demands to divide the properties and the fruits accruing therefrom, Sps Gaspar and Matilde had been delaying the partition and delivery of the said properties by means of unkempt promises and other excuses.

Vicenta filed a petition for partition with damages in the RTC.

RTC decision: absolved Matilde from payment of damages. It held that the revenues and the expenses were compensated by the residence enjoyed by the defendant party, that no losses or damages were either caused or suffered, nor likewise any other expense besides those aforementioned,

Counsel for Matilde took an exception to the judgment and moved for a new trial on the grounds that the evidence presented did not warrant the judgment rendered and that the latter was contrary to law. That motion was denied by the lower court. Thus, this petition.

ISSUE: WON a co-owner is required to pay for rent in exclusively using the co-owned property.

RULING:

Article 394 of the Civil Code prescribes:

“Each co-owner may use the things owned in common, provided he uses them in accordance with their object and in such manner as not to injure the interests of the community nor prevent the co-owners from utilizing them according to their rights.”

Matilde Ortiz and her husband occupied the upper story, designed for use as a dwelling, in the house of joint ownership; but the record shows no proof that, by so doing, the said Matilde occasioned any detriment to the interests of the community property, nor that she prevented her sister Vicenta from utilizing the said upper story according to her rights. It is to be noted that the stores of the lower floor were rented and an accounting of the rents was duly made to the plaintiffs.

Each co-owner of realty held pro indiviso exercises his rights over the whole property and may use and enjoy the same with no other limitation than that he shall not injure the interests of his co-owners, for the reason that, until a division be made, the respective part of each holder cannot be determined and every one of the co-owners exercises together with his other co-participants, joint ownership over the pro indiviso property, in addition to his use and enjoyment of the same.

As the hereditary properties of the joint ownership of the two sisters, Vicenta Ortiz, plaintiff, and Matilde Ortiz, defendant, were situated in the Province of Ilocos Sur, and were in the care of the last named, assisted by her husband, while the plaintiff Vicenta with her husband was residing outside of the said province the greater part of the time between 1885 and 1905, when she left these Islands for Spain, it is not at all strange that delays and difficulties should have attended the efforts made to collect the rents and proceeds from the property held in common and to obtain a partition of the latter, especially during several years when, owing to the insurrection, the country was in a turmoil; and for this reason, aside from that founded on the right of co-ownership of the defendants, who took upon themselves the administration and care of the property of joint tenancy for purposes of their preservation and improvement, these latter are not obliged to pay to the plaintiff Vicenta one-half of the rents which might have been derived from the upper story of the said house on Calle Escolta, and, much less, because one of the living rooms and the storeroom thereof were used for the storage of some belongings and effects of common ownership between the litigants. The defendant Matilde, therefore, in occupying with her husband the upper floor of the said house, did not injure the interests of her co-owner, her sister Vicenta, nor did she prevent the latter from living therein, but merely exercised a legitimate right pertaining to her as a co-owner of the property.

AURORA DEL BANCO, EVELYN DEL BANCO, FEDERICO TAINO, SOLEDAD TAINO, JOVENCIO TAINO, SAMSON TAINO, NOE TAINO, SOCORRO TAINO and CLEOFAS TAINO, petitioners, vs.INTERMEDIATE APPELLATE COURT (Second Civil Cases Division), ALEJANDRA PANSACOLA, LEONILA ENCALLADO, VEDASTO ENCALLADO, JOSE YEPES, et al., respondents.

G.R. No. 72694 December 1, 1987PARAS, J.:

FACTS:

In a document executed in the Municipality of San Rafael, Bulacan, on February 11, 1859, three brothers, Benedicto Pansacola, Jose Pansacola and Manuel Pansacola (known as Fr. Manuel Pena) entered into an agreement which provided, among others:

(1) That they will purchase from the Spanish Government the lands comprising the Island of Cagbalite which is located in the Province of Tayabas (now Quezon) and has an approximate area of 1,600 hectares;

(2) That the lands shall be considered after the purchase as their common property;

(3) That the co-ownership includes Domingo Arce and Baldomera Angulo, minors at that time represented by their father, Manuel Pansacola (Fr. Manuel Pena) who will contribute for them in the proposed purchase of the Cagbalite Island;

(4) That whatever benefits may be derived from the Island shall be shared equally by the co-owners in the following proportion: Benedicto Pansacola-1/4 share; Jose Pansacola-1/4 share; and, Domingo Arce and Baldomera Angulo-2/4 shares which shall be placed under the care of their father, Manuel Pansacola (Fr. Manuel Pena).

On April 11, 1868, they modified the terms and conditions of the agreement:

(a) The first one-fourth (1/4) portion shall belong to Don Benedicto Pansacola;

(b) The second one-fourth (1/4) portion shall belong to Don Jose Pansacola;

(c) The third one-fourth(1/4) portion shall henceforth belong to the children of their deceased brother, Don Eustaquio Pansacola, namely: Don Mariano Pansacola,- Maria Pansacola and Don Hipolito Pansacola;

(d) The fourth and last one-fourth (1/4) portion shall belong to their nephews and nieces (1) Domingo Arce, (2) Baldomera Angulo, (3) Marcelina Flores, (4) Francisca Flores, (5) Candelaria dela Cruz, and (6) Gervasio Pansacola who, being all minors, are still under the care of their brother, Manuel Pansacola (Fr. Manuel Pena). The latter is the real father of said minors.

About one hundred years later, on November 18, 1968, private respondents brought a special action for partition under the provisions of Rule 69 of the Rules of Court, including as parties the heirs and successors-in-interest of the co-owners of the Cagbalite Island.

The trial court rendered a decision dismissing the complaint. But the CA reversed the decision.

ISSUES: Whether or not Cagbalite Island is still undivided property owned in common by the heirs and successors-in-interest of the brothers, Benedicto, Jose and Manuel Pansacola.

