rule 66 to 69
TRANSCRIPT
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Rule 66 to 69
SUBMITTED BY:
RALPH FRANCIS PALMA
RAYMOND VALLEJO
RENARD ROBERT MASONGSONG
CIRUS JANSEN JACELA
JAIRUS RUBIO
SUBMITTED TO:
ATTY. JOSE ANTONIO ALILING
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Rule 66 – Quo Warranto
What is Quo Warranto?
(1) Quo warranto is a demand made by the state upon some individual or corporation to show by what right they exercise some franchise or privilege appertaining to the state which, according to the Constitution and laws they cannot legally exercise by virtue of a grant and authority from the State.1
(2) It is a special civil action commenced by a verified petition against (a) a person who usurps a public office, position or franchise; (b) a public officer who performs an act constituting forfeiture of a public office; or (c) an association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to do so.2
Distinguish from Quo Warranto in the Omnibus Election Code
Quo Warranto (Rule 66) Quo Warranto (Election Code)Subject of the petition is in relation to an appointive office;
Subject of the petition is in relation to an elective office;
The issue is the legality of the occupancy of the office by virtue of a legal appointment;
Grounds relied upon are: (a) ineligibility to the position; or (b) disloyalty to the Republic.
Petition is brought either to the Supreme Court, the Court of Appeals or the Regional Trial Court;
May be instituted with the COMELEC by any voter contesting the election of any member of Congress, regional, provincial or city officer; or to the MeTC, MTC or MCTC if against any barangay official;
Filed within one (1) year from the time the cause of ouster, or the right of the petitioner to hold the office or position arose;
Filed within ten (10) days after the proclamation of the results of the election;
Petitioner is the person entitled to the office; Petitioner may be any voter even if he is not entitled to the office;
The court has to declare who the person entitled to the office is if he is the petitioner.
When the tribunal declares the candidate-elect as ineligible, he will be unseated but the person occupying the second place will not be declared as the one duly elected because the law shall consider only the person who, having duly filed his certificate of candidacy, received a plurality of votes.
1 44 Am. Jur. 88-892 Section 1, Rule 66
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When government commence an action against individuals
(1) Quo warranto is commenced by a verified petition brought in the name of the Government of the Republic of the Philippines by the Solicitor General, or in some instances, by a public prosecutor.3 When the action is commenced by the Solicitor General, the petition may be brought in the Regional Trial Court of the City of Manila, the Court of Appeals or the Supreme Court. 4
(2) An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines thru the Solicitor General against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office;
(c) An association which acts a corporation within the Philippines without being legally incorporated or without lawful authority so to act. 5
When individual may commence an action
(1) The petition may be commenced by a private person in his own name where he claims to be entitled to the public office or position alleged to have been usurped or unlawfully held or exercised by another (Sec. 5). Accordingly, the private person may maintain the action without the intervention of the Solicitor General and without need for any leave of court. 6 In bringing a petition for quo warranto, he must show that he has a clear right to the office allegedly being held by another.7 It is not enough that he merely asserts the right to be appointed to the office.
Judgment in Quo Warranto action
(1) When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of the parties to the action as justice requires (Sec. 9).
3 Sec. 2, Id.4 Sec. 7, Rule 665 Sec. 1, Id.6 Navarro vs. Gimenez, 10 Phil. 226& Cui vs. Cui, 60 Phil. 377 Cuevas vs. Bacal, 347 SCRA 338
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Rights of a person adjudged entitled to public office
(1) If the petitioner is adjudged to be entitled to the office, he may sue for damages against the alleged usurper within one (1) year from the entry of judgment establishing his right to the office in question (Sec. 11).
RULE 67
Expropriation
Section 1. The complaint. — The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint. (1a)
NOTES
1. Eminent domain, which is properly a concept of political or constitutional law, is the right of the State to acquire private property for public use upon the payment of just compensation. That right extends to private property partly or entirely personal and the process of acquisition is substan-tially the same (see Act 204).
2. Rule 67 primarily governs the exercise of the right of eminent domain by the State acting through the national government. Expropriation by local government units has heretofore also been au-thorized by different laws, together with other political subdivisions created and so empowered by law. Presently, however, such provisions on this power of local political subdivisions have been consolidated and embodied in the Local Government Code of 1991 (R.A. 7160).
3. This section requires that the complaint should allege both the right and the purpose of the expro-priation. Where the right of the plaintiff to expropriate is conferred by law, the complaint does not have to state with certainty the right of expropriation. (MRR Co. v. Mitchel, 50 Phil. 832)
4. It is the actual filing of the complaint for expropriation which binds the land, and not a mere notice of the intent to expropriate. (Republic v. Baylosis, 96 Phil. 461). However, the owner of the land may still dispose of said property, despite the filing of the action, as the grantee would merely be substituted in hisplace and holds the land subject to the results of the action (Tuason, Jr. v. De Asis, 107 Phil. 131)
5. Proceedings for the expropriationor condemnation of parcels of land situated in different prov-inces may be brought in any of said provinces. But the defendant land owners in each province may require a separate action to be commenced against them in their respective provinces to avoid inconvenience and expense (MRR Co. v. Attorney-General, 20 Phil. 523).
