FIRST DIVISION

[G.R. No. L-33006. December 8, 1982.]

NICANOR NACAR, petitioner, vs. CLAUDIO A. NISTAL as Municipal Judge
of Esperanza, Agusan del Sur; PROVINCIAL SHERIFF of Agusan del Sur,
ILDEFONSO JAPITANA and ANTONIO DOLORICON, respondents.
Tranquilino O. Calo, Jr. for petitioner.
Ildefonso Japitana and Antonio Doloricon for respondents.
SYNOPSIS
To recover a sum of money, respondent Japitana filed a complaint
entitled, "Claim against the Estate of the Late Isabelo Nacar with Preliminary
Attachment" against the petitioner before the Municipal Court of Esperanza,
Agusan del Sur. On the basis of the said complaint, the provincial sheriff was
ordered to attach seven (7) heads of cattle in possession of the petitioner, although
actually only four (4) carabaos were attached. Claiming ownership of the attached
carabaos, Antonio Doloricon filed a complaint in intervention. Petitioner's motion
to dismiss, to dissolve writ of attachment and to order the return of the seized
carabaos, was, upon opposition of the private respondent, denied by the
respondent court. Hence, the instant recourse. Upon posting a P1,000.00 bond, a
preliminary mandatory injunction was issued by the Supreme Court.
The Supreme Court held that since respondent Japitana has no cause of
action against the petitioner because the debts were actually incurred by the late
Isabelo Nacar, the respondent Court's denial of the motion to dismiss the
complaint and its issuance of a writ of attachment based thereon, are improper.
Petition granted. Preliminary mandatory injunction made permanent.
1.REMEDIAL LAW; ACTIONS; MOTION TO DISMISS; LACK OF CAUSE OF ACTION;
CASE AT BAR. It is patent from the portions of the complaint earlier cited that the
allegations are not only vague and ambiguous but downright misleading. The second
paragraph of the body of the complaint states that the defendant (herein
petitioner Nicanor Nacar) at various dates since the year 1968 incurred debts to the
plaintiff in the total sum of P2,791.00. And yet, in the subsequent paragraphs, one clearly
gathers that the debts were actually incurred by the late Isabelo Nacar, who died several
months before the filing of the complaint. The complaint which the respondent judge reads
as one for the collection of a sum of money and all the paragraphs of which are incidentally
unnumbered, expressly states as a material averment: . . . That plaintiff herein file (sic) a
claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of
12,791.00; . . . Under the circumstances of this case, respondent Japitana has no cause of
action against petitioner Nacar. Although respondent Japitana may have a legal right to
recover an indebtedness due him, petitioner Nicanor Nacar has no correlative legal duty to
pay the debt for the simple reason that there is nothing in the complaint to show that he
incurred the debt or had anything to do wish the creation of the liability. As far as the debt
is concerned, there is no allegation or showing that the petitioner had acted in violation of
Mr. Japitana's rights with consequential injury or damage to the latter as would create a
cause of action against the former. The respondent court's reason for not dismissing the
case is contrary to applicable precedents on the matter. We ruled in Mathay v.
Consolidated Bank and Trust Company (58 SCRA 559): "Section I, Rule 16 of the Rules of
Court, explicitly requires that the sufficiency of the complaint must be tested exclusively on
the basis of the complaint itself and no other should be considered when the ground for
motion to dismiss that the complaint states no cause of action. Pursuant thereto this Court
has ruled that: 'As a rule the sufficiency of the complaint, when challenged in a motion to
dismiss, must be determined exclusively on the basis of the facts alleged therein.' "(Cases
cited) Hence, it was error for the respondent court not to dismiss the case simply because
respondent Doloricon filed the complaint for intervention alleging that he owned the
carabaos.
2.ID.; ID.; ID.; ID.; ENFORCEMENT OR DEFENSE OF RIGHTS PROVIDED FOR IN THE
PROCEDURAL RULES. Moreover, even assuming that respondent Japitana had a legal
right to the carabaos which were in the possession of petitioner Nacar, the proper
procedure would not be to file an action for the recovery of the outstanding debts of the
late Isabelo Nacar against his stepfather, the petitioner Nacar as defendant. As we said in
Maspil v. Romero (61 SCRA 197): "Appropriate actions for the enforcement or defense of
rights must be taken in accordance with procedural rules and cannot be left to the whims
or caprices of litigants. It cannot even be left to the untrammeled discretion of the courts of
justice without sacrificing uniformity and equality in the application and effectivity
thereof."
VASQUEZ, J., concurring:
1.REMEDIAL LAW; SPECIAL PROCEEDING; CLAIMS AGAINST ESTATE; ACTION FOR
RECOVERY OF MONEY SHOULD BE FILED IN ADMINISTRATION PROCEEDINGS. The filing
of an ordinary action to recover money claim is not allowed in any court. Even if settlement
proceedings had been taken to settle the estate of Isabelo Nacar, the suit to recover the
claim of the private respondents may not be filed against the administrator or executor of
his estate. This is expressly provided for in Section 1 of Rule 87 of the Rules of Court, as
follows: "No action upon claim for the recovery of money or debt or interest thereon shall
be commenced against the executor or administrator; . . . ." The claim of private
respondents, being one arising from a contract, may be pursued only by filing the same in
the administration proceedings that may be taken to settle the estate of the deceased
Isabelo Nacar. If such a proceeding is instituted and the subject claim is not filed therein
within the period prescribed, the same shall be deemed "barred forever." (Sec. 5, Rule 86,
Rules of Court). Even if this action were commenced during the lifetime of Isabelo Nacar,
the same shall have to be dismissed, and the claim prosecuted in the proper administration
proceedings (Sec. 21, Rule 3, Ibid.).
2.ID.; ID.; ID.; ID.; MUNICIPAL COURT NOT VESTED WITH PROBATE JURISDICTION.
It would seem that the main purpose of the private respondents in filing Civil Case No.
65 was to attach the seven carabaos owned by Isabelo Nacar. A case had to be filed in
order to justify the issuance of a writ of attachment. Unfortunately, said remedy may not
be allowed. The carabaos, if really owned by Isabelo Nacar, pertained to his estate upon his
death. The claim of the private respondents may only be satisfied by a voluntary act on the
part of the heirs of Isabelo Nacar, or pursued in the appropriate settlement proceedings. A
municipal court may not entertain such a proceeding, it not being vested, under the law
then in force, with probate jurisdiction.
GUTIERREZ, JR., J p:
Nicanor Nacar filed this petition for certiorari, prohibition, and
mandamus with preliminary injunction to annul an order of the respondent judge
of the municipal court of Esperanza, Agusan del Sur directing the attachment of
seven (7) carabaos, to effect the return of four (4) carabaos seized under the
questioned order, and to stop the respondent judge from further proceeding in
Civil Case No. 65.
Respondent Ildefonso Japitana filed the complaint in Civil Case No. 65
and entitled it "Claim Against the Estate of the Late Isabelo Nacar With Preliminary
Attachment:" On the basis of this complaint, including an allegation "that
defendant are (sic) about to remove and dispose the above-named property (seven
carabaos) with intent to defraud plaintiff herein", and considering that Mr. Japitana
had given security according to the Rules of Court, Judge Nistal issued the order
commanding the provincial sheriff to attach the seven (7) heads of cattle in the
possession of petitioner Nicanor Nacar. Actually only four (4) carabaos were
attached because three (3) carabaos had earlier been slaughtered during the rites
preceding the burial of the late Isabelo Nacar.
Nicanor Nacar filed a motion to dismiss, to dissolve writ of preliminary
attachment, and to order the return of the carabaos. Private respondent Japitana
filed an opposition to this motion while intervenor Antonio Doloricon filed a
complaint in intervention asserting that he was the owner of the attached carabaos
and that the certificates of ownership of large cattle were in his name.
The respondent Judge denied the motion to dismiss prompting
Mr. Nacar to come to the Supreme Court.
In a resolution dated January 12, 1971, this Court, upon the posting of a
bond in the amount of P1,000.00, directed the issuance of a preliminary mandatory
injunction. The respondents were enjoined from further enforcing the writ of
attachment and to return the seized carabaos. The judge was restrained from
further proceeding with Civil Case No. 65.
We find the petition meritorious.
The pertinent portions of the complaint filed by Mr. Japitana with the
municipal court read as follows:
"ILDEFONSO JAPITANCivil Case No. 65
Plaintiff,FOR:
Versus CLAIM AGAINST THE ESTATE
NICANOR NACAROF THE LATE ISABELO NACAR
Defendant.WITH PRELIMINARY ATTACHMENT
x-----------------------x
C O M P L A I N T
COMES NOW the undersigned plaintiff and before this
Honorable Court, respectfully avers:
xxx xxx xxx
"That at various dates since the year 1968, the
defendant have (sic) incurred indebtedness to the plaintiff in the
total sum of TWO THOUSAND SEVEN HUNDRED NINETY ONE
(P2,791.00) PESOS, which said amount had long been overdue
for payment, and which the defendant up to this date have (sic)
not been able to pay, despite repeated demands from the
plaintiff;.
"That the defendant Isabelo Nacar died last April, 1970
leaving among other things personal property consisting seven
(7) heads of carabaos now in the possession of the
defendant Nicanor Nacar;
"That plaintiff herein file a claim against the estate of
the late Isabelo Nacar to recover the aforementioned sum of
P2,791.99;

"That defendant are (sic) about to remove and dispose
the above mentioned property with intent to defraud plaintiff
herein;
"That plaintiff is willing to put up a bond for the
issuance of a preliminary attachment in an amount to be fixed by
the Court, not exceeding the sum of P2,791.00 which is the
plaintiff's claim herein;
"WHEREFORE, it is respectfully prayed that pending
the hearing of this case, a writ of preliminary attachment be
issued against the properties of the defendant to serve as
security for the payment or satisfaction of any judgment that
may be recovered herein; and that after due hearing on the
principal against the defendant for the sum of P2,791.00 with
legal interest from September 15, 1970 plus costs of this suit."
(Annex "A", p. 7 rollo).
In his motion to dismiss, the petitioner raised the issue of lack of
jurisdiction and absence of a cause of action. Mr.Nacar averred that the
indebtedness mentioned in the complaint was alleged to have been incurred by the
late IsabeloNacar and not by Nicanor Nacar. There was, therefore, no cause of
action against him. The petitioner also stated that a municipal court has no
jurisdiction to entertain an action involving a claim filed against the estate of a
deceased person.
The same grounds have been raised in this petition. Mr. Nacar contends:
xxx xxx xxx
"9.That the respondent judge acted without
jurisdiction. The municipal courts or inferior courts have NO
jurisdiction to settle the estate of deceased persons. The proper
remedy is for the creditor to file the proper proceedings in the
court of first instance and file the corresponding claim. But
assuming without admitting that the respondent judge had
jurisdiction, it is very patent that he committed a very grave
abuse of discretion and totally disregarded the provisions of the
Rules of Court and decisions of this honorable Court when he
issued anex-parte writ of preliminary attachment, when there is
no showing that the plaintiff therein has a sufficient cause of
action, that there is no other security for the claim sought to be
enforced by the plaintiff; or that the amount claimed in the
action is as much as the sum for which the order is prayed for
above all legal counterclaims; There was no bond to answer for
whatever damages that herein petitioner may suffer; (Rollo, pp.
3-4).
xxx xxx xxx
The respondent judge tried to avoid the consequences of the issues
raised in the motion to dismiss by stating that although the title of the complaint
styled it a claim against the estate of the late Isabelo Nacar, the allegations showed
that the nature of the action was really for the recovery of an indebtedness in the
amount of P2,791.99.
The rule cited by the judge is correctly stated but it is hardly relevant to
the contents of the complaint filed by Mr. Japitana.
It is patent from the portions of the complaint earlier cited that the
allegations are not only vague and ambiguous but downright misleading. The
second paragraph of the body of the complaint states that the defendant (herein
petitionerNicanor Nacar) at various dates since the year 1968 incurred debts to the
plaintiff in the sum of P2,791.00. And yet, in the subsequent paragraphs, one
clearly gathers that the debts were actually incurred by the late Isabelo Nacar, who
died several months before the filing of the complaint. The complaint which the
respondent judge reads as one for the collection of a sum of money and all the
paragraphs of which are incidentally unnumbered, expressly states as a material
averment:
xxx xxx xxx
That plaintiff herein file (sic) a claim against the estate
of the late Isabelo Nacar to recover the aforementioned sum of
P2,791.00;
xxx xxx xxx
Under the circumstances of this case, respondent Japitana has no cause
of action against petitioner Nacar. Mathay v. Consolidated Bank and Trust
Company (58 SCRA 559) gives the elements of a valid cause of action:
"A cause of action is an act or omission of one party in
violation of the legal right of the other. Its essential elements
are, namely: the existence of a legal right in the plaintiff, (2) a
correlative legal duty in the defendant, and (3) an act or omission
of the defendant in violation of plaintiff's right with
consequential injury or damage to the plaintiff for which he may
maintain an action for the recovery, damages or other
appropriate relief. (Ma-ao Sugar Central Co., Inc. vs. Barrios, et
al., 79 Phil. 666, 667; Ramitere, et al. vs. Montinola Vda. de Yulo,
et al., L-19751, February 28, 1966, 16 SCRA 251, 255). On the
other hand, Section 3 of Rule 6 of the Rules of Court provides
that the complaint must state the ultimate facts constituting the
plaintiff's cause of action. Hence, where the complaint states
ultimate facts that constitute the three essential elements of a
cause of action, the complaint states a cause of action;
(Community Investment and Finance Corp. vs. Garcia, 88 Phil.
215, 218) otherwise, the complaint must succumb to a motion to
dismiss on that ground."
Indeed, although respondent Japitana may have a legal right to recover
an indebtedness due him, petitioner NicanorNacar has no correlative legal duty to
pay the debt for the simple reason that there is nothing in the complaint to show
that he incurred the debt or had anything to do with the creation of the liability. As
far as the debt is concerned, there is no allegation or showing that the petitioner
had acted in violation of Mr. Japitana's rights with consequential injury or damage
to the latter as would create a cause of action against the former.
It is also patent from the complaint that respondent Japitana filed the
case against petitioner Nacar to recover seven (7) heads of carabaos allegedly
belonging to Isabelo Nacar which Japitana wanted to recover from the possession
of the petitioner to answer for the outstanding debt of the late Isabelo Nacar. This
matter, however, is only ancillary to the main action. The ancillary matter does not
cure a fatal defect in the complaint for the main action is for the recovery of an
outstanding debt of the late Isabelo Nacar due respondent Japitana, a cause of
action about which petitioner Nacar has nothing to do.
In fact the fatal defect in the complaint was noticed by the respondent
court when it advised respondent Japitana to amend his complaint to conform with
his evidence and from the court's admission that it was inclined to dismiss the case
were it not for the complaint in intervention of respondent Doloricon. Respondent
Doloricon filed his complaint for intervention on the ground that the four carabaos,
subject of the writ of attachment, were actually his carabaos. Thus, the respondent
court in its Order denying the petitioner's motion to dismiss, to dissolve writ of
preliminary attachment and to order the return of the carabaos said:
". . . Antonio Doloricon manifested before this Court
that he is filing a third-party complaint alleging that he is the true
and lawful owner of the carabaos in questions.
"IN VIEW OF ALL THE FOREGOING, this Court for the
interest of both parties will not for the meantime dismiss this
case. Antonio Doloricon is hereby given 10 days from receipt
hereof within which to file his third-party complaint. The plaintiff
who in his opposition to defendant's motion to dismiss pray (sic)
for the custody of the carabaos. This Court further requires
plaintiff to put up the additional bond of P1,000.00 after which
the latter may be entitled of (sic) the custody of the carabaos
subject of litigation pending final termination of this case."
(Rollo, pp. 18-19).
The respondent court's reason for not dismissing the case is contrary to
applicable precedents on the matter. We ruled in Mathay v. Consolidated Bank and
Trust Company, supra:
"Section 1, Rule 16 of the Rules of Court, providing in
part that:
"Within the time for pleading a motion to
dismiss may be made on any of the following grounds;
. . .'
"'(g)That the complaint states no cause of
action. . . .'
explicitly requires that the sufficiency of the complaint must be
tested exclusively on the basis of the complaint itself and no
other should be considered when the ground for motion to
dismiss is that the complaint states no cause of action. Pursuant
thereto this Court has ruled that:
"'As a rule the sufficiency of the complaint,
when challenged in a motion to dismiss, must be
determined exclusively on the basis of the facts
alleged therein.' (Uy Chao vs. De La Rama Steamship
Co., Inc., L-14495, September 29, 1962, 6 SCRA 69, 72.
See also De Jesus, et al. vs. Belarmino, et al., Phil. 365,
371; Dalandan, et al. vs. Julio, et al., L-19101, February
29, 1964, 10 SCRA 400; Remitere, et al. vs. Montinola
Vda. de Yulo, et al., L-19751, February 28, 1966, 16
SCRA 250, 254; Acuna vs. Batac Producers Cooperative
Marketing Association, Inc., et al., L-20338, June 30,
1967, 20 SCRA 526, 531.)
Hence, it was error for the respondent court not to dismiss the case
simply because respondent Doloricon filed the complaint for intervention alleging
that he owned the carabaos.
Moreover, even assuming that respondent Japitana had a legal right to
the carabaos which were in the possession of petitioner Nacar, the proper
procedure would not be to file an action for the recovery of the outstanding debts
of the late Isabelo Nacar against his stepfather, the petitioner Nacar as defendant.
As we said in Maspil v. Romero (61 SCRA 197):
"Appropriate actions for the enforcement or defense
of rights must be taken in accordance with procedural rules and
cannot be left to the whims or caprices of litigants. It cannot
even be left to the untrammeled discretion of the courts of
justice without sacrificing uniformity and equality in the
application and effectivity thereof."
Considering the foregoing, the respondent court's denial of the motion
to dismiss the complaint and its issuance of a writ of attachment based on the
allegations of the complaint are improper. With this conclusion, we find no need to
discuss the other issue on whether or not the procedural rules on the issuance of a
writ of attachment were followed by the respondent court in issuing the subject
writ of attachment.

WHEREFORE, the petition is hereby granted. The preliminary mandatory
injunction issued on January 13, 1971 is made permanent and the cash bond filed
by the petitioner in connection therewith is ordered returned to him.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana and Relova, JJ., concur.
Separate Opinions
VASQUEZ, J., concurring:
I concur in the result.
The fundamental error committed by the private respondents was in
pursuing their claim in an ordinary action; and that by the respondent municipal
judge in entertaining the same.
As can be seen from the caption and the body of the complaint filed in
Civil Case No. 65, the claim of the private respondents was not against herein
petitioner Nicanor Nacar but against the estate of the deceased Isabelo Nacar. It is
a claim for money arising from unpaid indebtedness granted on various dates.
Isabelo Nacar died before the said complaint was filed. It does not appear that any
proceeding has been filed to settle his estate.
Under these facts, the filing of an ordinary action to recover said claim is
not allowed in any court. Even if settlement proceedings had been taken to settle
the estate of Isabelo Nacar, the suit to recover the claim of the private respondents
may not be filed against the administrator or executor of his estate. This is
expressly provided for in Section 1 of Rule 87 of the Rules of Court, as follows:
"No action upon a claim for the recovery of money or
debt or interest thereon shall be commenced against the
executor or administrator; . . . ."
The claim of private respondents, being one arising from a contract, may
be pursued only by filing the same in the administration proceedings that may be
taken to settle the estate of the deceased Isabelo Nacar. If such a proceeding is
instituted and the subject claim is not filed therein within the period prescribed,
the same shall be deemed "barred forever." (Sec. 5, Rule 86, Rules of Court). Even
if this action were commenced during the lifetime of Isabelo Nacar, the same shall
have to be dismissed, and the claim prosecuted in the proper administration
proceedings (Sec. 21, Rule 3, Ibid.).
It would seem that the main purpose of the private respondents in filing
Civil Case No. 65 was to attach the seven carabaos owned by Isabelo Nacar. A case
had to be filed in order to justify the issuance of a writ of attachment,
unfortunately, said remedy may not be allowed. The carabaos, if really owned by
Isabelo Nacar, pertained to his estate upon h9 death. The claim of the private
respondents may only be satisfied by a voluntary act on the part of the heirs of
Isabelo Nacar, or pursued in the appropriate settlement proceedings. A municipal
court may not entertain such a proceeding, it not being vested, under the law then
in force, with probate jurisdiction.
Civil Case No. 65 should accordingly be dismissed and the writ of
attachment issued therein dissolved.