Does prescription run in favor of a co-owner against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership

HELD:

YES. There is nothing in all four agreements that suggests that actual or physical partition of the Island had really been made by either the original owners or their heirs or successors-in-interest. Although, some of the private respondents and some of the petitioners at the time the action for partition was filed in the trial court have been in actual possession and enjoyment of several portions of the property in question, this does not provide any proof that the Island in question has already been actually partitioned and co-ownership terminated. It is not enough that the co-owners agree to subdivide the property. They must have a subdivision plan drawn in accordance with which they take actual and exclusive possession of their respective portions in the plan and titles issued to each of them accordingly. The mechanics of actual partition should follow the procedure laid down in Rule 69 of the Rules of Court.

NO. No prescription shall run in favor of a co-owner against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership. Co-owners cannot acquire by prescription the share of the other co-owners, absent a clear repudiation of the co-ownership clearly communicated to the other co-owners. An action for partition does not prescribe. Article 497 of the New Civil Code, provides that “the assignees of the co-owners may take part in the partition of the common property, and Article 494 provides that “each co-owner may demand at any time the partition of the common property, a provision which implies that the action to demand partition is imprescriptible or cannot be barred by laches” An action for partition does not lie except when the co-ownership is properly repudiated by the co- owner.

AGUILAR v. CA

Any of the Co-owners may demand the sale of the house and lot at any time and the other cannot object to such demand; thereafter the proceeds of the sale shall be divided equally according to their respective interests.

FACTS:

Petitioner Vergilio and respondent Senen bought a house and lot in Paraňaque where their father could spend and enjoy his remaining years in a peaceful neighborhood. They initially agreed that Vergilio will get 2/3 and Senen will get 1/3; but later they agreed on equal shares. Senen was left in the said lot to take care of their father since Vergilio’s family was in Cebu. After their father’s death petitioner demanded from private respondent that the latter vacate the house and that the property be sold and proceeds thereof divided among them but the latter refused. Petitioner then filed to compel the sale of the property. The chunk of the issue tackled by the courts was regarding the pre-trial. Respondent filed a motion to cancel Pre-trial since the counsel had to accompany his wife in Dumaguete City where she would be a principal sponsor in a wedding. CFI denied the motion; and the pre-trial proceeded on the scheduled date. The respondents did not appear thus they were declared in default. The trial went on ex parte without the respondent and held that the property should be sold to a third party and that the proceeds be distributed to the parties; in addition respondent was made to pay rent from the time the action was filed. Respondents appealed this and the decision was reversed by the CA saying that the TC erred in declaring respondents in default; the case was then remanded to the trial court. Hence this appeal.

ISSUE:

A) W/N CA erred (1) in holding that the motion of respondent through counsel to cancel the pre-trial was dilatory in character and (2) in remanding the case to the trial court for pre-trial and trial?

ISSUE RELEVANT TO PROPERTY:

B) W/N trial court was correct with regards to the sale and rent?

RULING:

A) YES, CA erred in granting the respondents motion and remanding the case. The law is clear that the appearance of parties at the pretrial is mandatory. A party who fails to appear at a pre-trial conference may be non-suited or considered as in default. It is the discretion of the court to grant the motion if it sees that the reason for the cancelation of the same would be reasonable. SC found that the reason for the cancelation of the pre-trial was insufficient and that the trial court was not in grave abuse of discretion when they denied it.

B) YES, with a few modification. Petitioner and respondents are co-owners of subject house and lot in equal shares; either one of them may demand the sale of the house and lot at any time and the other cannot object to such demand; thereafter the proceeds of the sale shall be divided equally according to their respective interests.

BASIS: Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in the co-ownership, and that each co-owner may demand at any time partition of the thing owned in common insofar as his share is concerned. Corollary to this rule, Art. 498 of the Code states that whenever the

thing is essentially indivisible and the co-owners cannot agree that it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds accordingly distributed.

SC held that ½ of the proceeds should go to the petitioner and the remainder to the respondent (1,200 each.) Also rent was awarded 1,200 pesos per month with legal interest from the time the trial court ordered the respondent to vacate, for the use and enjoyment of the other half of the property.BASIS: When petitioner filed an action to compel the sale of the property and the trial court granted the petition and ordered the ejectment of respondent, the co-ownership was deemed terminated and the right to enjoy the possession jointly also ceased.

Bailon-Casilao v. CA (1988)Petitioners: Delia Bailon-Casilao, Luz Paulino-Ang, Emma Paulino-Ybanez, Nilda Paulino-Tolentino, and Sabina Bailon Respondents: CA and Celestino Afable Ponente: Cortes, J.

EPITACIO DELIMA, PACIANO DELIMA, FIDEL DELIMA, ET AL. VS. COURT OF APPEALS

Doctrine: No prescription shall run in favor of a co-owner against his co-owners or co-heirs as long as he

expressly or impliedly recognizes the co-ownership. The exception however is that the from the moment

one of the co-owners claims that he is the absolute and exclusive owner of the properties and denies the

others any share therein, the question is no longer one of partition but of ownership.

Facts: Lino Delima acquired Lot. No. 7758 of the Talisay-Minglanilla Friar Lands Estate in Cebu by sale

on installments from the government. After his demise in 1921 he had his three brothers and a sister

listed as his heirs. The heirs were Eulalio Delima, Juanita Delima, Galileo Delima, and Vicente Delima. A

new Transfer Certificate of Title was issued in the name of the Legal Heirs of Lino Delima represented by

Galileo Delima. On September 22, 1953, Galileo executed an affidavit of Extra-judicial Declaration of

Heirs adjudicating to himself the subject property excluding the other heirs. He declared the lot to be of

his own and paid for its taxes. On February 29, 1968, the surviving heirs of Eulalio and Juanita Delima,

filed with the Court of First Instance of Cebu an action for reconveyance and partition of property and for

the annulment of the certificate of title issued plus damages against their Uncle Galileo. Vicente Delima

was also later included as party defendant for his refusal to help in the action.

The trial court decided in favor of the petitioners rendering the TCT No. 3009 null and void and

declaring Vicente, the Heirs of Juanita, the Heirs of Eulalio and the Heirs of Galileo to be owners of the

property, each sharing a pro-indiviso share of one-fourth of the whole. The respondents, Heirs of Galileo

Delima, appealed to the Court of Appeals which reversed the decision in their favor. It upheld the claim of

Galileo that the other brothers and sisters have already waived their rights to the property being that it

was Galileo alone that paid for the balance of the purchase price and the realty taxes for the property.