Section 2. Entry of plaintiff upon depositing value with authorized government depositary. — Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in
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money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary.
If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court.
After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties. (2a)
NOTES
1. This section now provides for the amount of the preliminary deposit, i.e., the assessed value of the property for purposes of taxation. Also, mere notice to the landowner, without prior hearing, suffices for immediate entry on the land (Haguisan v. Emilia, et al., L-40108, Aug.31, 1984)
2. The preliminary deposit under this section constitutes advance payment in the event the expropri-ation proceds, and stands as indemnity for damages should the proceedings not succeed (Visayas Refining Co. v. Camus, 40 Phil.550)
3. The preliminary deposit is only necessary if the plaintiff desires entry on the land upon its institu-tion of the action; otherwise, it could always wait until the order of expropriation is issued before it enters upon the land.
4. Owners of expropriated lands are entitled to legal interest on the compensation eventually ad-judged from the date the condemnor takes possession of the land until the full compensation is paid to them or deposited in court (Digran v. Auditor General, L-21593, April 29, 1966; Valde-hueza v. Republic, L-31032, May 19, 1966;Republic v. Tayengco, L-23766, April 29, 1967).
5. Once the required deposit under this section has been duly made, the expropriator is entitled to a writ of possession over the property as a matter of right, and the issuance of that writ becomes ministerial on the part of the trial court (Biglang-awa, et al. v. Bacalla, etc., et al., G.R. Nos. 139927-36, Nov.22, 2000).
6. On November 7, 2000, Congress enacted R.A. 8974, a special law to facilitate the acquisition of right-of-way, site or location for national government infrastructure projects. These proects refer to all national government ingrastructure, engineering works and service contrats, including projects undertaken by government-owned and controlled corporation, all projects under R.A. 6957, as amended (the Build-Operate-and Transfer Law), and other related and necessary activi-ties regardless of the source of funding. Discrete guidelines for expropriation requirements and procedure under this law are provided, with rules and regulations for their implementation as pre-pared by a committee contemplated therein.
7. In Republic, et al. v. Gingoyon, etc., et al. (G.R. no. 166429, Dec. 19, 2005), the Government questioned the applicability of R.A. 8974 in the expropriation proceedings it had instituted over the airport facility called NAIA 3 (Ninoy Aquino International Airport Passenger Terminal 3). This building was constructed by defendant PIATCO (Philippine International Air Terminals Co., Inc.) in the NAIA complex as national infrastructure project under R.A. 6957, as amended.
It was the Government’s contention that the expropriation action should be governed by Rule 67, and followed by the judge presiding over the expropriation court. On review by certiorari, the Supreme Court upheld the Regional Trial Court’s position that, in this particular case, R.A. 8974 had superseded Rule 67.
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Primarily, the Supreme Court noted two crucial differences in the respective procedures involved under the statute and the Rule. Under R.A. 8974, the Government is required to make an immediate direct payment to the property owner upon the filing of the complaint to be entitled to a writ of possession; whereas in Rule 67, the Government has only to make an initial deposit with an authorized government depositary. Further, R.A. 8974 provides, as a standard for initial compensation, the market value of the property as stated in the tax declaration or the relevant zonal valuation, whereas Rule 67 prescribes that the initial deposit be merely equivalent to the assessed value of the property for purposes of taxation.
As borne out by the deliberations in Congress, the plain intent of R.A. 8974 is to supersede the system of deposit under Rule 67 with the scheme of “immediate payment” in cases involving national government infrastructure projects. The appropriate standard of just compensation is a substantive matter well within the province of the legislature to fix. Such payment is based on the zonal valuation of the land, the value of the improvements under the replacement cost method, or if no such valuation is immediately available, the proffered value of the property. Nonetheless, it recognizes the continued applicability of Rule 67 on procedural aspects.
The Government theorizes that the NAIA 3 facilities cannot be deemed as the “right of way,” “site or location” of a national government infrastructure project within the coverage of R.A 8974. The Court explained that the term “site” does not of itself necessarily mean a piece of land fixed by definite boundaries. It contemplates land, buildings, roads and all kinds of constructions adhered to the soil. The classifies the NAIA 3 facilities as real properties just like the soil on which they stand.
8. The holding in Gingoyon were replicated and ramified in Republic, etc. v. Holy Trinity Realty De-velopment Corp. (G.R. No. 172410, April 14, 2008). The Court reiterated that the expropriation procedure under R.A. 8974 specifically governs expropriation for national government infrastruc-ture projects, while Sec.19 of the Local Government Code governs the exercise of the power of eminent domain by local government units through an enabling ordinance. Also, if expropriation in engaged in by the National Government for purposes other that national infrastructure projects, the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply.