||| (Nacar v. Nistal, G.R. No. L-33006, December 08, 1982)
EN BANC
[G.R. No. L-15388. January 31, 1961.]
DORA PERKINS ANDERSON, petitioner-appellee, vs. IDONAH SLADE
PERKINS, oppositor-appellant.
Ponce Enrile, S. Reyna, Montecillo & Belo for petitioner-appellee.
Lazaro A. Marquez for oppositor-appellant.
1.WILLS AND TESTAMENTS; EXECUTORS AND ADMINISTRATORS; SPECIAL ADMINISTRATORS;
POWER TO SELL NOT LIMITED TO PERISHABLE PROPERTY. Since Sec. 2, Rule 81, Rules of Court
specifically provides that "the special administrator may sell such perishable and other property
as the court orders sold," the power of the special administrator to sell is clearly not limited to
"perishable" property.
2.ID.; ID.; ID.; SALE MADE PRIOR TO LIQUIDATION OF CONJUGAL PARTNERSHIP PREMATURE.
While the law empowers the special administrator to sell certain personal property belonging to
the estate, yet until the issue of the ownership of the properties sought to be sold is heard and
decided, and the conjugal partnership liquidated, or at least, an agreement be reached with
appellant as to which properties of the conjugal partnership she would not mind being sold to
preserve their value the sale would be premature.
REYES, J.B.L., J p:
Appeal against an order of the Court of First Instance of Manila in Special Proceedings No. 29636
authorizing the special administrator of the testate estate of the late Eugene Arthur Perkins to
sell at public auction certain personal properties left by the deceased.
It appears that said special proceedings were commenced on May 10, 1956, by a petition
presented by Dora Perkins Anderson for the probate of the supposed last will and testament of
the late Eugene Arthur Perkins, who died in Manila on April 28, 1956 allegedly possessed of
personal and real properties with a probable value of P5,000,000. On the same date of the filing
of the aforesaid petition, petitioner Dora Perkins Anderson also filed an urgent petition for the
appointment of Alfonso Ponce Enrile as special administrator of the estate, and on the same
day, the court issued an order appointing Alfonso Ponce Enrile as such special administrator
upon his posting of a bond in the amount of P50,600. On July 9, 1956, Idonah Slade Perkins,
surviving spouse of the deceased, entered an opposition to the probate of the will presented by
petitioner Dora Perkins Anderson. On September 28, 1956, the special administrator submitted
an inventory of all the assets, which have come to his knowledge as belonging to the deceased
Eugene Arthur Perkins at the time of his death.
About two years later, or on September 4, 1958, the special administrator submitted to the
court a petition seeking authority to sell, or give away to some charitable or educational
institution or institutions, certain personal effects left by the deceased, such as clothes, books,
gadgets, electrical appliances, etc., which were allegedly deteriorating both physically and in
value, in order to avoid their further deterioration and to save whatever value might be
obtained in their disposition. When the motion was heard on September 25, 1958, the court
required the administration to submit a specification of the properties sought to be sold, and in
compliance therewith, the special administrator, on October 21, 1958, submitted to the court, in
place of a specification, a copy of the inventory of the personal properties belonging to the
estate with the items sought to be sold marked with a check in red pencil, with the statement
that said items were too voluminous to enumerate.
On July 9, 1956, Idonah Slade Perkins filed an opposition to the proposed sale. Reasons for the
opposition were that (1) most of the properties sought to be sold were conjugal properties of
herself and her deceased husband; and (2) that unauthorized removals of fine pieces of furniture
belonging to the estate had been made.
The opposition notwithstanding, the lower court, on December 2, 1958, approved the proposed
sale, authorizing the Sheriff of Manila to conduct the same. Oppositor Idonah Slade Perkins
moved to reconsider this order on the grounds (1) that said order in effect authorized the special
administrator to sell the entire personal estate of the deceased, contrary to Rule 81, sec. 2, Rules
of Court; (2) that said order was issued without a showing that the goods and chattels sought to
be sold were perishable, pursuant to Rule 81, section 2, Rules of Court; (3) that the personality
sought to be sold represented the lifetime savings and collections of oppositor; (4) that there is
evidence on record showing unauthorized withdrawals from the properties of the estate, and
the sale of the inventoried lot would prevent identification and recovery of the articles removed;
and (5) that there is also evidence showing oppositor's separate rights to a substantial part of
the personal estate.
On February 23, 1959, the lower court denied the above motion for reconsideration.
Whereupon oppositor Idonah Slade Perkins appealed to this court.
Appellant first claims that the personal properties sought to be sold not being perishable, the
special administrator has no legal authority to sell them. This argument is untenable, because
section 2, Rule 81, of the Rules of Court, specifically provides that the special administrator "may
sell such perishable and other property as the court orders sold" which shows that the special
administrator's power to sell is not limited to "perishable" property only.
It is true that the function of a special administrator is only to collect and preserve the property
of the deceased until a regular administrator is appointed (sec. 2, Rule 81; De Gala vs. Gonzales,
53 Phil., 104; Collins vs. Henry, 118 S. E. 729, 155 Ga. 886; Sqydelko vs. Smith's Estate, 244 M. W.
149, 259 Mich. 519). But it is not alone the specific property of the estate which is to be
preserved, but its value as well, as shown by the legal provision for the sale by a special
administrator of perishable property (Gaovs. Cascade Silver Mines & Mills, et al., 213 P. 1092, 66
Mont. 488). It is in line with this general power of the special administrator to preserve not only
the property of the estate but also its value, that section 2, Rule 81, also empowers such
administrator to sell "other property as the court ordered sold."
There is, however, a serious obstacle to the proposed sale, namely, the vigorous opposition
presented thereto by the appellant,the surviving spouse of the deceased, on the ground that she
is allegedly entitled to a large portion of the personal properties in question, either because they
were conjugal property of herself and the deceased, or because they are her own exclusive,
personal property. Indeed the records show that up to the time the proposed sale was asked for
and judicially approved, no proceedings had as yet been taken, or even started, to segregate the
alleged exclusive property of the oppositor-appellant from the mass of the estate supposedly
left by the deceased, or to liquidate the conjugal partnership property of the oppositor-appellant
and the deceased. Until, therefore, the issue of the ownership of the properties sought to be
sold is heard and decided, and the conjugal partnership liquidated; or, at least, an agreement be
reached with appellant as to which properties of the conjugal partnership she would not mind
being sold to preserve their value, the proposed sale is clearly premature. After all, most of the
items sought to be sold pieces of furniture, kitchen and dinner ware, electrical appliances,
various gadgets, and Books can easily be protected and preserved with proper care and
storage measures in either or both of the two residential houses (in Manila and in Baguio City)
left by the deceased, so that no reasons of extreme urgency justify the proposed sale at this time
over the strong opposition and objection of oppositor-appellant who may later be adjudged
owner of a substantial portion of the personal estate in question.
The special administrator claims in his brief that the oppositor- appellant should have indicated
the alleged "fine furniture" which she did not want sold and that her refusal to do so is an
indication of her unmeritorious claim. But it does not appear that appellant was given a
reasonable opportunity to point out which items in the inventory she did not want sold. In fact,
her opposition to the proposed sale and later her motion for reconsideration to the order
approving the same were overruled by the court without so much as stating reasons why the
grounds for her opposition were not well- founded; the records do not even show that an
inquiry was made as to the validity of the grounds of her opposition.
WHEREFORE, the lower court's order of December 2, 1958 authorizing the special administrator
to sell certain personal properties of the estate is set aside, with costs against the special
administrator Alfonso Ponce Enrile and petitioner-appellee Dora Perkins Anderson.
Paras, C.J., Bengzon, Bautista Angelo, Labrador; Concepcion, Barrera, Paredes and Dizon,
JJ., concur.
Gutierrez David, J., took no part.
||| (Anderson v. Perkins, G.R. No. L-15388, January 31, 1961)

THIRD DIVISION
[G.R. No. 92436. July 26, 1991.]
MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-TIMBOL, ERLINDA
REYES-VALERIO, ERNESTO REYES, ELIZABETH REYES, ALEX, RAFAEL II,
EMELINA and EVELYN, all surnamed REYES, represented by their
mother, MARIA VDA. DE REYES, petitioners, vs. THE COURT OF APPEALS
AND SPOUSES DALMACIO GARDIOLA and ROSARIO
MARTILLANO, respondents.
De Lara, De Lunas & Rosales for petitioners.
Santos, Pilapil & Associates for private respondents.
||| (Vda. de Reyes v. Court of Appeals, G.R. No. 92436, July 26, 1991)
1.CIVIL LAW; SUCCESSION; ORAL PARTITION AMONG HEIRS, VALID AND BINDING; NO LAW
REQUIRING WRITTEN PARTITION AMONG HEIRS. The Court of Appeals correctly held that the
partition made by the children of Gavino Reyes in 1936, although oral, was valid and binding.
There is no law that requires partition among heirs to be in writing to be valid.
2.ID.; ID.; PARTITION; OBJECT OF REQUIREMENT THAT A PARTITION BE PUT IN PUBLIC
DOCUMENT AND REGISTERED. InHernandez vs. Andal, this Court, interpreting Section 1 of
Rule 74 of the Rules of Court, held that the requirement that a partition be put in a public
document and registered has for its purpose the protection of creditors and at the same time
the protection of the heirs themselves against tardy claims. The object of registration is to serve
as constructive notice to others.
3.ID.; ID.; ID.; HEIRS OF AN ESTATE MAY ENTER INTO AN AGREEMENT IN ANY MANNER AND
UPON A PLAN DIFFERENT FROM THOSE PROVIDED BY LAW WHERE NO RIGHTS OF CREDITORS
ARE AFFECTED. The intrinsic validity of partition not executed with the prescribed formalities
does not come into play when there are no creditors or the rights of creditors are not affected.
Where no such rights are involved, it is competent for the heirs of an estate to enter into an
agreement for distribution in a manner and upon a plan different from those provided by law.
There is nothing in Section I, Rule 74 of the Rules of Court from which it can be inferred that a
writing or other formality is an essential requisite to the validity of the partition.
4.ID.; ID.; REASON FOR THE VALIDITY OF ORAL PARTITION. Barcelona, et al. vs. Barcelona, et
al., 100 Phil. 251 provides the reason why oral partition is valid and why it is not covered by the
Statute of Frauds: partition among heirs or renunciation of an inheritance by some of them is
not exactly a conveyance of real property for the reason that it does not involve transfer of
property from one to the other, but rather a confirmation or ratification of title or right of
property by the heir renouncing in favor of another heir accepting and receiving the inheritance.
5.ID.; ID.; RIGHTS TO SUCCESSION TRANSMITTED FROM THE MOMENT OF DEATH OF DECEDENT.
The rights to the succession are transmitted from the moment of death of the decedent. The
estate of the decedent would then be held in co-ownership by the heirs. In Ramirez vs. Bautista,
this Court held that every co-heir has the absolute ownership of his share in the community
property and may alienate, assign, or mortgage the same, except as to purely personal rights,
but the effect of any such transfer is limited to the portion which may be awarded to him upon
the partition of the property.
6.ID.; ID.; ID.; ONLY SUCCESSIONAL RIGHTS RECEIVED MAY BE TRANSMITTED; SUCCESSIONAL
RIGHTS NOT RECEIVED CANNOT BE TRANSFERRED BY EXTRA-JUDICIAL SETTLEMENT NOR BY
ERRONEOUS ISSUANCE OF TRANSFER CERTIFICATE OF TITLE. Petitioners, as mere successors-
in-interest of Rafael Reyes, Jr., son of Rafael Reyes, Sr., can only acquire that which Rafael,
Jr.could transmit to them upon his death. The latter never became the owner of Lot No. 1-A-14
because it was sold by his father in 1943. The issuance of TCT No. T-27257 in the name of Rafael
Reyes, Jr., in so far as Lot No. 1-14-A is concerned, was clearly erroneous because he never
became its owner. An extrajudicial settlement does not create a right in favor of an heir. As this
Court stated in the Barcelona case, it is but a confirmation or ratification of title or right to
property. Thus, since he never had any title or right to Lot No. 1-14-A, the mere execution of the
settlement did not improve his condition, and the subsequent registration of the deed did not
create any right or vest any title over the property in favor of the petitioners as heirs of Rafael
Reyes, Jr. The latter cannot give them what he never had before. Nemo dare potest quod non
habet.
7.ID.; PROPERTY; RECOVERY OF POSSESSION; ACTION BARRED BY LACHES. Petitioners'
immediate predecessor-in-interest, Rafael Reyes, Jr., never took any action against private
respondents from the time his father sold the lot to the latter. Neither did petitioners bring any
action to recover from private respondents the ownership and possession of the lot from the
time Rafael Reyes, Jr. died. As categorically admitted by petitioners in their complaint and
amended complaint, it was only in or about September 1969 when, after the delivery of TCT No.
27257 by Candido Hebron to them, that they definitely discovered that they were the owners of
the property in question. And yet, despite full knowledge that private respondents were in
actual physical possession of the property, it was only about thirteen and one-half (131/2) years
later that they decided to file an action for recovery of possession. The original complaint was
filed in the trial court on 14 March 1983. There was then absolutely no basis for the trial court to
place the burden on private respondents to bring an action for reconveyance within four (4)
years from their discovery of the issuance of the transfer certificate of title in the name of Rafael
Reyes, Jr.
DAVIDE, JR., J p:
Assailed before us in this appeal by certiorari under Rule 45 of the Rules of Court is the decision
of the respondent Court of Appeals in C.A.-G.R. CV No. 11934, promulgated on 20 October
1989, 1 reversing the decision of 1 October 1986 of Branch 21 (Imus, Cavite) of the Regional Trial
Court of the Fourth Judicial Region in Civil Case No. RTC-BCV-83-17 entitled Maria vda. de Reyes,
et al. vs. Spouses Dalmacio Gardiola and Rosario Martillano and Spouses Ricardo M. Gardiola
and Emelita Gardiola, 2 and the resolution of 1 March 1990 denying the petitioner's motion for
reconsideration.
As culled from both decisions and the pleadings of the parties, the following facts have been
preponderantly established:
During his lifetime, one Gavino Reyes owned a parcel of land of approximately 70 hectares,
more or less, located at Sangayad, Ulong-Tubig, Carmona, Cavite. He sought to bring said land
under the operation of the Torrens System of registration of property. Unfortunately, he died in
1921 without the title having been issued to him. The application was prosecuted by his son,
Marcelo Reyes, who was the administrator of his property.
In 1936 the above property was surveyed and subdivided by Gavino's heirs (Exh. "6"). In the
subdivision plan, each resultant lot was earmarked, indicated for and assigned to a specific heir.
It appears therein that two lots, one of which is Lot No. 1-A-14 (Exh. "6-A"), were allotted to
Rafael Reyes, Sr., one of Gavino's children. Per testimony of Juan Poblete, the children thereafter
secured tax declarations for their respective shares.
In 1941, or about twenty (20) years after the death of Gavino, the original certificate of title for
the whole property OCT No. 255 was issued. It was, however, kept by Juan Poblete, son-
inlaw of Marcelo Reyes, who was by then already deceased. The heirs of Gavino were not aware
of this fact.
On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land with an area of 23,431 square
meters, more or less, to private respondent Dalmacio Gardiola (Exh. "5"). According to the
vendee, this parcel corresponds to Lot No. 1-A-14 of the subdivision plan aforestated. The deed
of sale, however, did not specifically mention Lot No. 1-A-14. The vendee immediately took
possession of the property and started paying the land taxes therein. Cdpr
In 1945 or thereabouts, Juan Poblete "revalidated" the original Certificate of Title. As
reconstituted, the new title is OCT (O-4358)RO-255 (Exhs. "4" to "4-A").
On 21 October 1967, when the heirs of Gavino Reyes executed a Deed of Extrajudicial
Settlement of Estate (Exh. "D") based on the aforestated subdivision plan (Exh. "6"), the lot that
was intended for Rafael Reyes, Sr., who was already deceased, was instead adjudicated to his
only son and heir, Rafael Reyes, Jr. (the predecessor-in-interest of the petitioners herein).
Private respondent Rosario Martillano signed the deed in representation of her mother, Marta
Reyes, one of the children of Gavino Reyes.
As a result of the Extrajudicial Settlement, OCT RO-255 was cancelled and in lieu thereof, several
transfer certificates of title covering the subdivided lots were issued in the names of the
respective adjudicatees. One of them is TCT No. 27257 in the name of Rafael Reyes, Jr. covering
Lot No. 1-A-14. The Transfer Certificates of Title were, however, kept by one Candido Hebron.
On 10 January 1969, some of the heirs of Gavino Reyes filed a case of Annulment of Partition
and Recovery of Possession before the Court of First Instance of Cavite City, which was docketed
therein as Civil Case No. 1267. One of the defendants in said case is herein private respondent
Rosario Martillano. The case was dismissed on 18 September 1969, but Candido Hebron was
ordered by the trial court to deliver to the heirs concerned all the transfer certificates of title in
his possession. 3
After obtaining the Transfer Certificate of Title for Lot No. 1-A-14 from Hebron, pursuant to the
aforesaid order in Civil Case No. 1267, petitioners herein, as successors-in-interest of Rafael
Reyes, Jr., filed on 14 March 1983 with the Regional Trial Court the above-mentioned Civil Case
No. RTC-BCV-83-17 against private respondents (defendants therein) for recovery of possession
or, in the alternative, for indemnification, accounting and damages. They allege therein that
after "having definitely discovered that they are the lawful owners of the property," (Lot No. 1-
A-14), they, "including Rafael Reyes, Jr., during his lifetime, made repeated demands to (sic)
defendants to surrender the possession of and vacate the parcel of land belonging to the
former, but defendants refused to vacate and surrender the possession of the said land to
herein plaintiffs;" the last of the demands was allegedly made on 8 October 1982. They further
allege that they have been deprived by said defendants of the rightful possession and enjoyment
of the property since September 1969 which coincides with the date of the order in Civil Case
No. 1267. 4 In their answer, private respondents deny the material averments in the complaint
and assert that they are the owners of the lot in question, having bought the same from Rafael
Reyes, Sr.; that the issuance of TCT No. 27257 is null and void, for such sale was known to Rafael
Reyes, Jr.; that they have been in possession of the property and have been paying the land
taxes thereon; and that petitioners are barred by prescription and/or laches. 5

Petitioners amended their complaint on 21 March 1985 to implead as additional defendants the
spouses Ricardo M. Gardiola and Emelita Gardiola, on the basis of the following claims:
xxx xxx xxx
"9.Meanwhile, during the presentation of the defendants spouses
Dalmacio Gardiola and Rosario Martillano's evidence the former testified
that they mortgaged the subject land to the Rural Bank of Carmona Inc.
For their failure to redeem the mortgage the same was foreclosed by the
bank.
10.However, within the period of one (1 ) year from such foreclosure the
questioned land was redeemed by the original defendants' son in the
person of Ricardo M. Gardiola, who was knowledgeable/aware of the
pendency of the above captioned case. The corresponding redemption
was effected through a deed of conveyance, . . ." 6
The prayer of the amended complaint now contains the alternative relief for indemnification for
the reasonable value of the property "in the event restitution of the property is no longer
possible." 7
In its decision of 1 October 1986, 8 the trial court concluded that petitioners' "title over the
subject property is valid and regular and thus they are entitled to its possession and enjoyment,"
and accordingly decided thus:
"WHEREFORE, the defendants or anyone acting for and in their behalf
are hereby ordered to relinquish possession or vacate the property in
question which is covered by Transfer Certificate of Title No. T-27257 in
favor of the plaintiffs.
All other claims and/or counterclaims of the parties relative to this case
are dismissed for lack of proper substantiation."
The conclusion of the trial court is based on its finding that (a) there is no evidence that the heirs
of Gavino Reyes entered into any written agreement of partition in 1936 based on the
subdivision plan; (b) there is no identity between Lot No. 1-14-A and the land sold to private
respondents by Rafael Reyes, Sr., or otherwise stated, the description of the latter as indicated
in the deed of sale (Exh. "5") does not tally with the description of the former; and (c) moreover:
"Granting, arguendo, that the sale made by Rafael Reyes, Sr. to the
defendants covered the land in question Lot No. 1-A-14 and that
Transfer Certificate of Title No. T-27257 was obtained by means of fraud,
the claim of the defendants over the said property is already barred.
Action for reconveyance prescribes in four (4) years from the discovery
thereof. If there was fraud, the defendant could have discovered the
same in 1967 when the partition was made in as much as defendant
Rosario Martillano was a party to that partition. Let us grant further that
the issuance of Transfer Certificate of Title No. T-27257 to Rafael Reyes,
Jr. created a constructive or implied trust in favor of the defendants,
again, the claim of the defendants is also barred. From 1967 to the filing
of their answer (let us consider this as an action for reconveyance) to this
case sometime in July, 1983, a period of about sixteen (16) years had
already elapsed. Prescriptibility of an action for reconveyance based on
implied or constructive trust is ten (10) years.
The trial court further held that the continued possession by private respondents, which it found
to have started in 1943, did not ripen into ownership because at that time, the property was
already registered, hence it cannot be acquired by prescription or adverse possession. 9 Private
respondents appealed the said decision to the Court of Appeals which docketed the appeal as
C.A.-G.R. CV No. 11934. In its decision of 20 October 1989, the respondent Court of Appeals
formulated the issues before it as follows:
"I
Whether or not the lower court erred in declaring that the property of
the late Gavino Reyes consisting of 70 hectares was partitioned only in
1967 by his grandchildren after discovery of the existence of OCT No. 255
and that no actual partition was made in 1936 by the decedent's
children.
II
Whether or not the lower court erred in concluding that the parcel of
land sold by the appellees' predecessor-in-interest, the late Rafael Reyes,
Sr. to appellant Dalmacio Gardiola was not the same parcel of land under
litigation." 10
and resolved such issues, thus:
"On the first issue, We believe that the lower court committed a
reversible error when it declared that the landed estate of the late
Gavino Reyes was partitioned only in 1967 by the latter's grandchildren;
and that no actual partition was made in 1936 by the decedents' (sic)
children. The evidence on record bears out the existence of a subdivision
plan (Exh. 6) which was not controverted nor denied by the appellees. In
like manner, the lower court itself recognized the fact that the property
of the late Gavino Reyes consisting of 70 hectares was surveyed and
subdivided in 1936 as evidenced by the said subdivision plan (Exh. 6).
With the existence of a subdivision plan, and from the uncontroverted
testimony of appellants' witness, We can only infer that at least an oral
partition, which under the law is valid and binding, was entered into by
the heirs of Gavino Reyes regarding his properties in 1936. As held in a
long line of decisions, extrajudicial partition can be done orally, and the
same would be valid if freely entered into (Belen v. Belen, 49 O.G. 997,
March 1953). The reason for this is because a partition is not exactly a
conveyance for the reason that it does not involve transfer of property
from one to the other but rather a confirmation by them of their
ownership of the property. It must also be remembered that when
Gavino Reyes died on March 7, 1921, his property was admittedly not yet
covered by a torrens title, as it was only in 1941 when said properties
were brought into the application of the torrens system. With this factual
milieu, it can also be concluded that his heirs have indeed settled,
subdivided and partitioned Gavino Reyes' landed estate without formal
requirements of Rule 74 of the Rules of Court when a parcel of land is
covered by a torrens title. As told earlier, the Subdivision Plan (Exh. 6)
undisputedly showed on its face that the 70 hectares of land belonging
to the late Gavino Reyes was subdivided and partitioned by his children
in 1936. On this score, the partition of the said property even without
the formal requirements under the rule is valid as held in the case of
Hernandez vs. Andal, 78 Phil. 176, which states:
xxx xxx xxx
Moreover, in the Deed of Sale dated December 3, 1943 (Exh. 5) executed
by Rafael Reyes, Sr. in favor of appellant Dalmacio Gardiola, the land sold
therein was described as 'na aking minana sa aking ama.' This alone
would confirm the contention of the appellants that there was already
an actual partition (at least an oral partition) of the property of Gavino
Reyes in 1936. As aforestated, the presence of the Subdivision Plan (Exh.
6) is an (sic) evidence of such partition which appellees failed to
controvert not to mention the fact that the lower court itself recognized
the existence of said plan, in the same manner that it concluded that the
property was already surveyed and actually subdivided in 1936 (page 3,
pars. 3 and 4, Decision).
From the foregoing considerations it is evident that the Deed of
Extrajudicial Settlement of Estate (Exh. D) executed by the grandchildren
of the late Gavino Reyes in 1967 is of no moment considering that the
property subject of the partition in the deed was already partitioned in
1936 by the children of Gavino Reyes. It is for this reason that the lots
supposedly inherited by the grandchildren named in the deed of 1967
were the same lots inherited and given to their respective fathers or
mothers in 1936 while the land was not yet covered by the torrens
system. Hence, in the case of Rafael Reyes, Sr., the land inherited by him
was two (2) parcels of land known as Lots Nos. 1-A-3 and 1-A-14
described in the Subdivision plan of 1936 (Exh. 6), which were the same
parcels of land allegedly inherited by Rafael Reyes, Jr. from Gavino Reyes
in representation of his father, pursuant to the Deed of Extrajudicial
Settlement of Estate for which TCT No. 27257 was issued.
Coming to the second issue, the lower court likewise erred when it
concluded that the parcel of land sold by appellee's predecessor-in-
interest to appellant Dalmacio Gardiola was not the same parcel of land
under litigation. It must be pointed out that the identity of the parcel of
land which the appellees sought to recover from the appellants was
never an issue in the lower court, because the litigants had already
conceded that the parcel identified as Lot No. 1-A-14 in TCT No. 27257
was the same parcel of land identified as Cadastral Lot No. 1228 and
1235 described in Tax Declaration No. 4766. Despite this admission,
however, the lower court declared that 'as described in the deed of sale
(Exh. 5), the land's description does not tally with the description of Lot
No. 1-A-14, the land in litigation.' As correctly pointed out by the
appellants however, the discrepancy in the description was due to the
fact that the description of the land sold in the Deed of Sale was
expressed in layman's language whereas the description of Lot No. 1-A-
14 in TCT No. 27257 was done in technical terms. This was so because,
when Rafael Reyes, Sr. sold the property in dispute to appellant Dalmaco
Gardiola on December 3, 1943, the only evidence of title to the land then
available in so far as Rafael Reyes, Sr. was concerned was Tax Declaration
No. 4766, because at that time, neither he nor appellant Dalmacio
Gardiola was aware of the existence of OCT No. 255 as in fact TCT No.
27257 was issued only in 1967. Consequently, the land subject of the
Deed of Sale was described by the vendor in the manner as described in
Tax Declaration No. 4766. However, the description of the land
appearing in the Deed of Sale (Exh. 5) was exactly the same land
identified as Lot No. 1-A-14 in the Subdivision Plan (Exh. 6) of 1936.
Accordingly, the assumption of the lower court that 'if the land sold by
Rafael Reyes, Sr. was the one now in litigation, he could have easily
indicated Lot No. 1-A-14' is bereft of merit under the foregoing
circumstances. Interestingly enough, the appellees never denied the
identity of the subject lot during the hearing at the lower court. What
they were denying only was the sale made by Rafael Reyes, Sr. to
appellant Dalmacio Gardiola which does not hold true because of the
document denominated as Deed of Sale (Exh. 5)." 11

