Cases 5th Batch

8/11/2019 Cases 5th Batch

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G.R. No. 157906 November 2, 2006

JOAQUINITA P. CAPILI,Petitioner,vs.SPS. DOMINADOR CARDAA and ROSALITA CARDAA, Respondents.

D E C I S I O N

QUISUMBING,J .:

Before us is a petition for review assailing the Decision1 dated October 18, 2002 of the Court of Appeals in CA-G.R. CV. No. 54412, declaring petitioner liable for negligence that resulted in thedeath of Jasmin Cardaa, a school child aged 12, enrolled in Grade 6, of San Roque ElementarySchool, where petitioner is the principal. Likewise assailed is the Resolution2 dated March 20, 2003denying reconsideration.

The facts are as follows:

On February 1, 1993, Jasmin Cardaa was walking along the perimeter fence of the San RoqueElementary School when a branch of a caimito tree located within the school premises fell on her,causing her instantaneous death. Thus, her parents - Dominador and Rosalita Cardaa - filed a casefor damages before the Regional Trial Court of Palo, Leyte against petitioner.

The Cardaas alleged in their complaint that even as early as December 15, 1992, a resident ofthe barangay , Eufronio Lerios, reported on the possible danger the tree posed to passersby. Lerioseven pointed to the petitioner the tree that stood near the principals office. The Cardaas averredthat petitioners gross negligence and lack of foresight caused the death of their

daughter.

Petitioner denied the accusation and said that at that time Lerios had only offered to buy the tree.She also denied knowing that the tree was dead and rotting. To prove her point, she presentedwitnesses who attested that she had brought up the offer of Lerios to the other teachers during ameeting on December 15, 1992 and assigned Remedios Palaa to negotiate the sale.

In a Decision3 dated February 5, 1996, the trial court dismissed the complaint for failure of therespondents to establish negligence on the part of the petitioner.

On appeal, the Court of Appeals reversed the trial courts decision. The appellate court found theappellee (herein petitioner) liable for Jasmins death, as follows:

Foregoing premises considered, the instant appeal is GRANTED. Appellee Joaquinita Capili ishereby declared liable for negligence resulting to the death of Jasmin D. Cardaa. She is herebyordered to indemnify appellants, parents of Jasmin, the following amounts:

1. For the life of Jasmin D. Cardaa P50,000.00;

2. For burial expenses 15,010.00;
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3. For moral damages 50,000.00;

4. For attorneys fees and litigation 10,000.00. expenses

SO ORDERED.4

Petitioners motion for reconsideration was denied. Petitioner now comes before us submitting thefollowing issues for our resolution:

I

WHETHER OR NOT THE COURT OF APPEALS VIS--VIS THE SET OF FACTS STATEDIN THE CHALLENGED DECISION, ERRED IN FINDING THE PETITIONER NEGLIGENT

AND THEREFORE LIABLE FOR DAMAGES UNDER ARTICLE 2206 OF THE CIVIL CODE AND IN ORDERING THE PETITIONER TO PAY DAMAGES TO THE RESPONDENTS; AND

II

WHETHER OR NOT THE COURT OF APPEALS ERRED IN DENYING PETITIONERSMOTION FOR RECONSIDERATION.5

On the other hand, respondents posit the following issue:

Whether or not the Decision of the Honorable Court of Appeals, Twelfth Division, in CA G.R. CV. No.54412 promulgated on October 18, 2002 should be affirmed and respected, thus remainundisturbed.6

Primarily, the issue is whether petitioner is negligent and liable for the death of Jasmin Cardaa.

Petitioner asserts that she was not negligent about the disposal of the tree since she had assignedher next-in-rank, Palaa, to see to its disposal; that despite her physical inspection of the schoolgrounds, she did not observe any indication that the tree was already rotten nor did any of her 15teachers inform her that the tree was already rotten ;7 and that moral damages should not be grantedagainst her since there was no fraud nor bad faith on her part.

On the other hand, respondents insist that petitioner knew that the tree was dead and rotting, yet,she did not exercise reasonable care and caution which an ordinary prudent person would havedone in the same situation.

To begin, we have to point out that whether petitioner was negligent or not is a question of fact which

is generally not proper in a petition for review, and when this determination is supported bysubstantial evidence, it becomes conclusive and binding on this Court.8 However, there is anexception, that is, when the findings of the Court of Appeals are incongruent with the findings of thelower court.9 In our view, the exception finds application in the present case.

The trial court gave credence to the claim of petitioner that she had no knowledge that the tree wasalready dead and rotting and that Lerios merely informed her that he was going to buy the tree forfirewood. It ruled that petitioner exercised the degree of care and vigilance which the circumstancesrequire and that there was an absence of evidence that would require her to use a higher standard
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of care more than that required by the attendant circumstances .10 The Court of Appeals, on the otherhand, ruled that petitioner should have known of the condition of the tree by its mere sighting andthat no matter how hectic her schedule was, she should have had the tree removed and not merelydelegated the task to Palaa. The appellate court ruled that the dead caimito tree was a nuisancethat should have been removed soon after petitioner had chanced upon it .11

A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinaryprudence and may be one which creates a situation involving an unreasonable risk to anotherbecause of the expectable action of the other, a third person, an animal, or a force of nature. Anegligent act is one from which an ordinary prudent person in the actors position, in the same orsimilar circumstances, would foresee such an appreciable risk of harm to others as to cause him notto do the act or to do it in a more careful manner .12

The probability that the branches of a dead and rotting tree could fall and harm someone is clearly adanger that is foreseeable. As the school principal, petitioner was tasked to see to the maintenanceof the school grounds and safety of the children within the school and its premises. That she wasunaware of the rotten state of a tree whose falling branch had caused the death of a child speaks illof her discharge of the responsibility of her position.

In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a preponderanceof evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant orsome other person for whose act he must respond; and (3) the connection of cause and effectbetween the fault or negligence and the damages incurred .13

The fact, however, that respondents daughter, Jasmin, died as a result of the dead and rotting treewithin the schools premises shows that the tree was indeed an obvious danger to anyone passingby and calls for application of the principle ofres ipsa loquitur .

The doctrine of res ipsa loquitur applies where (1) the accident was of such character as to warrantan inference that it wouldnot have happened except for the defendants negligence; (2) the accidentmust have been caused by an agency or instrumentality within the exclusive management or controlof the person charged with the negligence complained of; and (3) the accident must not have beendue to any voluntary action or contribution on the part of the person injured.14

The effect of the doctrine ofres ipsa loquitur is to warrant a presumption or inference that the merefalling of the branch of the dead and rotting tree which caused the death of respondents daughterwas a result of petitioners negligence, being in charge of the school.

In the case of D.M. Consunji,

Inc. v. Court of Appeals ,15 this Court held:

As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence whichrecognizes that prima facie negligence may be established without direct proof and furnishes asubstitute for specific proof of negligence.

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of anaccident or injury will not generally give rise to an inference or presumption that it was due to
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negligence on defendants part, under the doctrine of res ipsa loquitur , which means, literally, thething or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks foritself, the facts or circumstances accompanying an injury may be such as to raise a presumption, orat least permit an inference of negligence on the part of the defendant, or some other person who ischarged with negligence.

x x x where it is shown that the thing or instrumentality which caused the injury complained of wasunder the control or management of the defendant, and that the occurrence resulting in the injurywas such as in the ordinary course of things would not happen if those who had its control ormanagement used proper care, there is sufficient evidence, or, as sometimes stated, reasonableevidence, in the absence of explanation by the defendant, that the injury arose from or was causedby the defendants want of care.

The procedural effect of the doctrine of res ipsa loquitur is that petitioners negligence is presumedonce respondents established the requisites for the doctrine to apply. Once respondents made outa prima facie case of all requisites, the burden shifts to petitioner to explain. The presumption orinference may be rebutted or overcome by other evidence and, under appropriate circumstances adisputable presumption, such as that of due care or innocence, may outweigh the inference .16

Was petitioners explanation as to why she failed to have the tree removed immediately sufficient toexculpate her?

As the school principal, petitioner was tasked to see to the maintenance of the school grounds andsafety of the children within the school and its premises. That she was unaware of the rotten state ofthe tree calls for an explanation on her part as to why she failed to be vigilant.

