FULL TEXT CASES 1 (1).docx

ContentsFlora v Prado1De Borja v Vda de Borja6Bailon-Casilao v CA16Alejandrino v CA22Mondonido v Roda30Barretto v Tuason31Tordilla v Tordilla60Jaboneta v Gustilo62Nera v Rimando65De Gala v De Gala66Garcia v Lacuesta70ORALS72Uson v Del Rosario72Ibarle v Po73Nacar v Nistal75Torres v Lopez81Dorotheo v CA108Balus v Balus111Unionbank v Santibanez116

Flora v PradoFIRST DIVISION[G.R. No. 156879.January 20, 2004]FLORDELIZA CALPATURA FLORA, DOMINADOR CALPATURA and TOMAS CALPATURA, JR., Heirs of TOMAS CALPATURA, SR.,petitioners, vs. ROBERTO, ERLINDA, DANIEL, GLORIA, PATRICIO, JR. and EDNA, all surnamed PRADO and NARCISA PRADO,respondents.D E C I S I O NYNARES-SANTIAGO,J.:The property under litigation is the northern half portion of a residential land consisting of 552.20 square meters, more or less, situated at 19thAvenue, Murphy, Quezon City and covered by Transfer Certificate of Title No. 71344 issued on August 15, 1963 by the Register of Deeds of Quezon City in the name of Narcisa Prado and her children by her first husband, Patricio Prado, Sr., namely, Roberto, Erlinda, Daniel, Gloria, Patricio, Jr. and Edna, respondents herein.The pertinent facts are as follows:On December 19, 1959, Patricio Prado, Sr. died.Narcisa subsequently married Bonifacio Calpatura.In order to support her minor children with her first husband, Narcisa and her brother-in-law, Tomas Calpatura, Sr., executed on April 26, 1968 anAgreement of Purchase and Salewhereby the former agreed to sell to the latter the northern half portion of the property for the sum of P10,500.00.[1]On July 28, 1973, Narcisa executed aDeed of Absolute Salein favor of Tomas over the said property.[2]In 1976, Tomas daughter, Flordeliza Calpatura Flora, built a two-storey duplex with firewall[3]on the northern half portion of the property.Respondents, who occupied the southern half portion of the land, did not object to the construction.Flordeliza Flora and her husband Wilfredo declared the property for taxation purposes[4]and paid the corresponding taxes thereon.[5]Likewise, Maximo Calpatura, the son of Tomas cousin, built a small house on the northern portion of the property.On April 8, 1991, respondents filed a complaint for declaration of nullity of sale and delivery of possession of the northern half portion of the subject property against petitioners Flordeliza Calpatura Flora, Dominador Calpatura and Tomas Calpatura, Jr. before the Regional Trial Court of Quezon City, Branch 100, docketed as Civil Case No. Q-91-8404.[6]Respondents alleged that the transaction embodied in theAgreement to Purchase and Salebetween Narcisa and Tomas was one of mortgage and not of sale; that Narcisas children tried to redeem the mortgaged property but they learned that the blank document which their mother had signed was transformed into aDeed of Absolute Sale; that Narcisa could not have sold the northern half portion of the property considering that she was prohibited from selling the same within a period of 25 years from its acquisition, pursuant to the condition annotated at the back of the title;[7]that Narcisa, as natural guardian of her children, had no authority to sell the northern half portion of the property which she and her children co-owned; and that only P5,000.00 out of the consideration of P10,500.00 was paid by Tomas.In their answer, petitioners countered that Narcisa owned 9/14 of the property, consisting of as her share in the conjugal partnership with her first husband and 1/7 as her share in the estate of her deceased husband; that the consideration of the sale in the amount of P10,500.00 had been fully paid as of April 1, 1968; that Narcisa sold her conjugal share in order to support her minor children; that Narcisas claim was barred by laches and prescription; and that the Philippine Homesite and Housing Corporation, not the respondents, was the real party in interest to question the sale within the prohibited period.On April 2, 1997, the courta quo[8]dismissed the complaint.It found that the sale was valid; that theAgreement to Purchase and Saleand theDeed of Absolute Salewere duly executed; that the sum of P10,500.00 as selling price for the subject property was fully paid there being no demand for the payment of the remaining balance; that the introduction of improvements thereon by the petitioners was without objection from the respondents; and that Roberto and Erlinda failed to contest the transaction within four years after the discovery of the alleged fraud and reaching the majority age in violation of Article 1391 of the Civil Code.[9]Petitioners appealed the decision to the Court of Appeals, where it was docketed as CA-G.R. CV No. 56843.On October 3, 2002, a decision[10]was rendered by the Court of Appeals declaring that respondents were co-owners of the subject property, thus the sale was valid only insofar as Narcisas 1/7 undivided share thereon was concerned.The dispositive portion of the said decision reads:WHEREFORE, the appealed Decision is AFFIRMED, with the MODIFICATION that the sale in dispute is declared valid only with respect to the one-seventh (1/7) share of plaintiff-appellant NARCISA H. PRADO in the subject property, which is equivalent to 78.8857 square meters.In all other respects, the same decision stands.No pronouncement as to costs.SO ORDERED.[11]Petitioner filed a motion for reconsideration which was denied in a Resolution dated January 14, 2003.[12]Hence this petition for review on the following assigned errors:ITHE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN MODIFYING THE DECISION RENDERED BY THE REGIONAL TRIAL COURT WITHOUT TAKING INTO CONSIDERATION THAT, ASIDE FROM THE DECLARATION OF THE VALIDITY OF THE SALE, THE PETITIONERS HEREIN HAVE TAKEN ACTUAL POSSESSION OF THE SAID ONE-HALF (1/2) TO THE EXCLUSION OF THE RESPONDENTS AND INTRODUCED IMPROVEMENTS THEREON.IITHE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN MODIFYING THE DECISION RENDERED BY THE REGIONAL TRIAL COURT WITHOUT TAKING INTO CONSIDERATION THE CLEAR AND UNEQUIVOCAL STATEMENT IN THE SALE THAT THE SAME PERTAINS TO THE CONJUGAL SHARE OF RESPONDENT NARCISA PRADO AND THE OTHER RESPONDENTS HAD NO FINANCIAL CAPACITY TO ACQUIRE THE SAID PROPERTY SINCE THEY WERE MINORS THEN AT THE ISSUANCE OF THE SAID TCT NO. 71344 ON AUGUST 15, 1963.IIITHE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN NOT DECLARING THE HEREIN RESPONDENTS GUILTY OF LACHES IN FILING THE INSTANT CASE ONLY ON APRIL 8, 1991, THAT IS 18 YEARS AFTER THE SAID SALE WITH THE PETITIONERS TAKING ACTUAL POSSESSION OF SAID PORTION OF THE PROPERTY.IVTHAT THE DECISION OF THE HON. COURT OF APPEALS WILL UNDULY ENRICH THE RESPONDENTS AT THE EXPENSE OF THE HEREIN PETITIONERS.[13]At the outset, it must be stressed that only questions of law may be raised in petitions for review before this Court under Rule 45 of the Rules of Court.[14]It was thus error for petitioners to ascribe to the Court of Appeals grave abuse of discretion.This procedural lapse notwithstanding, in the interest of justice, this Court shall treat the issues as cases of reversible error.