It concluded that the trial court erred when it ordered the private respondents or anyone acting
in their behalf to relinquish the possession or vacate the property in question. It thus decreed:
"WHEREFORE, the appealed Judgment is ordered REVERSED and SET
ASIDE and a new one is rendered declaring appellants to be the lawful
owners of the lot identified as Lot No. 1-A-14 in TCT No. 27257. No
costs." 12
Their motion to reconsider the above decision having been denied by the Court of Appeals in its
resolution of 1 March 1990, 13petitioners filed the instant petition on 6 April 1990 after having
obtained an extension of time within which to file it.
The petition does not implead original new defendants Ricardo Gardiola and Emelita Gardiola.
As ground for their plea for the review of the decision of the Court of Appeals, petitioners allege
that said court has decided questions of substance in a way not in accord with law or applicable
jurisprudence when it held that "the deed of extrajudicial settlement of estate (Exh. "D")
executed by the grandchildren of the late Gavino Reyes in 1967 is of no moment considering
that the property subject of the partition was already partitioned in 1938 by the children of
Gavino Reyes." In support thereof, they claim that (a) TCT No. 27257 covers two parcels of land;
the lot described in paragraph 1 thereof is owned by petitioners and that ownership was
confirmed by this Court in G.R. No. 79882, hence, the Court of Appeals should have affirmed the
decision of the trial court; (b) private respondent Rosario Martillano was a party to the
extrajudicial settlement of estate which was duly registered in the Registry of Deeds in 1967;
said registration is the operative act that gives validity to the transfer or creates a lien upon the
land and also constituted constructive notice to the whole world. The court cannot disregard the
binding effect thereof. Finally, the pronouncement of the Court of Appeals that private
respondents are the lawful owners of the lot in question "militates against the indefeasible and
incontrovertible character of the torrens title," 14 and allows reconveyance which is not tenable
since the action therefor had already prescribed, as stated in the decision of the trial court.
In the resolution of 7 May 1990, We required respondents to comment on the petition. But even
before it could do so, petitioner, without obtaining prior leave of the Court, filed on 29 May
1990 a so-called Supplemental Arguments in Support of The Petition For Review On
Certiorari 15 wherein they assert, among others, that: (a) the findings of facts of respondent
Court are contrary to those of the trial court and appear to be contradicted by the evidence on
record thus calling for the review by this Court; 16 (b) it also committed misapprehension of the
facts in this case and its findings are based on speculation, conjecture and surmises; (c) private
respondents' attack on petitioners' title is a collateral attack which is not allowed; even if it is
allowed, the same had already prescribed and is now barred. prcd
It was only on 15 June 1990 that private respondents filed their Comment. 17 We required
petitioners to reply thereto, which they complied with on 8 August 1990. 18 A rejoinder was
filed by private respondents on 29 August 1990.
We gave due course to the petition on 19 September 1990 and required the parties to submit
simultaneously their respective memoranda which they complied with.
Attached as Annex "A" to private respondent's Memorandum, which was filed on 10 December
1990, is the Resolution of this Court (Third Division) of 20 August 1990 in G.R. No. 92811
entitled Spouses Artemio Durumpili and Angustia Reyes vs. The Court of Appeals and Spouses
Dalmacio Gardiola and Rosario Martillano, which also involves the property of Gavino Reyes, the
partition thereof among his children in 1936, and the extrajudicial settlement in 1967.
In said resolution, this Court held:
". . . The partition made in 1936, although oral, was valid. The
requirement in Article 1358 of the Civil Code that acts which have for
their object the creation, transmission, modification or extinguishment of
real rights over immovable property must appear in a public instrument
is only for convenience and not for validity or enforceability as between
the parties themselves. [Thunga Hui vs. Que Bentec, 2 Phil. 561 (1903)]
The subsequent execution by the heirs of the Extrajudicial Partition in
1967 did not alter the oral partition as in fact the share pertaining to
Augustia Reyes corresponded to that previously assigned to her father.
Considering that Angel Reyes sold this property to Basilio de Ocampo
who, in turn, sold the same to respondents, we agree with the Court of
Appeals that the latter lawfully acquired the property and are entitled to
ownership and possession thereof."
In answer to the charge of private respondents that petitioners deliberately failed to cite this
resolution, the latter, in their reply-memorandum dated 15 March 1991 and filed three days
thereafter, allege:
"Our failure to mention the aforementioned resolution before this
Honorable Court is not deliberate nor with malice aforethought. The
reason is that to date, we have not yet received any resolution to our
Motion For Leave of Court To Refer Case To The Honorable Supreme
Court En Banc. Moreover, we honestly feel that the resolution that will
be issued therein will not be applicable to the case before this Honorable
Court's Second Division. It should be mentioned that in the Durumpili
case before the Third Division, the Court of Appeals relied on the alleged
confirmation of the sale executed by Angustia Reyes, while in the Reyes
case before this Second Division, there was no sale that was executed by
the petitioners Reyes' predecessor-in-interest, Rafael Reyes, Jr."
The foregoing claim is not supported by the rollo of G.R. No. 92811, which reveals the following:
(a) On 18 September 1990, petitioners therein, represented by De Lara, De Lunas and Rosales,
who are the lawyers of petitioners in the instant case, filed a motion for the reconsideration of
the resolution of 20 August 1990. 19 b) This motion was denied in the resolution of 1 October
1990. 20 c) On 17 November 1990, petitioners therein, through the same lawyers, filed a Motion
For Leave Of Court To Refer Case To The Honorable Supreme Court En Banc and/or Motion For
Reconsideration 21 wherein they specifically admit that said case and the instant petition have
"identity and/or similarity of the parties, the facts, the issues raised," even going to the extent of
"graphically" illustrating where such similarities lie. 22 d) This motion was denied in the
resolution of 28 November 1990. Copy thereof was furnished the attorneys for petitioners. 23 e)
Entry of judgment had already been made therein and a copy thereof was sent to petitioner's
counsel per Letter of Transmittal of the Deputy Clerk of Court and Chief of the Judicial Records
Office dated 20 December 1990.
What comes out prominently from the disquisitions of the parties is this simple issue: whether
or not respondent Court of Appeals committed any reversible error in setting aside the decision
of the trial court. LexLib
We find none. The reversal of the trial court's decision is inevitable and unavoidable because the
legal and factual conclusions made by the trial court are unfounded and clearly erroneous. The
Court of Appeals was not bound to agree to such conclusions. The trial court erred in holding
that: (a) there was no partition among the children of Gavino Reyes in 1936 since there is no
written evidence in support thereof; yet, it admits that there was a survey and subdivision of the
property and the adjudication of specific subdivision lots to each of the children of Gavino; (b)
the land sold by Rafael Reyes, Sr. to private respondents is not identical to Lot No. 1-A-14, the lot
specified for and adjudicated to Rafael Reyes, Jr. in the partition agreement; and (c) if the land
sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is indeed Lot No. 1-A-14 and
that TCT No. T-27257 was obtained through fraud, the remedy open to the vendee was an action
for reconveyance, which should have been brought within four (4) years from the discovery
thereof in 1967 when the Extrajudicial Settlement was executed since private respondent
Rosario Martillano, wife of Dalmacio, was a party thereto.
The Court of Appeals correctly held that the partition made by the children of Gavino Reyes in
1936, although oral, was valid and binding. There is no law that requires partition among heirs to
be in writing to be valid. 24 In Hernandez vs. Andal, supra, this Court, interpreting Section 1 of
Rule 74 of the Rules of Court, held that the requirement that a partition be put in a public
document and registered has for its purpose the protection of creditors and at the same time
the protection of the heirs themselves against tardy claims. The object of registration is to serve
as constructive notice to others. It follows then that the intrinsic validity of partition not
executed with the prescribed formalities does not come into play when there are no creditors or
the rights of creditors are not affected. Where no such rights are involved, it is competent for
the heirs of an estate to enter into an agreement for distribution in a manner and upon a plan
different from those provided by law. There is nothing in said section from which it can be
inferred that a writing or other formality is an essential requisite to the validity of the partition.
Accordingly, an oral partition is valid.
Barcelona, et al. vs. Barcelona, et al., supra, provides the reason why oral partition is valid and
why it is not covered by the Statute of Frauds: partition among heirs or renunciation of an
inheritance by some of them is not exactly a conveyance of real property for the reason that it
does not involve transfer of property from one to the other, but rather a confirmation or
ratification of title or right of property by the heir renouncing in favor of another heir accepting
and receiving the inheritance.

Additionally, the validity of such oral partition in 1936 has been expressly sustained by this Court
in the Resolution of 20 August 1990 in G.R. No. 92811. 25
But even if We are to assume arguendo that the oral partition executed in 1936 was not valid for
some reason or another, We would still arrive at the same conclusion for upon the death of
Gavino Reyes in 1921, his heirs automatically became co-owners of his 70-hectare parcel of land.
The rights to the succession are transmitted from the moment of death of the decedent. 26 The
estate of the decedent would then be held in co-ownership by the heirs. The co-heir or co-owner
may validly dispose of his share or interest in the property subject to the condition that the
portion disposed of is eventually allotted to him in the division upon termination of the co-
ownership. Article 493 of the Civil Code provides:
"Each co-owner shall have the full ownership of his part and the fruits
and benefits pertaining thereto, and he may even substitute another
person in its enjoyment, except when personal rights are involved. But
the effect of the alienation or the mortgage, with respect to the co-
owners, shall be limited to the portion which may be allotted to him in
the division upon the termination of the co-ownership."
In Ramirez vs. Bautista, 27 this Court held that every co-heir has the absolute ownership of his
share in the community property and may alienate, assign, or mortgage the same, except as to
purely personal rights, but the effect of any such transfer is limited to the portion which may be
awarded to him upon the partition of the property. Cdpr
In the case at bar, the lot sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is his
share in the estate of his deceased father, Gavino Reyes. It is the same property which was
eventually adjudicated to his son and heir, Rafael Reyes, Jr., represented in turn by his heirs
petitioners herein in the extrajudicial settlement of 1967.
In respect to the issue as to whether the property sold by Rafael Reyes, Sr. is identical to Lot No.
1-14-A, the trial court based its conclusion that it is not, on his observation that the description
of the former does not tally with that of the latter, moreover, if Rafael did intend to sell Lot No.
1-14-A, he should have specifically stated it in the deed since at that time, the property had
already been partitioned and said lot was adjudicated to him. In addition to the contrary findings
and conclusion of the respondent Court on this issue to which We fully agree, it is to be stressed
that Rafael had this property declared for taxation purposes and the tax declaration issued was
made the basis for the description of the property in the deed of sale. Upon the execution of the
deed of sale, vendee herein private respondent Dalmacio Gardiola immediately took
possession of the property. This is the very same property which is the subject matter of this
case and which petitioners seek to recover from the private respondents. The main evidence
adduced for their claim of ownership and possession over it is TCT No. T-27257, the certificate of
title covering Lot No. 1-14-A. They therefore admit and concede that the property claimed by
private respondent, which was acquired by sale from Rafael Reyes, Sr., is none other than Lot
No. 1-14-A.
The participation of private respondent Rosario Gardiola in the Extrajudicial Settlement did not
place private respondents in estoppel to question the issuance of TCT No. T-27257. As correctly
maintained by private respondents, she signed it in representation of her deceased mother,
Marta Reyes, a daughter and an heir of Gavino Reyes. She did not sign for and in behalf of her
husband, Dalmacio Gardiola, vendee of the share of Rafael Reyes, Sr.
The same did not operate to divest the vendee of the share of Rafael Reyes, Sr. in the estate of
Gavino. Petitioners, as mere successors-in-interest of Rafael Reyes, Jr., son of Rafael Reyes, Sr.,
can only acquire that which Rafael, Jr. could transmit to them upon his death. The latter never
became the owner of Lot No. 1-A-14 because it was sold by his father in 1943. The issuance of
TCT No. T-27257 in the name of Rafael Reyes, Jr., in so far as Lot No. 1-14-A is concerned, was
clearly erroneous because he never became its owner. An extrajudicial settlement does not
create a right in favor of an heir. As this Court stated in the Barcelona case,28 it is but a
confirmation or ratification of title or right to property. Thus, since he never had any title or right
to Lot No. 1-14-A, the mere execution of the settlement did not improve his condition, and the
subsequent registration of the deed did not create any right or vest any title over the property in
favor of the petitioners as heirs of Rafael Reyes, Jr. The latter cannot give them what he never
had before. Nemo dare potest quod non habet.
There is one more point that should be stressed here. Petitioners' immediate predecessor-in-
interest, Rafael Reyes, Jr., never took any action against private respondents from the time his
father sold the lot to the latter. Neither did petitioners bring any action to recover from private
respondents the ownership and possession of the lot from the time Rafael Reyes, Jr. died. As
categorically admitted by petitioners in their complaint and amended complaint, it was only in
or about September 1969 when, after the delivery of TCT No. 27257 by Candido Hebron to
them, that they definitely discovered that they were the owners of the property in question. And
yet, despite full knowledge that private respondents were in actual physical possession of the
property, it was only about thirteen and one-half (13 1/2) years later that they decided to file an
action for recovery of possession. As stated earlier, the original complaint was filed in the trial
court on 14 March 1983. There was then absolutely no basis for the trial court to place the
burden on private respondents to bring an action for reconveyance within four (4) years from
their discovery of the issuance of the transfer certificate of title in the name of Rafael Reyes, Jr.
The instant petition then is without merit.
WHEREFORE, judgment is hereby rendered DENYING the petition with costs against petitioners.
SO ORDERED.
Fernan, C . J ., Gutierrez, Jr., Feliciano and Bidin, JJ ., concur.
||| (Vda. de Reyes v. Court of Appeals, G.R. No. 92436, July 26, 1991)

SECOND DIVISION
[G.R. No. 94918. September 2, 1992.]
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ,
JR., EVELYN SUAREZ-DE LEON and REGINIO I.
SUAREZ, petitioners, vs. THE COURT OF APPEALS, VALENTE RAYMUNDO,
VIOLETA RAYMUNDO, MA. CONCEPCION VITO and VIRGINIA
BANTA, respondents.
Villareal Law Offices for petitioners.
Nelson Loyola for private respondent.
1.CIVIL LAW; WILLS AND SUCCESSION; LEGITIME; PROPRIETARY INTEREST OF THE CHILDREN,
DIFFERENT AND ADVERSE FROM THEIR MOTHER. The legitime of the surviving spouse is equal
to the legitime of each child. The proprietary interest of petitioners in the levied and auctioned
property is different from and adverse to that of their mother. Petitioners became co-owners of
the property not because of their mother but through their own right as children of their
deceased father. Therefore, petitioners are not barred in any way from instituting the action to
annul the auction sale to protect their own interest.
NOCON, J p:
The ultimate issue before Us is whether or not private respondents can validly acquire all the
five (5) parcels of land co-owned by petitioners and registered in the name of petitioners'
deceased father, Marcelo Suarez, whose estate has not been partitioned or liquidated, after the
said properties were levied and publicly sold en masse to private respondents to satisfy the
personal judgment debt of Teofista Suarez, the surviving spouse of Marcelo Suarez, mother of
herein petitioners. LLphil
The undisputed facts of the case are as follows:
Herein petitioners are brothers and sisters. Their father died in 1955 and since then his estate
consisting of several valuable parcels of land in Pasig, Metro Manila has lot been liquidated or
partitioned. In 1977, petitioners' widowed mother and Rizal Realty Corporation lost in the
consolidated cases for rescission of contract and for damages, and were ordered by Branch 1 of
the then Court of First Instance of Rizal (now Branch 151, RTC of Pasig) to pay, jointly and
severally, herein respondents the aggregate principal amount of about P70,000 as damages. 1
The judgment against petitioners' mother and Rizal Realty Corporation having become final and
executory, five (5) valuable parcel of land in Pasig, Metro Manila, (worth to be millions then)
were levied and sold on execution on June 24, 1983 in favor of the private respondents as the
highest bidder for the amount of P94,170.000. Private respondents were then issued a
certificate of sale which was subsequently registered or August 1, 1983.
On June 21, 1984 before the expiration of the redemption period, petitioners filed a
reivindicatory action 2 against private respondents and the Provincial Sheriff of Rizal, thereafter
docketed as Civil Case No. 51203, for the annulment of the auction sale and the recovery of the
ownership of the levied pieces of property. Therein, they alleged, among others, that being
strangers to the case decided against their mother, they cannot be held liable therefor and that
the five (5) parcels of land, of which they are co-owners, can neither be levied nor sold on
execution.
On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a final deed of
sale 3 over the properties.
On October 22, 1984, Teofista Suarez joined by herein petitioners filed with Branch 151 a
Motion for Reconsideration 4 of the Order dated October 10, 1984, claiming that the parcels of
land are co-owned by them and further informing the Court the filing and pendency of an action
to annul the auction sale (Civil Case No. 51203), which motion however, was denied. LibLex
On February 25, 1985, a writ of preliminary injunction was issued enjoining private respondents
from transferring to third parties the levied parcels of land based on the finding that the
auctioned lands are co-owned by petitioners.
On March 1, 1985, private respondent Valente Raymundo filed in Civil Case No. 51203 a Motion
to Dismiss for failure on the part of the petitioners to prosecute, however, such motion was later
denied by Branch 155, Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte Motion to Dismiss
complaint for failure to prosecute. This was granted by Branch 155 through an Order dated May
29, 1986, notwithstanding petitioner's pending motion for the issuance of alias summons to be
served upon the other defendants in the said case. A motion for reconsideration was filed but
was later denied.
On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-21739 an Order directing
Teofista Suarez and all persons claiming right under her to vacate the lots subject of the judicial
sale; to desist from removing or alienating improvements thereon; and to surrender to private
respondents the owner's duplicate copy of the torrens title and other pertinent documents.
Teofista Suarez then filed with the then Court of Appeals a petition for certiorari to annul the
Orders of Branch 151 dated October 10, 1984 and October 14, 1986 issued in Civil Case Nos.
21736-21739.
On December 4, 1986 petitioners filed with Branch 155 a Motion for reconsideration of the
Order 5 dated September 24, 1986. In an Order dated June 10, 1987, 6 Branch 155 lifted its
previous order of dismissal and directed the issuance of alias summons. LLpr
Respondents then appealed to the Court of Appeals seeking to annul the orders dated February
25, 1985, 7 May 19, 1989 8 and February 26, 1990 9 issued in Civil Case No. 51203 and further
ordering respondent Judge to dismiss Civil Case No. 51203. The appellate court rendered its
decision on July 27, 1990, 10 the dispositive portion of which reads:
"WHEREFORE, the petition for certiorari is hereby granted and the
questioned orders dated February 25, 1985, May 19, 1989 and February
26, 1990 issued in Civil Case No. 51203 are hereby annulled, further
respondent Judge is ordered to dismiss Civil Case No. 51203." 11
Hence, this appeal.
Even without touching on the incidents and issues raised by both petitioner and private
respondents and the developments subsequent to the filing of the complaint, We cannot but
notice the glaring error committed by the trial court.
It would be useless to discuss the procedural issue on the validity of the execution and the
manner of publicly selling en masse the subject properties for auction. To start with, only one-
half of the 5 parcels of land should have been the subject of the auction sale.
The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution
of the case.
"The rights to the succession are transmitted from the moment of the
death of the decedent."
Article 888 further provides: prLL
"The legitime of the legitimate children and descendants consists of one-
half of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights
of illegitimate children and of the surviving spouse as hereinafter
provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or descendants, the
surviving spouse shall be entitled to a portion equal to the legitime of
each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each
child.
The proprietary interest of petitioners in the levied and auctioned property is different from and
adverse to that of their mother. Petitioners became co-owners of the property not because of
their mother but through their own right as children of their deceased father. Therefore,
petitioners are not barred in any way from instituting the action to annul the auction sale to
protect their own interest.
WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of
August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only
to determine that portion which belongs to petitioners and to annul the sale with regard to said
portion. LLphil
SO ORDERED.
Narvasa, C .J ., Padilla and Regalado, JJ ., concur.
Melo, J ., took no part.
||| (Suarez v. Court of Appeals, G.R. No. 94918, September 02, 1992)