Petitioner contends she was unaware of the state of the dead and rotting tree because Lerios merelyoffered to buy the tree and did not inform her of its condition. Neither did any of her teachers informher that the tree was an imminent danger to anyone. She argues that she could not see theimmediate danger posed by the tree by its mere sighting even as she and the other teachersconducted ground inspections. She further argues that, even if she should have been aware of thedanger, she exercised her duty by assigning the disposition of the tree to another teacher.

We find petitioners explanation wanting. As school principal, petitioner is expected to oversee thesafety of the schools premises. 1wphi1 The fact that she failed to see the immediate danger posed by thedead and rotting tree shows she failed to exercise the responsibility demanded by her position.

Moreover, even if petitioner had assigned disposal of the tree to another teacher, she exercisessupervision over her assignee .17 The record shows that more than a month had lapsed from the timepetitioner gave instruction to her assistant Palaa on December 15, 1992, to the time the incidentoccurred on February 1, 1993. Clearly, she failed to check seasonably if the danger posed by therotting tree had been removed. Thus, we cannot accept her defense of lack of negligence.

Lastly, petitioner questions the award of moral damages. Moral damages are awarded if thefollowing elements exist in the case: (1) an injury clearly sustained by the claimant; (2) a culpable actor omission factually established; (3) a wrongful act or omission by the defendant as the proximatecause of the injury sustained by the claimant; and (4) the award of damages predicated on any ofthe cases stated in Article 2219 of the Civil Code.18 However, the person claiming moral damagesmust prove the existence of bad faith by clear and convincing evidence for the law always presumesgood faith. It is not enough that one merely suffered sleepless nights, mental anguish, and seriousanxiety as the result of the actuations of the other party. Invariably, such action must be shown tohave been willfully done in bad faith or with ill motive.19 Under the circumstances, we have to
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concede that petitioner was not motivated by bad faith or ill motive vis--vis respondents daughtersdeath. The award of moral damages is therefore not proper.

In line with applicable jurisprudence, we sustain the award by the Court of Appeals of P50,000 asindemnity for the death of Jasmin,20 and P15,010 as reimbursement of her burial expenses .21

WHEREFORE, the petition is DENIED. The Decision dated October 18, 2002 and the Resolutiondated March 20, 2003, of the Court of Appeals in CA-G.R. CV. No. 54412 areAFFIRMED withMODIFICATION such that the award of moral damages is hereby deleted.

Costs against petitioner.

SO ORDERED.

LEONARDO A. QUISUMBING Associate Justice

G.R. No. 72694 December 1, 1987

AURORA DEL BANCO, EVELYN DEL BANCO, FEDERICO TAINO, SOLEDAD TAINO,JOVENCIO TAINO, SAMSON TAINO, NOE TAINO, SOCORRO TAINO and CLEOFASTAINO,petitioners,vs.INTERMEDIATE APPELLATE COURT (Second Civil Cases Division), ALEJANDRAPANSACOLA, LEONILA ENCALLADO, VEDASTO ENCALLADO, JOSE YEPES, etal., respondents.

PARAS, J .:

This is a petition for review on certiorari by way of appeal from: (a) the decision of respondent Courtof Appeals (Intermediate Appellate Court)* promulgated on May 17, 1985 in AC-G.R. CV No. 70460, entitled " AlejandraPansacola, et al. vs. Domen Villabona del Banco, et al ." which reversed and set aside the judgment ** of the trial court; and (b) itsresolution **of October 15, 1985 in the same case, denying petitioners' motion for reconsideration of the aforementioned decision and theirsupplement to motion for reconsideration.

The dispositive portion of the questioned decision (Rollo, p. 97) reads, as follows:

ACCORDINGLY, the decision appealed from is hereby SET ASIDE insofar as itdismisses the complaint, and another one entered
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(1) Declaring plaintiffs-appellants and defendants-appellees, in their respectivecapacities as described in par. V of the complaint, as co-owners of the property indispute, but subject to the four-part pro-indiviso division already made by saidproperty;

(2) Ordering the cancellation of all certificates of title that may have been issued toany of the parties hereto; and

(3) Ordering the complete and final partition of the subject property in conformity withlaw.

For this purpose, this case is hereby remanded to the Court of origin so that a finalpartition shall be made in accordance with Sections 2, 3, et. seq ., Rule 69 of theRules of Court.

Let a copy of this decision be furnished to the Register of Deeds for the Province ofQuezon.

The facts of the case are taken from the decision of the Appellate Court (Rollo, p. 39) as follows:

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

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

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

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

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

On August 14, 1866, co-owners entered into the actual possession and enjoyment of the Islandpurchased by them from the Spanish Government. On April 11, 1868 they agreed to modify theterms and conditions of the agreement entered into by them on February 11, 1859. The new

agreement provided for a new sharing and distribution of the lands, comprising the Island ofCagbalite and whatever benefits may be derived therefrom, as follows:

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

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


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

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

About one hundred years later, on November 18, 1968, private respondents brought a special actionfor partition in the Court of First Instance of Quezon, under the provisions of Rule 69 of the Rules ofCourt, including as parties the heirs and successors-in-interest of the co-owners of the CagbaliteIsland in the second contract of co-ownership dated April 11, 1968. In their answer some of thedefendants, petitioners herein, interposed such defenses as prescription, res judicata, exclusiveownership, estoppel and laches.

After trial on the merits, the trial court rendered a decision*** dated November 6, 1981 dismissing the complaint, thedispositive portion of which reads as follows:

WHEREFORE, and in the fight of all the foregoing this Court finds and so holds thatthe Cagbalite Island has already been partitioned into four (4) parts among theoriginal co-owners or their successors-in-interest.

Judgment is therefore rendered for the defendants against the plaintiffs dismissingthe complaint in the above entitled case.

Considering that the cross claims filed in the above entitled civil case are notcompulsory cross claims and in order that they may be litigated individually the sameare hereby dismissed without prejudice.

IT IS SO ORDERED.

The motion for reconsideration filed by the plaintiffs, private respondents herein, was denied by thetrial court in an order dated February 25, 1982 (Record on Appeal, p. 241).

On appeal, respondent Court reversed and set aside the decision of the lower court (Rollo, p. 117). Italso denied the motion for reconsideration and the supplement to motion for reconsideration filed byprivate respondents, in its resolution dated October 15, 1983 (Rollo, p. 86).

Instant petition was filed with the Court on December 5, 1985 (Rollo, p. 12). Petitioners JosefinaPansacola, et al. having filed a separate petition (G.R. No. 72620) on the same subject matter andissues raised in the instant 'petition, the counsel for private respondents filed a consolidatedcomment on the separate petitions for review on February 24, 1986 with the First Division of theCourt (Rollo, p. 119). It appears that counsel for petitioners also filed a consolidated reply to theconsolidated comment of private respondents as required by the Second Division of the Court(Rollo, p. 151). However, petitioners filed a separate reply in the instant case on February 18,1987(Rollo, p. 168)as required by the Court in a Resolution of the Second Division dated November 24,1986 (Rollo, p. 160).

On May 19, 1987, private respondents in the instant petition filed a manifestation praying for thedenial of the instant petition in the same manner that G.R. No. 72620 was denied by the Court in its


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Resolution dated July 23, 1986 (Rollo, p. 151). Their rejoinder to the reply of petitioners was filed onMay 25,1987 (Rollo, p. 179).

On June 8, 1987, the Court resolved to give due course to the petition (Rollo, p. 192). Thememorandum of private respondents was mailed on July 18, 1987 and received in the Court on July29, 1987 (Rollo, p. 112); the memorandum for petitioners was mailed on August 18, 1987 andreceived in the Court on September 7, 1987 (Rollo, p. 177).

The sole issue to be resolved by the Court is the question of whether or not Cagbalite Island is stillundivided property owned in common by the heirs and successors-in-interest of the brothers,Benedicto, Jose and Manuel Pansacola.

The Pansacola brothers purchased the Island in 1859 as common property and agreed on how theywould share in the benefits to be derived from the Island. On April 11, 1868, they modified the termsand conditions of the agreement so as to include in the co-ownership of the island the children oftheir deceased brothers Eustaquio and the other children of Manuel Pansacola (Fr. Manuel Pena)who were committed in the agreement of February 11, 1859. The new agreement provided for a newsharing proportion and distribution of the Island among the co-owners.