Issue: Whether or not petitioners’ action for partition is already barred by the statutory period provided by

law which shall enable Galileo Delima to perfect his claim of ownership by acquisitive prescription to the

exclusion of petitioners from their shared in the disputed property?

Held: Yes, Article 494 (5) of the Civil Code provides that: “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 recognized the co-

ownership.” By this it is therefore understood that possession by a co-owner will not be presumed to be

adverse to the others, but will be held to benefit all. Being that Galileo was holding the property in

representation of the co-owners; he was therefore acting as an administrator who took care of the

property yet still having the ultimate obligation to deliver the property to his co-owners.

However this rule shall no longer apply when one of the co-owners begin to claim the absolute

and exclusive ownership and denies the others any share therein. The imprescriptability of the action for

partition shall no longer apply since Galileo is adversely claiming lone ownership over the property. In

order that a possession be considered adverse amounting to a repudiation of the co-ownership, the

following elements must concur: (1) that the trustee has performed the unequivocal acts amounting to an

ouster of the cestui que trust; (2) that such positive acts of repudiation had been made known to the

cestui que trust; and (3) that the evidence thereon should be clear and conclusive.

Since Galileo, having executed a deed of partition and obtained subsequent to that the

cancellation of the old title and the creation of a new one wherein he appears as the new owner of the

property, he thereby in effect denied and repudiated the ownership of the other co-owners over their

shares. From this act, the statute of limitations started to run. Since an action for reconveyance

CONCEPCION ROQUE, petitioner, vs.HON. INTERMEDIATE APPELLATE COURT, ERNESTO ROQUE, FILOMENA OSMUNDO, CECILIA ROQUE, MARCELA ROQUE, JOSE ROQUE and RUBEN ROQUE, respondents.

Lorenzo J. Liwag for petitioner.

Dominador Ad Castillo for private respondents.

 

FELICIANO, J.:

The subject of the present Petition for Review is the 31 July 1986 Decision of the former Intermediate Appellate Court in AC-G.R. CV No. 02248 (entitled, "Concepcion Roque, plaintiff-appellee, vs. Ernesto Roque, Filomena Osmunda Cecilia Roque, Marcela Roque, Jose Roque and Ruben Roque, defendants-appellants") which reversed and set aside on appeal the decision of the Regional Trial Court of Malolos, Branch 9.

The controversy here involves a 312 square meter parcel of land situated in San Juan, Malolos, Bulacan and designated as Lot No. 1549 of the Cadastral Survey of Malolos. The property was registered originally in the name of Januario Avendaño, a bachelor who died intestate and without issue on 22 October 1945.

On 21 September 1959, the intestate heirs of Januario Avendafio executed a document entitled "Paghahati at Pagtagabuyan ng Mana sa Labas ng Hukuman." 1 Through this instrument, extrajudicial partition of Lot No. 1549 was effected among the intestate heirs as follows:

a. One-fourth (1/4) undivided portion to Illuminada Avendaño.

b. One-fourth (1/4) undivided portion to Gregorio Avendafio and Miguel Avendaño.

c. One-fourth (1/4) undivided portion to Bernardino, Bienvenido, Numeriano and Rufina, all surnamed Avendaño.

d. One-fourth (1/4) undivided portion to respondent Emesto Roque and Victor Roque. 2

On 28 September 1959, co-owners Illuminada, Gregorio, Miguel, Bernardino, Bienvenido, Numeriano and Rufina, all surnamed Avendaño, in consideration of the aggregate amount of P500.00, transferred their collective and undivided threefourths (3/4) share in Lot No. 1549 to respondent Ernesto Roque and Victor Roque, thereby vesting in the latter full and complete ownership of the property. The transactions were embodied in two (2) separate deeds of sale both entitled "Kasulatan ng Bilihang Patuluyan" 3 and both duly notarized. Subsequently, in an unnotarized "Bilihan Lubos at Patuluyan" 4 dated 27 November 1961, Emesto and Victor Roque purportedly sold a three-fourths (3/4) undivided portion of Lot No. 1549 to their half-sister, petitioner Concepcion Roque, for the same amount. The property, however, remained registered in the name of the decedent, Januario Avendaño.

Upon the instance of petitioner Concepcion Roque and allegedly of respondent Ernesto Roque, Lot No. 1549 was surveyed on 20 September 1975. Consequent thereto, a Subdivision Plan 5 was drawn up by the Geodetic Engineer Identifying and delineating a one-fourth (1/4) portion (78 square meters) of the property as belonging to respondent Ernesto Roque and Victor Roque (who had died on 14 April 1962), upon the one hand, and a three-fourths (3/4) portion (234 square meters) of the same property as belonging to petitioner Concepion Roque, upon the other hand. Petitioner claimed that preparation of the

Subdivision Plan, which was approved on 3 November 1975 by the Land Registration Commission was a preliminary step leading eventually to partition of Lot No. 1549, partition allegedly having been previously agreed upon inter seby the co-owners. Respondents Ernesto Roque and the legal heirs of Victor Roque, however, refused to acknowledge petitioner's claim of ownership of any portion of Lot No. 1549 and rejected the plan to divide the land.

Attempts at amicable settlement having fallen through, petitioner Concepcion Roque, on 6 December 1977, filed a Complaint for "Partition with Specific Performance" 6 (docketed as Civil Case No. 5236-M) with Branch 2 of the then Court of First Instance of Malolos against respondents Emesto Roque and the heirs of Victor Roque. In her complaint, petitioner (plaintiff below) claimed legal ownership of an undivided threefourths (3/4) portion of Lot No. 1549, by virtue of the 27 November 1961 "Bilihan Lubos at Patuluyan" executed in her favor by Emesto Roque and Victor Roque. In support of this claim, petitioner also presented an undated and unnotarized "Kasulatang Pagkilala sa Bilihan Patuluyan ng Bahagui at Pagmamana sa Labas ng Hukuman at Paghahati-hati at Abuyan ng Bahagui" 7 said to have been signed by the respondents in acknowledgment of the existence and validity of the Bilihan in favor of petitioner. Finally, petitioner alleged that, as a coowner of Lot No. 1549, she had a right to seek partition of the property, that she could not be compelled to remain in the coownership of the same.