FIRST DIVISION
[G.R. No. 116018. November 13, 1996.]
NELIA A. CONSTANTINO, petitioner, vs. COURT OF APPEALS, AURORA S.
ROQUE, PRISCILLA S. LUNA and JOSEFINA S. AUSTRIA, respondents.
Agcaoili Law Offices for petitioner.
Geronimo O. Veneracion, Jr. for private respondents.
1.REMEDIAL LAW; CIVIL PROCEDURE; FORMAL OFFER OF EVIDENCE; RIGHT THERETO DEEMED
WAIVED IN CASE AT BENCH. The trial court was correct in holding that petitioner waived the
right to formally offer his evidence. A considerable lapse of time, about three (3) months, had
already passed before petitioner's counsel made effort to formally offer his evidence. For the
trial court to grant petitioner's motion to admit her exhibits would be to condone an inexcusable
laxity if not non-compliance with a court order which, in effect, would encourage needless
delays and derail the speedy administration of justice. cdasia
2.CIVIL LAW; CONTRACTS; VALIDITY; NO MEETING OF THE MINDS BETWEEN PARTIES ON LAND
AREA TO BE SOLD; CASE AT BENCH. Petitioner also insists that the real intent of the parties
was to make the entire Lot 4-B the subject matter of the sale. She claims that during cross-
examination respondent Aurora S. Roque admitted that she signed in behalf of her co-heirs a
receipt for P30,000.00 as partial payment for the lot occupied by Ka Baring and Lina (relatives of
petitioner) and Iling (Consuelo Lim). . . . The admission of respondent Roque cannot prevail in
the face of the clear evidence that there was as yet no meeting of the minds on the land area to
be sold since private respondents were still awaiting the survey to be conducted on the
premises. . . . Likewise, we find the allegation of respondents that they signed the deed prior to
the survey, or before determination of the area to be sold, worthy of credit as against the
contention of petitioner that they signed after the survey or on 10 October 1984. As found by
the trial court, such contention was contradicted by petitioner's own witness who positively
asserted in court that the survey was conducted only on 16 October 1984 or six (6) days after
the signing. Quite obviously, when respondents affixed their signatures on the deed, it was still
incomplete since petitioner who caused it to be prepared left several spaces blank, more
particularly as regards the dimensions of the property to be sold. The heirs were persuaded to
sign the document only upon the assurance of petitioner that respondent Roque, pursuant to
their understanding, would be present when the property would be surveyed after obtaining
permission from the Bureau of Lands. As it surfaced, the supposed understanding was merely a
ruse of petitioner to induce respondents to sign the deed without which the latter would not
have given their conformity thereto. EaCSHI
3.ID.; ID.; ID.; FACT THAT DEED OF SALE WAS NOTARIZED IN A PLACE OTHER THAN WHERE
SUBJECT LOT WAS SITUATED CASTS DOUBT ON DUE EXECUTION OF SAID DEED; CASE AT BENCH.
The trial court correctly appreciated the fact that the deed was notarized in Manila when it
could have been notarized in Bulacan. This additional detail casts doubt on the procedural
regularity in the preparation, execution and signing of the deed. It is not easy to believe that
petitioner and the ten (10) Torres heirs traveled all the way to Manila to have their questioned
document notarized considering that they, with the exception of respondent Roque, are
residents of Balagtas, Bulacan, where notaries public are easy to find. Consequently, the claim of
private respondents that they did not sign the document before a notary public is more plausible
than petitioner's feeble claim to the contrary.
4.ID.; ID.; FRAUD; ELEMENTS THEREOF; ANNULMENT OF CONTRACT PROPER IN CASE AT BENCH.
Apparently, petitioner deceived respondents by filling the blank spaces in the deed, having
the lots surveyed and subdivided, and then causing the issuance of transfer certificates of title
without their knowledge, much less consent. Thus all the elements of fraud vitiating consent for
purposes of annulling a contract concur: (a) It was employed by a contracting party upon the
other; (b) It induced the other party to enter into the contract; (c) It was serious; and, (d) It
resulted in damages and injury to the party seeking annulment. Perhaps, another compelling
reason for the annulment of the document of settlement and conveyance is that the second
page thereof clearly manifests that the number of the subdivision plan and the respective areas
of Lots 4-A and 4-B were merely handwritten while all the rest of the statements therein were
typewritten, which leads us to the conclusion that handwritten figures thereon were not
available at the time the document was formalized. IaHDcT
BELLOSILLO, J p:
JOSEFA TORRES died intestate leaving a parcel of land located at Balagtas, Bulacan. Among her
heirs are respondents Aurora S. Roque, Priscilla S. Luna and Josefina S. Austria. Sometime in
1984, the heirs of Josefa Torres, as vendors, and petitioner Nelia A. Constantino, as vendee,
entered into a contract to sell a parcel of land with a total land area of two hundred and fifty
(250) square meters. The lot, owned in common by the Torres heirs, is being occupied by
petitioners' mother and sister. An adjoining lot, also co-owned by the heirs, is being occupied by
spouses Severino and Consuelo Lim. Pursuant to their agreement, the heirs authorized
petitioner to prepare the necessary Deed of Extrajudicial Settlement of Estate with Sale.
After having the document drafted with several spaces left blank including the specification as
to the metes and bounds of the land petitioner asked the heirs to affix their signatures on the
document. The heirs signed the document with the understanding that respondent Aurora S.
Roque, one of the heirs, would be present when the latter would seek permission from the
Bureau of Lands and have the land surveyed.
However, without the participation of any of the Torres heirs, the property was subsequently
surveyed, subdivided and then covered by TCT Nos. T-292265 and T-292266. Petitioner did not
furnish the heirs with copies of the Deed of Extrajudicial Settlement of Estate with Salenor of the
subdivision plan and the certificates of title. Upon securing a copy of the deed from the Registry
of Deeds, the respondents learned that the area of the property purportedly sold to petitioner
was much bigger than that agreed upon by the parties. It already included the portion being
occupied by the spouses Severino and Consuelo Lim.
On 2 June 1986, private respondents sent a letter to petitioner demanding the surrender to
them of the deed of settlement and conveyance, the subdivision plan and the certificates of
title; but to no avail. On 25 June 1986 respondents filed with the Regional Trial Court of Bulacan
an action for annulment of the deed and cancellation of the certificates of title, with prayer for
recovery of damages, attorney's fees and costs of suit. 1
Petitioner controverted the allegations of respondents by presenting the Deed of Extrajudicial
Settlement of Estate with Sale dated 10 October 1984 wherein respondents agreed to divide and
adjudicate among themselves the inherited property with an area of one thousand five hundred
and three (1,503) square meters. In the same document, they caused the subdivision of the
property into two (2) lots according to Plan No. PSD-03-009105 identified as Lot 4-A with an area
of one thousand ninety-six (1,096) square meters, and Lot 4-B with an area of four hundred and
seven (407) square meters, and acknowledged the sale to petitioner of said Lot 4-B. As a
consequence, on 18 March 1985, the Register of Deeds issued TCT No. T-292265 in the name of
the heirs of Josefa Torres and TCT No. T-292266 in the name of petitioner.
In reply, private respondents reiterated that all the heirs signed the document before the land
was surveyed and subdivided, hence, there was as yet no definite area to be sold that could be
indicated in the deed at the time of the signing. They also claimed that they were not notified
about the survey and the subdivision of the lot and therefore they could not have agreed on the
area supposedly sold to petitioner. The respondent heirs insist that they could not have agreed
to the extent of the area actually reflected in the deed because it included the portion being
occupied by the Lim spouses, which was already the subject of a previous agreement to sell
between them and their predecessor.
The trial court entertained serious doubts with respect to the preparation and due execution of
the Deed of Extrajudicial Settlement of Estate with Sale taking into account that (a) while
petitioner claimed that all the heirs signed before the notary public and in her presence, she was
not able to enumerate all the signatories to the document; (b) while petitioner claimed that the
document was signed only after the survey of the land was completed, or on 10 October 1984,
such fact was negated by her own witness who testified that the survey was conducted only on
16 October 1984; and, (c) while petitioner alleged that the document was signed and notarized
in Manila no explanation was offered why the same could not have been signed and notarized in
Bulacan where notaries public abound which could have been less inconvenient to the parties
concerned. Additionally, the trial court relied heavily on the assertions of respondents as
reflected in their demand letter that they did not give their consent to the sale of Lot 4-B.
Thus, on the basis of the evidence on record, the trial court on 27 September 1990 ordered the
annulment and cancellation of theDeed of Extrajudicial Settlement of Estate with Sale, TCT Nos.
T-292265 and T-292266 and Subdivision Plan No. PSD-03-009105. It also ordered petitioner to
pay private respondents P50,000.00 for moral damages, P15,000.00 for attorney's fees, and to
pay the costs of suit. 2

On 16 March 1994 respondent Court of Appeals sustained the decision of the trial court, 3 and
on 20 June 1994 denied the motion to reconsider its decision. 4
Petitioner faults respondent Court of Appeals: (a) for disregarding documentary evidence
already presented, marked and identified on a purely technical ground, and (b) for concluding
that the Deed of Extrajudicial Settlement of Estate with Sale did not reflect the true intent of the
parties.
Petitioner argues that the trial court should not have denied her motion to admit formal offer of
evidence merely on the basis of technicality such as late filing, citing Siguenza v. Court of
Appeals. 5 We are not persuaded. Indeed, we held in Siguenza that rules of procedure are not to
be applied in a very rigid and technical sense as they are used only to help secure, not override,
substantial justice. Yet the holding is inapplicable to the present case as the trial court had a
reasonable basis for denying petitioner's motion
On February 6, 1990, Atty. Ponciano Mercado, defendant's counsel,
manifested in Court that he has (sic) no more witness to present. He
asked that he be given 15 days to make a formal offer of evidence and
which the Court granted. At the scheduled hearing of April 03, 1990,
Atty. Ponciano Mercado . . . was not in Court. Atty. Veneracion, plaintiffs'
counsel, called the attention of the Court that Atty. Mercado has (sic) not
yet filed and/or complied with the Court Order dated February 06, 1990,
which is to file his formal offer of evidence. On motion of Atty.
Veneracion, defendant's right to file a formal offer of evidence
was deemed waived. Atty. Veneracion waived the presentation of
rebuttal offer of evidence.
On May 11, 1990, the Court was in receipt of a motion to admit formal
offer of exhibits filed by the defendant thru counsel, Atty. Ponciano
Mercado, on May 02, 1990. Considering that the same was filed out of
time and the plaintiffs having filed their memorandum already, the
motion to admit formal offer of exhibits was denied (emphasis supplied).
The trial court was correct in holding that petitioner waived the right to formally offer his
evidence. A considerable lapse of time, about three (3) months, had already passed before
petitioner's counsel made effort to formally offer his evidence. For the trial court to grant
petitioner's motion to admit her exhibits: would be to condone an inexcusable laxity if not non-
compliance with a court order which, in effect, would encourage needless delays and derail the
speedy administration of justice.
Petitioner also insists that the real intent of the parties was to make the entire Lot 4-B the
subject matter of the sale. She claims that during cross-examination respondent Aurora S. Roque
admitted that she signed in behalf of her co-heirs a receipt for P30,000.00 as partial payment for
the lot occupied by Ka Baring and Lina (relatives of petitioner) and Iling (Consuelo Lim).
Moreover, according to petitioner, the assertions of private respondents to petitioner contained
in the demand letter should not necessarily be true and that the validity of the Deed of
Extrajudicial Settlement of Estate with Sale was not affected by the fact that it was notarized in a
place other than where the subject matter thereof was situated, citing Sales v. Court of
Appeals. 6
These other arguments of petitioner are barren and futile. The admission of respondent Roque
cannot prevail in the face of the clear evidence that there was as yet no meeting of the minds on
the land area to be sold since private respondents were still awaiting the survey to be conducted
on the premises. Obviously, the trial court only lent credence to the assertions in the demand
letter after having weighed the respective evidence of the parties. But even without the letter,
the evidence of respondents had already amply substantiated their claims.
We ruled in the Sales case that the extrinsic validity of a document was not affected by the fact
that it was notarized in a place other than where the subject matter thereof was located. What
is more important under the Notarial Law is that the notary public has authority to acknowledge
the document executed within his territorial jurisdiction. The ruling in Sales is not applicable to
the present case. Our concern here is not whether the notary public had the authority to
acknowledge the document executed within his territorial jurisdiction but whether respondents
indeed appeared before him and signed the deed. However, the quantum of evidence shows
that they did not.
The trial court correctly appreciated the fact that the deed was notarized in Manila when it
could have been notarized in Bulacan. This additional detail casts doubt on the procedural
regularity in the preparation, execution and signing of the deed. It is not easy to believe that
petitioner and the ten (10) Torres heirs traveled all the way to Manila to have their questioned
document notarized considering that they, with the exception of respondent Roque, are
residents of Balagtas, Bulacan, where notaries public are easy to find. Consequently, the claim of
private respondents that they did not sign the document before a notary public is more plausible
than petitioner's feeble claim to the contrary.
Likewise, we find the allegation of respondents that they signed the deed prior to the survey, or
before determination of the area to be sold, worthy of credit as against the contention of
petitioner that they signed after the survey or on 10 October 1984. As found by the trial court,
such contention was contradicted by petitioners' own witness who positively asserted in court
that the survey was conducted only on 16 October 1984 or six (6) days after the signing. Quite
obviously, when respondents affixed their signatures on the deed, it was still incomplete since
petitioner who caused it to be prepared left several spaces blank, more particularly as regards
the dimensions of the property to be sold. The heirs were persuaded to sign the document only
upon the assurance of petitioner that respondent Roque, pursuant to their understanding,
would be present when the property would be surveyed after obtaining permission from the
Bureau of Lands. As it surfaced, the supposed understanding was merely a ruse of petitioner to
induce respondents to sign the deed without which the latter would not have given their
conformity thereto. 7Apparently, petitioner deceived respondents by filling the blank spaces in
the deed, having the lots surveyed and subdivided, and then causing the issuance of transfer
certificates of title without their knowledge, much less consent. Thus all the elements of fraud
vitiating consent for purposes of annulling a contract concur: (a) It was employed by a
contracting party upon the other; (b) It induced the other party to enter into the contract; (c) It
was serious; and, (d) It resulted in damages and injury to the party seeking annulment. 8
Perhaps, another compelling reason for the annulment of the document of settlement and
conveyance is that the second page thereof clearly manifests that the number of the subdivision
plan and the respective areas of Lots 4-A and 4-B were merely handwritten while all the rest of
the statements therein were typewritten, which leads us to the conclusion that handwritten
figures thereon were not available at the time the document was formalized.
WHEREFORE, there being no error to warrant a reversal of the decision and resolution in
question of respondent Court of Appeals, which affirmed the decision of the Regional Trial Court
of Malolos, Bulacan, Br. 22, the instant petition is DENIED.
SO ORDERED.
Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.
||| (Constantino v. Court of Appeals, G.R. No. 116018, November 13, 1996)

THIRD DIVISION
[G.R. No. 124320. March 2, 1999.]
HEIRS OF GUIDO YAPTINCHAY AND ISABEL YAPTINCHAY, NAMELY:
LETICIA ENCISO-GADINGAN, EMILIO ENCISO, AURORA ENCISO, AND
NORBERTO ENCISO, REPRESENTED BY LETICIA ENCISO-GADINGAN,
ATTORNEY-IN-FACT, petitioners, vs. HON. ROY S. DEL ROSARIO,
PRESIDING JUDGE, RTC, BRANCH 21, IMUS, CAVITE; THE
REGISTER OF DEEDS FOR TRECE MARTIRES CITY, GEORGE T. CHUA, SPS.
ALFONSO NG AND ANNABELLE CHUA, SPS. ROSENDO L. DY AND DIANA
DY, SPS. ALEXANDER NG AND CRISTINA NG, SPS. SAMUEL MADRID AND
BELEN MADRID, SPS. JOSE MADRID AND BERNARDA MADRID, SPS.
DAVID MADRID AND VIOLETA MADRID, JONATHAN NG, SPS.
VICTORIANO CHAN, JR. AND CARMELITA CHAN, SPS. MARIE TES C. LEE
AND GREGORIE W.C. LEE, JACINTO C. NG, JR., SPS. ADELAIDO S. DE
GUZMAN AND ROSITA C. DE GUZMAN, SPS. RICARDO G. ONG AND
JULIE LIMIT, SPS. MISAEL ADELAIDA P. SOLIMAN AND FERDINAND
SOLIMAN, SPS. MYLENE T. LIM AND ARTHUR LIM, EVELYN K. CHUA,
GOLDEN BAY REALTY AND DEVELOPMENT CORPORATION, respondents.
Jose J. Estrella, Jr., & Associates for petitioners.
Azcuna Yorac Sarmiento Arroyo & Chua Law Offices for private respondents.
SYNOPSIS
Petitioners are the legal heirs of the late Guido and Isabel Yaptinchay, the owners-
claimants of Lot No. 1131 situated in Bancal, Carmona, Cavite. Petitioners discovered that a
portion, if not all, of the aforesaid properties were titled in the name of respondent Golden Bay
Realty and Development Corporation (Golden Bay) under Transfer Certificate of Title Nos.
225254 and 225255. They filed a complaint for annulment and/or declaration of nullity of TCT
Nos. 493363-67 and its derivatives and as alternative reconveyance of realty with prayer for
writ of preliminary injunction and/or restraining order with damages with the Regional
TrialCourt in Imus, Cavite. Private respondents presented a motion to dismiss on the grounds
that the complaint failed to state a causeof action and that petitioners did not have a
right of action, that they have not established their status as heirs and that the land being
claimed is different from that of the private respondents. The said motion to dismiss was
granted by the respondent courtholding that petitioners have not shown any proof or even a
semblance of it except the allegations that they are the legal heirs ofthe deceased couple.
Petitioners interposed a motion for reconsideration but it was denied. Hence, the present
petition. Petitioners contended that the respondent court acted with grave abuse of discretion
in ruling that the issue of heirship should first be determined before the trial of the case could
proceed. It is petitioners' submission that the respondent court should have proceeded with the
trial and simultaneously resolved the issue of heirship in the same case.
The Supreme Court dismissed the petition. The Court ruled that the trial court cannot make a
declaration of heirship in the civil action for the reason that such a declaration can only be made
in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action
is defined as "one by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong" while a special proceeding is "a remedy by which a party
seeks to establish a status, a right, or particular fact." The Court held that the
declaration of heirship can be made only in a special proceeding inasmuch as the petitioners in
the case at bar are seeking the establishment of a status or right. SEDICa
REMEDIAL LAW; CIVIL ACTIONS; TRIAL COURTS CANNOT MAKE A DECLARATION OF HEIRSHIP IN
A CIVIL ACTION; SUCH DECLARATION CAN ONLY BE MADE IN A SPECIAL PROCEEDING.
In Litam, etc., et al. vs. Rivera, this court opined that the declaration of heirship must be made in
an administration proceeding, and not in an independent civil action. This doctrine was
reiterated in Solivio vs. Court of Appeals, where the court held: "In Litam, et al. vs. Rivera, 100
Phil. 364, where despite the pendency of the special proceedings for the settlement of the
intestate estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil action in which
they claimed that they were the children by a previous marriage of the deceased to a Chinese
woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during
his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-
appellants were not children of the deceased, that the properties in question were paraphernal
properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to
this Court, we ruled that 'such declarations (that Marcosa Rivera was the only heir of the
decedent) is improper, in Civil Case No. 2071, it being within the exclusive
competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and,
will not be, ordinarily, in issue until the presentation of the project of partition.' (p. 378)." The
trial court cannot make a declaration of heirship in the civil action for the reason that such a
declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997
Revised Rules of Court, a civil action is defined as "one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong" while a special
proceeding is "a remedy by which a party seeks to establish a status, a right, or a particular fact."
It is then decisively clear that the declaration of heirship can be made only in a special
proceeding inasmuch as the petitioners here are seeking the establishment of a status or
right. CacHES
PURISIMA, J p:
At bar is a Petition for Certiorari under Rule 65 of the Revised Rules of Court assailing the Orders
dated October 25, 1995 and February 23, 1996, respectively, of Branch 21 of the Regional
Trial Court in Imus, Cavite ("RTC").
The facts that matter are, as follows:
Petitioners claim that they are the legal heirs of the late Guido and Isabel Yaptinchay, the
owners-claimants of Lot No. 1131 with an area of 520,638 and Lot No. 1132 with an
area of 96,235 square meters, more or less situated in Bancal, Carmona, Cavite.
On March 17, 1994, petitioners executed an Extra-Judicial Settlement of the estate of the
deceased Guido and Isabel Yaptinchay.
On August 26, 1994, petitioners discovered that a portion, if not all, of the aforesaid properties
were titled in the name ofrespondent Golden Bay Realty and Development Corporation
("Golden Bay") under Transfer Certificate of Title Nos. ("TCT") 225254 and 225255. With the
discovery of what happened to subject parcels of land, petitioners filed a complaint for
ANNULMENT and/or DECLARATION OF NULLITY OF TCT NO. 493363, 493364, 493665, 493366,
493367; and its Derivatives; As Alternative Reconveyance of Realty WITH A PRAYER FOR A
WRIT OF PRELIMINARY INJUNCTION and/or RESTRAINING ORDER WITH DAMAGES, docketed as
RTC BCV-94-127 before Branch 21 of the Regional Trial Court in Imus, Cavite.
Upon learning that "Golden Bay" sold portions of the parcels of land in question, petitioners filed
with the "RTC" an Amended Complaint to implead new and additional defendants and to
mention the TCTs to be annulled. But the respondent court dismissed the Amended
Complaint. cdlex
Petitioners moved for reconsideration of the Order dismissing the Amended Complaint. The
motion was granted by the RTC in an Order 1 dated July 7, 1995, which further allowed the
herein petitioners to file a Second Amended Complaint, 2 which they promptly did.
On August 12, 1995, the private respondents presented a Motion to Dismiss 3 on the grounds
that the complaint failed to state a cause of action, that plaintiffs did not have a right of action,
that they have not established their status as heirs, that the land being claimed is different from
that of the defendants, and that plaintiffs' claim was barred by laches. The said Motion to
Dismiss was granted by the respondent court in its Order 4 dated October 25, 1995, holding that
petitioners "have not shown any proof or even a semblance of it except the allegations that
they are the legal heirs of the above-named Yaptinchays that they have been declared the
legal heirs of the deceased couple."
Petitioners interposed a Motion for Reconsideration 5 but to no avail. The same was denied by
the RTC in its Order 6 of February 23, 1996.
Undaunted, petitioners have come before this Court to seek relief from respondent court's
Orders under attack.
Petitioners contend that the respondent court acted with grave abuse of discretion in ruling that
the issue of heirship should first be determined before trial of the case could proceed. It is
petitioners' submission that the respondent court should have proceeded with the trial and
simultaneously resolved the issue of heirship in the same case. cdll
The petition is not impressed with merit.
To begin with, petitioners' Petition for Certiorari before this Court is an improper recourse. Their
proper remedy should have been an appeal. An order of dismissal, be it right or wrong, is a final
order, which is subject to appeal and not a proper subject ofcertiorari. 7 Where appeal is
available as a remedy certiorari will not lie. 8
Neither did the respondent court commit grave abuse of discretion in issuing the questioned
Order dismissing the Second Amended Complaint of petitioners, as it aptly ratiocinated and
ruled:
"But the plaintiffs who claimed to be the legal heirs of the said Guido and
Isabel Yaptinchay have not shown any proof or even a semblance of it
except the allegations that they are the legal heirs of the
aforementioned Yaptinchays that they have been declared the
legal heirs of the deceased couple. Now, the determination of who are
the legal heirs of the deceased couple must be made in the proper
special proceedings in court, and not in an ordinary suit for
reconveyanceof property. This must take precedence over the action for
reconveyance (Elena C. Monzon, et. al., v. Angelita Taligato, CA-G-R No.
33355, August 12, 1992)."