On January 20, 1907, the representative of the heirs of all the original owners of Cagbalite Islandentered into an agreement to partition the Island, supplemented by another agreement dated April18, 1908. The contract dated January 20, 1907 provides as follows:

Sa Mauban, Tayabas, ika 20 ng Enero ng 1907 caming mga quinatawan ng mgaibang co-herederos na hindi caharap, sa pulong na ito, sa nasa naming lahat namagcaroon na ng catahimikan ang aming-aming cabahagui sa Pulong Kagbaletesumacatuid upang mapagtoos ang hangahan ng apat na sapul na pagcacabahaguinitong manang ito, pagcacausap na naming lahat at maihanay at mapagtalonan angsaysay ng isa't isa, ay cusa naming pinagcasunduan at pinasiya angnangasosonod:

Una: Ang malaquing calupaan, alis ang lahat na pacatan ay babahaguin alinsunodsa pagcabaki na guinawa sa croquis na niyari ng practico agrimensor Don JoseGarcia.

Icalawa: Ang Lomingoy, doon ang tuid na guhit sa ilong ng Pait ay pagaapatin dingsinlaqui ayon sa dating pagkakabaki.

Icatlo: Cung magawa na ang tunay na piano at icapit na sa lupa, paglalagay ngnadarapat na mojon, ang masacupan ng guhit, sumacatuid ang caingin at pananimng isa na nasacupan ng pucto na noocol sa iba, ay mapapasulit sa dapat mag-ari, napagbabayaran nito ang nagtanim sa halagang:- bawat caponong niog na nabunga, P1.00 'un peso); cung ang bias ay abot sa isang vara, P 0.50; cung bagong tanim olocloc P 0. 50 ang capono.

Icapat: Ang lahat na pacatan ay bacod na pagaapatin at bawat bahagui ay noocol saisat-isa sa apat na sanga ng paganacang nagmana.

Icalima: Upang ang naipatanim ng bawat isa ay matama sa canya ng mailagan anghirap ng loob ng nagatikha; ay pagtotolong-tolongan ng lahat naiba na mahusay angdalawang partes na magcalapit na mapa ayong tumama, hangang may pagluluaran,sa nagsikap at maoyanam, maidaco sa lugar na walang cailangang pagusapan.


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Icanim: Ang casulatang ito, cung mapermahan na na magcacaharap sampong ngmga ibang co-herederos na notipicahan nitong lahat na pinagcasundoan aymahahabilin sa camay ng agrimensor, Amadeo Pansacola, upang canyangmapanusugan ang maipaganap ang dito'y naootos.

Na sa catunayan at catibayan ng lahat na nalalagda dito, sa pag galang at pagganap dito sa paingacaisahan ay pumirma sampo ng mga sacsing caharap atcatanto ngayong fecha ayon sa itaas.

The contract dated April 18, 1908 provides as follows:

Sa Mauban, ika 18 ng Abril ng 1908, sa pagcacatipon ng lahat na firmantes nito aypinagcaisahan itong nangasosonod:

Una Pinagtitibay ang mga pinagcasundoan sa itaas noong 20 ng Enero ng 1907,liban na lamang sa mga pangcat na una at icapat at tongcol doon pinasiya namingbahaguinin ng halohalo at paparejo ang calupaan at pacatan.

Ycalawa Sa pagsucat ng agrimensor na si Amadeo at paggawa ng piano atdescripcion ay pagbabayaran siya ng sa bawat isa naoocol sa halagang isang pisosa bawat hectares.

Icatlo Ang counting pucto sa 'Mayanibulong' na may caingin ni G. Isidro Altamarino, asawa ni Restitute ay tutumbasan naman cay G. Norberto Pansacola salugar ng Dapo calapit ng Pinangalo ng gasing sucat.

Icapat Sa inilahad na piano ay pinasiya nang itoloy at upang maca pagparehistroang isa't isa ay pinagcaisahang magcacagastos na parepareho para sa tablangpangmohon at ibat iba pang cagastusan.

Sa catunayan at catibayan ay cami, pumirma. (Record on Appeal, p. 224)There is

nothingin all four agreements that suggests that actual or physical partition of the Island had really been made by either the original owners or their

heirs or successors-in-interest. The agreement entered into in 1859 simply provides for the sharing of whatever benefits can be derived fromthe island. The agreement, in fact, states that the Island to be purchased shall be considered as their common property. In the secondagreement entered in 1868 the co-owners agreed not only on the sharing proportion of the benefits derived from the Island but also on thedistribution of the Island each of the brothers was allocated a 1/4 portion of the Island with the children of the deceased brother, EustaquioPansacola allocated a 1/4 portion and the children of Manuel Pansacola (Fr. Manuel Pena) also allocated a 1/4 portion of the Island. With thedistribution agreed upon each of the co-owner is a co-owner of the whole, and in this sense, over the whole he exercises the right ofdominion, but he is at the same time the sole owner of a portion, in the instant case, a 1/4 portion (for each group of co-owners) of the Islandwhich is truly abstract, because until physical division is effected such portion is merely an Ideal share, not concretely determined (3Manresa, Codigo Civil, 3rd Ed., page 486, cited in Lopez vs. Cuaycong, 74 Phil. 601; De la Cruz vs. Cruz, 32 SCRA 307 [1970]; Felices vs.Colegado, 35 SCRA 173 [1970],; Dultra vs. CFl 70 SCRA 465 [1976]; Gatchalian vs. Arlegui, 75 SCRA 234 [1977].)

In the agreement of January 20, 1907, the heirs that were represented agreed on how the Islandwas to be partitioned. The agreement of April 18, 1908 which supplements that of January 20, 1907reveals that as of the signing of the 1908 agreement no actual partition of the Island had as yet beendone. The second and fourth paragraphs of the agreement speaks of a survey yet to be conductedby a certain Amadeo and a plan and description yet to be made. Virgilio Pansacola, a son of thesurveyor named Amadeo who is referred to in the contract dated April 18, 1908 as the surveyor towhom the task of surveying Cagbalite Island pursuant to said agreement was entrusted, however,


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testified that said contracts were never implemented because nobody defrayed the expenses forsurveying the same (Record on Appeal, p. 225).

Petitioners invoke res judicata to bar this action for partition in view of the decision of the Court inG.R. No. 21033,"Domingo Arce vs. Maria Villabona, et al.," 21034, "Domingo Arce vs. FranciscoPansacola, et al.," and 21035, "Domingo Arce vs. Emiliano Pansacola, et al." promulgated onFebruary 20, 1958 (Rollo, p. 141) and Brief for Defendants-Appellees, p. 87 Appendix 1), whereinthe Court said:

Considering the facts that he waited for a period of nearly 23 years after the returnfrom his deportation before taking any positive action to recover his pretended rightin the property in question, gives great credit, in our opinion, to the declaration of thewitnesses for the defense (a) that the original parcel of land was partitioned as theyclaim, and (b) that the plaintiff had disposed of all the right and interest which he hadin the portion which had been given to him.

The issue in the aforementioned case which were tried together is not whether there has alreadybeen a partition of the Cagbalite Island. The actions were brought by the plaintiff to recover

possession of three distinct parcels of land, together with damages. In fact the word partition wasused in the metaphysical or Ideal sense (not in its physical sense).

Commenting on the above ruling of the Court in connection with the instant case, the respondentCourt said:

Concededly, the Supreme Court decision in G.R. Nos. 21033-35 (Exh. X) did use oremploy the word "partition." A careful reading of the said decision will, however,reveal, and we so hold, that the employment or use of the word "partition" thereinwas made not in its technical and legal meaning or sense adverted to above, but,rather in its Ideal, abstract and spiritual sense, this is (at) once evident from the barestatement in said decision to the effect that the property was divided into four parts,without any reference to the specific parts of the property that may have beenadjudicated to each owner. There being no such reference in the decision and in the

judgment affirmed therein to the adjudication of specific and definite portions of theproperty to each co-owner, there is a clear and logical inference that there wasindeed no adjudication of specific and definite portions of the property made to eachco-owner.