In an Answer with Compulsory Counterclaim 8 filed on 28 December 1977, respondents (defendants below) impugned the genuineness and due execution of the "Bilihan Lubos at Patuluyan" dated 27 November 1961 on the ground "that the signatures appearing thereon are not the authentic signatures of the supposed signatories ...." It was also alleged that petitioner Concepcion Roque, far from being a co-owner of Lot No. 1549, "occupied a portion of the lot in question by mere tolerance of the [defendants]." Respondents also refused to honor the unnotarized Kasulatan and, additionally, denied having had any participation in the preparation of the Subchvision Plan.

On 27 June 1983, the trial court (now Branch 9, Regional Trial Court of Malolos) rendered a Decision, 9 the dispositive portion of which read:

WHEREFORE, judgment is hereby rendered, in favor of the plaintiff and against the defendants;

1. Ordering the heirs of the late Victor Roque namely Filomena Osmunda his spouse, his children, Cecilia Roque, Marcela Roque, Jose Roque and Ruben Roque and their uncle and co-defendant Emesto Roque, to execute a deed of confirmation of the sale made by Emesto and Victor Roque in favor of plaintiff Concepcion Roque, entitled "Bilihan Lubos at Patuluyan," executed on November 27, 1961, Exh. E, over the 3/4 portion of the subject property;

2. Ordering the partition of the parcel of land described in par. 3 of tie complaint covered by Original Certificate of Title No. 1442 Bulacan issued in the name of Januario Avendafio, in the proportion of 3/4 to pertain to Concepcion Roque, and 1/4 to pertain to Emesto Roque and his co- defendants, his sister-in-law, nephews and nieces, in accordance with the approved subdivision plan (LRC Psd-230726).

3. Ordering defendants,jointly and severally, to pay to plaintiff the sum of P2,000.00 as and for attomey's fees and the costs of suit.

SO ORDERED.

The respondents appealed from this decision alleging the following errors:

I

The lower court erred when it decided and ordered defendantsappellants to execute a confirmation of the "Bilihan Lubos at Patuluyan," Exh. "E."

II

The lower court erred when it decided and ordered the defendantsappellant,s to deliver unto the plaintiff [a] 3/4 share of the land in question.

III

The lower court erred in deciding this case in favor of the plaintiff-appellee, based on an unnotarized and forged signature of defendant appellant Ernesto Roque.

IV

The lower court erred in giving credence to the testimony of the plaintiff-appellee Concepcion Roque despite [its] gross inconsistencies. 10

Acting on the appeal (docketed as A.C.-G.R. CV No. 02248), the Intermediate Appellate Court, in a Decision 11dated 31 July 1986, reversed the judgment of the trial court and dismissed both the petitioner's complaint and the respondents' appeal. A Motion for Reconsideration of petitioner Concepcion Roque was denied.

The present Petition for Review was filed with this Court on 18 September 1986. In a resolution dated 27 July 1987, we gave due course to the Petition and required the parties to submit their respective Memoranda.

1. On the matter of dismissal of petitioner's complaint, the Intermediate Appellate Court stated in its decision:

While the action filed by the plaintiff is for partition, the defendantz, after denying plaintiff's assertion of co-ownership, asserted that they are the exclusive and sole owners of the 314 portion of the parcel of land claimed by the plaintiff.

Upon the issue thusjoined by the pleadings, it is obvious that the case has become one ofownership of the disputed portion of the subject lot.

It is well settled that an action for partition will not prosper as such from the moment an alleged co-owner asserts an adverse title. The action that may be brought by an aggrieved co-owner is accion reivindicatoria or action for recovery of title and possession (Jardin vs. Hallasgo, 11 7 SCRA 532, 536, 537; Paner vs. Gaspar, 3 CA Rep. 155, 158). (Emphasis supplied)

Viewed in the light of the facts of the present case, the Intermediate Appellate Court's decision appears to imply that from the moment respondents (defendants below) alleged absolute and exclusive ownership of the whole of Lot No. 1549 in their Answer, the trial court should have immediately ordered the dismissal of the action for partition and petitioner (plaintiff below), if she so desired, should have refiled the case but this time as an accionreinvindicatoria. Taking this analysis a step further should the reivindicatory action prosper — i.e., a co-ownership relation is found to have existed between the parties — a second action for partition would still have to be instituted in order to effect division of the property among the co-owners.

We do not agree with the above view. An action for partition-which is typically brought by a person claiming to be co-owner of a specified property against a defendant or defendants whom the plaintiff recognizes to be co-owners — may be seen to present simultaneously two principal issues. First, there is the issue of whether the plaintiff is indeed a co-owner of the property sought to be partitioned. Second, assuming that the plaintiff successfully hurdles the first issue, there is the secondary issue of how the property is to be divided between plaintiff and defendant(s) — i.e., what portion should go to which co-owner.

Should the trial court find that the defendants do not dispute the status of the plaintiff as co-owner, the court can forthwith proceed to the actual partitioning of the property involved. In case the defendants assert in their Answer exclusive title in themselves adversely to the plaintiff, the court should not dismiss the plaintiffs action for partition but, on the contrary and in the exercise of its general jurisdiction, resolve the question of whether the plaintiff is co-owner or not. Should the trial court find that the plaintiff was unable to sustain his claimed status as co-owner, or that the defendants are or have become the sole and exclusive owners of the property involved, the court will necessarily have to dismiss the action for partition. This result would be reached, not because the wrong action was commenced by the plaintiff, but rather because the plaintiff having been unable to show co-ownership rights in himself, no basis exists for requiring the defendants to submit to partition the property at stake. If, upon the other hand, the court after trial should find the eidstence of co-ownership among the parties litigant, the court may and should order the partition of the property in the same action. Judgment for one or the other party being on the merits, the losing party (respondents in this case) may then appeal the same. In either case, however, it is quite unnecessary to require the plaintiff to file another action, separate and independent from that for partition originally instituted. Functionally, an action for partition may be seen to be at once an action for declaration of coownership and for segregation and conveyance of a determinate portion of the property involved. This is the import of our jurisprudence on the matter. 12 and is sustained by the public policy which abhors multiplicity of actions.