If the amount deposited under either procedure bears interests, the landowner is entitled to the same, since it constitutes the civil fruits or accessions of the principal object, that is, the deposit in favor of the landowner in the expropriation account. Where the amount deposited pertains to separate properties of different landowner which were expropriated in the same proceeding, then each landowner is entitled to the proportionate interest on the deposited amount pertaining to his own property and its commentsurate value.
Section 3. Defenses and objections. — If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation whether or not a defendant has previously
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appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. (n)
Section 4. Order of expropriation. — If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable. (4a)
NOTES
1. The order of expropriation forecloses any further objections to the right to expropriate, including the public purpose of the same. The only substantial issue thereafter is the matter of just compen-sation.
2. Being determinative of the question of the right to expropriate, such order of condemnation is a fi-nal order on that issue and is appealable (see Uriarte v. Teodoro, 86 Phil. 196)
3. The special civil action of expropriation is, as a consequence of the foregoing provisions of Sec.4, on wherein multiple appeals are permitted. An appeal may be taken from the aforesaid order au-thorizing expropriation and, thereafter, another appeal lies against the judgment on the just com-pensation to be paid (see Secs. 10 and 11). The significance of this fact is that, just as in special proceedings, the reglementary period to appeal shall be 30 days and a record on appeal shall be required for each of the permissible appeals.
Section 5. Ascertainment of compensation. — Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the objections. (5a)
NOTES
1. As a general proposition, the Supreme Court has defined just compensation as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the taker’s gain but the owner’s loss. The word “just” is used to convey the idea that the equivalent to be ren-dered for the property to be taken shall be real, substantial, full and ample.
The just compensation for the condemned property is generally the market value. Such amount is not limited to he assessed value of the property or the schedule of market values determined by the provincial or city appraisal committee. However, these values may serve as factors to be
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considered in the judicial valuation of the property. (National Power Corp. v. Manubay Agro-Industrial Dev. Corp., G.R. No. 150936, Aug. 18, 2004)
2. The appointment of commissioners is one of the steps involved in expropriation proceedings. An-other instance where the appointment of commissioners is required is in judicial partition where the parties cannot agree (Sec. 3, Rule 69). This is different from trial by commissioners under Rule 32 wherein the appointment of commissioners is discretionary on the court and the power is exercised only under the circumstances enumerated therein.
Section 6. Proceedings by commissioners. — Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties, to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. (6a)
Section 7. Report by commissioners and judgment thereupon. — The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. (7a)
Section 8. Action upon commissioners' report. — Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith, or, for cause shown, it may recommit the same to the commissioners for further report of facts, or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken. (8a)
Section 9. Uncertain ownership; conflicting claims. — If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made. (9a)
NOTES
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1. The primary purpose of the proceedings by the commissioners is to determine the just compen-sation to be paid to the landowner. The general rule in arriving at such just compensation is the value of the property as of the date of its taking or the filing of the complaint (Sec.4) plus conse-quential damages minus consequential benefits, provided such assessed benefits do not exceed the assessed damages. (Sec.6).
2. The value of the property means the “market value thereof, that is, the price which it will com-mand where it is offered for sale by one who desires, but is not obliged to sell, and is bought by one under no necessity of having it” (Manila Railroad Co. v. Caligsihan, 40 Phil. 326). The as-sessed value is only prima facie evidence of the actual value of the property if the assessment is based on the sworn statement of the owner (Republic v. Urtula, 110 Phil. 262; cf. Mun. of daet v. CA, et al., L-35861, Oct. 18, 1979), while sentimental value is not considered (Republic v. Lara, 96 Phil. 170).
In Export Processing Zone Authority v. Dulay, et al. (G.R. No. 59603, April 29, 1987), the Supreme Court declare as invalid and unconditional P.D. 76, 464, 794, 1224, 1259, 1669 and 1670, all of which adopted and laid down the common formula that the basis of just compensation shall be the fair market declared by the owner of the property or the market value determined by the assessor, whichever is lower. It held that said decrees constitute an impermissible encroachment on judicial prerogatives since the determination of just compensation is reserved for the courts by the Constitution. Said decrees would also constitute denial of due process and equal protection to the landowner who is denied the right to question the assessor’s determination, aside from preventing such determination by commissioner. The return to the former procedure outlined in Rule 67 was decreed and the doctrine in NHA v. Reyes, et al.,( L-49439, June 29, 1983) was abandoned.
Furthermore, a judgment in expropriation proceeding should provide for the payment of legal interest a as matter of law from the time the Government takes over the land until it pays the owner thereof. If the compensation is not paid when the property is taken, but is postponed to a later date, the interest awarded is actually part of the just compensation which takes into account such delay (Benguet Consolidated, Inc. v. Reublic, G.R. No. 71412, Aug. 15, 1986).