[15]The issues for resolution are: (1) Is the subject property conjugal or paraphernal? (2) Is the transaction a sale or a mortgage? (3) Assuming that the transaction is a sale, what was the area of the land subject of the sale?Article 160 of the Civil Code, which was in effect at the time the sale was entered into, provides that all property of the marriage is presumed to belong to the conjugal partnership unless it is proved that it pertains exclusively to the husband or to the wife.Proof of acquisition during the marriage is a conditionsine qua nonin order for the presumption in favor of conjugal ownership to operate.[16]In the instant case, while Narcisa testified during cross-examination that she bought the subject property from Peoples Homesite Housing Corporation with her own funds,[17]she, however admitted in theAgreement of Purchase and Saleand theDeed of Absolute Salethat the property was her conjugal share with her first husband, Patricio, Sr.[18]A verbal assertion that she bought the land with her own funds is inadmissible to qualify the terms of a written agreement under the parole evidence rule.[19]The so-calledparole evidence ruleforbids any addition to or contradiction of the terms of a written instrument by testimony or other evidence purporting to show that, at or before the execution of the parties written agreement, other or different terms were agreed upon by the parties, varying the purport of the written contract.Whatever is not found in the writing is understood to have been waived and abandoned.[20]Anent the second issue, theDeed of Absolute Saleexecuted by Narcisa in favor of Tomas is contained in a notarized[21]document.InSpouses Alfarero, et al. v. Spouses Sevilla, et al.,[22]it was held that a public document executed and attested through the intervention of a notary public is evidence of the facts in a clear, unequivocal manner therein expressed.Otherwise stated, public or notarial documents, or those instruments duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment beingprima facieevidence of the execution of the instrument or document involved.In order to contradict the presumption of regularity of a public document, evidence must be clear, convincing, and more than merely preponderant.It is well-settled that in civil cases, the party that alleges a fact has the burden of proving it.[23]Except for the bare allegation that the transaction was one of mortgage and not of sale, respondents failed to adduce evidence in support thereof.Respondents also failed to controvert the presumption that private transactions have been fair and regular.[24]Furthermore, Narcisa, in fact did not deny that she executed an Affidavit allowing spouses Wilfredo and Flordeliza Flora to construct a firewall between the two-storey duplex and her house sometime in 1976.The duplex was made of strong materials, the roofing being galvanized sheets.While the deed of sale between Tomas and Narcisa was never registered nor annotated on the title, respondents had knowledge of the possession of petitioners of the northern half portion of the property.Obviously, respondents recognized the ownership of Tomas, petitioners predecessor-in-interest.Respondents belatedly claimed that only P5,000.00 out of the P10,500.00 consideration was paid.Both theAgreement of Purchase and Saleand theDeed of Absolute Salestate that said consideration was paid in full.Moreover, the presumption is that there was sufficient consideration for a written contract.[25]The property being conjugal, upon the death of Patricio Prado, Sr., one-half of the subject property was automatically reserved to the surviving spouse, Narcisa, as her share in the conjugal partnership.Particios rights to the other half, in turn, were transmitted upon his death to his heirs, which includes his widow Narcisa, who is entitled to the same share as that of each of the legitimate children.Thus, as a result of the death of Patricio, a regime of co-ownership arose between Narcisa and the other heirs in relation to the property.The remaining one-half was transmitted to his heirs by intestate succession.By the law on intestate succession, his six children and Narcisa Prado inherited the same at one-seventh (1/7) eachpro indiviso.[26]Inasmuch as Narcisa inherited one-seventh (1/7) of her husband's conjugal share in the said property and is the owner of one-half (1/2) thereof as her conjugal share, she owns a total of 9/14 of the subject property.Hence, Narcisa could validly convey her total undivided share in the entire property to Tomas.Narcisa and her children are deemed co-owners of the subject property.Neither can the respondents invoke the proscription of encumbering the property within 25 years from acquisition.InSarmiento, et al. v. Salud, et al.,[27]it was held that:xxx The condition that the appellees Sarmiento spouses could not resell the property except to the Peoples Homesite and Housing Corporation (PHHC for short) within the next 25 years after appellees purchasing the lot is manifestly a condition in favor of the PHHC, and not one in favor of the Sarmiento spouses. The condition conferred no actionable right on appellees herein, since it operated as a restriction upon theirjus disponendiof the property they bought, and thus limited their right of ownership.It follows that on the assumption that the mortgage to appellee Salud and the foreclosure sale violated the condition in the Sarmiento contract, only the PHHC was entitled to invoke the condition aforementioned, and not the Sarmientos.The validity or invalidity of the sheriff's foreclosure sale to appellant Salud thus depended exclusively on the PHHC; the latter could attack the sale as violative of its right of exclusive reacquisition; but it (PHHC) also could waive the condition and treat the sale as good, in which event, the sale can not be assailed for breach of the condition aforestated.Finally, no particular portion of the property could be identified as yet and delineated as the object of the sale considering that the property had not yet been partitioned in accordance with the Rules of Court.[28]While Narcisa could validly sell one half of the subject property, her share being 9/14 of the same, she could not have particularly conveyed the northern portion thereof before the partition, the terms of which was still to be determined by the parties before the trial court.WHEREFORE, the Decision of the Court of Appeals on October 3, 2002, as well as the Resolution dated January 14, 2003 isPARTLY AFFIRMEDsubject to the following MODIFICATIONS:1)Narcisa Prado is entitled to 9/14 of the residential land consisting of 552.20 square meters, more or less, situated at 19thAvenue, Murphy, Quezon City and covered by Transfer Certificate of Title No. 71344;2)the sale of the undivided one half portion thereof by Narcisa Prado in favor of Tomas Calpatura, Sr. is valid.Furthermore, the case is REMANDED to the court of origin, only for the purpose of determining the specific portion being conveyed in favor of Tomas Calpatura, Sr. pursuant to the partition that will be agreed upon by the respondents.SO ORDERED.Davide, Jr., C.J., Panganiban, Carpio, and Azcuna, JJ., concur.