The question of prescription also needs to be addressed in this connection. It is sometimes said that "the action for partition of the thing owned in common (actio communi dividendo or actio familiae erciscundae) does not prescribe." 13 This statement bears some refinement. In the words of Article 494 of the Civil Code, "each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concemed." No matter how long the co-ownership has lasted, a co-owner can always opt out of the co-ownership, and provided the defendant co-owners or co-heirs have theretofore expressly or impliedly recognized the co-ownership, they cannot set up as a defense the prescription of the action for partition. But if the defendants show that they had previously asserted title in themselves adversely to the plaintiff and for the requisite period of time, the plaintiffs right to require recognition of his status as a co-owner will have been lost by prescription and the court cannot issue an order requiring partition. This is precisely what happened in Jardin v. Hallasgo, 117 SCRA 532 (1982), which the respondent appellate court cited to support its position quoted above.

The case of Jardin involved, among others, two (2) parcels of land which were inherited in 1920 by the brothers Catalino jardin and Galo Jardin together with their half-brother, Sixto Hallasgo. The three (3) held these lands in co-ownership until Sixto later (the date was not specified) repudiated the coownership and occupied and possessed both parcels of land, claiming the same exclusively as his own. Sometime in 1973, the heirs of Catalino and Galo instituted an action for partition of the two (2) properties against Sixto's heirs, who had refused to surrender any portion of the same to the former. The trial court, assuming that prescription had started to run in that case even before the Civil Code took effect, held that the action for partition filed by the heirs of Catalino and Galo had already prescribed. On appeal, this Court affirmed the trial court on this point in the following terms:

Article 494 of the Civil Code provides that "no co-owner shall be obliged to remain in the co- ownership" and that "each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned." It also provides that '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 for the partition of the thing owned in common (actio communi dividendo or actio familiae erciscundae) does not prescribe, the co-ownership does not last forever since it may be repudiated by a co-owner [i.e., Sixto]. In such a case, the action for partition does not lie. What may be brought by the aggrieved co-owner [i.e., the heirs of Catalino and Galo] is an accion reivindicatoria or action for recovery of title and possession. That action may be barred by prescription.

If the co-heir or co-owner having possession of the hereditary or community property, holds the same in his own name, that is, under claim of exclusive ownership, he may acquire the property by prescription if his possession meets all the other requirements of the law, and after the expiration of the prescriptive period, his co-heir or co-owner may lose their right to demand partition, and their action may then be held to have prescribed (De los Santos vs. Santa Teresa, 44 Phil. 811).

xxx xxx xxx

(Emphasis supplied)

In the light of the foregoing discussion, it will be seen that the underscored portion of the Court's opinion in Jardinis actually obiter. For there, the Court simply held the action for partition by the heirs of Catalino and Galo had prescribed and did not require such heirs to start a new action (which would have been quite pointless); on the other hand, the Court remanded the case to the lower court for further proceedings in respect of the recovery of a 350 square meter lot which the evidence showed was owned by the plaintiffs but wrongfully included by Sixto in the cadastral survey of his share of the adjoining lot.

In Jardin, the claim of co-ownership asserted by the heirs of Catalino and Galo was effectively refuted by the heirs of Sixto, who not only claimed for themselves absolute and exclusive ownership of the disputed properties but were also in actual and adverse possesion thereof for a substantial length of time. The Court found, further, that the action for partition initially available to the heirs of Catalino and Galo had, as a result of the preceding circumstance, already prescribed.

An entirely different situation, however, obtains in the case at bar. First of all, petitioner Concepcion Roque-the co-owner seeking partition — has been and is presently in open and continuous possession of a three-fourths (3/4) portion of the property owned in common. The Court notes in this respect the finding of the trial court that petitioner, following execution of the "Bilihan Lubos at Pattlluyan" on 27 November 1961, had been in "continuous occupancy of the 3/4 portion of the lot ... up to the present, and whereon plaintifrs house and that of her son are erected. " 14 Respondents do not dispute this finding of fact, although they would claim that petitioner's possession is merely tolerated by them. Second, prior to filing in 1977 of the Complaint in Civil Case No. 5236-M, neither of the parties involved had asserted or manifested a claim of absolute and exclusive ownership over the whole of Lot No. 1549 adverse to that of any of the other co-owners: in other words, co-ownership of the property had continued to be recognized by all the owners. Consequently, the action for partition could not have and, as a matter of fact, had not yet prescribed at the time of institution by Concepcion of the action below.

2. Coming now to the matter regarding dismissal of the respondents'appeal, the Intermediate Appellate Court held that inasmuch as the attack on the validity of the "Bilihan Lubos at Patuluyan" was predicated on fraud and no action for annulment of the document had been brought by respondents within the four (4) year prescriptive period provided under Article 1391 of the Civil Code, such action had already prescribed.

We find it unnecessary to deal here with the issue of prescription discussed by the respondent court in its assailed decision. The facts on record clearly show that petitioner Concepcion Roque had been in actual, open and continuous possession of a three-fourths (3/4) portion of Lot No. 1549 ever since execution of the "Bilihan Lubos at Patuluyan" in November of 1961. The Court notes that it was only in their Answer

with Compulsory Counterclaim filed with the trial court in December of 1977 — more than sixteen (16) years later — that respondents first questioned the genuineness and authenticity of the "Bilihan Lubos at Patuluyan." Not once during those sixteen (16) years did respondents contest petitioner's occupation of a three-fourths (3/4) portion of Lot No. 1549. Furthermore, if indeed it is true that respondents, as they claim, are the absolute owners of the whole of Lot No. 1549, it is most unusual that respondents would have allowed or tolerated such prolonged occupation by petitioner of a major portion (3/4) of the land while they, upon the other hand, contented themselves with occupation of only a fourth thereof. This latter circumstance, coupled with the passage of a very substantial length of time during which petitioner all the while remained undisturbed and uninterrupted in her occupation and possession, places respondents here in laches: respondents may no longer dispute the existence of the co-ownership between petitioner and themselves nor the validity of petitioner's claim of a threefourths (3/4) interest in Lot No. 1549, as they are deemed, by their unreasonably long inaction, to have acquiesced in the coow,aership. 15 In this respect, we affirm the decision of the respondent appellate court presently under review.