3. The nature and the value of the land at the time it was taken by the Government should be the basis of the price to be paid to the owner if the taking of possession thereof was made before the institution of the expropriation proceedings. The value at the time of the filing of the complaint is determinative if the taking of possession coincides with or is subsequent to the commencement of the proceedings, with interest from its taking and with attorney’s fees to be determined by the trial court (National Power Corp. v. CA, et al., G.R. No. 56378, June 22, 1984).
4. The consequential benefits that shall be deducted refers to the actual benefits derived by the owner on he remaining portion of his land which are the direct and proximate results of the im-provements consequent to the expropriation, and not the general benefits which he receives in common with the community (29 C.J.S. 1063; republic v. Vda. De Mortera, et al,.94 phil. 1042[Unrep])
5. The judgment rendered, requiring the payment of the award determined as just compensation for the condemned property and as a condition precedent for the transfer of title to the Government, cannot be realized upon execution, as the legislature must first appropriate the amount over and above the provisional deposit. (Comm. Of Public Highways, et al. v. san Diego, et al., L30098, Feb. 18, 1970).
6. The trial court has the jurisdiction to determine in the same expropriation proceedings, conflicting claims of ownership over the property involved and to declare the lawful owner thereof (Republic v. CFI of Pampanga et al., L-27006, June 30, 1970).
Section 10. Rights of plaintiff after judgment and payment. — Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the
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possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. (10a)
Section 11. Entry not delayed by appeal; effect of reversal. — The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff. (11a)
Section 12. Costs, by whom paid. — The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner. (12a)
Section 13. Recording judgment, and its effect. — The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. (13a)
Section 14. Power of guardian in such proceedings. — The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public use or purpose of property belonging to such minor or person judicially declared to be incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he were of age or competent. (14a)
NOTES
1. Under Sec. 11, the right of entry can immediately be availed of by the plaintiff despite the pen-dency of any appeal that may be take from the judgment; but, under Sec. 10, in order that it can exercise such right of entry, the plaintiff must first pay to the landowner or deposit with the clerk of court the just compensation determined in the judgment. ( see Federated Realty Corp. v. CA, et al., G.R. No. 127967, Dec.14, 2005)
2. in the event the judgment of expropriation is reversed by the appellate court and the case is re-manded to the lower court with the mandate to determine the damages caused to the landowner, such landowner has the option of proving the damages either in the same expropriation case or in a separate action instituted for that purpose (MWC v. De los Angeles, 55 Phil. 776).the judgment denying the right of expropriation is not res judicata on the issue of damages arising from such il-legal expropriation (Republic v. Baylosis, 109 Phil 580).
3. Where the expropriation judgment is final and executor, the non-payment by the expropriating landowners to recover possession does not entitle the private landowners to recover possession of their expropriated lots. To argue for the return of their property would ignore the fact that their right against the expropriating authority is different from that of an unpaid seller in ordinary sales, to which the remedy of recission might perhaps apply. Being an in rem proceeding, condemnation acts against the property.
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However, although the right to expropriate and use the land taken is complete at the time of entry, title to the property remains in the owner until payment is actually made or deposited in court. Furthermore, the landowner is entitled to interest computed from the time that the property is actually taken to the time when compensation is actually paid (Reyes, et al. v. National Housing Authority, G.R. No. 147511, Jan. 20, 2003).
4. Nevertheless while the prevailing doctrine is that the non-payment of just compensation does not entitle the landowner to recover possession of the expropriated lot, in cases where the govern-ment failed to pay just compensation within 5 years from the finality of judgment in the expropria-tion proceeding, the owner shall have the right to recover possession of his property. This is in consonance with the principle that the government cannot keep the property and dishonor the judgment (Republic v. Lim, G.R. No. 161656, June 29, 2005).
Here, the expropriated property had been used as a school site for five year while no-payment was effected though legal maneuvers of the local government unit which expropriated the property. Under such circumstances, it has been held in Municipality of Makati v. CA, et al. (G.R. Nos. 89888-99, Oct. 1, 1990) that the claimant could have availed of the remedy of mandamus to compel the enactment of the necessary appropriation ordinance and the disbursement of municipal funds therefor (Yujuico v. Atienza, Jr., et al., G.R. No. 164282, Oct.12, 2005)
5. To repeat, the concept of just compensation embraces not only the correct determination of the amount to be paid to the owner of the land, but also the payment thereof within reasonable time from its taking. Without prompt payment, compensation cannot be considered “just” since the owner has been immediately deprived of his land while being made to wait for a long period be-fore receiving the payment necessary to cope with his loss. To allow the taking of the landowner’s properties and to leave them empty-handed while Government withholds compensation is un-doubtedly oppressive (Apo Fruits Corp. v. CA et al., G.R. No. 164195, Feb.6 2007; Barangay Sin-dalan, etc. v. CA, et al., G.R. No. 150640, Mar.22, 2007)
Just compensation is intended to be the full and fair equivalent of the property expropriated. The measure is not the taker’s gain but the owner’s loss. The compensation must be fair not only to the owner but also to the taker, by avoiding under valuation against the former and overvaluation against the latter consequent to delay in the payment of the award. The amount is to be ascertained as of the time of the taking which usually coincides with the commencement of the expropriation proceedings. Where the institution of the action precedes entry into the property, the just compensation is to be ascertained as of the time of the filing of the complaint (National Power Corp. v. De la Cruz, et al., G.R. No. 156093, Feb.2, 2007).