De Borja v Vda de BorjaG.R. No. L-28040 August 18, 1972TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa Tangco,appellees,vs.TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja,appellant. .G.R. No L-28568 August 18, 1972TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA, special Administratrix appellee,vs.JOSE DE BORJA,oppositor-appellant.G.R. No. L-28611 August 18, 1972TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco de Borja,plaintiff-appellee,vs.JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco,defendant-appellant.L-28040Pelaez, Jalandoni & Jamir for administrator-appellee.Quiogue & Quiogue for appellee Matilde de Borja.Andres Matias for appellee Cayetano de Borja.Sevilla & Aquino for appellant.L-28568Sevilla & Aquino for special administratrix-appellee.Pelaez, Jalandoni & Jamir for oppositor-appellant.L-28611Sevilla & Aquino for plaintiff-appellee.Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.REYES, J.B.L.,J.:pOf these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de Borja, special administratrix of the testate estate of Francisco de Borja,1from the approval of a compromise agreement by the Court of First Instance of Rizal, Branch I, in its Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de Borja, Administrator".Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de Borja, Special Administratrix".And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise agreement, as the separate and exclusive property of the late Francisco de Borja and not a conjugal asset of the community with his first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate, which is under administrator in Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II.It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the probate of her will which was docketed as Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the testate estate of his mother, Josefa Tangco. While a widower Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix. The validity of Tasiana's marriage to Francisco was questioned in said proceeding.The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases remain pending determination in the courts. The testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to all these litigations, a compromise agreement was entered into on 12 October 1963,2by and between "[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of the compromise agreement are as follows:A G R E E M E N TTHIS AGREEMENT made and entered into by and betweenThe heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco,A N DThe heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr.W I T N E S S E T HTHAT it is the mutual desire of all the parties herein terminate and settle, with finality, the various court litigations, controversies, claims, counterclaims, etc., between them in connection with the administration, settlement, partition, adjudication and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja.THAT with this end in view, the parties herein have agreed voluntarily and without any reservations to enter into and execute this agreement under the following terms and conditions:1. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in Jalajala, Rizal, presently under administration in the Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described as follows:Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del Municipio de Pililla de la Provincia de Rizal, y con el pico del Monte Zambrano; al Oeste con Laguna de Bay; por el Sur con los herederos de Marcelo de Borja; y por el Este con los terrenos de la Familia Maronillawith a segregated area of approximately 1,313 hectares at the amount of P0.30 per square meter.2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda. de de Borja the total amount of Eight Hundred Thousand Pesos (P800,000) Philippine Currency, in cash, which represent P200,000 as his share in the payment and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all surnamed de Borja and this shall be considered as full and complete payment and settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-Rizal, respectively, and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise. The funds for this payment shall be taken from and shall depend upon the receipt of full payment of the proceeds of the sale of Jalajala, "Poblacion."3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that particular obligation incurred by the late Francisco de Borja in favor of the Rehabilitation Finance Corporation, now Development Bank of the Philippines, amounting to approximately P30,000.00 and also assumes payment of her 1/5 share of the Estate and Inheritance taxes on the Estate of the late Francisco de Borja or the sum of P3,500.00, more or less, which shall be deducted by the buyer of Jalajala, "Poblacion" from the payment to be made to Tasiana Ongsingco Vda. de Borja under paragraph 2 of this Agreement and paid directly to the Development Bank of the Philippines and the heirs-children of Francisco de Borja.4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to Tasiana Ongsingco Vda. de de Borja the balance of the payment due her under paragraph 2 of this Agreement (approximately P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de Borja, corresponding certified checks/treasury warrants, who, in turn, will issue the corresponding receipt to Jose de Borja.5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for themselves and for their heirs, successors, executors, administrators, and assigns, hereby forever mutually renounce, withdraw, waive, remise, release and discharge any and all manner of action or actions, cause or causes of action, suits, debts, sum or sums of money, accounts, damages, claims and demands whatsoever, in law or in equity, which they ever had, or now have or may have against each other, more specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No. 7452-CFI, Rizal, as well as the case filed against Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the intention being to completely, absolutely and finally release each other, their heirs, successors, and assigns, from any and all liability, arising wholly or partially, directly or indirectly, from the administration, settlement, and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de Borja expressly and specifically renounce absolutely her rights as heir over any hereditary share in the estate of Francisco de Borja.6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers, titles and documents belonging to Francisco de Borja which are in her possession and said heir Jose de Borja shall issue in turn the corresponding receive thereof.7. That this agreement shall take effect only upon the fulfillment of the sale of the properties mentioned under paragraph 1 of this agreement and upon receipt of the total and full payment of the proceeds of the sale of the Jalajala property "Poblacion", otherwise, the non-fulfillment of the said sale will render this instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER.IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City of Manila, Philippines, the 12th of October, 1963.On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case No. L-28568) by the Court of First Instance of Nueva Ecija.The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision inGuevara vs. Guevara. 74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the decedentleft no willand no debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives ..." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement.Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion of Justice Moran, inGuevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have already divided the estate in accordance with a decedent's will, the probate of the will is a useless ceremony; and if they have divided the estate in a different manner, the probate of the will is worse than useless.The doctrine ofGuevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from an examination of the terms of the agreement between Jose de Borja and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the sum of P800,000 payable to Tasiana Ongsingco shall be considered as full complete payment settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estate of Josefa Tangco, ... and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise.This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee. And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of suchcausanteor predecessor in interest (Civil Code of the Philippines, Art. 777)3there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate.4Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect the validity of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article 995et seq.of the present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament and would exist even if such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja.Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the Court to enter into the same. The only difference between an extrajudicial compromise and one that is submitted and approved by the Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil Code is explicit on the point:8. Art. 2037. A compromise has upon the parties the effect and authority ofres judicata; but there shall be no execution except in compliance with a judicial compromise.It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no definite period for its performance, the same wasintendedto have a resolutory period of 60 days for its effectiveness. In support of such contention, it is averred that such a limit was expressly stipulated in an agreement in similar terms entered into by said Ongsingco with the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and Cayetano, all surnamed de Borja, except that the consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and which contained the following clause:III. That this agreement shall take effect only upon the consummation of the sale of the property mentioned herein and upon receipt of the total and full payment of the proceeds of the sale by the herein owner heirs-children of Francisco de Borja, namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided that if no sale of the said property mentioned herein is consummated, or the non-receipt of the purchase price thereof by the said owners within the period of sixty (60) days from the date hereof, this agreement will become null and void and of no further effect.Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this particular contract (Annex 1), and that the same appears not to have been finalized, since it bears no date, the day being left blank "this day of October 1963"; and while signed by the parties, it was not notarized, although plainly intended to be so done, since it carries a proposed notarial ratification clause. Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its par. 2 heretofore transcribed that of the total consideration of P800, 000 to be paid to Ongsingco, P600,000 represent the "prorata share of the heirs Crisanto, Cayetano and Matilde all surnamed de Borja" which corresponds to the consideration of P600,000 recited in Annex 1, and that circumstance is proof that the duly notarized contract entered into wit Jose de Borja under date 12 October 1963 (Annex A), was designed to absorb and supersede the separate unformalize agreement with the other three Borja heirs. Hence, the 60 days resolutory term in the contract with the latter (Annex 1) not being repeated in Annex A, can not apply to the formal compromise with Jose de Borja. It is moreover manifest that the stipulation that the sale of the Hacienda de Jalajala was to be made within sixty days from the date of the agreement with Jose de Borja's co-heirs (Annex 1) was plainly omitted in Annex A as improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to Ongsingco for her share formed part of the estate of Francisco de Borja and could not be sold until authorized by the Probate Court. The Court of First Instance of Rizal so understood it, and in approving the compromise it fixed a term of 120 days counted from the finality of the order now under appeal, for the carrying out by the parties for the terms of the contract.This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the estate of her late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose. Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code:Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale of the vendor.If a sale of a hereditary right can be made to a stranger, thena fortiorisale thereof to a coheir could not be forbidden.Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text of the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made in consideration of the cession of her hereditary rights.It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija in its order of 21 September 1964, in Special Proceedings No. 832 (Amended Record on Appeal in L-28568, page 157), that the compromise agreement of 13 October 1963 (Annex "A") had been abandoned, as shown by the fact that, after its execution, the Court of First Instance of Nueva Ecija, in its order of 21 September 1964, had declared that "no amicable settlement had been arrived at by the parties", and that Jose de Borja himself, in a motion of 17 June 1964, had stated that the proposed amicable settlement "had failed to materialize".It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was the compromise agreement of 13 October 1963, which already had been formally signed and executed by the parties and duly notarized. What the record discloses is that some time after its formalization, Ongsingco had unilaterally attempted to back out from the compromise agreement, pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended resolutory period of 60 days and because the contract was not preceded by the probate of Francisco de Borja's will, as required by this Court'sGuevarra vs. Guevararuling; that Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections have been already discussed. It was natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A", since the latter step might ultimately entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040; and it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964 referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore described, decreed that the agreement be ultimately performed within 120 days from the finality of the order, now under appeal.We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order should be upheld, while the contrary resolution of the Court of First Instance of Nueva Ecija should be, and is, reversed.In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished, the value of the Jalajala property has increased. But the fact is that her delay in receiving the payment of the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement (Annex "A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And as to the devaluationde factoof our currency, what We said inDizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of currency and properties of the estate", is particularly opposite in the present case.Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion), concededly acquired by Francisco de Borja during his marriage to his first wife, Josefa Tangco, is the husband's private property (as contended by his second spouse, Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial) partnership with Josefa Tangco. The Court of First Instance of Rizal (Judge Herminio Mariano, presiding) declared that there was adequate evidence to overcome the presumption in favor of its conjugal character established by Article 160 of the Civil Code.We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has become moot and academic, in view of the conclusion reached by this Court in the two preceding cases (G.R. No. L-28568), upholding as valid the cession of Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco de Borja, for the sum of P800,000 with the accompanying reciprocal quit-claims between the parties. But as the question may affect the rights of possible creditors and legatees, its resolution is still imperative.It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and their title thereto was duly registered in their names as co-owners in Land Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was partitioned among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).The lot allotted to Francisco was described as Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of 13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal, pages 7 and 105)On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described declared exclusive private property of Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco de Borja and Josefa Tangco), conformably to the presumption established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to the effect that:Art. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife.Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary, as well as for attorney's fees.After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had adduced sufficient evidence to rebut the presumption, and declared the Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be entitled to its possession. Defendant Jose de Borja then appealed to this Court.The evidence reveals, and the appealed order admits, that the character of the Hacienda in question as owned by the conjugal partnership De Borja-Tangco was solemnly admitted by the late Francisco de Borja no less than two times: first, in the Reamended Inventory that, as executor of the estate of his deceased wife Josefa Tangco, he filed in the Special Proceedings No. 7866 of the Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted therein an inventory dated 7 September 1954 (Exhibit "3") listing the Jalajala property among the "Conjugal Properties of the Spouses Francisco de Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as administratrix of the Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of First Instance of Nueva Ecija, submitted therein in December, 1955, an inventory wherein she listed the Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco de Borja and Josefa Tangco, which are in the possession of the Administrator of the Testate Estate of the Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court of First Instance of Rizal" (Exhibit "4").Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest made by both Francisco de Borja and the Administratrix of his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting the legal presumption in favor of the conjugal community, the Court below declared that the Hacienda de Jalajala (Poblacion) was not conjugal property, but the private exclusive property of the late Francisco de Borja. It did so on the strength of the following evidences: (a) the sworn statement by Francis de Borja on 6 August 1951 (Exhibit "F") that He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal).and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that upon receipt of a subsequent demand from the provincial treasurer for realty taxes the sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo issue a check for P17,000.00 to pay the back taxes and said that the amount would represent Francisco's contribution in the purchase of the Hacienda. The witness further testified that Marcelo de Borjasaidthat that money was entrusted to him by Francisco de Borjawhen he was still a bachelorand which he derived from his business transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis supplied)The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions in the inventories relied upon by defendant-appellant Jose de Borja since probate courts can not finally determine questions of ownership of inventoried property, but that the testimony of Gregorio de Borja showed that Francisco de Borja acquired his share of the original Hacienda with his private funds, for which reason that share can not be regarded as conjugal partnership property, but as exclusive property of the buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the Philippines.The following shall be the exclusive property of each spouse:xxx xxx xxx(4) That which is purchased with exclusive money of the wife or of the husband.We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de Borja's testimony as to the source of the money paid by Francisco for his share was plain hearsay, hence inadmissible and of no probative value, since he was merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of ascertaining the truth of the statement, since both Marcelo and Francisco de Borja were already dead when Gregorio testified. In addition, the statement itself is improbable, since there was no need or occasion for Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A ring of artificiality is clearly discernible in this portion of Gregorio's testimony.As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers precisely to the Hacienda in question. The inventories (Exhibits 3 and 4) disclose that there were two real properties in Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600, and a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To which of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly self-serving, and not admissible in the absence of cross examination.It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and "7") are not conclusive on the conjugal character of the property in question; but as already noted, they are clear admissions against the pecuniary interest of the declarants, Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as such of much greater probative weight than the self-serving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the conjugal character of the Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but actually confirmed by proof. Hence, the appealed order should be reversed and the Hacienda de Jalajala (Poblacion) declared property of the conjugal partnership of Francisco de Borja and Josefa Tangco.No error having been assigned against the ruling of the lower court that claims for damages should be ventilated in the corresponding special proceedings for the settlement of the estates of the deceased, the same requires no pro announcement from this Court.IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana Ongsingco Vda. de Borja in all three (3) cases.Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.Fernando, J., took no part.

Bailon-Casilao v CAG.R. No. 78178 April 15, 1988DELIA BAILON-CASILAO, LUZ PAULINO-ANG, EMMA PAULINO-YBANEZ, NILDA PAULINO-TOLENTINO, and SABINA BAILON,petitioners,vs.THE HONORABLE COURT OF APPEALS and CELESTINO AFABLE,respondents.Veronico E. Rubio for petitioners.Mario G. Fortes for private-respondent.CORTES,J.:The fate of petitioners' claim over a parcel of land rests ultimately on a determination of whether or not said petitioners are chargeable with such laches as may effectively bar their present action.The petitioners herein filed a case for recovery of property and damages with notice oflis pendenson March 13, 1981 against the defendant and herein private respondent, Celestino Afable. The parcel of land involved in this case, with an area of 48,849 square meters, is covered by Original Certificate of Title No. 1771 issued on June 12, 1931, in the names of Rosalia, Gaudencio, Sabina Bernabe, Nenita and Delia, all surnamed Bailon, as co-owners, each with a 1/6 share. Gaudencio and Nenita are now dead, the latter being represented in this case by her children. Luz, Emma and Nilda. Bernabe went to China in 1931 and had not been heard from since then [Decision of the Court of Appeals, Rollo, p. 39].It appears that on August 23, 1948, Rosalia Bailon and Gaudencio Bailon sold a portion of the said land consisting of 16,283 square meters to Donato Delgado. On May 13, 1949, Rosalia Bailon alone sold the remainder of the land consisting of 32,566 square meters to Ponciana V. Aresgado de Lanuza. On the same date, Lanuza acquired from Delgado the 16,283 square meters of land which the latter had earlier acquired from Rosalia and Gaudencio. On December 3, 1975, John Lanuza, acting under a special power of attorney given by his wife, Ponciana V. Aresgado de Lanuza, sold the two parcels of land to Celestino Afable, Sr.In all these transfers, it was stated in the deeds of sale that the land was not registered under the provisions of Act No. 496 when the fact is that it is. It appears that said land had been successively declared for taxation first, in the name of Ciriaca Dellamas, mother of the registered co-owners, then in the name of Rosalia Bailon in 1924, then in that of Donato Delgado in 1936, then in Ponciana de Lanuza's name in 1962 and finally in the name of Celestino Afable, Sr. in 1983.In his answer to the complaint filed by the herein petitioners, Afable claimed that he had acquired the land in question through prescription and contended that the petitioners were guilty of laches.He later filed a third-party complaint against Rosalia Bailon for damages allegedly suffered as a result of the sale to him of the land.After trial, the lower court rendered a decision:1. Finding and declaring Celestino Afable, a co-owner of the land described in paragraph III of the complaint having validly bought the two-sixth (2/6) respective undivided shares of Rosalia Bailon and Gaudencio Bailon;2. Finding and declaring the following as pro-indiviso co-owners, having 1/6 share each, of the property described in paragraph III of the complaint, to wit:a. Sabina Bailonb. Bernabe Bailonc. Heirs of Nenita Bailon-Paulinod. Delia Bailon-Casilao;3. Ordering the segregation of the undivided interests in the property in order to terminate co-ownership to be conducted by any Geodetic Engineer selected by the parties to delineate the specific part of each of the co-owners.4. Ordering the defendant to restore the possession of the plaintiffs respective shares as well as all attributes of absolute dominion;5. Ordering the defendant to pay the following:a. P5,000.00 as damages;b. P2,000.00 as attorney's fees and;c. to pay the costs.[Decision of the Trial Court, Rollo, p. 37-38].On appeal, the respondent Court of Appeals affirmed the decision of the lower court insofar as it held that prescription does not he against plaintiffs-appellees because they are co-owners of the original vendors. However, the appellate court declared that, although registered property cannot be lost by prescription, nevertheless, an action to recover it may be barred by laches, citing the ruling inMejia de Lucaz v. Gamponia[100 Phil. 277 (1956)]. Accordingly, it held the petitioners guilty of laches and dismissed their complaint. Hence, this petition for review on certiorari of the decision of the Court of Appeals.The principal issue to be resolved in this case concerns the applicability of the equitable doctrine of laches. Initially though, a determination of the effect of a sale by one or more co-owners of the entire property held in common without the consent of all the co-owners and of the appropriate remedy of the aggrieved co-owners is required.The rights of a co-owner of a certain property are clearly specified in Article 493 of the Civil Code.Thus:Art. 493. Each co-owner shall havethe full ownership of his partand of the acts and benefits pertaining thereto, and he may thereforealienate assign or mortgageit and even substitute another person in its enjoyment, except when personal rights are involved.But the effect of the alienation or 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.[Emphasis supplied.]As early as 1923, this Court has ruled that even if a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other co-owners who did not consent to the sale [Punsalan v. Boon Liat 44 Phil. 320 (1923)]. This is because under the aforementioned codal provision, the sale or other disposition affects only his undivided share and the transferee gets only what would correspond to his grantor in the partition of the thing owned in common.[Ramirez v. Bautista, 14 Phil. 528 (1909)]. Consequently, by virtue of the sales made by Rosalia and Gaudencio Bailon which are valid with respect to their proportionate shares, and the subsequent transfers which culminated in the sale to private respondent Celestino Afable, the said Afable thereby became a co-owner of the disputed parcel of land as correctly held by the lower court since the sales produced the effect of substituting the buyers in the enjoyment thereof [Mainit v. Bandoy, 14 Phil. 730 (1910)].From the foregoing, it may be deduced that since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owners is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property as if it continued to remain in the possession of the co-owners who possessed and administered it[Mainit v. Bandoy,supra.]Thus, it is now settled that the appropriate recourse of co-owners in cases where their consent were not secured in a sale of the entire property as well as in a sale merely of the undivided shares of some of the co-owners is an action. for PARTITION under Rule 69 of the Revised Rules of Court. Neither recovery of possession nor restitution can be granted since the defendant buyers are legitimate proprietors and possessors in joint ownership of the common property claimed [Ramirez v. Bautista,supra].As to the action for petition, neither prescription nor laches can be invoked.In the light of the attendant circumstances, defendant-appellee's defense of prescription is a vain proposition. Pursuant to Article 494 of the Civil Code, '(n)o co-owner shall be obliged to remain in the co-ownership. Such co-ownermay demand at anytime the partition of the thing owned in common, insofar as his share is concerned.' [Emphasis supplied.] InBudiong v. Bondoc[G.R. No. L-27702, September 