WHEREFORE, the Decision of the Intermediate Appellate Court dated 31 July 1986 in A.C.-G.R. CV No. 02248 is SET ASIDE with respect to that portion which orders the dismissal of the Complaint in Civil Case No. 5236-M, but is AFFIRMED with respect to that portion which orders the dismissal of the respondents'appeal in A.C.-G.R. CV No. 02248. The Decision of Branch 9 of the Regional Trial Court of Malolos dated 27 June 1983 in Civil Case No. 5236-M is hereby REINSTATED. No pronouncement as to costs.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr. and Cortes, JJ., concur.

Bidin, J., took no part.

CONCEPCION ROQUE, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT, ERNESTO ROQUE, FILOMENA OSMUNDO, CECILIA ROQUE, MARCELA ROQUE, JOSE ROQUE and RUBEN ROQUE, respondents.

Facts: Concepcion Roque filed a Complaint for "Partition with Specific Performance” of a parcel of land which she claims to be the co-owner of. Defendants denied the claim of Concepcion as a co-owner. The RTC of Malolos decided in favor of Concepcion. However, upon appeal CA dismissed the case and the appeal stating that:

"While the action filed by the plaintiff is for partition, the defendants, after denying plaintiff's assertion of co-ownership, asserted that they are the exclusive and sole owners of the 3/4 portion of the parcel of land claimed by the plaintiff.

Upon the issue thus joined by the pleadings, it is obvious that the case has become one of ownership of the disputed portion of the subject lot.

It is well settled that an action for partition will not prosper as such from the moment an alleged co-owner asserts an adverse title. The action that may be brought by an aggrieved co-owner is accion reivindicatoria or action for recovery of title and possession (Jardin vs. Hallasgo, 117 SCRA 532, 536, 537; Paner vs. Gaspar, 3 CA Rep. 155, 158)." (Emphasis supplied).

Viewed in the light of the facts of the present case, the Intermediate Appellate Court's decision appears to imply that from the moment respondents (defendants below) alleged absolute and exclusive ownership of the whole of Lot No. 1549 in their Answer, the trial court should have immediately ordered the dismissal of the action for partition and petitioner (plaintiff below), if she so desired, should have refiled the case but this time as an accion reinvindicatoria. Taking this analysis a step further should the reivindicatory action prosper — i.e., a co-ownership relation is found to have existed between the parties — a second action for partition would still have to be instituted in order to effect division of the property among the co-owners.

ISSUE: WON a complaint for partition with Specific performance merits dismissal once the other party claims to have an adverse title over the property subject for partition.

HELD: NEGATIVE

The Supreme Court held that:

“An action for partition — which is typically brought by a person claiming to be co-owner of a specified property against a defendant or defendants whom the plaintiff recognizes to be co-owners — may be seen to present simultaneously two principal issues. First, there is the issue of whether the plaintiff is indeed a co-owner of the property sought to be partitioned. Second, assuming that the plaintiff successfully hurdles the first issue, there is the secondary issue of how the property is to be divided between plaintiff and defendant(s) — i.e., what portion should go to which co-owner.”

1. Article 457. What is Alluvion? (Paras-page 258) It is the soil deposited or added to (accretion) the lands adjoining the banks of rivers, and

gradually, received as an effect of the current of the waters.ACCRETION ALLUVUIM/ALLUVION

Is the process whereby the soil is deposited

Is the soil deposited on the estate fronting the river bank

Is a broader term Applies only to the soil deposited on river banks

2. Article 84 of the Spanish Law of Waters. “Accretions deposited gradually upon lands contiguous to creeks, streams, rivers, lakes by

accessions or sediments from the water thereof, belong to the owners of such lands.”3. Under the law if you are the owner of a property along the banks of a river, as a consequence of the

currents of the river, he is generally the owner automatically. Why does the law give the ownership of this alluvium? (Paras-page 261) To compensate the risk of losing part of his land due to the current of the water.

4. Difference between a lake and a pond and a lagoon? (Tolentino-page 129)LAKE LAGOON

A body of water formed in depressions of the earth, ordinarily of fresh water, coming from rivers, brooks, or springs, and connected with the sea by them.

A small lake, ordinarily of fresh water, and not very deep, fed by floods, the hollow bed of which is bound by elevations of land.

1. Requisites of Alluvion:(a) That the deposit be gradual and imperceptible(b) That it be made through the effects of the current of the water; and(c) That the land where accretion takes place is adjacent to the banks of river.

2. Distinction of Alluvion and AvulsionALLUVION AVULSION

The deposit of the soil here is gradual. Sudden or abrupt process may be seen.Soil cannot be identified. Identifiable or verifiable.Belongs to owner of property to which it is attached

Belongs to owner from whose property it was detached.

3. If someone owns a land beside a lake and avulsion occurred who will own the land? The riparian owner will own the additional land.

4. Gov’t of the Phil vs. Colegio de San Jose Accretions on the bank of a lake, like Laguna de Bay, belong to the owners of the estate to which

they have been added. For the purpose of alluvion, lakes are of the same category as rivers, creeks and other streams.

5. If you own a land near a river and you put a device to catch soil…would the additional are be yours? NO, there must be no human intervention.

6. Agustin vs. IAC The private respondents' ownership of the accretion to their lands was not lost upon the sudden

and abrupt change of the course of the Cagayan River in 1968 or 1969 when it reverted to its old

1919 bed, and separated or transferred said accretions to the other side (or eastern bank) of the river. Articles 459 and 463 of the New Civil Code apply to this situation.

The sudden change of course of the Cagayan River as a result of a strong typhoon in 1968 caused a portion of the lands of the private respondents to be "separated from the estate by the current." The private respondents have retained the ownership of the portion that was transferred by avulsion to the other side of the river.