In Litam, etc., et. al. v. Rivera, 9 this court opined that the declaration of heirship must be made
in an administration proceeding, and not in an independent civil action. This doctrine was
reiterated in Solivio v. Court of Appeals 10 where the court held: cda
"In Litam, et al. v. Rivera, 100 Phil. 364, where despite the
pendency of the special proceedings for the settlement of the intestate
estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil
action in which they claimed that they were the children by a previous
marriage of the deceased to a Chinese woman, hence, entitled to inherit
his one-half share of the conjugal properties acquired during his marriage
to Marcosa Rivera, the trial court in the civil case declared that the
plaintiffs-appellants were not children of the deceased, that the
properties in question were paraphernal properties of his wife, Marcosa
Rivera, and that the latter was his only heir. On appeal to this Court, we
ruled that 'such declarations (that Marcosa Rivera was the
only heir of the decedent) is improper, in Civil Case No. 2071, it being
within the exclusive competence of the court in Special Proceedings
No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in
issue until the presentation of the project of partition.' (p. 378)."
The trial court cannot make a declaration of heirship in the civil action for the reason that such a
declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997
Revised Rules of Court, a civil action is defined as "one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong" while a special
proceeding is "a remedy by which a party seeks to establish a status, a right, or a particular fact."
It is then decisively clear that the declaration ofheirship can be made only in a special
proceeding inasmuch as the petitioners here are seeking the establishment of a status or
right. cdasia
We therefore hold that the respondent court did the right thing in dismissing the Second
Amended Complaint, which stated no cause of action. In Travel Wide Associated Sales (Phils.),
Inc. v. Court of Appeals, 11 it was ruled that:
". . . if the suit is not brought in the name of or against the real party in
interest, a motion to dismiss may be filed on the ground that the
complaint states no cause of action."
WHEREFORE, for lack of merit, the Petition under consideration is hereby DISMISSED. No
pronouncement as to costs. cdtai
SO ORDERED.
Romero and Gonzaga-Reyes, JJ.,concur.
Vitug, J ., is abroad on official business.
Panganiban, J ., is on leave.
||| (Heirs of Yaptinchay v. Del Rosario, G.R. No. 124320, March 02, 1999)
THIRD DIVISION
[G.R. No. 149017. November 28, 2008.]
VALENTE RAYMUNDO, petitioner, vs. TEOFISTA ISAGON VDA. DE
SUAREZ, DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I. SUAREZ,
JR, EVELYN SUAREZ, ET AL., respondents.
NACHURA, J p:
This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA)
Decision 1 and Resolution 2 in CA-G.R. SP No. 58090 which reversed, set aside and recalled the
Regional Trial Court (RTC) Orders 3 in Civil Case No. 51203.
First, the long settled facts.
Marcelo and Teofista Isagon Suarez' 4 marriage was blessed with both material wealth and
progeny in herein respondents, namely, Danilo, 5 Eufrocina, Marcelo Jr., Evelyn, and
Reggineo, 6 all surnamed Suarez. During their marriage, governed by the conjugal partnership of
gains regime, they acquired numerous properties, which included the following: (1) a parcel of
land situated in Barrio Caniogan, Pasig with an area of 348 square meters covered by Transfer
Certificate of Title (TCT) No. 30680; (2) property located in Pinagbuhatan, Pasig, with an area of
1,020 square meters under Tax Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block 2
covered by Tax Declaration No. A-01700723 (subject properties).
After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio
Suarez, 7 executed an Extrajudicial Settlement of Estate, 8 partitioning Marcelo Sr.'s estate,
thus: DHTCaI
WHEREAS, the said deceased is survived by the parties hereto who are
his only legal heirs: TEOFISTA ISAGON, being the surviving spouse, and
EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN
SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being the
legitimate children of the deceased with the said TEOFISTA ISAGON;
WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN
SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ are represented
herein by EUFROCINA S. ANDRES, in her capacity as the guardian and
legal administrator of the property of the said minors;
WHEREAS, there are no known debts or financial obligations of whatever
nature and amount against the estate of the deceased;
NOW, THEREFORE, in consideration of the foregoing premises, the
Parties have agreed to settle and liquidate the assets of the conjugal
partnership between the deceased and TEOFISTA ISAGON, and to settle
and adjudicate the estate of the said deceased, by and pursuance to
these presents, in the following manner, to wit:
1.That TEOFISTA ISAGON, as the surviving spouse and partner of the
deceased, shall receive in absolute and exclusive ownership the following
properties as her lawful share in the assets of the conjugal partnership of
gains between her and the deceased, to wit:
(a)Half (1/2) interest and participation in the parcel of land
covered by Tax Declaration No. 6938, situated at
Sitio Pantayan, Municipality of Taytay, Province of
Rizal;
(b)Half (1/2) interest and participation in the parcel of land
covered by Tax Declaration No. 6939, situated at
Sitio Pantayan, Municipality of Taytay, Province of
Rizal;
(c)Half (1/2) interest and participation in the parcel of land
covered by TCT No. 38291, situated at Barrio
Rosario, Municipality of Pasig, Province of Rizal;
(d)Half (1/2) interest and participation in the parcel of land
covered by TCT No. 38290, situated at Barrio
Rosario, Municipality of Pasig, Province of
Rizal; aSTAIH
(e)TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND
NINETY (P12,530.90) deposited with the
Commercial Bank and Trust Company of the
Philippines, and THIRTY-NINE PESOS (P39.00)
deposited with Prudential Bank.
2.That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO
SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and
REGGINEO SUAREZ, shall each and all receive and be entitled to a share
equivalent to one-seventh (1/7) of the estate of the deceased MARCELO
SUAREZ, which estate is comprised of the following properties, to wit:
(a)A parcel of land covered by TCT No. 30680, situated at
Barrio Kaniogan, Municipality of Pasig, Province of
Rizal, with an assessed value of P4,150.00.
(b)Three (3) parcels of land covered by TCT Nos. 33982, 33983
and 33984, situated at Barrio Pineda, Municipality
of Pasig, Province of Rizal, with an assessed value of
P560.00.
(c)A parcel of land covered by TCT 33986, situated at Barrio
Pineda, Municipality of Pasig, Province of Rizal, with
an assessed value of P440.00.
(d)Two (2) parcels of land, being Lots Nos. 42 and 44 of the
amendment-subdivision plan TY-4653-Amd., being a
portion of Lot 2 described on the original plan II-
4653, G.L.R.O. Record No. _____, situated at Barrio
Santolan, Municipality of Pasig, Province of Rizal,
with a total assessed value of P590.00.
(e)Two parcels of land, being Lots Nos. 43 and 45 of the
amendment-subdivision plan TY-4653-Amd., being a
portion of Lot 2 described on the original plan II-
4653, G.L.R.O. Record No. _______, situated at
Barrio Santolan, Municipality of Pasig, Province of
Rizal, with a total assessed value of P1,190.00.
(f)A parcel of land, being Lot No. 6, Block 269 of the
subdivision plan pos-112, being a portion of Lot 2,
Block 348, Psd-3188, G.L.R.O. Record Nos. 375,699
and 917, situated at San Felipe Neri, Province of
Rizal, with an assessed value of P6,340.00. EICSTa
(g)A parcel of land covered by OCT No. 391, situated in the
Municipality of Taytay, Province of Rizal, with an
assessed value of P1,840.00.
(h)TWELVE THOUSAND (12,000) shares of stock of the
Consolidated Mines, Inc. represented by Certificate
No. 71-5-B (for 1,000 shares) and Certificate No.
12736 (for 11,000 shares).
PROVIDED, that their title to the properties hereinabove mentioned shall
be in common and the share of each heir being pro indiviso.
Curiously, despite the partition, title to the foregoing properties, explicitly identified in the
Extrajudicial Settlement of Estate as forming part of Marcelo's and Isagon's property regime,
remained in the couple's name. Not surprisingly, Teofista continued to administer and manage
these properties. On the whole, apart from those now owned exclusively by Teofista, all the
properties were held pro indiviso by Teofista and her children; and respective titles thereto were
not changed, with Teofista as de factoadministrator thereof.
In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent
(90%) of the former's shares of stock, were sued by petitioner Valente Raymundo, his wife
Violeta, Virginia Banta and Maria Concepcion Vito (plaintiffs) in consolidated cases for Rescission
of Contract and Damages, docketed as Civil Case Nos. 21736 to 21739. Thereafter, in 1975, the
then Court of First Instance (CFI) of Rizal, Branch 1, rendered judgment: (1) rescinding the
respective contracts of plaintiffs with Rizal Realty and Teofista, and (2) holding the two
defendants solidarily liable to plaintiffs for damages in the aggregate principal amount of about
P70,000.00. 9
When the judgment of the CFI became final and executory, herein subject properties were
levied and sold on execution on June 24, 1983 to satisfy the judgment against Teofista and Rizal
Realty. The aforementioned plaintiffs were the highest bidder, and bought the levied properties
for the amount of P94,170.00. As a result, a certificate of sale was issued to them and registered
in their favor on August 1, 1983. On July 31, 1984, the Provincial Sheriff of Rizal issued a final
deed of sale over the subject properties. SacTAC
Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein
respondents filed a revindicatory action against petitioner Valente, Violeta, Virginia and Maria
Concepcion, docketed as Civil Case No. 51203, for the annulment of the auction sale and
recovery of ownership of the levied properties. Essentially, respondents alleged in their
complaint that they cannot be held liable for the judgment rendered against their mother,
Teofista, not having been impleaded therein; and consequently, the subject properties, which
they own pro indiviso with their mother, can neither be levied nor be sold on execution.
Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379,
issued an Order 10 directing Teofista: (1) to vacate the subject properties, (2) to desist from
despoiling, dismantling, removing or alienating the improvements thereon, (3) to place
petitioner Valente, Violeta, Virginia and Maria Concepcion in peaceful possession thereof, and
(4) to surrender to them the owner's duplicate copy of the torrens title and other pertinent
documents. Herein respondents, joined by their mother, Teofista, filed a Motion for
Reconsideration arguing that the subject properties are co-owned by them and further
informing the RTC of the filing and pendency of Civil Case No. 51203. Nonetheless, the trial court
denied Teofista's and herein respondents' motion, reiterated its previous order, which included,
among others, the order for Teofista and all persons claiming right under her, to vacate the lots
subject of the judicial sale.
Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul
the foregoing orders. The appellate court, on July 6, 1987, dismissed Teofista's and herein
respondents' petition, thus:
We believe this petition cannot prosper for two reasons. First, as
purported case for certiorari it fails to show how the respondent judge
had acted without or in excess of jurisdiction or with grave abuse of
discretion. The two orders being assailed were preceded by a final
judgment, a corresponding writ of execution, a levy on execution and a
judicial sale, all of which enjoy a strong sense presumption of
regularity. cDIHES
Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot
complain about the levy because she was a party in the consolidated
cases where judgment was rendered against her in her personal capacity.
Since she did not appeal from the decision, she cannot say that the
judgment is erroneous for an obligation that belong to the corporation.
And with respect to the children of Teofista Suarez, who are co-
petitioners in this proceedings [herein respondents], suffice it to point
out that not being parties in the consolidated cases, what they should
have done was to immediately file a third party claim. The moment levy
was made on the parcels of land, which they claim are theirs by virtue of
hereditary succession, they should have seasonably filed such claim to
protect their rights. As the record discloses, however, the children chose
to remain silent, and even allowed the auction sale to be held, filing
almost a year later a half-hearted complaint to annul the proceedings
which they allowed to be dismissed by not diligently prosecuting it.

In Santos v. Mojica (10 SCRA 318), a partition case with third-party
claimants, the Supreme Court came out with the following ruling: "The
procedure (a petition for certiorari) followed by him (a petitioner not
party to the original partition case) in vindicating his right is not the one
sanctioned by law, for he should have filed a separate and independent
action making parties therein the sheriff and the plaintiffs responsible for
the execution . . . . It can, therefore, be said that (he) acted improperly in
filing the present petition because his remedy was to file a separate and
independent action to vindicate his ownership over the land.
WHEREFORE, the petition is denied and the restraining order previously
issued is DISSOLVED, with costs against petitioners. 11
On the other litigation front concerning Civil Case No. 51203, a writ of preliminary injunction was
issued by the RTC Pasig, Branch 155, on February 25, 1985, enjoining petitioner Valente, Violeta,
Virginia and Maria Concepcion from transferring to third parties the levied properties based on
its preliminary finding that the auctioned properties are co-owned by Teofista and herein
respondents. Subsequently, however, Civil Case No. 51203 was dismissed by the RTC, Branch
155, at the instance of petitioner Valente for failure of herein respondents to prosecute. But in
yet another turn of events, the RTC, Branch 155, lifted its previous order of dismissal and
directed the issuance of alias summons.
Thus, it was now petitioner Valente's, Violeta's, Virginia's and Maria Concepcion's turn to file a
petition for certiorari with the CA, assailing the various orders of the RTC, Branch 155, which all
rejected their bid to dismiss Civil Case No. 51203. The CA granted their petition, thus: aIAEcD
And the fact that herein private respondents, as the legal heirs of
Teofista Vda. de Suarez and supposedly not parties in Civil Case Nos.
21376 21379 does not preclude the application of the doctrine of res
judicata since, apart from the requisites constitutive of this procedural
tenet, they were admittedly the children of Teofista Suarez, who is the
real party-in-interest in the previous final judgment. As successors-in-
interest of Teofista Suarez, private respondents merely stepped into the
shoes of their mother in regard to the levied pieces of property. Verily,
there is identity of parties, not only where the parties in both actions are
the same, but where there is privity with them as in the cases of
successors-in-interest by title subsequent to the commencement of the
action or where there is substantial identity.
Finally, the action to annul the judicial sale filed by herein private
respondents is not the reinvindicatory suit, much less the third party
claim contemplated by Section 17 of Rule 39.
WHEREFORE, the petition for certiorari is hereby granted and the
questioned orders dated February 25, 1985, May 19, 1989 and February
26, 1990 issued in Civil Case No. 51203 are hereby annulled; further
respondent judge is ordered to dismiss Civil Case No. 51203. 12
From this ruling, herein respondents appealed to the Supreme Court. In Suarez v. Court of
Appeals, 13 we reversed the appellate court, thus:
Even without touching on the incidents and issues raised by both
petitioner [herein respondents] and private respondents [petitioner
Valente, Violeta, Virginia and Maria Concepcion] and the developments
subsequent to the filing of the complaint, [w]e cannot but notice the
glaring error committed by the trial court.
It would be useless to discuss the procedural issue on the validity of the
execution and the manner of publicly selling en masse the subject
properties for auction. To start with, only one-half of the 5 parcels of
land [subject properties] should have been the subject of the auction
sale.
The law in point is Article 777 of the Civil Code, the law applicable at the
time of the institution of the case:
The rights to the succession are transmitted from the moment
of the death of the decedent."
Article 888 further provides: DaHISE
"The legitime of the legitimate children and descendants
consists of one-half of the hereditary estate of the father and
of the mother.
The latter may freely dispose of the remaining half, subject to
the rights of illegitimate children and of the surviving spouse
as hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or descendants,
the surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving spouse is equal to
the legitime of each child.
The proprietary interest of petitioners [herein respondents] in the levied
and auctioned property is different from and adverse to that of their
mother [Teofista]. Petitioners [herein respondents] became co-owners of
the property not because of their mother [Teofista] but through their
own right as children of their deceased father [Marcelo Sr.]. Therefore,
petitioners [herein respondents] are not barred in any way from
instituting the action to annul the auction sale to protect their own
interest.
WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as
well as its Resolution of August 28, 1990 are hereby REVERSED and set
aside; and Civil Case No. 51203 is reinstated only to determine that
portion which belongs to petitioners and to annul the sale with regard to
said portion.
It was at this point when another series of events transpired, culminating in the present
petition. 2005jurcd
Upon our reinstatement of Civil Case No. 51203, each and every pleading filed by herein
respondents, as plaintiffs therein, was hotly contested and opposed by therein defendants,
including petitioner Valente. Moreover, even at that stage, when the case had been remanded
with a directive to "determine that portion which belongs to [herein respondents] and to annul
the sale with regard to said portion," Civil Case No. 51203 had to be re-raffled and transferred,
for varied reasons, to the different court branches in Pasig City. In between all these, petitioner
Valente, along with the other defendants, repeatedly filed a Motion to Dismiss Civil Case No.
51203 for the purported failure of herein respondents to prosecute the case. Most of these
Motions to Dismiss were denied.
With each transfer of Civil Case No. 51203, the judge to which the case was raffled had to study
the records anew. Expectedly, part of the records went missing and were lost. On April 12, 1993,
the Clerk of Court of RTC, Branch 71, to which Civil Case No. 51203 was remanded, filed a report
on the records of the case, to wit:
1.The first volume of the record in the above-entitled case was recorded
as received on June 20, 1990, by Sheriff Alejandro O. Loquinario;
2.That the staff of Branch 71 at this time was sharing a small room with
Branch 161 at the First Floor of the Justice Hall, and as the Branch was
newly formed, it had no equipment or furniture of its own, and was still
undermanned;
3.That sometime in August 1990, Branch 71 moved to the staffroom of
Branch 159 at the Second Floor of the Justice Hall;
4.That on October 25, 1990, this Court received a Notice of Judgment
dated October 22, 1990 from the Court of Appeals that ruled the
dismissal of the above-entitled case, and as per standing instructions of
Judge Graduacion A. Reyes-Claravall, the same was bound as volume 2 of
the case;
5.That just before the Christmas vacation in 1991, the branch was forced
to hastily move all of its records and equipment to branch 69, because of
the unexpected notice we received that the room we were occupying
was to be demolished in order to meet the schedule for the renovation
of the building; TcAECH
6.That unfortunately, the room was demolished before the undersigned
could make a last check to see if everything was transferred;
7.That it was only later on that this office discovered that important
documents were indeed lost, including transcripts of stenographic notes
in a case that was submitted for decision;
8.That sometime in May 1992, the branch moved its Office to its present
location;
9.That on March 8, 1993, this Court received a copy of a Decision of the
Supreme Court reversing the earlier ruling of the Court of Appeals;
10.That it was at this time that the first volume of this case, which was
bundled along with other cases which were decided and/or archived,
was reported as missing;
11.That from the time the same was found to be missing, Judge Claravall
ordered that a search for the same be made in all of the offices wherein
this branch was forced to share a room with, as well as the Court of
Appeals, in the event that the same was transmitted to said Court;
12.That all the efforts were in vain, as said record could not be located
anywhere;
13.That the undersigned now concludes that the first volume of the
above-entitled case was probably lost during the renovation of the
Justice Hall Building, and will have to be reconstituted with the use of
documents in the possession of the parties, or documents entered as
exhibits in other Courts. 14
In this regard, herein respondents filed a Motion for Reconstitution of Records 15 of the case.
Initially, petitioner Valente, and the other defendants Violeta, Virginia and Maria Concepcion
opposed the motion. 16 However, the trial court eventually granted the motion for
reconstitution, and ordered petitioner Valente and the other defendants to submit a copy of
their Answer filed thereat and copies of other pleadings pertinent to the case. 17 STADIH
Thereafter, three (3) incidents, among numerous others, set off by the parties' pleadings, are
worth mentioning, to wit:
1.A Motion for Leave to File and Admit Supplemental Complaint 18 filed by herein respondents.
The Supplemental Complaint additionally prayed that the levy and sale at public auction of the
subject properties be annulled and set aside, as the bid price was unconscionable and grossly
inadequate to the current value of the subject properties. The Supplemental Complaint further
sought a re-bidding with respect to Teofista's share in the subject properties. Finally, it prayed
that TCT No. 6509 in the name of petitioner Valente, Violeta, Virginia and Maria Concepcion be
cancelled and TCT No. 30680 in the name of Marcelo Suarez, married to Teofista Isagon, be
reinstated.