6. As noted at the outset, the Local Government Code (R.A. 7160) now regulates expropriation by the local political subdivisions and provides as follows:
“Sec.19. Eminent Domain. – A local government unit may, through its chief executive and acting through an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws. Provided, however, That the power eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner and such offer was not accepted; Provided, further, That the local government may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit, with the proper court of at least fifteen percent (15%) of the fair market value at the time of the taking of the property.”
7. Note the variance in certain particulars between the foregoing special provisions on local govern-ments and those in Rule 67, such as the specific purposes, the initiation of proceeding, the pre-
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liminary deposit, and the ascertainment of compensation. In The City of Cebu v.Dedamo, et al. (G.R. No. 142971, May 7, 2002), which involved a complain for eminent domain filed by petitioner in 1993, the Supreme Court ruled that the issue of just compensation therein shall be determined based on the fair market value at the time of the taking of the property, pursuant to Sec.19 of R.A 7160. It pointed out that Sec. 4, Rule 67, which provided that just compensation shall be deter-mined at the time of the filing of the complain for expropriation, cannot prevail over R.A. 7160 which is a substantive law.
Parenthetically, the Supreme Court was obviously referring to Rule 67 of the 1964 Rules of Court. As revised in 1997, Sec. 4 of said Rule now provides that the payment of just compensation is to be determined as of the date of the taking of the property or the filing of the complaint whichever came first.
ADDITIONAL CASES:
1. EXPROPRIATION: Expropriation proceeding have two states. The first stage ends with an order of dismissal, or a determination that the property is to be acquired for a public purpose. (Estate of Salud Jimenez v. Philippines Export Processing Zone, 402 Phil. 271, 284 (2001). Either order will be a final order that may be appealed by the aggrieved party. (Municipality of Binan v. Garcia, G.R. No. 69260, Dec. 22, 1989, 180 SCRA 576). The second phase consists of the determination of just compensation. It ends with an order fixing the amount to be paid to the landowner. Both or-ders, being final, are applealable. (National Housing Authority v. Heirs of Guivelando, 452 SCRA 483 (2003). (City of Iloilo v. Hon. Lolita Contreras, G.R. No. 168967, Feb.12, 2010, Del Castillo, J.)
2. JUST COMPENSATION- A BASIC LIMITATION ON THE STAT’S POWER OF EMINENT DO-MAIN: Eminent domain is the power of the State to take private property for public use. It is an in-herent power of State as it is power necessary for the State’s existence; it is a power the Stat cannot do without. As an inherent power, it does not need at all to be embodied in the Constitu-tion; if its is mentioned at all, it is solely for purposes of limiting what is otherwise an unlimited power. The limitation is found in the Bill of Right- Sec.9, Art.III of the 1987 Constitution provides “No private property shall be taken for public use without just compensation”.
3. In Land Bank of the Philippines v. Orilla, (G.R. No. 157206, June 27 2008. 556 SCRA 102) a val-uation case under our agrarian reform law, this Court had occasion to state: Constitutionally, “just compensation” is the sum equivalent to the market value of the property, broadly described as the price fixed by the seller in open market in the usual and ordinary course of legal action and com-petition, or the fair value of the property as between the one who receives and the one who de-sires to sell, it being equivalent of the property taken from its owner by the expropriator. It has been repeatedly stressed by this Court that the true measure is not the take’s gain but the owner’s loss. The word “just” is used to modify the meaning of the word “compensation” to con-vey the idea that the equivalent to be given for the property to be taken shall be real, substantial, full and ample. Thus, the deposits might have been sufficient for purposes of the immediate tak-ing of the landholdings but cannot be claimed as amounts that would excuse the LBP from the payment of interest on the unpaid balance of the compensation due. As discussed at length be-low, they were not enough to compensate the petitioners for the potential income the landhold-ings could have earned for them if no immediate taking had taken place. Under circumstances, the State acted oppressively and was far from “just” in their position to deny the petitioner of the potential income that the immediate taking of thei properties entailed. (Apo Fruits Corp. and Hijo Plantation, Inc. v. LBP, G.R No. 164195, Oct. 12, 2010, Brion, J.)
4. RECKONING POINT FOR THE DETERMINATION OF JUST COMPENSATION:
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5. In Municipaliy of Paranaque v. V.M. Realty Corp (July 20, 1988, 292 SCRA 678) it was hell that the principle of res judicata does not strictly apply against the state in eminent domain because you cannot curtail an inherent power of the State.