7. Article 459. What is Avulsion? (Tolentino-page 131) The transfer of a known portion of land from one tenement to another by the force of the current.

8. Who will own the land transferred due to avulsion? The original owner, provided he removes the same within two years.

9. If the land is no longer identifiable, the rules on avulsion are not applicable.10. Article 460. Supposing trees are uprooted during extra ordinary flood, what is the rule?

The original owner will still own the land provided within 6 month the owner must claim his ownership.

11. What if he claimed then within 6 months but did not take, may an action still be filed afterwards? YES, provided the action is brought within the period set by law for prescription of movable (since

uprooted) property. Art. 1140 – 4 years for ordinary prescription

12. Article 461. If the river changes its course who will own the abandoned bed and who will own the new bed? The abandoned river bed will be owned by the owner whose land was entered into by the river.

The new bed will be owned by the state. The right of the owner of the land where the abandoned previously situated has the preferential

right to buy the said abandoned bed. Because he is in the best position to cultivate the said abandoned river bed.

13. This is one instance where the law itself is the mode of acquiring ownership, ipso facto.14. Article 464-465. Assume that in the middle of the river there formed an island. Who would own that

island? If the river is navigable the island will be owned by the State. If it is non-navigable:

1. If NEARER in margin to one bank, owner of nearer margin is SOLE owner. (Art. 465)2. If EQUIDISTANT, the island shall be divided longitudinally in halves, each bank

getting half.3. How do you determine when a river is Navigable or Floatable? (Paras-page 285)

If useful for floatage and commerce, whether the tides affect the water or not. It should benefit trade and commerce.

4. When do you consider a river as a floatable river? 5. It’s possible for riparian owners to own island if the river is very very shallow.6. Accession with respect to personal or movable property. (Paras-page 284)

There are usually three types of accession with respect to movable property:1. Adjunction or Conjunction2. Mixture3. Specification

7. Article 466. Adjunction or Conjunction Is the process by virtue of which two movable things belonging to different owners are united in

such a way that they form a single object.1. inclusion or engraftment (sapphire set on a ring)2. soldering or attachment (joining legs made of lead to a body also made of lead)

(a) ferruminatio – objects are of the same metal(b) plumbatura – objects are of different metals

3. tejido or weaving 4. pintura or painting5. escritura or writing

8. Article 467. Principal and Accessory Principal is deemed to be that to which the other has been untied as an ornament, or for its use

or perfection. Accessory is that which has been united as an ornament.

9. How do you determine which is the principal and which is the accessory? (Paras-page 287)1. That to which the other has been united as an ornament, or for its use, or perfection.2. That of greater value 3. That of greater volume4. That which has greater merits (from the combined consideration of utility and volume)

10. Assume you have a gold ring where a diamond is attached to it, which is the principal? The ring is the principal and the diamond is the accessory.

11. Article 469. Who would own the ring if it is not possible to separate them? (Paras-page 288) As a general rule accessory follows the principal But, if the accessory is much more precious than the principal, the owner of the accessory can

demand for separation even there will be injury to the ring.12. If both parties are in good faith, the expenses for the separation must of course be borne by the

person who caused the union.13. Assume A is the owner of a gold ring and attached the diamond of B in such a way that it is not

possible to removed, who would own the ring? The owner of the principal14. Can B recover damages from A? No. Supposing A was in bad faith? Yes15. Rules in case of Bad Faith in the Adjunction. Article 470 (Paras-page 289)

(1) Owner of accessory is in bad faith (First paragraph)a) Lose all rights to the accessory; andb) Liable for damages

(2) Owner of the principal is in bad faith (Second Paragraph)a) Pay for the accessory plus damages; orb) Remove the accessory from the principal even if the latter be destroyed plus

damages16. Article 472 & 473. Mixture

It is the combination or union of materials where the respective identities of the component elements are lost.

As distinguished from adjunction, there is in mixture greater inter-penetration or decomposition of the objects that have been mixed.

17. Rules for Mixture (Paras-page 291)(1) There will be CO-OWNERSHIP ff it is caused:

a) by owner in good faith, orb) by chance (accident), or c) by a common agent

(2) If it is made by one owner in BAD FAITH;a) he loses his material (in favor of the other); andb) liable for dmages

18. Assume that this time A owns a bottle of red wine which is rather expensive worth P10k. B is the owner of another of red wine worth P400. If the 2 bottles are mixed what would be the respective rights?

If caused by accident and both in good faith there will be co-ownership in proportion of the value of the material.

If there was bad faith the owner in bad faith loses his material and liable for damages.19. Same as in cavans of rice. Same rule will apply20. Siari Valley Estate, Inc. vs. Lucasan (Paras-page 291-292)

If a thief steals some cattle belonging to another, mixes them with his own, but can no longer identify which is his or the other and does not remember how many were stolen, the thief should lose all the cattle he originally had and everything must therefore belong to the offended party.

21. Article 474. Specification In general, the rule “accessory follows the principal” applies here, with LABOR being considered

the principal.22. Rules to follow in Specification (Paras-page 293)

(1) If the WORKER (principal) is in GOOD FAITH:a) he appropriates the new thing;b) but he must indemnify for the materials

EXCEPTION: if the materials (accessory) is more precious than the new thing or is more Valuable, the owner if the material has an option:1) to get the new thing but he pays for the work; or2) to demand indemnity for the material

(2) If the WORKER is in BAD FAITH, the owner of the material has an option:a) he can appropriate the work without paying for the labor; orb) he can demand indemnity for the material plus damages.

EXCEPTION: the option of appropriation is not available if the value of the resultant work is more valuable for artistic and scientific reasons.

23. Assume that A use the gold bar of B and A melted it and created a statue made of gold bar. What are the respective rights? A, in good faith, owns the thing and indemnify B. if the material is more valuable than the thing, B can get the thing and indemnify for the value of

the gold. This option is for B24. Supposing A is in bad faith, B can get the thing without paying for the thing plus damages25. When will the appropriation of B not be available?

When the thing is considerable more valuable than that of the materials in case of artistic creations and science reasons.