9, 1977, 79 SCRA 241, this Court has interpreted said provision of law to mean that the action for partition is imprescriptible or cannot be barred by prescription. For Article 494 of the Civil Code explicitly declares: "No prescription shall lie in favor of a co-owner or co- heir so long as he expressly or impliedly recognizes the co-ownership."Furthermore, the disputed parcel of land being registered under the Torrens System, the express provision of Act No. 496 that '(n)o title to registered land in derogation to that of the registered owner shall be acquired by prescription or adverse possession' is squarely applicable. Consequently, prescription will not lie in favor of Afable as against the petitioners who remain the registered owners of the disputed parcel of land.It is argued however, that as to the petitioners Emma, Luz and Nelda who are not the registered co-owners but merely represented their deceased mother, the late Nenita Bailon, prescription lies.Respondents bolster their argument by citing a decision of this Court inPasion v. Pasion[G.R.No. L-15757, May 31, 1961, 2 SCRA 486, 489] holding that "the imprescriptibility of a Torrens title can only be invokedby the person in whose name the title is registered"and that'one who is not the registered owner of a parcel of land cannot invoke imprescriptibility of action to claim the same.'Reliance on the aforesaid Pasion case is futile. The ruling therein applies only against transferees other than direct issues or heirs or to complete strangers. The rational is clear:If prescription is unavailing against the registered owner, it must be equally unavailing against the latter's hereditary successors, because they merely step into the shoes of the decedent by operation of law (New Civil Code, Article 777; Old Civil Code, Article 657), the title or right undergoing no change by its transmissionmortis causa[Atus, et al., v. Nunez, et al., 97 Phil. 762, 764].The latest pronouncement of this Court inUmbay v. Alecha[G. R. No. 67284, March 18, 1985, 135 SCRA 427, 429], which was promulgated subsequent to thePasioncase reiterated theAtusdoctrine. Thus:Prescription is unavailing not only against the registered owner but also against his hereditary successors, because they merely step into the shoes of the decedent by operation of law and are merely the continuation of the personality of their predecessor-in-interest. [Barcelona v. Barcelona, 100 Phil. 251, 257].Laches is likewise unavailing as a shield against the action of herein petitioners.Well-stated in this jurisdiction are the four basic elements of laches, namely: (1) conduct on the part of the defendant or of one under whom he claims, giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the corporations complainant's rights, the complainant having had knowledge or notice of the defendant's conduct and having been afforded an opportunity to institute suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and, (4) injury or prejudice to the defendant in the event relief is accorded to the complainant, or the suit is not held to be barred [Go China Gun, et al. v. Co Cho et al., 96 Phil. 622 (1955)].While the first and last elements are present in this case, the second and third elements are missing.The second element speaks of delay in asserting the complainant's rights. However, the mere fact of delay is insufficient to constitute, laches. It is required that (1) complainant must have hadknowledge of the conduct of defendant or of one under whom he claimsand (2) he must have been afforded anopportunity to institute suit. This court has pointed out that laches is not concerned with the mere lapse of time. Thus:Laches has been defined as the failure or neglect, for an unreasonable length of time to do that which by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it.Tijam, et al., v. Sibonghanoy, G.R. No. L-21450, April 25, 1968, 23 SCRA 29,35; Tendo v. Zamacoma, G.R. No. L-63048, August 7, 1985, 138 SCRA 78, 90].The doctrine of "laches" or of "stale demands" is based upon grounds of public policy which requires for the peace of society, the discouragement of stale claims and unlike the statute of limitations, isnot a mere question of time but is principally a question of inequity or unfairnessof permitting a right or claim to be enforced or asserted," [Tijam v. Sibonghanoy,supra, p. 35]. [Emphasis supplied.]It must be noted that while there was delay in asserting petitioners' rights, such delay was not attended with any knowledge of the sale nor with any opportunity to bring suit. In the first place, petitioners had no notice of the sale made by their eldest sister. It is undisputed that the petitioner co-owners had entrusted the care and management of the parcel of land to Rosalia Bailon who was the oldest among them [TSN, July 27, 1983, p. 14]. In fact, Nicanor Lee, a son of Rosalia, who was presented as a witness by the plaintiffs-petitioners, testified on cross-examination that his mother was only the administrator of the land as she is the eldest and her brothers and sisters were away [TSN, October 5, 1983, p. 15]. Indeed, when Delia Bailon-Casilao left Sorsogon in 1942 after she got married, it was only in 1983 that she returned. Sabina on the other hand, is said to be living in Zamboanga while Bernabe who left for China in 1931 has not been heard from since then. Consequently, when Rosalia, from whom the private respondent derived his title, made the disputed sales covering the entire property, the herein petitioners were unaware thereof.In the second place, they were not afforded an opportunity to bring suit inasmuch as until 1981, they were kept in the dark about the transactions entered into by their sister. It was only when Delia Bailon-Casilao returned to Sorsogon in 1981 that she found out about the sales and immediately, she and her co-petitioners filed the present action for recovery of property. The appellate court thus erred in holding that 'the petitioners did nothing to show interest in the land." For the administration of the parcel of land was entrusted to the oldest co-owner who was then in possession thereof precisely because the other co-owners cannot attend to such a task as they reside outside of Sorsogon where the land is situated. Her co-owners also allowed her to appropriate the entire produce for herself because it was not even enough for her daily consumption [TSN, October 5, 1983, pp. 17-18]. And since petitioner was the one receiving the produce, it is but natural that she was the one to take charge of paying the real estate taxes. Now, if knowledge of the sale by Rosalia was conveyed to the petitioners only later, they cannot be faulted for the acts of their co-owner who failed to live up to the trust and confidence expected of her. In view of the lack of knowledge by the petitioners of the conduct of Rosalia in selling the land without their consent in 1975 and the absence of any opportunity to institute the proper action until 1981, laches may not be asserted against the petitioners.The third element of laches is likewise absent. There was no lack of knowledge or notice on the part of the defendant that the complainants would assert the right on which they base the suit. On the contrary, private respondent is guilty of bad faith in purchasing the property as he knew that the property was co-owned by six persons and yet, there were only two signatories to the deeds of sale and no special authorization to self was granted to the two sellers by the other co-owners.Even as the land here was misrepresented in the deeds of sale as "unregistered," the truth was that Afable already had notice that the land was titled in the name of six persons by virtue of the Certificate of Title which was already in his possession even before the sale. Such fact is apparent from his testimony before the courta quo:COURT:Q: From whom did you get the certificate of Title?A: When it was mortgaged by Ponciana Aresgado.Q: It was mortgaged to you before you bought it?A: Yes, Your Honor. (TSN, March 5, 1984, p. 12) When cross-examined, he stated:Q: Mr. Witness, the original Certificate of Title was given to you in the year 1974, was it not?A: 1975.Q: In 1975, you already discovered that the title was in the name of several persons, is it not?A: Yes, sir.Q: When you discovered that it is in the name of several persons, you filed a case in court for authority to cancel the title to be transferred in your name, is it not?A: Yes, sir.Q: And that was denied by the Court of First Instance of Sorsogon because there was ordinary one signatory to the deed of sale instead of six, was it not?A: Not one but two signatories.