2.A Manifestation and Motion (to Execute/Enforce Decision dated September 4, 1992 of the
Supreme Court) 19 filed by herein respondents pointing out that the Supreme Court itself had
noted the current increased value of the subject properties and that petitioner Valente, Violeta,
Virginia and Maria Concepcion unjustly enriched themselves in appropriating the subject
properties worth millions then, for a measly bid price of P94,170.00, for a judgment obligation
worth only P70,000.00.
3.An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with Supreme Court
Decision or to consider the matter submitted without evidence on the part of plaintiffs] 20 filed
by therein defendants, including herein petitioner Valente, pointing out that plaintiffs (herein
respondents) have yet to comply with the RTC, Branch 67 Order commanding them to submit (to
the RTC) any evidence showing settlement of the estate of the deceased Marcelo Suarez, in
order for the court to determine the portion in the estate which belongs to Teofista. The Urgent
Motion stated in paragraph 2, thus:
2.The defendants [including herein petitioner Valente] did everything
possible to expedite the disposition of this case while the plaintiffs
[herein respondents] did everything possible to DELAY the disposition of
the same obviously because the plaintiffs [herein respondents] are in full
possession and enjoyment of the property in dispute. In its decision of
September 4, 1992, the SUPREME COURT nullified TWO final and
executory DECISIONS of the Court of Appeals in an unprecedented
action. In said decision, the Supreme Court ordered the plaintiffs [herein
respondents] to establish with evidence their personality as heirs of
Marcelo Suarez, and after being able to do so, to adduce evidence that
would determine what portion belongs to plaintiffs hence the above
matters need be litigated upon before the RTC can "annul the sale with
regard to said portion" (belonging to the plaintiffs alleged heirs). acAIES
On these incidents, the records reveal the following Orders issued by the different branches of
the RTC:
1.Order dated March 17, 1995, issued by Presiding Judge Rodrigo B. Lorenzo of Branch 266,
Pasig City, admitting herein respondents' Supplemental Complaint. 21
2.Order dated January 22, 1996, issued by Judge Apolinario B. Santos resolving: (a) herein
respondents' Manifestation and Motion (to execute/enforce Decision dated September 4, 1992
of the Supreme Court), and (b) therein defendants' (including herein petitioner Valente's)
Request for Answer to Written Interrogatories. 22 The RTC, Branch 67, resolved the incidents,
thus:
From the foregoing uncontroverted facts, this Court is convinced beyond
a shadow of doubt that the Decision of the Supreme Court of September
4, 1992, being the final arbiter in any judicial dispute, should be
implemented for the following reasons:
xxx xxx xxx
On the request for Answers to Written Interrogatories filed by the
defendants, it is obvious that at this stage of the proceedings where the
Supreme Court had already pronounced the undisputed facts, which
binds this court, the answer sought to be elicited through written
interrogatories, therefore, are entirely irrelevant, aside from having been
filed way out of time.
WHEREFORE, premises considered, this court, implements the decision
of the Supreme Court dated September 4, 1992 which mandates that:
". . . and Civil Case No. 51203 is reinstated only to determine
that portion which belongs to petitioner and to annul the sale
with regard to said portion."
In order to enforce such mandate of the Supreme Court, this court
orders that: DTcHaA
a.The auction sale of the five (5) parcels of land and all prior
and subsequent proceedings in relation thereto are declared
null and void.
b.Transfer Certificate of Title No. 6509 in the name of
defendant Valente Raymundo is also declared null and void,
and the Register of Deeds of Rizal, Pasig City, is ordered to
issue a new one in the name of the deceased Marcelo Suarez
or to reinstate Transfer Certificate of Title No. 30680 in the
name of Marcelo Suarez.
c.Teofista Suarez is ordered to reimburse the amount of
P94,170.00, plus legal interest from the date of issuance of this
order, and failing which, the portion of the estate of Marcelo
Suarez belonging to the surviving spouse, Teofista Suarez, may
be levied on execution.
d.[Herein respondents], including Teofista Suarez, are hereby
ordered to submit to this court any evidence showing
settlement of the estate of the deceased, Marcelo Suarez, in
order for this court to determine the portion in the estate
which belongs to Teofista Suarez.
Therein defendants, including petitioner Valente, filed a Motion for Reconsideration which
the trial court denied on May 29, 1996.
3.Order dated September 10, 1996, issued by Judge Santos denying the appeal interposed by
petitioner Valente from the January 22, 1996 and May 29, 1996 Orders, ruling that these are
interlocutory orders, and, therefore, not appealable. 23
4.Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared, thus:
Considering that counsel for the plaintiffs does not have the birth
certificates of the heirs of the plaintiff to prove their affiliation with the
deceased which is one of the matters written in the decision of the
higher court which must be complied with, and in order for counsel for
the plaintiffs [herein respondents] to have the opportunity to complete
all documentary evidence and in view of abbreviating the proceedings
and as prayed for, today's scheduled pre-trial is re-set for the last time to
May 19, 1999 at 8:30 a.m. AaECSH
In this connection, counsel for plaintiffs [herein respondents] is advised
to secure all the documentary evidence she needs material to this case
which will expedite the disposition of this case. 24
This last Order and therein defendants' Urgent Motion spawned another contentious issue
between the parties. In this connection, Judge Estrella issued an Order 25 requiring the parties
to file their respective position papers due to the "divergent views on the nature of the hearing
that should be conducted in compliance with" our decision in Suarez. Both parties duly filed their
position papers, with herein respondents attaching thereto a copy of the Extrajudicial
Settlement of Estate executed by the heirs of Marcelo Suarez in 1957.
In resolving this latest crossfire between the parties, the RTC, Branch 67, issued an Order dated
January 11, 2000, which reads, in part:
This Court is of the view that the Honorable Supreme Court is not a trier
of facts, precisely it directed that the records of this case be remanded to
the Regional Trial Court for further proceedings.
xxx xxx xxx
It is a matter of record that there was no trial on the merits completed in
the Regional Trial Court. . . . The Supreme Court reversed the judgment
of the Court of Appeals and ordered the reinstatement of Civil Case No.
51203. Naturally, there was no trial on the merits before this Court that
allowed the parties to adduce evidence to establish their respective
claims in the plaintiffs' [herein respondents] complaint and in the
defendants' [including petitioner Valente] counter-claim, respectively. It
is in this context that the Honorable Supreme Court reinstated the
"action [of herein respondents] to annul the auction sale to protect their
[herein respondents] own interest.
While this Court is of the view that trial on the merits is necessary for the
purpose of giving the plaintiffs [herein respondents] a chance to adduce
evidence to sustain their complaint and the defendants [including
petitioner Valente] to prove their defense, consistent with the directive
of the Honorable Supreme Court (in its Decision promulgated on
September 4, 1992), the Court is, however, confronted with the very
recent decision of the Honorable Supreme Court in"Heirs of Guido
Yaptinchay, et al. vs. Del Rosario, et al., G.R. No. 124320, March 2, 1999"
where it held that AIDTSE
The declaration of heirship must be made in an administration
proceeding, and not in an independent civil action. This
doctrine was reiterated in Solve vs. Court of Appeals (182 SCRA
119, 128). The trial court cannot make a declaration of
heirship in the civil action for the reason that such a
declaration can only be made in a special proceeding. Under
Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil
action is defined as "one by which a party sues another for the
enforcement or protection of a right, or the prevention or
redress of a wrong" while a special proceeding is "a remedy by
which a party seeks to establish a status, a right, or a particular
fact." It is then decisively clear that the declaration of heirship
can be made only in a special proceeding inasmuch as the
petitioners here are seeking the establishment of a status or
right.
In as much as the leading case on the matter is that of "Heirs of
Yaptinchay v. Del Rosario, G.R. No. 124320, March 2, 1999" it is left with
no choice but to obey said latter doctrine.
WHEREFORE, the foregoing premises considered, this Court holds that in
the light of the doctrine laid down in the case of "Heirs of Yaptinchay vs.
Del Rosario, G.R. No. 124320, March 2, 1999" this case is dismissed
without prejudice to the plaintiffs' [herein respondents'] filing a special
proceeding consistent with said latest ruling. 26
Herein respondents moved for reconsideration thereof which, however, was denied by the
RTC, Branch 67 on March 14, 2000.27
Consequently, herein respondents filed a petition for certiorari before the CA alleging grave
abuse of discretion in the trial court's order dismissing Civil Case No. 51203 without prejudice.
All the defendants in the trial court were impleaded as private respondents in the petition. Yet,
curiously, only petitioner Valente filed a Comment thereto. The appellate court granted the
petition, recalled and set aside RTC, Branch 67's Orders dated January 11, 2000 and March 14,
2000, and reinstated Judge Santos' Orders dated May 29, 1996 and September 6, 1996. It
disposed of the petition, thus:

We agree with [herein respondents]. EIAScH
On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed the
decision of the Court of Appeals and mandates that Civil Case No. 51203
be reinstated in order to determine the portion in the estate which
belongs to Teofista Suarez. The sale of the parcels of land was declared
null and void. Necessarily, the title (TCT No. 5809) in the name of
respondents was also declared null and void. . . .
xxx xxx xxx
Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on
January 22, 1996 and on motion of [herein respondents], issued an order
to execute/enforce the decision of the Supreme Court . . . .
xxx xxx xxx
[Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a notice
of appeal on the order of Judge Santos. The appeal, on motion of [herein
respondents] was denied on September 10, 1996. Obviously, the decision
of the Supreme Court had become final and executory. Likewise, both
orders of Judge Santos dated May 29, 1996 denying the motion for
reconsideration and the denial of the notice of appeal dated September
6, 1996 had also become final and executory.
The denial of petitioner Valente's Motion for Reconsideration prompted the filing of this
present petition for certiorari.
Petitioner Valente posits that the appellate court committed grave abuse of discretion in
recalling and setting aside the Orders of Judge Estrella and reinstating those of Judge Santos
because:
1.The CA ruled that the Orders dated May 29, 1996 and September 6, 1996 issued by Judge
Santos were final and executory, and yet the latter did not allow an appeal to be taken
therefrom ratiocinating that the questioned orders were interlocutory, and therefore, not
appealable; and
2.The CA ignored and violated the Supreme Court's ruling in Heirs of Yaptinchay v. Del
Rosario 28 which held that a declaration of heirship must be made in a special proceeding and
not in a civil action.
We find the petition bereft of merit. DEcITS
At the outset, we note that petitioner Valente incorrectly filed a petition for certiorari to appeal
the CA decision. Petitioner should have filed a petition for review on certiorari under Rule 45 of
the Rules of Court. Simply imputing in a petition that the decision sought to be reviewed is
tainted with grave abuse of discretion does not magically transform a petition into a special civil
action forcertiorari. The CA decision disposed of the merits of a special civil action, an original
petition, filed thereat by herein respondents. That disposition is a final and executory order,
appealable to, and may be questioned before, this Court by persons aggrieved thereby, such as
petitioner Valente, via Rule 45.
On this score alone, the petition should have been dismissed outright. However, we have
disregarded this procedural flaw and now resolve this case based on the merits or lack thereof.
Petitioner asseverates that the assailed CA ruling "is unfair and it amounts to a trickery to
prevent an appeal against a final order by claiming that the appealed order is merely
interlocutory and later maintain that the same order has become final after declaring it to be
interlocutory."
We reject petitioner's paltry contention. Petitioner apparently does not comprehend the
distinction between an interlocutory order which is final and executory, and a final order which
disposes of the controversy or case; much less, understand the available remedies therefrom.
We have defined an interlocutory order as referring to something between the commencement
and the end of the suit which decides some point or matter but it is not the final decision on the
whole controversy. 29 It does not terminate or finally dismiss or finally dispose of the case, but
leaves something to be done by the court before the case is finally decided on the
merits. 30 Upon the other hand, a final order is one which leaves to the court nothing more to
do to resolve the case. 31
On more than one occasion, we laid down the test to ascertain whether an order is interlocutory
or final i.e., "Does it leave something to be done in the trial court with respect to the merits of
the case?" If it does, it is interlocutory; if it does not, it is final. The key test to what is
interlocutory is when there is something more to be done on the merits of the case. 32 The
Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos are interlocutory,
and therefore, not appealable, as they leave something more to be done on the merits of the
case. In fact, in paragraph (d) of Judge Santos' Order dated May 29, 1996, herein respondents
were directed to submit evidence showing settlement of the estate of the deceased Marcelo
Sr. IDTcHa
Contrary to petitioner Valente's stance, there is no trickery or chicanery in the CA's distinction
between an interlocutory and a final order. Indeed, as ruled by the CA, the RTC Order denying
petitioner Valente's Notice of Appeal attained finality when he failed to file a petition
for certiorari under Rule 65 of the Rules of Court.
We cannot overemphasize the rule that the correct identification of the nature of an assailed
order determines the remedies available to an aggrieved party. The old Rules of Court in Section
2, Rule 41 reads, thus:
SEC. 2.Judgments or orders subject to appeal. Only final judgments or
orders shall be subject to appeal. No interlocutory or incidental judgment
or order shall stay the progress of an action, nor shall it be the subject of
appeal until final judgment or order is rendered for one party or the
other.
xxx xxx xxx
With the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now provides for
the appropriate remedy to be taken from an interlocutory order, thus:
SEC. 1.Subject of appeal. An appeal may be taken from a judgment or
final order that completely disposes of the case, or of a particular matter
therein when declared by these Rules to be appealable.
No appeal may be taken from:
xxx xxx xxx
(c)An interlocutory order;
xxx xxx xxx
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil
action under Rule 65.
Clearly, the denial of therein defendants' (including petitioner Valente's) appeal from the
Orders dated May 29, 1996 and September 6, 1996 was in order. Thus, the CA decision
affirming the RTC's denial was correct. ECaScD
Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition
for certiorari from the CA decision in CA-G.R. SP No. 58090, which is not an interlocutory order.
It is a final order which completely disposed of the merits of the case with nothing more left to
be done therein. The correct and available remedy available to petitioner Valente was, as
previously discussed, a petition for review on certiorari under Rule 45 of the Rules of Court.
In fine, petitioner Valente erroneously sought relief through reversed remedies. He tried to
appeal the interlocutory orders of the RTC which are unappealable. Thus, the RTC properly
denied his Notice of Appeal, and the CA correctly upheld the RTC. He should have filed a petition
for certiorari; under Rule 65. On the other hand, from the final order of the CA, he comes before
this Court on a petition for certiorari under Rule 65, when the proper remedy is an appeal
by certiorari under Rule 45.
In the recent case of Jan-Dec Construction Corporation v. Court of Appeals 33 we ruled in this
wise:
As a rule, the remedy from a judgment or final order of the CA is appeal
via petition for review under Rule 45 of the Rules.
Under Rule 45, decisions, final orders or resolutions of the CA in any
case,i.e., regardless of the nature of the action or proceedings involved,
may be appealed to the Court by filing a petition for review, which would
be but a continuation of the appellate process over the original case. It
seeks to correct errors of judgment committed by the court, tribunal, or
officer. In contrast, a special civil action for certiorari under Rule 65 is an
independent action based on the specific grounds therein provided and
proper only if there is no appeal or any plain, speedy and adequate
remedy in the ordinary course of law. It is an extraordinary process for
the correction of errors of jurisdiction and cannot be availed of as a
substitute for the lost remedy of an ordinary appeal.
Independently of this procedural infirmity, even on the merits of the case, the petition does not
fare otherwise. It must be dismissed for lack of merit. AHEDaI
Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del
Rosario, 34 herein respondents must first be declared heirs of Marcelo Sr. before they can file an
action to annul the judicial sale of what is, undisputedly, conjugal property of Teofista and
Marcelo Sr.
We disagree. Our ruling in Heirs of Yaptinchay is not applicable.
Herein respondents' status as legitimate children of Marcelo Sr. and Teofista and thus,
Marcelo Sr.'s heirs has been firmly established, and confirmed by this Court in Suarez v. Court
of Appeals. 35 True, this Court is not a trier of facts, 36 but as the final arbiter of disputes, 37 we
found and so ruled that herein respondents are children, and heirs of their deceased father,
Marcelo Sr. This having been settled, it should no longer have been a litigated issue when we
ordered a remand to the lower court. In short, petitioner Valente's, Violeta's, Virginia's, and
Maria Concepcion's representation in the RTC that our ruling in Suarez required herein
respondents to present evidence of their affiliation with the deceased, Marcelo Sr., is wrong.
As was set forth in the dispositive portion of Suarez, "Civil Case No. 51203 is reinstated only to
determine that portion which belongs to [herein respondents] and to annul the sale with regard
to said portion." There is clearly no intimation in our decision for the RTC to have to determine
an already settled issue i.e., herein respondents' status as heirs of Marcelo Sr.

Moreover, petitioner Valente cannot assail, directly or indirectly, the status of herein
respondents as legitimate children of Marcelo Sr. and Teofista, and likewise demand that herein
respondents first prove their filiation to Marcelo Sr. The following records bear out Marcelo, Sr.'s
and Teofista's paternity of herein respondents, and the latter's status as legitimate children:
1.The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along with herein
respondents, questioned the RTC, Branch 151's Orders dated October 10, 1984 and October 14,
1986. Although the CA ruled against Teofista and herein respondents, it explicitly recognized the
latter's status as legitimate children of Teofista and Marcelo Sr.; and 38 acHITE
2.The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that herein respondents were,
as children of Teofista, merely successors-in-interest of the latter to the property and by virtue
thereof, bound by the judgment in Civil Case Nos. 21376 to 21379 consistent with the doctrine
of res judicata. 39 We subsequently reversed this ruling on the wrong application of res
judicata in the conclusive case of Suarez. We retained and affirmed, however, the CA's factual
finding of herein respondents' status as heirs of Marcelo Sr. We categorically held therein that
"the proprietary interest of [herein respondents] in the levied and auctioned [properties] is
different from and adverse to that of [Teofista]. [Herein respondents] became co-owners of the
property not because of [Teofista] but through their own right as children of their deceased
father [, Marcelo Sr.]." Clearly, herein respondents' long possessed status of legitimate children
of Marcelo Sr. and Teofista cannot be indirectly or directly attacked by petitioner Valente in an
action to annul a judicial sale.
Articles 262, 40 263, 41 265 and 266 42 of the Civil Code, the applicable law at the time of
Marcelo's death, support the foregoing conclusion, to wit:
Art. 262.The heirs of the husband may impugn the legitimacy of the child
only in the following cases:
(1)If the husband should die before the expiration of the period fixed for
bringing his action;
(2)If the husband should die after the filing of the complaint, without
having desisted from the same;
(3)If the child was born after the death of the husband.
Art. 263.The action to impugn the legitimacy of the child shall be brought
within one year from the recording of birth in the Civil Register, if the
husband should be in the same place, or in a proper case, any of his
heirs.
If he or his heirs are absent, the period shall be eighteen months if they
should reside in the Philippines; and two years if abroad. If the birth of
the child has been concealed, the term shall be counted from the
discovery of the fraud. AEIDTc
Art. 265.The filiation of legitimate children is proved by the record of
birth appearing in the Civil Register, or by an authentic document or a
final judgment.
Art. 266.In the absence of the titles indicated in the preceding article, the
filiation shall be proved by the continuous possession of status of a
legitimate child.
In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of certain TCT's
was dismissed for failure of the petitioners to demonstrate "any proof or even a semblance of it"
that they had been declared the legal heirs of the deceased couple, the spouses Yaptinchay. In
stark contrast, the records of this case reveal a document, an Extrajudicial Settlement of Marcelo
Sr.'s estate, which explicitly recognizes herein respondents as Marcelo Sr.'s legitimate children
and heirs. The same document settles and partitions the estate of Marcelo Sr. specifying
Teofista's paraphernal properties, and separates the properties she owns in common with her
children, herein respondents. Plainly, there is no need to re-declare herein respondents as heirs
of Marcelo Sr., and prolong this case interminably.
Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became owners of the
subject properties only by virtue of an execution sale to recover Teofista's judgment obligation.
This judgment obligation is solely Teofista's, and payment therefor cannot be made through an
execution sale of properties not absolutely owned by her. These properties were evidently
conjugal properties and were, in fact, even titled in the name of Marcelo, Sr. married to Teofista.
Thus, upon Marcelo Sr.'s death, by virtue of compulsory succession, Marcelo Sr.'s share in the
conjugal partnership was transmitted by operation of law to his compulsory heirs.
Compulsory succession is a distinct kind of succession, albeit not categorized as such in Article
778 43 of the Civil Code. It reserves a portion of the net estate of the decedent in favor of
certain heirs, or group of heirs, or combination of heirs, prevailing over all kinds of
succession. 44 The portion that is so reserved is the legitime. Article 886 of the Civil Code defines
legitime as "that part of the testator's property which he cannot dispose of because the law has
reserved it for certain heirs who are, therefore, called compulsory heirs." Herein respondents
are primary compulsory heirs, 45 excluding secondary compulsory heirs, 46 and preferred over
concurring compulsory heirs in the distribution of the decedent's estate. 47 EaCSTc
Even without delving into the Extrajudicial Settlement of Marcelo Sr.'s estate in 1957, it must be
stressed that herein respondents' rights to the succession vested from the moment of their
father's death. 48 Herein respondents' ownership of the subject properties is no longer
inchoate; it became absolute upon Marcelo's death, although their respective shares therein
remained pro indiviso. Ineluctably, at the time the subject properties were sold on execution
sale to answer for Teofista's judgment obligation, the inclusion of herein respondents' share
therein was null and void.
In fine, Teofista's ownership over the subject properties is not absolute. Significantly, petitioner
Valente does not even attempt to dispute the conjugal nature of the subject properties. Since
Teofista owns only a portion of the subject properties, only that portion could have been, and
was actually, levied upon and sold on auction by the provincial sheriff of Rizal. Thus, a separate
declaration of heirship by herein respondents is not necessary to annul the judicial sale of their
share in the subject properties.
We note the recent case of Portugal v. Portugal-Beltran, 49 where we scrutinized our rulings
in Heirs of Yaptinchay and the cited cases of Litam v. Rivera 50 and Solivio v. Court of
Appeals, 51 and Guilas v. CFI Judge of Pampanga 52 cited in Solivio. We ruled thus:
The common doctrine in Litam, Solivio and Guilas in which the adverse
parties are putative heirs to the estate of a decedent or parties to the
special proceedings for its settlement is that if the special proceedings
are pending, or if there are no special proceedings filed but there is,
under the circumstances of the case, a need to file one, then the
determination of, among other issues, heirship should be raised and
settled in said special proceedings. Where special proceedings had been
instituted but had been finally closed and terminated, however, or if a
putative heirs has lost the right to have himself declared in the special
proceedings as co-heir and he can no longer ask for its re-opening, then
an ordinary civil action can be filed for his declaration as heir in order to
bring about the annulment of the partition or distribution or adjudication
of a property or properties belonging to the estate of the
deceased. aCIHAD
In the case at bar, respondent, believing rightly or wrongly that she was
the sole heir to Portugal's estate, executed on February 15, 1988 the
questioned Affidavit of Adjudication under the second sentence of Rule
74, Section of the Revised Rules of Court. Said rule is an exception to the
general rule that when a person dies leaving property, it should be
judicially administered and the competent court should appoint a
qualified administrator, in the order established in Sec. 6, Rule 78 in case
the deceased left no will, or in case he did, he failed to name an executor
therein.
xxx xxx xxx
It appearing, however, that in the present case the only property of the
intestate estate of Portugal is the Caloocan parcel of land, to still subject
it, under the circumstances of the case, to a special proceeding which
could be long, hence, not expeditious, just to establish the status of
petitioners as heirs is not only impractical; it is burdensome to the estate
with the costs and expenses of an administration proceedings. And it is
superfluous in light of the fact that the parties to the civil case subject
of the present case, could and had already in fact presented evidence
before the trial court which assumed jurisdiction over the case upon the
issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being no
compelling reason to still subject Portugal's estate to administration
proceedings since a determination of petitioners' status as heirs could
be achieved in the civil case filed by petitioners . . . . 53
All told, under the circumstances, in addition to the already settled status of herein respondents
as heirs of Marcelo Sr., there is no need to dismiss Civil Case No. 51203 and require herein
respondents to institute a separate special proceeding for a declaration of their heirship.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals
in CA-G.R. SP No. 58090 is AFFIRMED. The Orders dated May 29, 1996 and September 6, 1996
issued by Judge Santos are REINSTATED. Costs against the petitioner.
SO ORDERED.
Puno, C.J., * Ynares-Santiago, Austria-Martinez and Chico-Nazario, JJ., concur.
||| (Raymundo v. Vda. de Suarez, G.R. No. 149017, November 28, 2008)