It must be admitted that the word "partition" is not infrequently used both in popular and technicalparlance (Fule vs. Fule, 52 Phil. 750 [1929]). For purposes of the aforementioned case, evidently theCourt used the word "partition" to refer to the distribution of the Cagbalite Island agreed upon by theoriginal owners and in the later agreements, by the heirs and their subsequent successors-in-interest. There need not be a physical partition; a distribution of the Island even in a state of indivisoor was sufficient in order that a co-owner may validly sell his portion of the co-owned property. The

sale of part of a particular lot thus co-owned by one co-owner was within his right pro-indiviso is validin its entirety (Pamplona vs. Moreto, 96 SCRA 775 [1980]) but he may not convey a physical portionwith boundaries of the land owned in common (Mercado vs. Liwanag, 5 SCRA 472 [1962]).Definitely, there was no physical partition of the Island in 1859. Neither could there have been one in1894 because the manner of subdividing the Island was only provided for in the later agreementsentered into by the heirs in 1907 and 1908. There was a distribution of the Island in 1868 as agreedupon by the original co-owners in their agreement of April 11, 1868. Any agreement entered into bythe parties in 1894 could be no more than another agreement as to the distribution of the Islandamong the heirs of the original co-owners and the preparation of a tentative plan by a practical


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surveyor, a Mr. Jose Garcia, mentioned in the first paragraph of the 1907 agreement, preparatory tothe preparation of the real plan to be prepared by the surveyor Amadeo, mentioned in the agreementof April 18, 1908.

What is important in the Court's ruling in the three aforementioned cases is that, the fact that therewas a distribution of the Island among the co-owners made the sale of Domingo Arce of the portionallocated to him though pro-indiviso, valid. He thus disposed of all his rights and interests in theportion given to him.

It is not disputed that some of the private respondents and some of the petitioners at the time theaction for partition was filed in the trial court have been in actual possession and enjoyment ofseveral portions of the property in question (Rollo, p. 148). This does not provide any proof that theIsland in question has already been actually partitioned and co-ownership terminated. A co-ownercannot, without the conformity of the other co-owners or a judicial decree of partition issued pursuantto the provision of Rule 69 of the Rules of Court (Rule 71 of the Old Rules), adjudicate to himself infee simple a determinate portion of the lot owned in common, as his share therein, to the exclusionof other co-owners (Santos, Jr. vs. Buenconsejo, 14 SCRA 407 [1965]; Carvajal vs. Court of

Appeals, 112 SCRA 237 [1982]). It is a basic principle in the law of co-ownership both under thepresent Civil Code as in the Code of 1889 that no individual co- owner can claim any definite portionthereof (Diversified Credit Corporation vs. Rosada 26 SCRA 470 [1968]). lt is therefore of nomoment that some of the co-owners have succeeded in securing cadastral titles in their names tosome portions of the Island occupied by them (Rollo, p. 10).

It is not enough that the co-owners agree to subdivide the property. They must have a subdivisionplan drawn in accordance with which they take actual and exclusive possession of their respectiveportions in the plan and titles issued to each of them accordingly (Caro vs. Court of Appeals, 113SCRA 10 [1982]). The mechanics of actual partition should follow the procedure laid down in Rule69 of the Rules of Court. Maganon vs. Montejo, 146 SCRA 282 [1986]).

Neither can such actual possession and enjoyment of some portions of the Island by some of thepetitioners herein be considered a repudiation of the co-ownership. It is undisputed that theCagbalite Island was purchased by the original co-owners as a common property and it has notbeen proven that the Island had been partitioned among them or among their heirs. While there isco-ownership, a co-owner's possession of his share is co-possession which is linked to thepossession of the other co-owners (Gatchalian vs. Arlegui, 75 SCRA 234 [1977]).

Furthermore, no prescription shall run in favor of a co-owner against his co-owners or co-heirs solong as he expressly or impliedly recognizes the co-ownership (Valdez vs. Olonga, 51 SCRA 71[1973], Tero vs. Tero, 131 SCRA 100 [1984]). Co-owners cannot acquire by prescription the share ofthe other co-owners, absent a clear repudiation of the co-ownership clearly communicated to theother co-owners (Mariano vs. De Vega, 148 SCRA 342 [1987]).

An action for partition does not prescribe. Article 403 of the Old Civil Code, now Article 497, provides

that the assignees of the co-owners may take part in the partition of the common property, and Article 400 of the Old Code, now Article 494 provides that each co-owner may demand at any timethe partition of the common property, a provision which implies that the action to demand partition isimprescriptible or cannot be barred by laches (Budlong vs. Pondoc, 79 SCRA 24 [1977]). An actionfor partition does not lie except when the co-ownership is properly repudiated by the co- owner(Jardin vs. Hollasco, 117 SCRA 532 [1982]).

On July 23, 1986, the Court through its Second Division denied the petition for the review of G.R.No. 72620, the petition for review on certiorari separately filed by Josefina Pansacola (Rollo, p. 151).


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PREMISES CONSIDERED, the instant petition is likewise DENIED for lack of merit.

SO ORDERED.

Teehankee, C.J., Narvasa, Cruz and Gancayco, JJ., concur.

G.R. No. L-4656 November 18, 1912

RICARDO PARDELL Y CRUZ andVICENTA ORTIZ Y FELIN DE PARDELL, plaintiffs-appellees,vs.GASPAR DE BARTOLOME Y ESCRIBANO andMATILDE ORTIZ Y FELIN DE BARTOLOME, defendants-appellants.

Gaspar de Bartolome, in his own behalf.B. Gimenez Zoboli, for appellees.

TORRES, J .:

This is an appeal by bill of exceptions, from the judgment of October 5, 1907, whereby theHonorable Dionisio Chanco, judge, absolved the defendants from the complaint, and the plaintifffrom a counterclaim, without special finding as to costs.

Counsel for the spouses Ricardo y Cruz and Vicente Ortiz y Felin de Pardell, the first of whom,absent in Spain by reason of his employment, conferred upon the second sufficient and amplepowers to appear before the courts of

justice, on June 8, 1905, in his written complaint, alleged that the plaintiff, Vicente Ortiz, and the

defendant, Matilde Ortiz, are the duly recognized natural daughters of the spouses Miguel Ortizand Calixta Felin y Paula who died in Vigan, Ilocos Sur, in 1875 and 1882, respectively; thatCalixta Felin, prior to her death, executed on August 17, 1876, a nuncupative will in Viganwhereby she made her four children, named Manuel, Francisca, Vicenta, and Matilde, surnamedOrtiz y Felin, her sole and universal heirs of all her property; that, of the persons enumerated,Manuel died before his mother and Francisca a few years after her death, leaving no heirs byforce of law, and therefore the only existing heirs of the said testatrix are the plaintiff VicentaOrtiz and the defendant Matilde Ortiz; that, aside from some personal property and jewelry


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already divided among the heirs, the testatrix possessed, at the time of the execution of her will,and left at her death the real properties which, with their respective cash values, are as follows:

1. A house of strong material, with the lot on which it is built, situated on EscoltaStreet, Vigan, and valued at P6,000.00

2. A house of mixed material, with the lot on which it stands, at No. 88Washington Street, Vigan; valued at 1,500.003. A lot on Magallanes Street, Vigan; valued at 100.00

4. A parcel of rice land, situated in the barrio of San Julian, Vigan; valued at 60.00

5. A parcel of rice land in the pueblo of Santa Lucia; valued at 86.00

6. Three parcels of land in the pueblo of Candon; valued at 150.00

Total 7,896.00

That, on or about the first months of the year 1888, the defendants, without judicial authorization, norfriendly or extrajudicial agreement, took upon themselves the administration and enjoyment of thesaid properties and collected the rents, fruits, and products thereof, to the serious detriment of theplaintiffs' interest; that, notwithstanding the different and repeated demands extrajudicially madeupon Matilde Ortiz to divide the aforementioned properties with the plaintiff Vicente and to deliver tothe latter the one-half thereof, together with one-half of the fruits and rents collected therefrom, thesaid defendant and her husband, the self-styled administrator of the properties mentioned, had beendelaying the partition and delivery of the said properties by means of unkept promises and otherexcuses; and that the plaintiffs, on account of the extraordinary delay in the delivery of one-half ofsaid properties, or their value in cash, as the case might be, had suffered losses and damages in thesum of P8,000. Said counsel for the plaintiffs therefore asked that judgment be rendered bysentencing the defendants, Gaspar de Bartolome, and Matilde Ortiz Felin de Bartolome, to restoreand deliver to the plaintiffs one-half of the total value in cash, according to appraisal, of the undividedproperty specified, which one-half amounted approximately to P3,948, or if deemed proper, torecognize the plaintiff Vicenta Ortiz to be vested with the full and absolute right of ownership to thesaid undivided one-half of the properties in question, as universal testamentary heir thereof togetherwith the defendant Matilde Ortiz, to indemnify the plaintiffs in the sum of P8,000, for losses anddamages, and to pay the costs.