[Decision of the Regional Trial Court of Sorsogon, Rollo, p. 35]Such actual knowledge of the existence of other co-owners in whose names the lot subject of the sale was registered should have prompted a searching inquiry by Afable considering the well- known rule in this jurisdiction that:... a person dealing with a registered land has a right to rely upon the face of the Torrens certificate of title and to dispense with the need of inquiring further, except when the party concerned has actual knowledge of facts and circumstances that would impel a reasonably cautions man to make such inquiry. [Gonzales v. IAC and Rural Bank of Pavia, Inc., G.R. No. 69622, January 29, 1988).Moreover, the undisputed fact is that petitioners are relatives of his wife. As a genuine gesture of good faith, he should have contacted the petitioners who were still listed as co-owners in the certificate of title which was already in his possession even before the sale. In failing to exercise even a minimum degree of ordinary prudence required by the situation, he is deemed to have bought the lot at his own risk. Hence any prejudice or injury that may be occasioned to him by such sale must be borne by him.Indeed, aware of the flaws impairing his title, Afable went to the herein petitioner Delia Bailon-Casilao, asking the latter to sign a document obviously to cure the flaw [TSN, July 27, 1983, p.6]. Later, he even filed a petition in the Court of First Instance to register the title in his name which was denied as aforesaid.It may be gleaned from the foregoing examination of the facts that Celestino Afable is not a buyer in good faith. Laches being an equitable defense, he who invokes it must come to the court with clean hands.WHEREFORE, the petition for certiorari is hereby GRANTED, the challenged decision of the Court of Appeals is SET ASIDE, and the decision of the trial court is REINSTATED.SO ORDERED.Fernan, Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Alejandrino v CATHIRD DIVISION[G.R. No. 114151.September 17, 1998]MAURICIA ALEJANDRINO,petitioner, vs.THE HONORABLE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, RTC-9, CEBU CITY, and LICERIO P. NIQUE,respondents.D E C I S I O NROMERO,J.:Questioned in this petition for review oncertiorariis the Decision[1]of the Court of Appeals which ruled that the trial court, in an action for quieting of title, did not act in excess of jurisdiction when it issued an order for the segregation of property, after the finality of its decision.The facts show that the late spouses Jacinto Alejandrino and Enrica Labunos left their six children named Marcelino, Gregorio, Ciriaco, Mauricia, Laurencia and Abundio a 219-square-meter lot in Mambaling, Cebu City identified as Lot No. 2798 and covered by Transfer Certificate of Title No. 19658.Upon the demise of the Alejandrino spouses, the property should have been divided among their children with each child having a share of 36.50 square meters. However, the estate of the Alejandrino spouses was not settled in accordance with the procedure outlined in the Rules of Court.Petitioner Mauricia (one of the children) allegedly purchased 12.17 square meters of Gregorios share, 36.50 square meters of Ciriacos share and 12.17 square meters of Abundios share thereby giving her a total area of 97.43 square meters, including her own share of 36.50 square meters. It turned out, however, that a third party named Licerio Nique, the private respondent in this case, also purchased portions of the property, to wit: 36.50 square meters from Laurencia,36.50square meters from Gregorio through Laurencia, 12.17 square meters from Abundio also through Laurencia and 36.50 square meters from Marcelino or a total area of 121.67 square meters of the Alejandrino property.[2]However, Laurencia (the alleged seller of most of the 121.67 square meters of the property) later questioned the sale in an action for quieting of title and damages against private respondent Nique. It was docketed as Civil Case No. CEB-7038 in the Regional Trial Court of Cebu City, Branch 9, presided by Judge Benigno G. Gaviola. In due course, the lower court rendered a decision on November 27, 1990 disposing of the case as follows:WHEREFORE, the Court hereby renders judgment in favor of defendant and against plaintiff, dismissing the complaint filed by plaintiff against defendant, and on the Counterclaim and prayer of defendant in its Answer, the Court hereby declares defendant as the owner in fee simple of the share of plaintiff Laurencia Alejandrino and the shares of Marcelino, Gregorio and Abundio, all surnamed Alejandrino, of the parcel of land known as Lot No. 2798 and covered by Transfer Certificate of Title No. 19658 which 4 shares totals an area of 146 square meters more or less; and the Court further Orders plaintiff to:1.Vacate the premises subject of the complaint and surrender the property to defendant to the extent of the 4 shares aforementioned;2.Pay the defendant the amount ofP15,000.00 as litigation and necessary expenses; the sum ofP10,000.00 as reimbursement for attorneys fees; the sum ofP10,000.00 as moral damages and P10,000.00 as exemplary damages;3.Plus costs.SO ORDERED.[3]Laurencia appealed the decision to the Court of Appeals under CA-G.R. CV No. 33433 but later withdrew the same.[4]On April 13, 1992, the Court of Appeals considered the appeal withdrawn in accordance with Rule 50 of the Rules of Court.[5]Meanwhile, herein petitioner Mauricia Alejandrino filed on May 5, 1992 before the Regional Trial Court of Cebu City, Branch VII, a complaint for redemption and recovery of properties with damages against private respondent Nique that was docketed as Civil Case No. CEB-11673. Adelino B. Sitoy, Laurencias counsel in Civil Case No. CEB-7038, filed Civil Case No. CEB-11673 for petitioner Mauricia.The amended complaint in the latter case dated May 17, 1992 alleged that private respondent Nique never notified petitioner Mauricia of the purchase of 121.67 square meters of theundividedLot No. 2798 nor did he give petitioner Mauricia the preemptive right to buy the area as a co-owner of the same lot. As such co-owner, petitioner Mauricia manifested her willingness to deposit with the court the amount of P29,777.78, the acquisition cost of the portion purchased by private respondent Nique. Petitioner Mauricia also alleged that she demanded from private respondent the area of around 24.34 square meters that the latter had unduly, baselessly and maliciously claimed as his own but which, as part of Lot No. 2798, actually belongs to her. The amended complaint prayed that petitioner Mauricia be allowed to redeem the area of 121.67 square meters under the redemption price of P29,777.78 and that private respondent Nique be ordered to execute the necessary documents for the redemption and the eventual transfer of certificate of title to her. The amended complaint further prayed for the return to petitioner Mauricia of the 24.34-square-meter portion of the lot and for damages amounting to P115,000 and attorneys fees of P30,000.On August 2, 1993, the lower court granted the motion to admit the amended complaint and forthwith ordered the defendant therein to file an amended answer.In Civil Case No. CEB-7038 in the meantime, private respondent filed a motion for the segregation of the 146-square-meter portion of the property that had been declared by the trial court as his own by virtue of purchase. On May 6, 1993, the trial court issued an order the pertinent portions of which read as follows:O R D E RFor resolution is a `Motion to Order Segregation of 146 Square Meters In Lot No. 2798 dated January 15, 1993 filed by defendant and the `Opposition thereto dated February 2, 1992 by plaintiff. Movant-defendant also filed a rejoinder dated February 15, 1993 to the Opposition.After going over the allegations in the motion, the opposition thereto and the rejoinder as well as the records of the case, particularly the decision rendered by this Court and the Order dated October 28, 1992, denying the motion for reconsideration filed by plaintiffs and allowing the issuance of a writ of execution, the Court is inclined to Grant the instant motion.xxxxxxxxxxxxIn addition thereto, the Court makes the following observation:1.Plaintiff (oppositor) has a total share of 146 square meters.This is admitted by her in her complaint (par. 4 thereof).In the decision rendered by this Court, this share now belongs to defendant movant by way of sale. The decision of this Court has long become final.2.The total area of the land is 219 sq. meters (par. 2 of complaint), thus, the share of Mauricia Alejandrino is only 73 square meters.3.As early as June 10, 1983, Mauricia Alejandrino and Laurencia Alejandrino had entered into an 'Extrajudicial Settlement of Estate' whereby they agreed to divide the land subject of this case with Laurencia Alejandrino owning 146 square metersin the frontageand Mauricia Alejandrino owning 75 square meters in the back portion (Exh. '16', Extrajudicial Settlement of Estate, par. 1) (underscoring supplied), and that the parties assure each other and their successor in interest that a right of way of two meters is granted to each party by the other permanently (Exh. '16', par. 2).This partition is signed by the parties and their witnesses.Although not notarized, it is certainly valid as between the parties, Maurecia (sic) Alejandrino, being an immediate party, may not renege on this.4.Since the share of defendant Licerio P. Nique is specifically known to be 146 square meters, and that its location shall be on the `frontage of the property while the 73 square meters of Maurecia (sic) Alejandrino shall be at the back portion, then, the Court cannot see its way clear, why the 146 sq. meters share of defendant may not be segregated.5.The contention by oppositor that the `segregation of defendants share of 146 sq. meters from Lot No. 2798 was not decreed in the judgment is a rather narrow way of looking at the judgment.Paragraph 1 of the dispositive portion of the judgment by this Court, Orders plaintiff to `vacate the premises subject of the complaint and surrender the property to defendant to the extent of the 4 shares aforementioned. The 4 shares of Laurencia Alejandrino of 146 sq. meters can be segregated because Laurencia and Maurecia had already executed an extrajudicial partition indicating where their respective shares shall be located (Exh. `16). To deny the segregation is to make the decision of this Court just about valueless is not altogether useless. The matter of allowing the segregation should be read into the decision.The bottomline is still that plaintiff Laurencia, despite the fact that the decision of this Court had long become final; and despite the fact that she even withdraw (sic) her appeal, she still is enjoying the fruits of the property to the exclusion of the rightful owner.WHEREFORE, the Court hereby Grants the motion. The defendant Licerio Nique may proceed to segregate his 2146 (sic) sq. meters from Lot NO. 2798 covered by TCT No. 19658, by having the same surveyed by a competent Geodetic Engineer, at the expense of movant-defendant.SO ORDERED.