6. In Ato v. Gopuco (G.R. No. 158563, June 30, 2005) it was held that if land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned the property shall return to its former owner, then, of course, when the purpose is terminated or abandoned the former owner reacquires the property so expropriated.
If land has been acquired for public use in fee simple, unconditionally, either by the exercise of eminent domain or by purchase, the former owner retains no right in the land, and the public use may be abandoned or the land may be devoted to a different use, without any impairment of the estate or title acquired, or any reversion to the former owner.
7. In Republic v. Gingoyon (G.R. No. 166429, December 19, 2005) held that R.A. No. 8974 man-dates immediate payment of the initial just compensation prior to the issuance of the writ of pos-session in favor of the Government. R.A. No. 8974 represents a significant change from previous expropriation laws such as Rule 67 or even Sec. 19 of LGC. Rule 67 and the LGC merely pro-vided that the Government deposits the initial amounts antecedent to acquiring possession of the property with, respectively, an authorized Government depositary or the proper court. In both cases, the private owner does not receive compensation prior to the deprivation of property. Un-der the new modality prescribed by R.A. 8974, the private owner sees immediate monetary rec-ompense with the same degree of speed as the taking of his/her property.
8. In Masikip v. City of Pasig (G.R. No. 136349, January 23, 2006) held that the motion to dismiss is not permitted in a complaint for expropriation. Significantly, the Rule allowing a defendant in an expropriation case to file a mothio to dismiss in lieu of an answer was amended by the 1997 Rules of Civil Procedure, which took effect on July 1, 1997. Sec. 3, Rule 67 now expressly man-dates that any objection or defense to the taking of the property of a defendant must be set forth in an answer.
9. In Francia, Jr. v. Mun. of Meycauayan (G.R. No. 170432, March 24, 2008) held that before a LGU may enter into the possession of the property sought to be expropriated, it must1. File a com-plaint for expropriation sufficient in form and substance in the proper court and 2. Deposit with the said court at least 15% of the property’s fair market value based on its current tax declaration. The law does not make determination of a public purpose a condition precedent to the issuance of a writ of possession.
10. In Beluso v. Mun. of Panay Capiz (G.R. No. 153974, August 7, 2006) held that a Local Govern-ment unit cannot authorized an expropriation of private property through a mere resolution of the lawmaking body. Sec. 19 of R.A. 7160 expressly require an ordinance for the purpose and a res-olution that merely expresses the sentiment of the municipal council will not suffice.
Rule 68 - Foreclosure of Real Estate Mortgage
(1) A real estate mortgage is an accessory contract executed by a debtor in favor of a creditor as security for the principal obligation. This principal obligation is a simple loan or mutuum described in Art. 1953, Civil Code. To be a real estate mortgage, the contract must be constituted on either immovables (real property) or inalienable real rights. If constituted on movables, the contract is a chattel mortgage (Art. 2124, CC).
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(2) A mortgage contract may have a provision in which the mortgage is a security for past, present and future indebtedness. This clause known as a dragnet clause or blanket mortgage clause has its origins in American jurisprudence. The Supreme Court ruled that mortgages given to secure future advancements are valid and legal contracts (Prudential Bank vs. Alviar, 464 SCRA 353).
Judgment on foreclosure for payment or sale
(1) If after the trial, the court finds that the matters set forth in the complaint are true, it shall render a judgment containing the following matters:
(a) An ascertainment of the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, as well as costs;
(b) A judgment of the sum found due;
(c) An order that the amount found due be paid to the court or to the judgment obligee within the period of not less than 90 days nor more than 120 days from the entry of judgment; and
(d) An admonition that in default of such payment the property shall be sold at public auction to satisfy the judgment (Sec. 2).
(2) The judgment of the court on the above matters is considered a final adjudication of the case and hence, is subject to challenge by the aggrieved party by appeal or by other post-judgment remedies.
(3) The period granted to the mortgagor for the payment of the amount found due by the court is not just a procedural requirement but s substantive right given by law to the mortgagee as his first chance to save his property from final disposition at the foreclosure sale (De Leon vs. Ibañez, 95 Phil. 119).
Sale of mortgaged property; effect
(1) The confirmation of the sale shall divest the rights in the property of all parties to the action and shall vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law (Sec. 3). The title vests in the purchaser upon a valid confirmation of the sale and retroacts to the date of sale (Grimalt vs. Vasquez, 36 Phil. 396).
(2) The import of Sec. 3 includes one vital effect: The equity of redemption of the mortgagor or redemptioner is cut-off and there will be no further redemption, unless allowed by law (as in the case of banks as mortgagees). The equity of redemption starts from the ninety-day period set in the judgment of the court up to the time before the sale is confirmed by an order of the court. once confirmed, no equity of redemption may further be exercised.