Counsel for the defendants, in his answer denied the facts alleged in paragraphs 1, 4, 6, 7, and 8thereof, inasmuch as, upon the death of the litigating sister's brother Manuel, their mother, who wasstill living, was his heir by force of law, and the defendants had never refused to give to the plaintiffVicente Ortiz her share of the said properties; and stated that he admitted the facts alleged inparagraph 2, provided it be understood, however, that the surname of the defendant's mother wasFelin, and not Feliu, and that Miguel Ortiz died in Spain, and not in Vigan; that he also admittedparagraph 3 of the complaint, with the difference that the said surname should be Felin, and likewise

paragraph 5, except the part thereof relating to the personal property and the jewelry, since the latterhad not yet been divided; that the said jewelry was in the possession of the plaintiffs and consistedof: one Lozada gold chronometer watch with a chain in the form of a bridle curb and a watch charmconsisting of the engraving of a postage stamp on a stone mounted in gold and bearing the initialsM. O., a pair of cuff buttons made of gold coins, four small gold buttons, two finger rings, anotherwith the initials M. O., and a gold bracelet; and that the defendants were willing to deliver to theplaintiffs, in conformity with their petitions, one-half of the total value in cash, according toappraisement, of the undivided real properties specified in paragraph 5, which half amounted toP3,948.


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In a special defense said counsel alleged that the defendants had never refused to divide the saidproperty and had in fact several years before solicited the partition of the same; that, from 1886 to1901, inclusive, there was collected from the property on Calle Escolta the sum of 288 pesos,besides a few other small amounts derived from other sources, which were delivered to the plaintiffswith other larger amounts, in 1891, and from the property on Calle Washington, calledLa Quinta ,990.95 pesos, which proceeds, added together, made a total of 1,278.95 pesos, saving error or

omission; that, between the years abovementioned, Escolta, and that on Calle Washington, LaQuinta , 376.33, which made a total of 1,141.71, saving error or omission; that, in 1897, the work ofreconstruction was begun of the house on Calle Escolta, which been destroyed by an earthquake,which work was not finished until 1903 and required an expenditure on the part of the defendantMatilde Ortiz, of 5,091.52 pesos; that all the collections made up to August 1, 1905, including therent from the stores, amounted to only P3,654.15, and the expenses, to P6,252.32, there being,consequently, a balance of P2,598.17, which divided between the sisters, the plaintiff and thedefendant, would make the latter's share P1,299.08; that, as shown by the papers kept by theplaintiffs, in the year 1891 the defendant Bartolome presented to the plaintiffs a statement insettlements of accounts, and delivered to the person duly authorized by the latter for the purpose,the sum of P2,606.29, which the said settlement showed was owing his principals, from varioussources; that, the defendant Bartolome having been the administrator of the undivided propertyclaimed by the plaintiffs, the latter were owing the former legal remuneration of the percentageallowed by law for administration; and that the defendants were willing to pay the sum of P3,948,one-half of the total value of the said properties, deducting therefrom the amount found to be owingthem by the plaintiffs, and asked that judgment be rendered in their favor to enable them to recoverfrom the latter that amount, together with the costs and expenses of the suit.

The defendants, in their counter claim, repeated each and all of the allegations contained in each ofthe paragraphs of section 10 of their answer; that the plaintiffs were obliged to pay to theadministrator of the said property the remuneration allowed him by law; that, as the revenuescollected by the defendants amounted to no more than P3,654.15 and the expenditures incurred bythem, to P6,252.32, it followed that the plaintiffs owed the defendants P1,299.08, that is one-half ofthe difference between the amount collected from and that extended on the properties, and askedthat judgment be therefore rendered in their behalf to enable them to collect this sum from the

plaintiffs, Ricardo Pardell and Vicenta Ortiz, with legal interest thereon from December 7, 1904, thedate when the accounts were rendered, together with the sums to which the defendant Bartolomewas entitled for the administration of the undivided properties in question.

By a written motion of August 21, 1905, counsel for the plaintiffs requested permission to amend thecomplaint by inserting immediately after the words "or respective appraisal," fifth line of paragraph 5,the phrase "in cash in accordance with the assessed value," and likewise further to amend the same,in paragraph 6 thereof, by substituting the following word in lieu of the petition for the remedy sought:"By reason of all the foregoing, I beg the court to be pleased to render the judgment by sentencingthe defendants, Gaspar de Bartolome and Matilde Ortiz Felin de Bartolome, to restore and deliver tothe plaintiffs an exact one-half of the total vale of the undivided properties described in thecomplaint, such value to be ascertained by the expert appraisal of two competent persons, one ofwhom shall be appointed by the plaintiffs and the other by the defendants, and, in case ofdisagreement between these two appointees such value shall be determined by a third expertappraiser appointed by the court, or, in a proper case, by the price offered at public auction; or, inlieu thereof, it is requested that the court recognize the plaintiff, Vicenta Ortiz, to be vested with a fulland absolute right to an undivided one-half of the said properties; furthermore, it is prayed that theplaintiffs be awarded an indemnity of P8,000 for losses and damages, and the costs."Notwithstanding the opposition of the defendants, the said amendment was admitted by the courtand counsel for the defendants were allowed to a period of three days within which to present a newanswer. An exception was taken to this ruling.


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The proper proceedings were had with reference to the valuation of the properties concerned in thedivision sought and incidental issues were raised relative to the partition of some of them and theiraward to one or the other of the parties. Due consideration was taken of the averments andstatements of both parties who agreed between themselves, before the court, that any of them mightat any time acquire, at the valuation fixed by the expert judicial appraiser, any of the properties inquestion, there being none in existence excluded by the litigants. The court, therefore, by order of

December 28, 1905, ruled that the plaintiffs were entitled to acquire, at the valuation determined bythe said expert appraiser, the building known as La Quinta , the lot on which it stands and thewarehouses and other improvements comprised within the inclosed land, and the seeds landssituated in the pueblos of Vigan and Santa Lucia; and that the defendants were likewise entitled toacquire the house on Calle Escolta, the lot on Calle Magallanes, and the three parcels of landsituated in the pueblo of Candon.

After this partition had been made counsel for the defendants, by a writing of March 8, 1906, setforth: That, having petitioned for the appraisement of the properties in question for the purpose oftheir partition, it was not to be understood that he desired from the exception duly entered to theruling made in the matter of the amendment to the complaint; that the properties retained by thedefendants were valued at P9,310, and those retained by the plaintiffs, at P2,885, one-half of whichamounts each party had to deliver to the other, as they were pro indiviso properties; that, therefore,the defendants had to pay the plaintiffs the sum of P3,212.50, after deducting the amount which theplaintiffs were obliged to deliver to the defendants, as one-half of the price of the properties retainedby the former; that, notwithstanding that the amount of the counterclaim for the expenses incurred inthe reconstruction of the pro indiviso property should be deducted from the sum which thedefendants had to pay the plaintiffs, the former, for the purpose of bringing the matter of the partitionto a close, would deliver to the latter, immediately upon the signing of the instrument of purchaseand sale, the sum of P3,212.50, which was one-half of the value of the properties alloted to thedefendants; such delivery, however, was not to be understood as a renouncement of the saidcounterclaim, but only as a means for the final termination of the pro indiviso status of the property.

The case having been heard, the court on October 5, 1907, rendered judgment holding that therevenues and the expenses were compensated by the residence enjoyed by the defendant party,

that no losses or damages were either caused or suffered, nor likewise any other expense besidesthose aforementioned, and absolved the defendants from the complaint and the plaintiffs from thecounterclaim, with no special finding as to costs. An exception was taken to this judgment bycounsel for the defendants who moved for a new trial on the grounds that the evidence presenteddid not warrant the judgment rendered and that the latter was contrary to law. This motion wasdenied, exception whereto was taken by said counsel, who filed the proper bill of exceptions, and thesame was approved and forwarded to the clerk of this court, with a transcript of the evidence.