[6]Petitioner Mauricia questioned this order of the lower court in a petition forcertiorariand prohibition with prayer for the issuance of a writ of preliminary injunction filed before the Court of Appeals. In due course, the Court of Appeals dismissed the petition in a Decision promulgated on August 25, 1993.The Court of Appeals stated that, in issuing the questioned order of May 6, 1993, the respondent court was merely performing its job of seeing to it that execution of a final judgment must conform to that decreed in the dispositive part of the decision. It ratiocinated thus:x x x. In ordering the segregation of the 146 square meters, respondent Judge correctly referred to the text of the decision to ascertain which portion of the land covered by TCT No. 19658 was actually sold by Laurencia Alejandrino (sister of herein petitioner Mauricia) to private respondent Nique. The respondent Judge did not err in relying upon Exhibit `16', the Deed of Extrajudicial Settlement, dated June 10, 1983, mentioned in page 3 of the Decision. Pertinent portion of Exhibit `16 reads:`NOW, THEREFORE, the above-named parties-heirs hereby stipulates (sic), declare and agree as follows:`1. That the parties have agreed to divide theparcel of land with Laurencia Alejandrino owning 146 square meters in the frontageand Mauricia Alejandrino 73 square meters in the back portions;`2. That the parties mutually and reciprocally assure each other and their successor of interest (sic) that a right of way of two meters is granted to each party to the other permanently. (underscoring supplied, Annex `1, Comment, p. 65,Rollo)duly signed by herein petitioner and witnessed by private respondent Nique. It readily reveals that when Laurencia subsequently sold her shares to herein private respondent, per the Deed of Absolute Sale dated October 29, 1986 (Exhs. `B and `10), the parties must have referred to the 146 square meters in the frontage described in said document, Exhibit `16. Laurencia had no authority to sell more, or, less, than that agreed upon in the extrajudicial settlement between her and herein petitioner Mauricia. Insofar as the latter is concerned, she is estopped from claiming that said extrajudicial settlement was a fatally defective instrument because it was not notarized nor published. What is important is that private respondent personally knew about Laurencia and Mauricias agreement because he was a witness to said agreement and he relied upon it when he purchased the 146 square meters from Laurencia.It cannot be validly claimed by petitioner that she was deprived of her property without due process of law considering that private respondent is merely segregating the portion of the land actually sold to him by Laurencia Alejandrino and it does not affect the 73 square meters that properly pertain to petitioner.Moreover, the Supreme Court has ruled that where there is ambiguity caused by an omission or mistake in the dispositive portion of a decision the court may clarify such ambiguity by an amendment even after the judgment had become final, and for this purpose it may resort to the pleadings filed by the parties, the courts finding of facts and conclusions of law as expressed in the body of the decision (Republic Surety and Insurance Co., Inc., et al., versus Intermediate Appellate Court, et al., 152 SCRA 309). The assailed order, in effect, clarifies the exact location of the 146 square meters pursuant to Exhibit `16. Respondent court did not act in excess of its jurisdiction. Hence, writs ofcertiorariand prohibition do not lie in this case.[7]Petitioner Mauricia filed a motion for the reconsideration of the Court of Appeals decision. However, on February 15, 1994, the Court of Appeals denied the same for lack of merit there being no new ground or compelling reason that justifies a reconsideration of its Decision.[8]In the instant petition for review oncertiorari, petitioner assails the decision of the Court of Appeals, contending that the lower court acted beyond its jurisdiction in ordering the segregation of the property bought by private respondent as the same was not decreed in its judgment, which had long become final and executory. Petitioner argues thatpartitionof the property cannot be effected because private respondent is also a defendant in Civil Case No. CEB-11673. She asserts that Exhibit 16, the extrajudicial settlement of estate referred to in the questioned order of the lower court, was not discussed in the decision of the lower court and even if it were, she could not be bound thereby considering that she was not a party litigant in Civil Case No. CEB-7038. She questions the validity of the deed of extrajudicial settlement because it was not notarized or published.In his comment on the petition, private respondent alleges that although petitioner was not a party litigant in Civil Case No. CEB-7038, she is estopped from questioning the decision in that case and filing the instant petition because she had knowledge of the existence of said case whereres judicatahad set in.He adds that the instant petition was filed in violation of Circular No. 28-91 on forum shopping in that the Petitioner in the instant petition whose counsel is also the counsel of plaintiff-appellant Laurencia Alejandrino in CA-G.R. CV No. x x x, had filed a civil action Civil Case No. CEB-11673 x x x for REDEMPTION & RECOVERY OF PROPERTIES WITH DAMAGES, which is presently pending before Branch 7 of the Regional Trial Court of Cebu City. He asserts that the lower court did not exceed its jurisdiction and/or commit grave abuse of discretion in granting his motion for segregation of the 146 square meters of the land involved that rightfully belonged to him in accordance with the decision of the lower court. He charges counsel for petitioner with exhibiting unethical conduct and practice in appearing as counsel for petitioner in Civil Case No. CEB-11673 after he had appeared for complainant Laurencia in CA-G.R. CV No. 33433 or Civil Case No. CEB-7038.Under the circumstances of this case, the ultimate issue that needs determination is whether or not as an heir of the Alejandrino property, Laurencia may validly sell specific portions thereof to a third party.Article 1078 of the Civil Code provides that where there are two or more heirs, the whole estate of the decedent is,before partition, owned in common by such heirs, subject to the payment of the debts of the deceased. Under a co-ownership, the ownership of an undivided thing or right belongs to different persons.[9]Each co-owner of property which is heldpro indivisoexercises his rights over the whole property and may use and enjoy the same with no other limitation than that he shall not injure the interests of his co-owners. The underlying rationale is that until a division is made, the respective share of each cannot be determined and every co-owner exercises, together with his co-participants, joint ownership over thepro indivisoproperty, in addition to his use and enjoyment of the same.[10]Although the right of an heir over the property of the decedent is inchoate as long as the estate has not been fully settled and partitioned,[11]the law allows a co-owner to exercise rights of ownership over such inchoate right. Thus, the Civil Code provides:ART. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.With respect to properties shared in common by virtue of inheritance, alienation of apro indivisoportion thereof is specifically governed by Article 1088 that provides:ART. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor.In the instant case, Laurencia was within her hereditary rights in selling herpro indivisoshare in Lot No. 2798. However, because the property had not yet been partitioned in accordance with the Rules of Court, no particular portion of the property could be identified as yet and delineated as the object of the sale. Thus, interpreting Article 493 of the Civil Code providing that an alienation of a co-owned property shall be limited to the portion which may be allotted to (the seller) in the division upon the termination of the co-ownership, the Court said:x x x (p)ursuant to this law, a co-owner has the right to alienate hispro-indivisoshare in the co-owned property even without the consent of the other co-owners. Nevertheless, as a mere part owner, he cannot alienate the shares of the other co-owners. The prohibition is premised on the elementary rule that `no one can give what he does not have (Nemo dat quod non habet). Thus, we held in Bailon-Casilaovs.Court of Appeals (G.R. No. 78178, April 15, 1988, 160 SCRA 738, 745),viz:`x x x since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owners isnotnull and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.`The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property of the co-owners who possessed and administered it.[12]The legality of Laurencias alienation of portions of the estate of the Alejandrino spouses was settled in Civil Case No. CEB-7038. The decision in that case had become final and executory with Laurencias withdrawal of her appeal. When private respondent filed a motion for the segregation of the portions of the property that were adjudged in his favor, private respondent was in effect calling for thepartitionof the property. However, under the law, partition of the estate of a decedent may only be effected by (1) the heirs themselves extrajudicially, (2) by the court in an ordinary action for partition, or in the course of administration proceedings, (3) by the testator himself, and (4) by the third person designated by the testator.[13]The trial court may not, therefore, order partition of an estate in an action for quieting of title. As there is no pending administration proceedings, the property of the Alejandrino spouses can only be partitioned by the heirs themselves in an extrajudicial settlement of estate.However, evidence on the extrajudicial settlement of estate was offered before the trial court and it beca