(3) The order of confirmation is appealable and if not appealed within the period for appeal becomes final. Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property and he may secure a writ of possession, upon, motion, from the court
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which ordered the foreclosure unless a third party is actually holding the same adversely to the judgment obligor (Sec. 3).
Disposition of proceeds of sale
(1) The proceeds of the sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority. If there be any further balance after paying them or if there be no junior encumbrancers, the same shall be paid to the mortgagor or any person entitled thereto (Sec. 4).
Deficiency judgment
(1) If there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance. Execution may issue immediately if the balance is all due the plaintiff shall be entitled to execution at such time as the remaining balance shall become due and such due date shall be stated in the judgment (Sec. 6). Note that the deficiency judgment is in itself a judgment hence, also appealable.
(2) No independent action need be filed to recover the deficiency from the mortgagor. The deficiency judgment shall be rendered upon motion of the mortgagee. The motion must be made only after the sale and after it is known that a deficiency exists. Before that, any court order to recover the deficiency is void (Govt. of PI vs. Torralba, 61 Phil. 689). It has been held that the mortgagor who is not the debtor and who merely executed the mortgage to secure the principal debtor’s obligation, is not liable for the deficiency unless he assumed liability for the same in the contract (Philippine Trust Co. vs. Echaus Tan Siua, 52 Phil. 852). Since a deficiency judgment cannot be obtained against the mortgagore who is not the debtor in the principal obligation, mortgagee may have to file a separate suit against the principal debtor.
Instances when court cannot render deficiency judgment
(1) Where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and during the pendency of the proceedings was outside the Philippines, it is believed that a deficiency judgment under Sec. 6 would not be procedurally feasible. A deficiency judgment is by nature in personam and jurisdiction over the person is mandatory. Having been outside the country, jurisdiction over his person could not have been acquired.
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Judicial foreclosure versus extrajudicial foreclosure
Extra-judicial Foreclosure (Act 3135) Judicial foreclosure (Rule 68)No complaint is filed; Complaint is filed with the courts;There is a right of redemption. Mortgagor has a right of redemption for 1 year from registration of the sale;
No right of redemption except when mortgagee is a banking institution; equity of redemption only (90 to 120 days, and any time before confirmation of foreclosure sale);
Mortgagee has to file a separate action to recover any deficiency;
Mortagagee can move for deficiency judgment in the same action
Buyer at public auction becomes absolute owner only after finality of an action for consolidation of ownership;
Buyer at public auction becomes absolute owner only after confirmation of the sale;
Mortgagee is given a special power of attorney in the mortgage contract to foreclose the mortgaged property in case of default.
Mortgagee need not be given a special power of attorney.
Equity of redemption versus right of redemption
Equity of Redemption Right of RedemptionThe right of defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90 to 120 days after the entry of judgment or even after the foreclosure sale but prior to confirmation.
A right granted to a debtor mortgagor, his successor in interest or any judicial creditor or judgment creditor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to repurchase the property within one year even after the confirmation of the sale and even after the registration of the certificate of foreclosure sale.
May be exercised even after the foreclosure sale provided it is made before the sale is confirmed by order of the court.
There is no right of redemption in a judicial foreclosure of mortgage under Rule 68. This right of redemption exists only in extrajudicial foreclosures where there is always a right of redemption within one year from the date of sale (Sec. 3, Act 3135), but interpreted by the Court to mean one year from the registration of the sale.
May also exist in favor or other encumbrances. If subsequent lien holders are not impleaded as parties in the foreclosure suit, the judgment in favor of the foreclosing mortgagee does not bind the other lien holders. In this case, their equity of redemption remains unforeclosed. A separate
General rule: In judicial foreclosures there is only an equity of redemption which can be exercised prior to the confirmation of the foreclosure sale. This means that after the foreclosure sale but before its confirmation, the mortgagor may exercise his right of pay the proceeds of the sale and prevent the
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foreclosure proceeding has to be brought against them to require them to redeem from the first mortgagee or from the party acquiring the title to the mortgaged property.
confirmation of the sale.
If not by banks, the mortgagors merely have an equity of redemption, which is simply their right, as mortgagor, to extinguish the mortgage and retain ownership of the property by paying the secured debt prior to the confirmation of the foreclosure sale.
Exception: there is a right of redemption if the foreclosure is in favor of banks as mortgagees, whether the foreclosure be judicial or extrajudicial. This right of redemption is explicitly provided in Sec. 47 of the General Banking Law of 2000. While the law mentions the redemption period to be one year counted from the date of registration of the certificate in the Registry of Property
RULE 69 - PARTITION
INTRODUCTION
Partition presupposes that there is co – ownership, and under our property law, there is co – ownership whenever the ownership of an undivided thing or right belongs to different persons (art. 484).
Q: why do we have to use partition?
A: because not all the time people want to own a certain thing or right in common with others. Sometimes there is no growth in co – ownership, because you cannot do easily what you want, it has to conform with the co – owners.