Both of the litigating sisters assented to a partition by halves of the property left in her will by theirmother at her death; in fact, during the course of this suit, proceedings were had, in accordance withthe agreement made, for the division between them of the said hereditary property of commonownership, which division was recognized and approved in the findings of the trial court, as shownby the judgment appealed from.

The issues raised by the parties, aside from said division made during the trial, and which have beensubmitted to this court for decision, concern: (1) The indemnity claimed for losses and damages,which the plaintiffs allege amount to P8,000, in addition to the rents which should have been derivedfrom the house on Calle Escolta, Vigan; (2) the payment by the plaintiffs to the defendants of thesum of P1,299.08, demanded by way of counterclaim, together with legal interest thereon fromDecember 7, 1904; (3) the payment to the husband of the defendant Matilde Ortiz, of a percentageclaimed to be due him as the administrator of the property of common ownership; (4) the division ofcertain jewelry in the possession of the plaintiff Vicenta Ortiz; and (5) the petition that the


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amendment be held to have been improperly admitted, which was made by the plaintiffs in theirwritten motion of August 21, 1905, against the opposition of the defendants, through whichadmission the latter were obliged to pay the former P910.50. lawphil.net

Before entering upon an explanation of the propriety or impropriety of the claims made by bothparties, it is indispensable to state that the trial judge, in absolving the defendants from thecomplaint, held that they had not caused losses and damages to the plaintiffs, and that the revenuesand the expenses were compensated, in view of the fact that the defendants had been living forseveral years in the Calle Escolta house, which was pro indiviso property of joint ownership.

By this finding absolving the defendants from the complaint, and which was acquiesced in by theplaintiffs who made no appeal therefrom,the first issue has been decided which was raised by theplaintiffs, concerning the indemnity for losses and damages, wherein are comprised the rents whichshould have been obtained from the upper story of the said house during the time it was occupied bythe defendants, Matilde Ortiz and her husband, Gaspar de Bartolome.

Notwithstanding the acquiescence on the part of the plaintiffs, assenting to the said finding wherebythe defendants were absolved from the complaint, yet, as such absolution is based on the

compensation established in the judgment of the trial court, between the amounts which each partyis entitled to claim from the other, it is imperative to determine whether the defendant Matilde Ortiz,as coowner of the house on Calle Escolta, was entitled, with her husband, to reside therein, withoutpaying to her coowner, Vicenta Ortiz, who, during the greater part of the time, lived with her husbandabroad, one-half of the rents which the upper story would have produced, had it been rented to astranger.

Article 394 of the Civil Code prescribes:

Each coowner may use the things owned in common, provided he uses them in accordancewith their object and in such manner as not to injure the interests of the community norprevent the coowners from utilizing them according to their rights.

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

Each coowner of realty held pro indiviso exercises his rights over the whole property and may useand enjoy the same with no other limitation than that he shall not injure the interests of his coowners,for the reason that, until a division be made, the respective part of each holder can not bedetermined and every one of the coowners exercises, together with his other coparticipants, jointownership over the pro indiviso property, in addition to his use and enjoyment of the same.

As the hereditary properties of the joint ownership of the two sisters, Vicenta Ortiz, plaintiff, andMatilde Ortiz, defendant, were situated in the Province of Ilocos Sur, and were in the care of the lastnamed, assisted by her husband, while the plaintiff Vicenta with her husband was residing outside ofthe said province the greater part of the time between 1885 and 1905, when she left these Islandsfor Spain, it is not at all strange that delays and difficulties should have attended the efforts made tocollect the rents and proceeds from the property held in common and to obtain a partition of thelatter, especially during several years when, owing to the insurrection, the country was in a turmoil;and for this reason, aside from that founded on the right of coownership of the defendants, who tookupon themselves the administration and care of the properties of joint tenancy for purposes of their


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preservation and improvement, these latter are not obliged to pay to the plaintiff Vicenta one-half ofthe rents which might have been derived from the upper of the story of the said house on CalleEscolta, and, much less, because one of the living rooms and the storeroom thereof were used forthe storage of some belongings and effects of common ownership between the litigants. Thedefendant Matilde, therefore, in occupying with her husband the upper floor of the said house, didnot injure the interests of her coowner, her sister Vicenta, nor did she prevent the latter from living

therein, but merely exercised a legitimate right pertaining to her as coowner of the property.Notwithstanding the above statements relative to the joint-ownership rights which entitled thedefendants to live in the upper story of the said house, yet in view of the fact that the record shows itto have been proved that the defendant Matilde's husband, Gaspar de Bartolome, occupied for fouryears a room or a part of the lower floor of the same house on Calle Escolta, using it as an office forthe justice of the peace, a position which he held in the capital of that province, strict justice, requiresthat he pay his sister-in-law, the plaintiff, one half of the monthly rent which the said quarters couldhave produced, had they been leased to another person. The amount of such monthly rental is fixedat P16 in accordance with the evidence shown in the record. This conclusion as to Bartolome'sliability results from the fact that, even as the husband of the defendant coowner of the property, hehad no right to occupy and use gratuitously the said part of the lower floor of the house in question,where he lived with his wife, to the detriment of the plaintiff Vicenta who did not receive one-half ofthe rent which those quarters could and should have produced, had they been occupied by astranger, in the same manner that rent was obtained from the rooms on the lower floor that wereused as stores. Therefore, the defendant Bartolome must pay to the plaintiff Vicenta P384, that is,one-half of P768, the total amount of the rents which should have been obtained during four yearsfrom the quarters occupied as an office by the justice of the peace of Vigan.

With respect to the second question submitted for decision to this court, relative to the payment ofthe sum demanded as a counterclaim, it was admitted and proved in the present case that, as aresult of a serious earthquake on August 15, 1897, the said house on Calle Escolta was left in ruinsand uninhabitable, and that, for its reconstruction or repair, the defendants had to expend the sum ofP6,252.32. This expenditure, notwithstanding that it was impugned, during the trial, by the plaintiffs,was duly proved by the evidence presented by the defendants. Evidence, unsuccessfully rebutted,

was also introduced which proved that the rents produced by all the rural and urban properties ofcommon ownership amounted, up to August 1, 1905, to the sum of P3,654.15 which, being appliedtoward the cost of the repair work on the said house, leaves a balance of P2,598.17, the amountactually advanced by the defendants, for the rents collected by them were not sufficient for thetermination of all the work undertaken on the said building, necessary for its complete repair and toreplace it in a habitable condition. It is therefore lawful and just that the plaintiff Vicenta Ortiz, whowas willing to sell to her sister Matilde for P1,500, her share in the house in question, when it was ina ruinous state, should pay the defendants one-half of the amount expanded in the said repair work,since the building after reconstruction was worth P9,000, according to expert appraisal.Consequently, the counterclaim made by the defendants for the payment to them of the sum ofP1,299.08, is a proper demand, though from this sum a reduction must be made of P384, theamount of one-half of the rents which should have been collected for the use of the quartersoccupied by the justice of the peace, the payment of which is incumbent upon the husband of thedefendant Matilde, as aforesaid, and the balance remaining, P915.08, is the amount which theplaintiff Vicenta must pay to the defendants.

The defendants claim to be entitled to the collection of legal interest on the amount of thecounterclaim, from December 7, 1904. This contention can not be sustained, inasmuch as, until thissuit is finally decided, it could not be known whether the plaintiffs would or would not be obliged topay the sum whatever in reimbursement of expenses incurred by the plaintiffs in the repair work onthe said house on Calle Escolta, whether or not the defendants, in turn, were entitled to collect anysuch amount, and, finally, what the net sum would be which the plaintiff's might have to pay as


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reimbursement for one-half of the expenditure made by the defendants. Until final disposal of thecase, no such net sum can be determined, nor until then can the debtor be deemed to be in arrears.In order that there be an obligation to pay legal interest in connection with a matter at issue betweenthe parties, it must be declared in a judicial decision from what date the interest will be due on theprincipal concerned in the suit. This rule has been established by the decisions of the supreme courtof Spain, in reference to articles 1108, 1109, and 1110 of the Civil Code, reference on April 24,

1867, November 19, 1869, and February 22, 1901.With regard to the percentage, as remuneration claimed by the husband of the defendant Matilde forhis administration of the property of common ownership, inasmuch as no stipulation whatever wasmade in the matter by and between him and his sister-in-law, the said defendant, the claimant is notentitled to the payment of any remuneration whatsoever. Of his own accord and as an officiousmanager, he administered the said pro indiviso property, one-half of which belonged to his wife whoheld it in joint tenancy, with his sister-in-law, and the law does not allow him any compensation assuch voluntary administrator. He is merely entitled to a reimbursement for such actual andnecessary expenditures as he may have made on the undivided properties and an indemnity for thedamages he may have suffered while acting in that capacity, since at all events it was his duty tocare for and preserve the said property, half of which belonged to his wife; and in exchange for thetrouble occasioned him by the administration of his sister-in-law's half of the said property, he withhis wife resided in the upper story of the house aforementioned, without payment of one-half of therents said quarters might have produced had they been leased to another person.