FIRST DIVISION
[G.R. No. 172248. September 17, 2008.]
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner, vs. ELLA
GAGARANI, ISAGANI, ADRIAN, NATHANIEL, NIEVA, JONATHAN,
DIONESIO, FLORENCE and JEREMIAS, all surnamed ASOK, respondents.
CORONA, J p:
This is a petition for review on certiorari 1 of the December 14, 2005 decision 2 and March 28,
2006 resolution 3 of the Court of Appeals (CA) in CA-G.R. CV No. 64259. aAHDIc
The spouses Dionesio and Matea S. Asok owned several parcels of land. Upon their death on
September 14, 1973 and February 22, 1982, respectively, their eleven children inherited the
properties. One of the lands inherited was a lot covered by Original Certificate of Title (OCT) No.
P-4272, a free patent issued on July 19, 1967, located at Pagawan, Manticao, Misamis Oriental
with an area of 39,552 sq. m. 4
Pursuant to the extrajudicial settlement of the estate with quitclaim executed by the spouses'
children, the subject property was inherited by Denison Asok (Asok). As a result, OCT No. P-4272
was cancelled and Transfer Certificate of Title (TCT) No. T-9626 was issued and registered in his
name on November 17, 1987. 5
On August 31, 1989, Asok and his wife, respondent Ella Gagarani Asok, borrowed P100,000 from
petitioner Development Bank of the Philippines, a government financial institution created and
operating under EO 81, 6 as amended by RA 8523. They mortgaged the subject lot as collateral
to guarantee payment of the loan. On due date, however, they failed to pay the loan and the
mortgage was extrajudicially foreclosed pursuant to Act 3135. 7 Petitioner emerged as the
highest bidder with a bid of P163,297. 8
On November 28, 1991, a certificate of sale was issued in favor of petitioner. This was registered
on December 24, 1992. 9 On March 25, 1998, petitioner's ownership over the property was
consolidated and TCT No. T-27172 was issued in its name. 10
Meanwhile, Asok died on October 24, 1993 and was succeeded by his surviving spouse and
children (respondents). 11
On May 15, 1998, respondents filed a complaint for repurchase against petitioner in the
Regional Trial Court (RTC) of Initao, Misamis Oriental, Branch 44, docketed as Civil Case No. 98-
68. On July 3, 1998, they filed an amended complaint on learning that TCT No. T-9626 had been
cancelled by TCT No. T-27172 issued in the name of petitioner. They invoked their right to
repurchase the property under Sec. 119 of CA 141, as amended: 12
Sec. 119.Every conveyance of land acquired under the free patent or
homestead provisions, when proper, shall be subject to repurchase by
the applicant, his widow, or legal heirs, within a period of five years from
date of the conveyance.
In a decision dated January 7, 1999, the RTC dismissed the complaint. Reconsideration was
denied on February 3, 1999. 13 It ruled that the one-year period for redemption should be
reckoned from the date of sale, i.e., November 28, 1991. Then the five-year period provided
under Sec. 119 of CA 141 should be counted from the expiration of the redemption
period, i.e., November 28, 1992. Therefore, respondents had until November 28, 1997 to
exercise their right to repurchase. However, the complaint was filed on May 15, 1998 which was
beyond the prescribed period. 14
Aggrieved, respondents appealed to the CA. In a decision dated December 14, 2005, the CA
reversed and set aside the RTC decision. Reconsideration was denied in a resolution dated
March 28, 2006. It held that the period of redemption started from the date of registration of
the certificate of sale, i.e., December 24, 1992, and not from the date of sale. Thus, respondents
had until December 24, 1998 to repurchase the property and the complaint was seasonably
filed. 15 ESaITA
Hence this petition.
Petitioner raises the following issues: (1) whether Sec. 119 of CA 141 is applicable in this case; (2)
whether respondents are the legal heirs of the patentees and (3) whether the right to
repurchase has already prescribed.
The petition lacks merit.
Petitioner contends that respondents cannot claim the right under Sec. 119 which covers
homesteads and free patents because the free patent issued to Asok's parents had already been
cancelled and a new TCT had in fact been issued to him. Thus, the property mortgaged to it was
no longer covered by a free patent but by a TCT. 16
This contention deserves scant consideration.
The plain intent of Sec. 119 is to give the homesteader or patentee every chance to preserve and
keep in the family the land that the State has gratuitously given him as a reward for his labor in
cleaning, developing and cultivating it. 17 Hence, the fact that the land had been inherited by
the patentees' son (and a new title in his name issued) does not bring it outside the purview of
Sec. 119. In fact, the policy behind the law is fulfilled because the land remains in the family of
the patentee. As we explained in Ferrer v. Mangente: 18
The applicant for a homestead is to be given all the inducement that the
law offers and is entitled to its full protection. Its blessings, however, do
not stop with him. This is particularly so in this case as the appellee is the
son of the deceased. There is no question then as to his status of being a
legal heir. The policy of the law is not difficult to understand. The
incentive for a pioneer to venture into developing virgin land becomes
more attractive if he is assured that his effort will not go for naught
should perchance his life be cut short. This is merely a recognition of how
closely bound parents and children are in a Filipino family. Logic, the
sense of fitness and of right, as well as pragmatic considerations thus call
for continued adherence to the policy that not the individual applicant
alone but those so closely related to him as are entitled to legal
succession may take full advantage of the benefits the law confers. 19
Having ruled that Sec. 119 is applicable to this case, we now go to the next issue: are
respondents the "legal heirs" contemplated in the provision?
Petitioner argues that respondents are not the legal heirs of the patentees because respondents
are merely their daughter-in-law and grandchildren.
We disagree. In line with the rationale behind Sec. 119, we reject a restricted definition of legal
heirs. It is used in a broad sense and the law makes no distinctions. 20 In Madarcos v. de la
Merced, 21 we held that:
The term "legal heirs" is used in Section 119 in a generic sense. It is broad
enough to cover any person who is called to the succession either by
provision of a will or by operation of law. Thus, legal heirs include both
testate and intestate heirs depending upon whether succession is by the
will of the testator or by law. Legal heirs are not necessarily compulsory
heirs but they may be so if the law reserves a legitime for them. EHCcIT
xxx xxx xxx
Verily, petitioners are legal heirs. Having been decreed under the rules
on intestacy as entitled to succeed to the estate of the Catain spouses
due to the absence of compulsory heirs, they now step into the shoes of
the decedents. They should be considered as among the legal heirs
contemplated by Section 119 as entitled to redeem the homestead.
The above interpretation of "legal heirs" as contra-distinguished from the
restrictive construction given it by the lower court is more in keeping
with the salutary purpose behind the enactment of Section 119 and the
jurisprudence laid down on the matter. Indeed, it is not far-fetched to
arrive at a more liberal conclusion if the section is analyzed in accordance
with its purpose . . . 22
Respondents inherited the property from Asok, their husband and father, who in turn inherited
it from his parents. Respondent Ella Gagarani Asok, as daughter-in-law of the patentees, can be
considered as among the legal heirs who can repurchase the land in accordance with Salenillas v.
CA. 23 In that case, we allowed the daughter and son-in-law of the patentees to repurchase the
property because this would be "more in keeping with the spirit of the law. We have time and
again said that between two statutory interpretations, that which better serves the purpose of
the law should prevail". 24 Furthermore, the law must be liberally construed in order to carry
out its purpose. 25
Finally, petitioner asserts that even if respondents could be considered as being entitled to the
right under Sec. 119, this had already prescribed because the period should be counted from the
date of conveyance which means the date of sale and not the date of registration of the
certificate of sale.
This argument lacks merit.
This is far from a novel issue. It was already resolved in Rural Bank of Davao City, Inc. v. CA: 26
Thus, the rules on redemption in the case of an extrajudicial foreclosure
of land acquired under free patent or homestead statutes may be
summarized as follows: . . . If the land is mortgaged to parties other than
rural banks, the mortgagor may redeem the property within one (1) year
from the registration of the certificate of sale pursuant toAct No. 3135.
If he fails to do so, he or his heirs may repurchase the property within
five (5) years from the expiration of the redemption period also pursuant
to Section 119 of the Public Land Act. 27 HTcADC
There is no dispute that in extrajudicial foreclosures under Act 3135, the debtor or his or her
successors-in-interest may redeem the property within one year. This redemption period should
be reckoned from the date of registration of the certificate of sale. 28The five-year period fixed
in Sec. 119 begins to run from the expiration of the one-year redemption period. 29 Here, the
certificate of sale was registered on December 24, 1992 and the one-year redemption period
expired on December 24, 1993. Reckoned from that day, respondents had a five-year period, or
until December 24, 1998, to exercise their right to repurchase under Sec. 119 of CA 141.
Consequently, the CA was correct in holding that the complaint filed on May 15, 1998 was on
time.

WHEREFORE, the petition is hereby DENIED. Petitioner Development Bank of the Philippines is
ordered to execute a deed of reconveyance in favor of respondents upon payment by the latter
of the redemption price. aETADI
No costs.
SO ORDERED.
Puno, C.J., Carpio-Morales, * Azcuna and Leonardo-de Castro, JJ., concur.
||| (Development Bank of the Philippines v. Gagarani, G.R. No. 172248, September 17, 2008)

SECOND DIVISION
[G.R. No. 145545. June 30, 2008.]
PAZ SAMANIEGO-CELADA, petitioner, vs. LUCIA D. ABENA, respondent.
QUISUMBING, J p:
This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to reverse
the Decision 1 dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756, which
affirmed the Decision 2 dated March 2, 1993 of the Regional Trial Court (RTC), Branch 66, Makati
City. The RTC had declared the last will and testament of Margarita S. Mayores probated and
designated respondent Lucia D. Abena as the executor of her will. It also ordered the issuance of
letters testamentary in favor of respondent.
The facts are as follows:
Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores
(Margarita) while respondent was the decedent's lifelong companion since 1929. CTAIDE
On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her
parents, grandparents and siblings predeceased her. She was survived by her first cousins
Catalina Samaniego-Bombay, Manuelita Samaniego Sajonia, Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and Testament 3 on February 2, 1987 where
she bequeathed one-half of her undivided share of a real property located at Singalong Manila,
consisting of 209.8 square meters, and covered by Transfer Certificate of Title (TCT) No. 1343 to
respondent, Norma A. Pahingalo, and Florentino M. Abena in equal shares or one-third portion
each. She likewise bequeathed one-half of her undivided share of a real property located at San
Antonio Village, Makati, consisting of 225 square meters, and covered by TCT No. 68920 to
respondent, Isabelo M. Abena, and Amanda M. Abena in equal shares or one-third portion each.
Margarita also left all her personal properties to respondent whom she likewise designated as
sole executor of her will. HacADE
On August 11, 1987, petitioner filed a petition for letters of administration of the estate of
Margarita before the RTC of Makati. The case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate of the will of Margarita before the
RTC of Makati. The case was docketed as SP Proc. No. M-1607 and consolidated with SP Proc.
No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the last will and testament of
Margarita probated and respondent as the executor of the will. The dispositive portion of the
decision states:
In view of the foregoing, judgment is hereby rendered:
1)declaring the will as probated;
2)declaring Lucia Abena as the executor of the will who will
serve as such without a bond as stated in paragraph
VI of the probated will;
3)ordering the issuance of letters testamentary in favor
of Lucia Abena. IAETSC
So ordered. 4
Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a
decision dated October 13, 2000, affirmed in toto the RTC ruling. The dispositive portion of the
Court of Appeals' decision states:
WHEREFORE, foregoing premises considered, the appeal having no merit
in fact and in law, is hereby ORDERED DISMISSED and the appealed
Decision of the trial court AFFIRMED IN TOTO, with cost to oppositors-
appellants.
SO ORDERED. 5
Hence, the instant petition citing the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE
ERROR IN NOT INVALIDATING THE WILL SINCE IT DID NOT CONFORM TO
THE FORMALITIES REQUIRED BY LAW;
II.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT
INVALIDATING THE WILL BECAUSE IT WAS PROCURED THROUGH UNDUE
INFLUENCE AND PRESSURE[;] AND HSaIDc
III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT
DECLARING PETITIONER, HER SIBLINGS AND COUSIN AS THE LEGAL HEIRS
OF MARGARITA S. MAYORES AND IN NOT ISSUING LETTERS OF
ADMINISTRATION TO HER. 6
Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will
invalid for failure to comply with the formalities required by law, (2) whether said court erred in
not declaring the will invalid because it was procured through undue influence and pressure, and
(3) whether it erred in not declaring petitioner and her siblings as the legal heirs of Margarita,
and in not issuing letters of administration to petitioner. cCaSHA
Petitioner, in her Memorandum, 7 argues that Margarita's will failed to comply with the
formalities required under Article 805 8 of the Civil Code because the will was not signed by the
testator in the presence of the instrumental witnesses and in the presence of one another. She
also argues that the signatures of the testator on pages A, B, and C of the will are not the same
or similar, indicating that they were not signed on the same day. She further argues that the will
was procured through undue influence and pressure because at the time of execution of the
will, Margarita was weak, sickly, jobless and entirely dependent upon respondent and her
nephews for support, and these alleged handicaps allegedly affected her freedom and willpower
to decide on her own. Petitioner thus concludes that Margarita's total dependence on
respondent and her nephews compelled her to sign the will. Petitioner likewise argues that the
Court of Appeals should have declared her and her siblings as the legal heirs of Margarita since
they are her only living collateral relatives in accordance with Articles 1009 9 and 1010 10 of the
Civil Code. HaTAEc
Respondent, for her part, argues in her Memorandum 11 that the petition for review raises
questions of fact, not of law and as a rule, findings of fact of the Court of Appeals are final and
conclusive and cannot be reviewed on appeal to the Supreme Court. She also points out that
although the Court of Appeals at the outset opined there was no compelling reason to review
the petition, the Court of Appeals proceeded to tackle the assigned errors and rule that the will
was validly executed, sustaining the findings of the trial court that the formalities required by
law were duly complied with. The Court of Appeals also concurred with the findings of the trial
court that the testator, Margarita, was of sound mind when she executed the will.
After careful consideration of the parties' contentions, we rule in favor of respondent.
We find that the issues raised by petitioner concern pure questions of fact, which may not be
the subject of a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the will was signed by the testator in
the presence of the witnesses and of one another, whether or not the signatures of the
witnesses on the pages of the will were signed on the same day, and whether or not undue
influence was exerted upon the testator which compelled her to sign the will, are all questions of
fact.
This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997
Rules of Civil Procedure. Section 112 of Rule 45 limits this Court's review to questions of law
only. THaDEA
Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by
substantial evidence, the findings of fact of the Court of Appeals are conclusive and binding on
the parties and are not reviewable by this Court, unless the case falls under any of the following
recognized exceptions:
(1)When the conclusion is a finding grounded entirely on speculation,
surmises and conjectures;
(2)When the inference made is manifestly mistaken, absurd or
impossible;
(3)Where there is a grave abuse of discretion;
(4)When the judgment is based on a misapprehension of facts;
(5)When the findings of fact are conflicting;
(6)When the Court of Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions
of both appellant and appellee; CcTHaD
(7)When the findings are contrary to those of the trial court;
(8)When the findings of fact are conclusions without citation of specific
evidence on which they are based;
(9)When the facts set forth in the petition as well as in the petitioners'
main and reply briefs are not disputed by the respondents;
and
(10)When the findings of fact of the Court of Appeals are premised on
the supposed absence of evidence and contradicted by the
evidence on record. 13 STcHEI
We find that this case does not involve any of the abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that
petitioner's arguments lack basis. The RTC correctly held:
With [regard] to the contention of the oppositors [Paz Samaniego-
Celada, et al.] that the testator [Margarita Mayores] was not mentally
capable of making a will at the time of the execution thereof, the same is
without merit. The oppositors failed to establish, by preponderance of
evidence, said allegation and contradict the presumption that the
testator was of sound mind (See Article 800 of the Civil Code). In fact,
witness for the oppositors, Dr. Ramon Lamberte, who, in some occasions,
attended to the testator months before her death, testified that
Margarita Mayores could engage in a normal conversation and he even
stated that the illness of the testator does not warrant hospitalization. . .
. Not one of the oppositor's witnesses has mentioned any instance that
they observed act/s of the testator during her lifetime that could be
construed as a manifestation of mental incapacity. The testator may be
admitted to be physically weak but it does not necessarily follow that she
was not of sound mind. [The] testimonies of contestant witnesses are
pure aforethought. aHECST
Anent the contestants' submission that the will is fatally defective for the
reason that its attestation clause states that the will is composed of
three (3) pages while in truth and in fact, the will consists of two (2)
pages only because the attestation is not a part of the notarial will, the
same is not accurate. While it is true that the attestation clause is not a
part of the will, the court, after examining the totality of the will, is of the
considered opinion that error in the number of pages of the will as stated
in the attestation clause is not material to invalidate the subject will. It
must be noted that the subject instrument is consecutively lettered with
pages A, B, and C which is a sufficient safeguard from the possibility of an
omission of some of the pages. The error must have been brought about
by the honest belief that the will is the whole instrument consisting of
three (3) pages inclusive of the attestation clause and the
acknowledgement. The position of the court is in consonance with the
"doctrine of liberal interpretation" enunciated in Article 809 of the Civil
Code which reads:

"In the absence of bad faith, forgery or fraud, or undue [and]
improper pressure and influence, defects and imperfections
in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will
was in fact executed and attested in substantial compliance
with all the requirements of Article 805."
The court also rejects the contention of the oppositors that the
signatures of the testator were affixed on different occasions based on
their observation that the signature on the first page is allegedly
different in size, texture and appearance as compared with the
signatures in the succeeding pages. After examination of the signatures,
the court does not share the same observation as the oppositors. The
picture (Exhibit "H-3") shows that the testator was affixing her signature
in the presence of the instrumental witnesses and the notary. There is no
evidence to show that the first signature was procured earlier than
February 2, 1987. cTEICD
Finally, the court finds that no pressure nor undue influence was exerted
on the testator to execute the subject will. In fact, the picture reveals
that the testator was in a good mood and smiling with the other
witnesses while executing the subject will (See Exhibit "H").
In fine, the court finds that the testator was mentally capable of making
the will at the time of its execution, that the notarial will presented to
the court is the same notarial will that was executed and that all the
formal requirements (See Article 805 of the Civil Code) in the execution
of a will have been substantially complied with in the subject notarial
will. 14(Emphasis supplied). IcDCaT
Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner
and her siblings are not compulsory heirs of the decedent under Article 887 15 of the Civil Code
and as the decedent validly disposed of her properties in a will duly executed and probated,
petitioner has no legal right to claim any part of the decedent's estate.
WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the Court
of Appeals in CA-G.R. CV No. 41756 is AFFIRMED. HASDcC
Costs against petitioner.
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr. and Brion, JJ., concur.
||| (Samaniego-Celada v. Abena, G.R. No. 145545, June 30, 2008)