26. Quieting of Title (Tolentino-page 148) It has for its purpose the quieting of title or removal of a cloud therefrom when there is an

apparently valid or effective instrument or other claim which in reality is void, ineffective, voidable or unenforceable.

It is substantially an action for the purpose of putting an end to vexatious litigation in respect to the property involved.

27. Example of a cloud on a title which can be moved by a quieting of a title? (Tolentino-page151) Forged signature/instrument.

28. Can you maintain an action for quieting of a title if you have no possession? Yes, as long as you have a legal and reputable interest.

29. Is this remedy available to personal property? (Tolentino-page 149) The remedy of the quieting of, or the removing of cloud from title is generally understood to have

relation only to real property.30. Assume A is the owner of a land and he was made to sign a document not knowing it was a deed of

sale. The deed was registered in the RD and the title was cancelled and the new one was issued. A was still in possession, can he maintain an action of quieting of title?

Yes. Can you maintain the action even for 10 years, are there any prescription? An action for quieting of title when in possession of the property is actually

imprescriptible.31. Is there any obligation of restitution once the action succeeds?

Yes, Article 479.32. Article 482 & 483. Ruinous provisions. Just read them.33. Article 484. Co-ownership

Is that state where an undivided thing or right belongs to two or more persons.34. Article 485. A 50% and B 25% and C 25% of expenses. Can they agree that the expenses will not

be in proportion with the interest they will receive? (Paras-page 322) Shares in the benefits and charges:

(a) The share in the benefits and charges is proportional to the interest of each. Hence, if one co-owner owns two-thirds, he shares two-thirds of the taxes.

(b) Contrary stipulation is VOID. To do so would run against the nature of co-ownership.(c) Each co-owner shares proportionately in the accretion or alluvium or he property. This is

because an increase in are benefits all.35. Can A sell the entire property?

No, there must be consent with all the co-owners.36. A, B, and C are co-owners and A sold the entire land to D. What is the right of D?

D only acquired the undivided interest of A37. Supposing that the co-ownership is terminated by partition, would you now be entitled to the portion

that pertained? YES38. Can a co-owner use the property?

Article 486. Yes, provided he does not prevent the other co-owner form using it as well39. Co-ownership is terminated and a co-owner refuses to vacate.

The co-owner who refuses to vacate is obliged to pay rent.40. Pardell vs. Bartolome (Paras-page 323)

This case involves a 2-story house.(a) No rent for the upper floor can be demanded, for A was exercising her right as co-owner,

without prejudicing B who, had she wanted, could have also lived in another room of said floor, and who therefore could not have been prejudiced.

(b) Half-rental may be demanded for the use of the lower floor. Rent could be asked because others could have rented the same, but only half should be given because A was co-owner.

41. Del Banco v. IAC (Paras-page 383) Issue: whether or not Cagbalite Island is still undivided property owned in common by the heirs

and successors-in-interest of the brothers, Benedicto, Jose and Manuel Pansacola There is nothing in all four agreements that suggests that actual or physical partition of the Island

had really been made by either the original owners or their heirs or successors-in-interest. The agreement entered into in 1859 simply provides for the sharing of whatever benefits can be

derived from the island. The agreement, in fact, states that the Island to be purchased shall be considered as their common property.

With the distribution agreed upon each of the co-owner is a co-owner of the whole, and in this sense, over the whole he exercises the right of dominion, but he is at the same time the sole owner of a portion, in the instant case, a 1/4 portion (for each group of co-owners) of the Island which is truly abstract, because until physical division is effected such portion is merely an ideal share, not concretely determined.

Actual possession on the portion was alleged but it cannot be a repudiation of the co-ownership. The mere fact that some co-owners are in possession, while there is still co-ownership a co-

ownerships possession is a co-possession that is linked with the other co-owners.

No prescription shall run against a co-owner 42. Who has the power to administer the land?

The majority/controlling interest in the land.43. Supposing A 60% B 20% C 10%, only A has the controlling interest.44. Can the co-owners agree to delegate administration to a third person?

Yes they can if they agree to it.45. Assume the land is a farm land here in Pampanga…A B and C are co-owners. A willing to shoulder

all expenses in converting that land into a resort. B and C do not want. Can A insist on converting the conversion? Article 491. No, when it is an act of alteration everyone must agree.

46. Acts of preservation? Article 489. Yes he has the right to be reimbursed, unless if practicable he must notify the other

co-owners.47. Generally, no co-owner is required to remain in co-ownership. Each co-owner may demand partition.

What are the exceptions? (Paras-page 362)(1) If by agreement (for a period not exceeding 10 years), partition is prohibited.(2) When partition is prohibited by a donor or testator (for a period not exceeding twenty years) –

from whom the property came.(3) When partition is prohibited by law (as in the case of conjugal property, except in certain

instances).(4) When a physical partition would render the property unserviceable, but in this case, the

property may be allotted to one of the co-owners, who shall indemnify the other, or it will be sold, and the proceeds distributed (Art. 498).

(5) When the legal nature of the common property does not allow partition (like in the case of party walls)

48. You cannot partition a family home. Party wall cannot be partitioned.49. How do you effect a partition? What are the ways?

An action for partition, and by simple agreement.50. Can a co-owner waive his rights under co-ownership in order to evade payment expenses?

Article 488. YES 51. Does the renunciation require the consent of the creditor?

Yes, because it is as if paying by novation where you are required to get the consent of the creditor.

52. Article 490. Gives the old rule regarding building with each floor owned by different persons.53. Condominium Act. When you buy a condominium, what actually do you acquire?

Only the space between the walls, floor and ceiling. 54. Under the constitution, aliens are not allowed to acquire land in the Philippines, they can rent. There

are two ways of setting up a condominium project. 1. The owners directly own the land. 2. Condominium Corporation, an alien can acquire a unit under a condominium corporation as long as it does not exceed the 60/40.

55. You cannot demand partition of a condominium project. You cannot as well ask for the dissolution except in sections 13 and sec 8 of condominium act. – TAKE NOTE OF THESE SECTIONS IN THE CONDOMINIUM ACT!!!!! – MEMORIZE!