With respect to the division of certain jewelry, petitioned for by the defendants and appellants only intheir brief in this appeal, the record of the proceedings in the lower court does not show that theallegation made by the plaintiff Vicenta is not true, to the effect that the deceased mother of thelitigant sisters disposed of this jewelry during her lifetime, because, had she not done so, the willmade by the said deceased would have been exhibited in which the said jewelry would have beenmentioned, at least it would have been proved that the articles in question came into the possessionof the plaintiff Vicenta without the expressed desire and the consent of the deceased mother of thesaid sisters, for the gift of this jewelry was previously assailed in the courts, without success;therefore, and in view of its inconsiderable value, there is no reason for holding that the said gift was

not made. As regards the collection of the sum of P910.50, which is the difference between the assessed valueof the undivided real properties and the price of the same as determined by the judicial expertappraiser, it is shown by the record that the ruling of the trial judge admitting the amendment to theoriginal complaint, is in accord with the law and principles of justice, for the reason that any of thecoowners of a pro indiviso property, subject to division or sale, is entitled to petition for its valuationby competent expert appraisers. Such valuation is not prejudicial to any of the joint owners, but isbeneficial to their interests, considering that, as a general rule, the assessed value of a building or aparcel of realty is less than the actual real value of the property, and this being appraiser todetermine, in conjunction with the one selected by the plaintiffs, the value of the properties of jointownership. These two experts took part in the latter proceedings of the suit until finally, and duringthe course of the latter, the litigating parties agreed to an amicable division of the proindiviso hereditary property, in accordance with the price fixed by the judicial expert appraiserappointed as a third party, in view of the disagreement between and nonconformity of the appraiserschosen by the litigants. Therefore it is improper now to claim a right to the collection of the said sum,the difference between the assessed value and that fixed by the judicial expert appraiser, for thereason that the increase in price, as determined by this latter appraisal, redounded to the benefit ofboth parties.

In consideration of the foregoing, whereby the errors assigned to the lower court have been dulyrefuted, it is our opinion that, with a partial reversal of the judgment appealed from, in so far as it


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absolves the plaintiffs from the counterclaim presented by the defendants, we should and hereby dosentence the plaintiffs to the payment of the sum of P915.08, the balance of the sum claimed by thedefendants as a balance of the one-half of the amount which the defendants advanced for thereconstruction or repair of the Calle Escolta house, after deducting from the total of such sumclaimed by the latter the amount of P384 which Gaspar de Bartolome, the husband of the defendantMatilde, should have paid as one-half of the rents due for his occupation of the quarters on the lower

floor of the said house as an office for the justice of the peace court of Vigan; and we further find: (1)That the defendants are not obliged to pay one-half of the rents which could have been obtainedfrom the upper story of the said house; (2) that the plaintiffs can not be compelled to pay the legalinterest from December 7, 1904, on the sum expanded in the reconstruction of the aforementionedhouse, but only the interest fixed by law, at the rate of 6 per cent per annum, from the date of the

judgment to be rendered in accordance with this decision; (3) that the husband of the defendantMatilde Ortiz is not entitled to any remuneration for the administration of the pro indiviso propertybelonging to both parties; (4) that, neither is he entitled to collect from the plaintiffs the sum ofP910.50, the difference between the assessed valuation and the price set by the expert appraisalsolicited by the plaintiffs in their amendment to the complaint; and, (5) that no participation shall bemade of jewelry aforementioned now in the possession of the plaintiff Vicenta Ortiz. The said

judgment, as relates to the points appealed, is affirmed, in so far as its findings agree with those ofthis decision, and is reversed, in so far as they do not. No special finding is made regarding thecosts of both instances. So ordered.

Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur.

G.R. No. 76351 October 29, 1993

VIRGILIO B. AGUILAR,petitioner,vs.COURT OF APPEALS and SENEN B. AGUILAR,respondents.

Jose F. Manacop for petitioner.

Siruello, Muyco & Associates Law Office for private respondent.

BELLOSILLO,J .:

This is a petition for review oncertiorari seeking to reverse and set aside the Decision of the Court of Appeals in CA-GR CV No. 03933 declaring null and void the orders of 23 and 26 April, 1979, the judgment by default of 26 July 1979, and the order of 22 October 1979 of the then Court of First


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Instance of Rizal, Pasay City, Branch 30, and directing the trial court to set the case for pre-trialconference.

Petitioner Virgilio and respondent Senen are brothers; Virgilio is the youngest of seven (7) childrenof the late Maximiano Aguilar, while Senen is the fifth. On 28 October 1969, the two brotherspurchased a house and lot in Paraaque where their father could spend and enjoy his remainingyears in a peaceful neighborhood. Initially, the brothers agreed that Virgilio's share in the co-ownership was two-thirds while that of Senen was one-third. By virtue of a written memorandumdated 23 February 1970, Virgilio and Senen agreed that henceforth their interests in the house andlot should be equal, with Senen assuming the remaining mortgage obligation of the original ownerswith the Social Security System (SSS) in exchange for his possession and enjoyment of the housetogether with their father.

Since Virgilio was then disqualified from obtaining a loan from SSS, the brothers agreed that thedeed of sale would be executed and the title registered in the meantime in the name of Senen. Itwas further agreed that Senen would take care of their father and his needs since Virgilio and hisfamily were staying in Cebu.

After Maximiano Aguilar died in 1974, petitioner demanded from private respondent that the lattervacate the house and that the property be sold and proceeds thereof divided among them.

Because of the refusal of respondent to give in to petitioner's demands, the latter filed on 12 January1979 an action to compel the sale of the house and lot so that the they could divide the proceedsbetween them.

In his complaint, petitioner prayed that the proceeds of the sale, be divided on the basis of two-thirds(2/3) in his favor and one-third (1/3) to respondent. Petitioner also prayed for monthly rentals for theuse of the house by respondent after their father died.

In his answer with counterclaim, respondent alleged that he had no objection to the sale as long asthe best selling price could be obtained; that if the sale would be effected, the proceeds thereofshould be divided equally; and, that being a co-owner, he was entitled to the use and enjoyment ofthe property.

Upon issues being joined, the case was set for pre-trial on 26 April 1979 with the lawyers of bothparties notified of the pre-trial, and served with the pre-trial order, with private respondent executinga special power of attorney to his lawyer to appear at the pre-trial and enter into any amicablesettlement in his behalf. 1

On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel for respondent, filed a motion to cancel pre-trial on the ground that he would be accompanying his wife to Dumaguete City where she would bea principal sponsor in a wedding.

On 23 April 1979, finding the reasons of counsel to be without merit, the trial court denied the motionand directed that the pre-trial should continue as scheduled.

When the case was called for pre-trial as scheduled on 26 April 1979, plaintiff and his counselappeared. Defendant did not appear; neither his counsel in whose favor he executed a specialpower of attorney to represent him at the pre-trial. Consequently, the trial court, on motion of plaintiff,declared defendant as in default and ordered reception of plaintiff's evidence ex parte .


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On 7 May 1979, defendant through counsel filed an omnibus motion to reconsider the order ofdefault and to defer reception of evidence. The trial court denied the motion and plaintiff presentedhis evidence.

On 26 July 1979, rendering judgment by default against defendant, the trial court found him andplaintiff to be co-owners of the house and lot, in equal shares on the basis of their written agreement.However, it ruled that plaintiff has been deprived of his participation in the property by defendant'scontinued enjoyment of the house and lot, free of rent, despite demands for rentals and continuedmaneuvers of defendants, to delay partition. The trial court also upheld the right of plaintiff as co-owner to demand partition. Since plaintiff could not agree to the amount offered by defendant for theformer's share, the trial court held that this property should be sold to a third person and theproceeds divided equally between the parties.

The trial court likewise ordered defendant to vacate the property and pay plaintiff P1,200.00 asrentals 2 from January 1975 up to the date of decision plus interest from the time the action was filed.

On 17 September 1979, defendant filed an omnibus motion for new trial but on 22 October 1979 thetrial court denied the motion.

Defendant sought relief from the Court of Appeals praying that the following orders and decision ofthe trial court be set aside: (a) the order of 23 April 1970 denying defendants motion forpostponement of the pre-trial set on 26 April 1979; (b) the order of 26 April 1979 declaring him indefault and authorizing plaintiff to present his evidence ex-parte ; (e) the default judgment of 26 July1979; and, (d) the order dated 22 October 1979 denying his omnibus motion for new trial.

On 16 October 1986, the Court of Appeals set aside the order of the trial court of 26 April 1979 aswell as the assailed judgment rendered by default., The appellate court found the explanation ofcounsel for defendant in his motion to cancel pre-trial as satisfactory and devoid of a manifestintention to delay the disposition of the case. It also ruled that the trial court should have granted themotion for postponement filed by counsel for defendant who should not have been declared as indefault for the absence of his counsel.

Petitioner now comes to us alleging that the Court of Appeals erred (1) in not holding that the motionof defendant through counsel to cancel the pre-trial was dilatory in character and (2) in remandingthe case to the trial court for pre-trial and trial.

The issues to be resolved are whether the trial court correctly declared respondent as in default forhis failure to appear at the pre-trial and in allowing petitioner to present his evidenceex-parte , andwhether the trial court correctly rendered the default judgment against respondent.

We find merit in the petition.

As regards the first issue, the law is clear that the appearance of parties at the pre-trial ismandatory. 3 A party who fails to appear at a pre-trial conference may be non-suited or considered as indefault. 4 In the case at bar, where private respondent and counsel failed to appear at the scheduled pre-trial, the trial, court has authority to declare respondent in default. 5

Although respondent's counsel filed a motion to postpone pre-trial hearing, the grant or denialthereof is within the sound discretion of the trial court, which should take into account two factors inthe grant or denial of motions for postponement, namely: (a) the reason for the postponement and(b) the merits of the case of movant. 6


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In the instant case, the trial court found the reason stated in the motion of counsel for respondent tocancel the pre-trial to be without merit. Counsel's explanation that he had to go to by boat as early as25 March 1979 to fetch his wife and accompany her to a wedding in Dumaguete City on 27 April1979 where she was one of the principal sponsors, cannot be accepted. We find it insufficient to

justify postponement of the pre-trial, and the Court of Appeals did not act wisely in overruling thedenial. We sustain the trial court and rule that it did not abuse its discretion in denying the

postponement for lack of merit. Certainly, to warrant a postponement of a mandatory process as pre-trial would require much more than mere attendance in a social function. It is time indeed weemphasize that there should be much more than mere perfunctory treatment of the pre-trialprocedure. Its observance must be taken seriously if it is to attain its objective, i.e., the speedy andinexpensive disposition of cases.

Moreover, the trial court denied the motion for postponement three (3) days before the scheduledpre-trial. If indeed, counsel for respondent could not attend the pre-trial on the scheduled date,respondent at least should have personally appeared in order not to be declared as in default. But,since nobody appeared for him, the order of the trial court declaring him as in default and directingthe presentation of petitioner's evidence ex parte was proper. 7

With regard to the merits of the judgment of the trial court by default, which respondent appellatecourt did not touch upon in resolving the appeal, the Court holds that on the basis of the pleadings ofthe parties and the evidence presented ex parte , petitioner and respondents are co-owners ofsubject house and lot in equal shares; either one of them may demand the sale of the house and lotat any time and the other cannot object to such demand; thereafter the proceeds of the sale shall bedivided equally according to their respective interests.

Private respondent and his family refuse to pay monthly rentals to petitioner from the time theirfather died in 1975 and to vacate the house so that it can be sold to third persons. Petitioner allegesthat respondent's continued stay in the property hinders its disposal to the prejudice of petitioner. Onthe part of petitioner, he claims that he should be paid two-thirds (2/3) of a monthly rental ofP2,400.00 or the sum of P1,600.00.

In resolving the dispute, the trial court ordered respondent to vacate the property so that it could besold to third persons and the proceeds divided between them equally, and for respondent to paypetitioner one-half (1/2) of P2,400.00 or the sum of P1,200.00 as monthly rental, conformably withtheir stipulated sharing reflected in their written agreement.

We uphold the trial court in ruling in favor of petitioner, except as to the effectivity of the payment ofmonthly rentals by respondent as co-owner which we here declare to commence only after the trialcourt ordered respondent to vacate in accordance with its order of 26 July 1979.

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

the thing is essentially, indivisible and the co-owners cannot agree that it be, allotted to one of themwho shall indemnify the others, it shall be sold and its proceeds accordingly distributed. This isresorted to (1) when the right to partition the property is invoked by any of the co-owners butbecause of the nature of the property it cannot be subdivided or its subdivision would prejudice theinterests of the co-owners, and (b) the co-owners are not in agreement as to who among them shallbe allotted or assigned the entire property upon proper reimbursement of the co-owners. In onecase, 8 this Court upheld the order of the trial court directing the holding of a public sale of the propertiesowned in common pursuant to Art. 498 of the Civil Code.


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However, being a co-owner respondent has the right to use the house and lot without paying anycompensation to petitioner, as he may use the property owned in common long as it is inaccordance with the purpose for which it is intended and in a manner not injurious to the interest ofthe other co-owners. 9 Each co-owner of property held pro indiviso exercises his rights over the wholeproperty and may use and enjoy the same with no other limitation than that he shall not injure theinterests of his co-owners, the reason being 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 ownershipover the pro indiviso property, in addition to his use and enjoyment of thesame. 10

Since petitioner has decided to enforce his right in court to end the co-ownership of the house andlot and respondent has not refuted the allegation that he has been preventing the sale of theproperty by his continued occupancy of the premises,

justiceand equity demand that respondent and his family vacate the property so that the sale can be effected

immediately. In fairness to petitioner, respondent should pay a rental of P1,200.00 per month, with legalinterest; from the time the trial court ordered him to vacate, for the use and enjoyment of the other half ofthe property appertaining to petitioner.

When petitioner filed an action to compel the sale of the property and the trial court granted thepetition and ordered the ejectment of respondent, the co-ownership was deemed terminated and theright to enjoy the possession jointly also ceased. Thereafter, the continued stay of respondent andhis family in the house prejudiced the interest of petitioner as the property should have been soldand the proceeds divided equally between them. To this extent and from then on, respondent shouldbe held liable for monthly rentals until he and his family vacate.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 16October 1986 is REVERSED and SET ASIDE. The decision of the trial court in Civil Case No. 69.12-P dated 16 July 1979 is REINSTATED, with the modification that respondent Senen B. Aguilar isordered to vacate the premises in question within ninety (90) days from receipt of this and to pay

petitioner Virgilio B. Aguilar a monthly rental of P1,200.00 with interest at the legal rate from the timehe received the decision of the trial court directing him to vacate until he effectively leaves thepremises.

The trial court is further directed to take immediate steps to implement this decision conformably with Art. 498 of the Civil Code and the Rules of Court. This decision is final and executory.

SO ORDERED.

Cruz, Davide, Jr., Quiason, JJ., concur.

G.R. No. 78178 April 15, 1988

DELIA 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.


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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 ornot 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 of lis pendens on 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 OriginalCertificate of Title No. 1771 issued on June 12, 1931, in the names of Rosalia, Gaudencio, SabinaBernabe, Nenita and Delia, all surnamed Bailon, as co-owners, each with a 1/6 share. Gaudencioand Nenita are now dead, the latter being represented in this case by her children. Luz, Emma andNilda. Bernabe went to China in 1931 and had not been heard from since then [Decision of the Courtof Appeals, Rollo, p. 39].

It appears that on August 23, 1948, Rosalia Bailon and Gaudencio Bailon sold a portion of the saidland consisting of 16,283 square meters to Donato Delgado. On May 13, 1949, Rosalia Bailon alonesold the remainder of the land consisting of 32,566 square meters to Ponciana V. Aresgado deLanuza. On the same date, Lanuza acquired from Delgado the 16,283 square meters of land whichthe latter had earl

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