FIRST DIVISION
[A.C. No. 5281. February 12, 2008.]
MANUEL
L. LEE, complainant, vs. ATTY. REGINO B. TAMBAGO, respondent.
CORONA, J p:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged
respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics of the
legal profession for notarizing a spurious last will and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never
executed the contested will. Furthermore, the spurious will contained the forged signatures of
Cayetano Noynay and Loreto Grajo, the purported witnesses to its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee,
save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of
complainant. IETCAS
The will was purportedly executed and acknowledged before respondent on June 30,
1965. 1 Complainant, however, pointed out that the residence certificate 2 of the testator noted
in the acknowledgment of the will was dated January 5, 1962. 3 Furthermore, the signature of
the testator was not the same as his signature as donor in a deed of donation 4 (containing his
purported genuine signature). Complainant averred that the signatures of his deceased father in
the will and in the deed of donation were "in any way(sic) entirely and diametrically opposed
from (sic) one another in all angle[s]." 5
Complainant also questioned the absence of notation of the residence certificates of the
purported witnesses Noynay and Grajo. He alleged that their signatures had likewise been
forged and merely copied from their respective voters' affidavits.
Complainant further asserted that no copy of such purported will was on file in the archives
division of the Records Management and Archives Office of the National Commission for Culture
and the Arts (NCCA). In this connection, the certification of the chief of the archives division
dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT
executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in
this Office['s] files. 6 ICDcEA
Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained
false allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the
will in question was fake and spurious. He alleged that complainant was "not a legitimate son of
Vicente Lee, Sr. and the last will and testament was validly executed and actually notarized by
respondent per affidavit 7 of Gloria Nebato, common-law wife of Vicente Lee, Sr. and
corroborated by the joint affidavit 8 of the children of Vicente Lee, Sr., namely Elena N. Lee and
Vicente N. Lee, Jr. . . . ." 9 ATCEIc
Respondent further stated that the complaint was filed simply to harass him because the
criminal case filed by complainant against him in the Office of the Ombudsman "did not
prosper".
Respondent did not dispute complainant's contention that no copy of the will was on file in the
archives division of the NCCA. He claimed that no copy of the contested will could be found
there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action against him as he
(complainant) did not first file an action for the declaration of nullity of the will and demand his
share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation. 10
In his report, the investigating commissioner found respondent guilty of violation of pertinent
provisions of the old Notarial Law as found in the Revised Administrative Code. The violation
constituted an infringement of legal ethics, particularly Canon 1 11 and Rule 1.01 12 of the Code
of Professional Responsibility (CPR). 13 Thus, the investigating commissioner of the IBP
Commission on Bar Discipline recommended the suspension of respondent for a period of three
months. HDTISa
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with
modification, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution as Annex "A"; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,
and considering Respondent's failure to comply with the laws in the
discharge of his function as a notary public,Atty. Regino B. Tambago is
hereby suspended from the practice of law for one year and
Respondent's notarial commission is Revoked and Disqualified from
reappointment as Notary Public for two (2) years. 14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to take effect after his death. 15 A will may
either be notarial or holographic.
The law provides for certain formalities that must be followed in the execution of wills. The
object of solemnities surrounding the execution of wills is to close the door on bad faith and
fraud, to avoid substitution of wills and testaments and to guarantee their truth and
authenticity. 16 aSIETH
A notarial will, as the contested will in this case, is required by law to be subscribed at the end
thereof by the testator himself. In addition, it should be attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another. 17
The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance
alone, the will must be considered void. 18 This is in consonance with the rule that acts executed
against the provisions of mandatory or prohibitory laws shall be void, except when the law itself
authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged before a notary public by the
testator and the witnesses. 19 The importance of this requirement is highlighted by the fact that
it was segregated from the other requirements under Article 805 and embodied in a distinct and
separate provision. 20
An acknowledgment is the act of one who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed. It involves an extra step undertaken
whereby the signatory actually declares to the notary public that the same is his or her own free
act and deed. 21 The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard
the testator's wishes long after his demise and (2) to assure that his estate is administered in the
manner that he intends it to be done. STIcaE
A cursory examination of the acknowledgment of the will in question shows that this particular
requirement was neither strictly nor substantially complied with. For one, there was the
conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay
and Grajo in the acknowledgment. Similarly, the notation of the testator's old residence
certificate in the same acknowledgment was a clear breach of the law. These omissions by
respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was required to faithfully observe
the formalities of a will and those of notarization. As we held in Santiago v. Rafanan: 22
The Notarial Law is explicit on the obligations and duties of notaries
public. They are required to certify that the party to every document
acknowledged before him had presented the proper residence certificate
(or exemption from the residence tax); and to enter its number, place of
issue and date as part of such certification. HDTISa
These formalities are mandatory and cannot be disregarded, considering the degree of
importance and evidentiary weight attached to notarized documents. 23 A notary public,
especially a lawyer, 24 is bound to strictly observe these elementary requirements.
The Notarial Law then in force required the exhibition of the residence certificate upon
notarization of a document or instrument:
Section 251.Requirement as to notation of payment of [cedula] residence
tax. Every contract, deed, or other document acknowledged before a
notary public shall have certified thereon that the parties thereto have
presented their proper [cedula] residence certificate or are exempt from
the [cedula] residence tax, and there shall be entered by the notary
public as a part of such certificate the number, place of issue, and date of
each [cedula] residence certificate as aforesaid. 25 AEITDH
The importance of such act was further reiterated by Section 6 of the Residence Tax
Act 26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges
any document before a notary public . . . it shall be the duty of such
person . . . with whom such transaction is had or business done, to
require the exhibition of the residence certificate showing payment of
the residence taxes by such person . . . .
In the issuance of a residence certificate, the law seeks to establish the true and correct identity
of the person to whom it is issued, as well as the payment of residence taxes for the current
year. By having allowed decedent to exhibit an expired residence certificate, respondent failed
to comply with the requirements of both the old Notarial Law and the Residence Tax Act. As
much could be said of his failure to demand the exhibition of the residence certificates of
Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy of the
notarized will to the archives division, Article 806 provides:

Art. 806.Every will must be acknowledged before a notary public by the
testator and the witness. The notary public shall not be required to
retain a copy of the will, or file another with the office of the Clerk of
Court. (emphasis supplied) IDcTEA
Respondent's failure, inadvertent or not, to file in the archives division a copy of the
notarized will was therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary entries
pertaining to the will in his notarial register. The old Notarial Law required the entry of the
following matters in the notarial register, in chronological order: ACETID
1.nature of each instrument executed, sworn to, or acknowledged before
him;
2.person executing, swearing to, or acknowledging the instrument;
3.witnesses, if any, to the signature;
4.date of execution, oath, or acknowledgment of the instrument;
5.fees collected by him for his services as notary;
6.give each entry a consecutive number; and
7.if the instrument is a contract, a brief description of the substance of
the instrument. 27
In an effort to prove that he had complied with the abovementioned rule, respondent
contended that he had crossed out a prior entry and entered instead the will of the decedent. As
proof, he presented a photocopy of his notarial register. To reinforce his claim, he presented a
photocopy of a certification 28 stating that the archives division had no copy of the affidavit of
Bartolome Ramirez. AHcaDC
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the
original is unavailable. The proponent must first prove the existence and cause of the
unavailability of the original, 29 otherwise, the evidence presented will not be admitted. Thus,
the photocopy of respondent's notarial register was not admissible as evidence of the entry of
the execution of the will because it failed to comply with the requirements for the admissibility
of secondary evidence.
In the same vein, respondent's attempt to controvert the certification dated September 21,
1999 30 must fail. Not only did he present a mere photocopy of the certification dated March
15, 2000; 31 its contents did not squarely prove the fact of entry of the contested will in his
notarial register.
Notaries public must observe with utmost care 32 and utmost fidelity the basic requirements in
the performance of their duties, otherwise, the confidence of the public in the integrity of
notarized deeds will be undermined. 33
Defects in the observance of the solemnities prescribed by law render the entire will invalid. This
carelessness cannot be taken lightly in view of the importance and delicate nature of a will,
considering that the testator and the witnesses, as in this case, are no longer alive to identify the
instrument and to confirm its contents. 34 Accordingly, respondent must be held accountable
for his acts. The validity of the will was seriously compromised as a consequence of his breach of
duty. 35 IEAacT
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. The following derelictions of
duty on the part of a notary public shall, in the discretion of the proper
judge of first instance, be sufficient ground for the revocation of his
commission:
xxx xxx xxx
(b)The failure of the notary to make the proper entry or
entries in his notarial register touching his notarial
acts in the manner required by law.
xxx xxx xxx
(f)The failure of the notary to make the proper notation
regarding cedula certificates. 36
These gross violations of the law also made respondent liable for violation of his oath as a lawyer
and constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court 37 and Canon
1 38 and Rule 1.01 39 of the CPR. cHSIAC
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the
Philippines, uphold the Constitution and obey the laws of the land. 40 For a lawyer is the servant
of the law and belongs to a profession to which society has entrusted the administration of law
and the dispensation of justice. 41
While the duty to uphold the Constitution and obey the law is an obligation imposed on every
citizen, a lawyer assumes responsibilities well beyond the basic requirements of good
citizenship. As a servant of the law, a lawyer should moreover make himself an example for
others to emulate. 42 Being a lawyer, he is supposed to be a model in the community in so far as
respect for the law is concerned. 43
The practice of law is a privilege burdened with conditions. 44 A breach of these conditions
justifies disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a
lawyer upon a finding or acknowledgment that he has engaged in professional
misconduct. 45 These sanctions meted out to errant lawyers include disbarment, suspension and
reprimand. HaAIES
Disbarment is the most severe form of disciplinary sanction. 46 We have held in a number of
cases that the power to disbar must be exercised with great caution 47 and should not be
decreed if any punishment less severe such as reprimand, suspension, or fine will
accomplish the end desired. 48 The rule then is that disbarment is meted out only in clear cases
of misconduct that seriously affect the standing and character of the lawyer as an officer of the
court. 49
Respondent, as notary public, evidently failed in the performance of the elementary duties of his
office. Contrary to his claims that he "exercised his duties as Notary Public with due care and
with due regard to the provision of existing law and had complied with the elementary
formalities in the performance of his duties . . .," we find that he acted very irresponsibly in
notarizing the will in question. Such recklessness warrants the less severe punishment of
suspension from the practice of law. It is, as well, a sufficient basis for the revocation of his
commission 50 and his perpetual disqualification to be commissioned as a notary public. 51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional
misconduct. He violated (1) the Lawyer's Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1
and Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the
provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his
notarial commission REVOKED. Because he has not lived up to the trustworthiness expected of
him as a notary public and as an officer of the court, he is PERPETUALLY DISQUALIFIED from
reappointment as a notary public. prcd
Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the
Philippines and the Office of the Bar Confidant, as well as made part of the personal records of
respondent.
SO ORDERED.
Puno, C.J., Sandoval-Gutierrez, Azcuna and Leonardo-de Castro, JJ., concur.
||| (Lee v. Tambago, A.C. No. 5281, February 12, 2008)

PROSPERO ALUAD, and
CONNIE ALUAD, petitioners, vs. ZENAIDO ALUAD, respondent.
CARPIO-MORALES, J p:
Petitioners' mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the
childless spouses Matilde Aluad(Matilde) and Crispin Aluad (Crispin). ISADET
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the
Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself. 1
On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real
Property Inter Vivos" 2 (Deed of Donation) in favor of petitioners' mother Maria 3 covering all
the six lots which Matilde inherited from her husband Crispin. The Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR
[Matilde] for the DONEE [Maria], the latter being adopted and hav[ing]
been brought up by the former the DONOR, by these presents, transfer
and convey, BY WAY OF DONATION, unto the DONEE the property
above-described, to become effective upon the death of the
DONOR, butin the event that the DONEE should die before the DONOR,
the present donation shall be deemed rescinded and [of] no further
force and effect; Provided, however, that anytime during the lifetime of
the DONOR or anyone of them who should survive, they could use[,]
encumber or even dispose of any or even all of the parcels of land herein
donated.4 (Emphasis and underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in
Matilde's name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real
Property. 5
Subsequently or on January 14, 1992, Matilde executed a last will and testament, 6 devising Lot
Nos. 675, 677, 682, and 680 to Maria, and her "remaining properties" including Lot No. 674 to
respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of the same year. 7
On August 21, 1995, Maria's heirs-herein petitioners filed before the Regional Trial Court (RTC)
of Roxas City a Complaint, 8 for declaration and recovery of ownership and possession of Lot
Nos. 674 and 676, and damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-
described until January 1991 when defendant entered and possessed the
two (2) parcels of land claiming as the adopted son of Crispin Aluad who
refused to give back possession until Matilde Aluad died in [1994] and
then retained the possession thereof up to and until the present time,
thus, depriving the plaintiffs of the enjoyment of said parcels of land . .
.; AcISTE
That after the death of Matilde R. Aluad, the plaintiffs succeeded by
inheritance by right of representation from their deceased mother,
Maria Aluad who is the sole and only daughter of Matilde Aluad[.] 9
To the complaint respondent alleged in his Answer. 10
That Lot 674 is owned by the defendant as this lot was adjudicated to
him in the Last Will and Testament of MatildeAluad . . . while Lot 676 was
purchased by him from Matilde Aluad. These two lots are in his
possession as true owners thereof. 11 (Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to
Evidence 12 to which it annexed an Amended Complaint 13 which cited the donation of the six
lots via Deed of Donation in favor of their mother Maria. Branch 15 of the RTC granted the
motion and admitted the Amended Complaint. 14
Respondent filed an Amended Answer 15 contending, inter alia, that the Deed of Donation is
forged and falsified and petitioners' change of theory showed that "said document was not
existing at the time they filed their complaint and was concocted by them after realizing that
their false claim that their mother was the only daughter of Matild[e] Aluad cannot in anyway be
established by them"; 16 and that if ever said document does exist, the same was already
revoked by Matilde "when [she] exercised all acts of dominion over said properties until she sold
Lot 676 to defendant and until her death with respect to the other lots without any opposition
from Maria Aluad." 17
The trial court, by Decision 18 of September 20, 1996, held that Matilde could not have
transmitted any right over Lot Nos. 674 and676 to respondent, she having previously alienated
them to Maria via the Deed of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1.Declaring the plaintiffs as the rightful owners of the subject
Lots Nos. 674 and 676, Pilar Cadastre;
2.Ordering the defendant to deliver the possession of the
subject lots to the plaintiffs;
3.Ordering the defendant to pay the plaintiffs:
a.Thirty thousand pesos (P30,000.00) as attorney's
fees;
b.Twenty thousand pesos (P20,000.00),
representing the income from subject Lot
676, a year from 1991 up to the time said
lot is delivered to the plaintiffs, together
with the interest thereof at the legal rate
until fully paid; cSaCDT
c.Ten thousand pesos (P10,000.00), representing
the income from the subject Lot No. 674,
a year from 1991 up to the time said lot is
delivered to the plaintiffs, plus legal
interest thereof at the legal rate until fully
paid; and
d.The costs of the suit.
Defendant's counterclaim is ordered dismissed for lack of merit.
SO ORDERED. 19
On petitioners' motion, the trial court directed the issuance of a writ of execution pending
appeal. 20 Possession of the subject lots appears to have in fact been taken by petitioners.
By Decision 21 of August 10, 2006, the Court of Appeals reversed the trial court's decision, it
holding that the Deed of Donation was actually a donation mortis causa, not inter vivos, and as
such it had to, but did not, comply with the formalities of a will. Thus, it found that the Deed of
Donation was witnessed by only two witnesses and had no attestation clause which is not in
accordance with Article 805 of the Civil Code, reading:
Art. 805.Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will shall, also sign, as aforesaid, each and
every page thereof, except the last on the left margin and all the pages
shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will
is written, and the fact that that testator signed the will and every page
thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator, and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them. ITaESD
While the appellate court declared respondent as the rightful owner of Lot No. 676 , it did not so
declare with respect to Lot No. 674, as Matilde's last will and testament had not yet been
probated. Thus the Court of Appeals disposed:
WHEREFORE, finding the instant petition worthy of merit, the same is
hereby GRANTED and the Decision of the Regional Trial Court of Roxas
City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for
declaration of ownership, recovery of ownership and possession, and
damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the
lawful owner of Lot [No.] 676 of the Pilar Cadastre.
Accordingly, plaintiffs-appellees are directed to return the possession of
the said lot to the defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to
defendant-appellant as attorney's fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED. 22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration 23 having been denied, 24 petitioners filed the present
Petition for Review, 25 contending that the Court of Appeals erred:
I
. . . WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC,
Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER
VIVOS IN FAVOR OF PETITIONERS' MOTHER IS IN FACT A DONATION
MORTIS CAUSA.
II
. . . WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT
NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY
THE DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME. AISHcD
III
. . . WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF
LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT
CANNOT BE DECLARED OWNER THEREOF.
IV
. . . WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION
PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE
39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN
POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING PETITIONERS
TO PAY ATTORNEY'S FEES AND COST[S] OF SUIT. 26
As did the appellate court, the Court finds the donation to petitioners' mother one of mortis
causa, it having the following characteristics:
(1)It conveys no title or ownership to the transferee before the death of
the transferor; or what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and
control of the property while alive;
(2)That before the death of the transferor, the transfer should be
revocable by the transferor at will, ad nutum; but revocability
may be provided for indirectly by means of a reserved power
in the donor to dispose of the properties conveyed; and

(3)That the transfer should be void if the transferor should survive the
transferee. 27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the
DONOR" admits of no other interpretation than to mean that Matilde did not intend to transfer
the ownership of the six lots to petitioners' mother during her (Matilde's) lifetime. 28
The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or
anyone of them who should survive, they could use, encumber or even dispose of any or even
all the parcels of land herein donated" 29 means that Matilde retained ownership of the lots
and reserved in her the right to dispose them. For the right to dispose of a thing without other
limitations than those established by law is an attribute of ownership. 30 The phrase in the Deed
of Donation "or anyone of them who should survive" is of course out of sync. For the Deed of
Donation clearly stated that it would take effect upon the death of the donor, hence, said phrase
could only have referred to the donor Matilde. Petitioners themselves concede that such phrase
does not refer to the donee, thus: cSATEH
. . . [I]t is well to point out that the last provision (sentence) in the
disputed paragraph should only refer to Matilde Aluad, the donor,
because she was the only surviving spouse at the time the donation was
executed on 14 November 1981, as her husband Crispin Aluad []
had long been dead as early as 1975. 31
The trial court, in holding that the donation was inter vivos, reasoned:
. . . The donation in question is subject to a resolutory term or period
when the donor provides in the aforequoted provisions, "but in the
event that the DONEE should die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and
effect". When the donor provides that should the "DONEE" . . . die
before the DONOR, the present donation shall be deemed rescinded and
[of] no further force and effect" the logical construction thereof is
that after the execution of the subject donation, the same became
effective immediately and shall be "deemed rescinded and [of] no
further force and effect" upon the arrival of a resolutory term or
period, i.e., the death of the donee which shall occur before that of the
donor. Understandably, the arrival of this resolutory term or period
cannot rescind and render of no further force and effect a donation
which has never become effective, because, certainly what donation is
there to be rescinded and rendered of no further force and effect upon
the arrival of said resolutory term or period if there was no donation
which was already effective at the time when the donee
died? 32(Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court, however, thus:
. . . [P]etitioners contend that the stipulation on rescission in case
petitioners [donee] die ahead of [donor] Cabatingan is a resolutory
condition that confirms the nature of the donation as inter vivos.
Petitioners' arguments are bereft of merit. 33
xxx xxx xxx
. . . The herein subject deeds expressly provide that the donation shall be
rescinded in case [donees] the petitioners predecease [the donor]
Conchita Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive
characteristics of a donation mortis causa is that the transfer should be
considered void if the donor should survive the donee. This is exactly
what Cabatingan provided for in her donations. If she really intended
that the donation should take effect during her lifetime and that the
ownership of the properties donated to the donee or independently of,
and not by reason of her death, she would not have expressed such
proviso in the subject deeds. 34 (Underscoring supplied) EaCSHI
As the Court of Appeals observed, ". . . [t]hat the donation is mortis causa is fortified by
Matilde's acts of possession as she continued to pay the taxes for the said properties which
remained under her name; appropriated the produce; and applied for free patents for which
OCTs were issued under her name". 35
The donation being then mortis causa, the formalities of a will should have been
observed 36 but they were not, as it was witnessed by only two, not three or more witnesses
following Article 805 of the Civil Code. 37
Further, the witnesses did not even sign the attestation clause 38 the execution of which clause
is a requirement separate from the subscription of the will and the affixing of signatures on the
left-hand margins of the pages of the will. So the Court has emphasized:
. . . Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will from the requisite that
the will be "attested and subscribed by [the instrumental witnesses]. The
respective intents behind these two classes of signature[s] are distinct
from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to
the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the
will. An unsigned attestation clause results in an unattested will. Even if
the instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses' undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly
different avowal.
. . . It is the witnesses, and not the testator, who are required under
Article 805 to state the number of pages used upon which the will is
written; the fact that the testator had signed the will and every page
thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only
proof in the will that the witnesses have stated these elemental facts
would be their signatures on the attestation clause. 39(Emphasis and
underscoring supplied)
Furthermore, the witnesses did not acknowledge the will before the notary public, 40 which is
not in accordance with the requirement of Article 806 of the Civil Code that every will must be
acknowledged before a notary public by the testator and the witnesses.
More. The requirement that all the pages of the will must be numbered correlatively in letters
placed on the upper part of each page was not also followed. 41
The Deed of Donation which is, as already discussed, one of mortis causa, not having followed
the formalities of a will, it is void and transmitted no right to petitioners' mother. But even
assuming arguendo that the formalities were observed, since it was not probated, no right to Lot
Nos. 674 and 676 was transmitted to Maria. 42 Matilde thus validly disposed of Lot No. 674 to
respondent by her last will and testament, subject of course to the qualification that her
(Matilde's) will must be probated. With respect to Lot No. 676, the same had, as mentioned
earlier, been sold by Matilde to respondent on August 26, 1991. CASIEa
Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their
mother is indeed mortis causa,hence, Matilde could devise it to respondent, the lot should
nevertheless have been awarded to them because they had acquired it by acquisitive
prescription, they having been in continuous, uninterrupted, adverse, open, and public
possession of it in good faith and in the concept of an owner since 1978. 43
Petitioners failed to raise the issue of acquisitive prescription before the lower courts, however,
they having laid their claim on the basis of inheritance from their mother. As a general rule,
points of law, theories, and issues not brought to the attention of the trial court cannot be raised
for the first time on appeal. 44 For a contrary rule would be unfair to the adverse party who
would have no opportunity to present further evidence material to the new theory, which it
could have done had it been aware of it at the time of the hearing before the trial court. 45
WHEREFORE, the petition is DENIED.
SO ORDERED.
Quisumbing, Tinga, Velasco, Jr. and Brion, JJ., concur.
||| (Aluad v. Aluad, G.R. No. 176943, October 17, 2008)