Q: how do you define partition of real estate?
A: it is a judicial controversy between persons who being co – owners thereof, seek to secure a division for partition for themselves of the common property giving to each one of them the part corresponding to each
Accio commune debidendo – an action to enable those who own a property in common to put an end to the common ownership so as to vest in each a sole estate specific property or an allotment
Section 1. Complaint in action for partition of real estate. — A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and
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extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property.
Section 2. Order for partition and partition by agreement thereunder. — If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated.
A final order decreeing partition and accounting may be appealed by any party aggrieved thereby.
Q: who shall be named as parties?
A: All of the co – owners
Q: can the action proceed if we will omit one of the co – owners as defendant?
A: NO. therefore they are indispensible parties, they should be joined
Q: How initiated?
A: By complaint stating:
- nature and extent of his title
- description of the real estate
- all co – owners must be joined as defendants
Q: what are the stages of partition
A: (1) determination whether co – ownership exist and if partition is proper
- sections 1 and 2
(2) get a commissioner to assist the court in determining how to divide
- sections 3, 4 and 5
Note: under section 2, if the court renders decision and finds out that there is co – ownership and partition is proper, the parties will be obliged to divide. What if they cannot decide how to divide? Which one gets this part? What if they cannot agree on the manner of partition? – that is the time you will apply the second stage.
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Section 3. Commissioners to make partition when parties fail to agree. — If the parties are unable to agree upon the partition, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. (3a)
Section 4. Oath and duties of commissioners. — Before making such partition; the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. In making the partition, the commissioners shall view and examine the real estate, after due notice to the parties to attend at such view and examination, and shall hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof, and shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof. (4a)
Section 5. Assignment or sale of real estate by commissioners. — When it is made to appear to the commissioners that the real state, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amount as the commissioners deem equitable, unless one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. (5a)
Note:
- Either assign the property to one of the co – owners, and pay the others- Or sell the real estate at public sale
Section 6. Report of commissioners; proceedings not binding until confirmed. — The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners and rendered judgment thereon.
Note: therefore the outcome of the appointment of commissioner which will be stated in his report could go either;
- There is a partition
- It could be assigned to one of the co – owners, after paying the others.
- Sell the real estate if parties oppose that it be assigned.
Q: how many orders or judgments in an action for partition?
A: we have two, (1) order of partition under section 2 last paragraph and (2) order on the manner of partition under sections 3, 4, 5, and 6
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Note: A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. (section 2 last paragraph)
- Therefore it is NOT interlocutory, it can be appealed.
Q: If there is two stages and two different orders, both of which can be appealed, what do you call this now?
A: A civil action where multiple appeals are allowed
Section 7. Action of the court upon commissioners report. — Upon the expiration of the period of ten (10) days referred to in the preceding section ( the period to file objections ) or even before the expiration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith the court may, upon hearing, accept the report and render judgment in accordance therewith, or, for cause shown recommit the same to the commissioners for further report of facts; or set aside the report and appoint new commissioners; or accept the report in part and reject it in part; and may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof. (7)
When:
- expiration of 10 days to file objections- or before expiration of 10 days but after the parties filed their objections
the court may upon hearing;
- accept the report- recommit to the commissioners for further report of facts- set aside the report and appoint new commissioners- accept or reject in part, and make such order and render such judgment as shall effectuate a fair
and just partition
Section 8. Accounting for rent and profits in action for partition. — In an action for partition in accordance with this Rule, a party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. (8a)
Section 9. Power of guardian in such proceedings. — The guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or person judicially declared to be incompetent could do in partition proceedings if he were of age or competent. (9a)
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Section 10. Costs and expenses to be taxed and collected. — The court shall equitably tax and apportion between or among the parties the costs and expenses which accrue in the action, including the compensation of the commissioners, having regard to the interests of the parties, and execution may issue therefor as in other cases. (10a)
Section 11. The judgment and its effect; copy to be recorded in registry of deeds. — If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action. (11a)
Q: is the action for partition literally mean division of property?
A: No. because sometimes, actual division is not practical like dividing a 100 sq m property among 10 persons, what will you do with the 10 sq m? You cannot even put a toilet on that area. In this case the property will be sold and just divide the proceeds. And as we have discussed, the commissioner may either help the parties divide, assign or to sell the same.
Section 12. Neither paramount rights nor amicable partition affected by this Rule. — Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made, nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action.
Q: the property is 10 hectares and the entire property is mortgaged in the bank. Then the property is subdivided into 10 titles, 1 hectare per title. What happens now to the mortgage?
A: all the ten titles are also deemed mortgage. The partition does not affect the rights of third persons over the property because on partition, there is no really transmission of rights. In a partition, a co – owner does not transfer his right to another co – owner. There is merely a designation and segregation of shares
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Q: can there be also partition of personal property?
A: yes. Section 13
Section 13. Partition of personal property. — The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable.